August 12, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAYSOUN DANDIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. BMA-009-07-087.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2009
Before Judges R. B. Coleman and Graves.
Defendant Maysoun Dandis appeals from an August 27, 2008, order of the Law Division, Bergen County, finding her guilty of shoplifting, in violation of N.J.S.A. 2C:20-11(b)(3). After reviewing the entire record in light of the contentions advanced on appeal, we affirm.
At defendant's municipal court trial on April 25, 2007, the State produced two witnesses: Carrie Ann Page, the loss prevention manager for Lord & Taylor at the Garden State Plaza, and Cynthia Barcia, who was also employed by Lord & Taylor. Ms. Page testified that on July 27, 2006, at approximately 4:24 p.m., while performing her duties as loss prevention manager, she began watching defendant from inside Lord & Taylor's camera room. While monitoring defendant, Ms. Page saw her switch the price tag from one item to another item, so that a lesser price tag was on the more expensive item. According to Ms. Page, defendant switched a $15.98 price tag from a fifty percent off clearance item to a pair of beige Capri pants, and paid $7.99 for the Capri pants, which were selling for $118. The events that Ms. Page observed were recorded, and the videotapes were admitted into evidence as S-1 and S-2.
Defendant did not testify at her trial, and she did not produce any witnesses. In his closing statement to the court, defense counsel argued the State did not prove its case beyond a reasonable doubt because the "video does not clearly identify Ms. Dandis switching tickets from this blouse to these pants."
The findings of fact by the municipal court judge included the following:
I observed the defendant, who is identified as Ms. Dandis, on the video looking at several items of merchandise. I observed her carrying what appeared to be a black blouse and I also observed her select and carry what appeared to be or later identified as Capri pants.
It appears from the video that Ms. Dandis had the pants below the black blouse and holding in her hands in front of her. And the video clearly shows the movement of hands under those garments in such a manner to be more than just simply holding the articles. It does appear that she is either fumbling or fiddling or doing something with her hands while the hands are concealed below those garments.
I observed that the defendant did move about the store and the selection of the pants were from a different section of the store from the blouse, although, it is not clear from the video which is the clearance section and which is the section for Capri pants. The video clearly shows the defendant going to a cashier with what appeared to be beige pants and paying for that article of clothing. The video does not show anything other than the one article being rung up.
Having reviewed the testimony of the two witnesses and looking at the videotape as well as the other documentary evidence presented here, it is clear to me that the defendant did select some items as testified to by Ms. Page and as shown on the video.
As indicated, I clearly observed some fumbling [or] fiddling with her hands below the garments. There is really no credible explanation as to how the price tag of $15.98 would have been placed on the Capri pants which were purchased by the defendant other than the defendant doing that herself.
Although there is circumstantial evidence here, I think, I find that putting all of the circumstantial evidence together shows beyond a reasonable doubt that the defendant switched the ticket from the black blouse as shown on the video onto the Capri pants.
The findings by the municipal court judge also included the following:
I also find that although the defendant may be bilingual, I have had the opportunity to observe her in court. She conversed with me regarding her objection to proceeding tonight in English and I was able to understand what she had to say with regard to her current medical situation.
And I find that she does have the command of the English language to the extent that she was able to understand what was going on that day, what she was being told and what was being communicated to her.
On de novo review in the Law Division, defense counsel argued that defendant received ineffective assistance of counsel because her municipal court attorney failed to subpoena defendant's treating psychologist "to testify as to her state of mind and mental condition" to refute "the mens rea" and to testify regarding the treatment she had received and the progress she had made. Counsel also argued that even if defendant "could understand what the translator on the phone . . . was saying," defendant was "basically incapable of assisting in her defense." In an oral decision on August 27, 2008, the Law Division judge rejected these arguments.
On appeal to this court, defendant presents the following arguments:
THE SUPERIOR COURT ERRED WHEN IT DENIED APPELLANT'S ARGUMENT THAT SHE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE THE PSYCHOLOGIST'S TESTIMONY WAS DIRECTLY RELEVANT TO REBUT THE STATE'S BURDEN TO PROVE APPELLANT'S REQUISITE STATE OF MIND AND FAILURE TO SUBPOENA THAT WITNESS WAS OBJECTIVELY UNREASONABLE AND PREJUDICIAL TO APPELLANT.
A. STANDARD OF REVIEW.
B. TRIAL COUNSEL'S PERFORMANCE WAS CONSTITUTIONALLY INEFFECTIVE BECAUSE COUNSEL'S UNREASONABLE FAILURE TO PRODUCE AN EXPERT WITNESS PREJUDICED THE OUTCOME OF HER TRIAL AND RESULTED IN HER CONVICTION.
THE SUPERIOR COURT ERRED WHEN IT HELD THAT APPELLANT COULD NOT HAVE PROPERLY RAISED "CONTRADICTORY" DEFENSES WHEN INCONSISTENT DEFENSES ARE A LEGALLY RECOGNIZED THEORY OF DEFENSE.
APPELLATE COUNSEL'S REPRESENTATION ON APPEAL WAS CONSTITUTIONALLY INEFFECTIVE BECAUSE HE BASED HIS ARGUMENT ON A DEFENSE THEORY, LATER ADOPTED BY THE COURT, WHICH HAD NO FOUNDATION IN LAW OR IN FACT.
THE SUPERIOR COURT ERRED IN FINDING THAT THE PSYCHOLOGICAL REPORTS SUBMITTED ON APPEAL WOULD HAVE MADE NO DIFFERENCE BECAUSE IRRESISTIBLE IMPULSE IS NOT RECOGNIZED BY NEW JERSEY.
Based on our review of the entire record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). Accordingly, we affirm defendant's conviction and her sentence with only the following comments.
To successfully argue trial counsel did not provide the level of assistance required under the Sixth Amendment, a "defendant must show that counsel's performance was deficient" and "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). In the present matter, the Law Division found that it was not unreasonable for defendant's municipal court attorney to provide "a denial defense," and the judge concluded that trial counsel "mounted an adequate defense." We agree. The evidence of defendant's guilt was overwhelming and "[n]either the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). In addition, this was defendant's eighth conviction for shoplifting and, as Judge Lipton noted, "the sentence was a lenient one."
We conclude from our examination of the record that the Law Division's findings are based on sufficient credible evidence, State v. Locurto, 157 N.J. 463, 472 (1999), and that the matter was correctly decided. We therefore affirm defendant's conviction and sentence substantially for the reasons stated by Judge Lipton on August 27, 2008.
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