On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-03-0522.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Ashrafi.
Defendant Irving Alicea appeals his conviction for one count of third-degree shoplifting, N.J.S.A. 2C:20-11(b)(2). Shoplifting is a third-degree offense when the value of the property involved exceeds $500 but is less than $75,000.
N.J.S.A. 2C:20-11(c)(2). He was sentenced to a five-year term of incarceration, in addition to the required fines and penalties. On appeal, Alicea challenges the jury charge with respect to the valuation of the goods he was accused of stealing, arguing that the judge should have molded the facts to the law in the charge. We disagree and affirm.
We glean the following facts from the record. Hernan Castano was a store detective at the Macy's department store in the Paramus Park Mall on December 23, 2004. At about 9:20 p.m., Castano was walking in the young men's department. He received a radio transmission from a security manager, who told him that a person, later identified as Alicea, tried to go into the fitting room but refused to have his items counted. The customer then left the fitting room, but continued to shop. Castano found the behavior suspicious because customers do not ordinarily refuse to have their items counted.
The manager told Castano what the man was wearing and also that he was carrying a Gap shopping bag. As Castano began to walk towards the area, he met up with Luis Jimenez, another detective, and they found Alicea. Castano observed that Alicea had a few items over his left arm and was carrying the Gap bag in his right hand. Castano was able to see a bit of aluminum foil sticking out of the Gap bag. At that point, the bag appeared to be flat and light.
Castano testified that such a bag is known as a "booster bag," which is a method shoplifters employ when they put merchandise in a bag. They line it with aluminum foil. When they walk by the door the alarm won't go off. The signal will be interrupted by the aluminum foil.
They could walk out of the store and we would never - the alarm would never go off.
Castano watched Alicea select items for about five minutes. He went into a fitting room and cleaned it out for Alicea's use. When Alicea went into a fitting room with approximately fifteen items, Castano was able to see and hear him breaking off the sensor tags. He also saw Alicea drop the pliers he was using.
The bag was open on the floor and Castano was able to see that it was totally lined with aluminum foil. Castano saw Alicea fold the items and put them into the bag. Some of the items still had sensor tags. Alicea then picked up some of the debris and put it in the pocket of a pair of pants. When Alicea came out of the fitting room, he went to the register and put two or three items down and told the worker that he "didn't want these items."
After Alicea left the fitting room, Jimenez followed him while Castano went into defendant's stall and checked all the tags and other debris he had left behind. Jimenez informed Castano that Alicea was walking towards the cosmetics department. Alicea passed seven to eight cash registers, but did not attempt to pay for the bag of merchandise he was carrying.
Castano followed Alicea to the exit, where he left the store and entered the main part of the mall. Castano and Jimenez stopped Alicea and handcuffed him. They brought ...