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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...