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State v. Kirkland

July 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL KIRKLAND, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-12-2232.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2009

Before Judges R. B. Coleman and Simonelli.

Following the denial of his motion for a judgment of acquittal, a jury convicted defendant Michael Kirkland of third- degree shoplifting, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-11b(1) (count one); and second-degree employing a juvenile in the commission of a crime (shoplifting), N.J.S.A. 2C:24-9 (count two). The trial judge sentenced defendant to an eight-year term of imprisonment consecutive to a sentence he was then serving on an unrelated offense. The judge also imposed the appropriate assessments and penalty.

On appeal, defendant raises the following contentions:

POINT I.

THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S CHALLENGE TO THE LACK OF RANDOMNESS IN THE COMPOSITION OF TWO JURY PANELS SUMMONED IN THIS CASE WHICH DID NOT CONTAIN ONE AFRICAN AMERICAN IN A COUNTY WITH A SUBSTANTIAL AFRICAN AMERICAN POPULATION.

POINT II.

THE TRIAL COURT ERRED IN FAILING TO DISMISS THE STATE'S CASE FOR FAILURE TO PRESENT A PRIMA FACIE CASE.

POINT III.

IMPOSITION OF THE MAXIMUM TERM WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.

In his pro se supplemental brief, defendant raises the following contentions:

First point raise, is the tape of recording of me entering, and time in store. Fact is, if I was viewed by her on camera, according to her testimony, and also in her testimony she states, the equipment used is multiplex-multistream video, which is recorded as it view. See Part 1, Page 11, 8-15, 16-17, 18-20. Also states viewed bag and seen shorts in bag from monitor view from the live stream video, which records as viewed. Supporting facts see Page 14, 18-25. Page 15, 2-9. Page 17, 21-24. Pg. 25, 11-12. Point and issue raised, if the tape that was submitted to support testimony. Then why was the tape edited and pieces of the recorded tape chopped out. When all pieces/parts that would of showed the criminal acts [alleged] to be clear. Instead the most important parts to prove the state's case is missing, instead of these part of tape, the loss prevention employee testimony injected, in place of missing part of video. In which that testimony has continuous [contradiction]. The state did not prove their case. We should have been able to view the bag, we should have been able to see the shorts in bag as he pass back through the [jewelry] dept. The same as the loss prevention watch from monitor, and stated to have seen from, we should have to, according to the information given in testimony of loss prevention employee. "These are multi media, multiplex, live stream video" meaning as the camera view, they records. Fact is, with the recordings of such, it would be so much clear of a crime taking place. That without it, it is not clear and without a [doubt], that I am guilty of the [alleged] crime.

This [cannot] be ruled as [frivolous] errors. This was a strong point raised, and a strong piece of the state's case, that was used to prove the state's case, and a major part[] to be missing, failed the four prongs of proving beyond a reasonable doubt, but ...


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