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State v. Tiberio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DINO TIBERIO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-01-0182.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 4, 2009

Before Judges Messano and LeWinn.

Defendant Dino Tiberio appeals from the judgment of conviction that followed a jury trial at which he was found guilty of second-degree robbery, N.J.S.A. 2C:15-1. He raises the following issues for our consideration on appeal:

THE COURT ERRED IN ADMITTING COBA'S TESTIMONY THAT THE TYPES OF ITEMS DEFENDANT HAD IN HIS SHOPPING BASKET ARE COMMONLY STOLEN TO BE SOLD ON THE BLACK MARKET.

POINT II

THE COURT ERRED IN INSTRUCTING THE JURY, OVER OBJECTION, AS TO THE PROVISIONS OF THE CIVIL LIABILITY STATUTE.

POINT III

THE TWO TESTIMONIAL REFERENCES TO DEFENDANT'S BEING REPRESENTED BY THE OFFICE OF THE PUBLIC DEFENDER, IN A CASE WHERE HE WAS BEING CHARGED WITH THEFT, DEPRIVED HIM OF A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The State's primary witness at trial was Pathmark "store detective" Mario Coba. He had been employed in that capacity for eight years. On July 9, 2006, Coba was working in the Elmwood Park store. He described the camera system in the store's security office, "Store Vision," that permitted video surveillance of the premises.

At approximately 8:00 p.m., utilizing the camera system, Coba "noticed a male subject[,]" later identified as defendant, acting suspiciously in one of the aisles. He was "removing a quantity of Tylenol and Advils, just cold medicine,... one by one... into [his] basket...." Coba saw defendant look around "mak[ing] sure nobody was watching him." Coba instinctively believed the man "was going right through the doors" without paying for the items.

Coba left the security office, alerted a fellow employee, Louis Sanchez, that he might need assistance, and stopped defendant in the vestibule of the store immediately before the exit door leading to an external sidewalk. He identified himself, displayed his badge, and asked defendant to return to the security office with him because defendant had not paid for the items. Coba "didn't... get to finish th[e] statement," when defendant "gave [him] a stiff arm[,]" dropped the basket, and attempted to flee. However, defendant "went through the wrong door," and Coba was able to apprehend him. Defendant continued to "kick[] and punch[]... and... flail[]" in an attempt to free himself. Ultimately, defendant "calmed down[,]" and told Coba, "I quit."

Coba testified that defendant received a laceration to his forehead in the struggle, and that the sunglasses he had been wearing fell off his face. Defendant had a "black eye" that Coba believed had been there for a few days.

The store surveillance video was played for the jury. Coba identified the items defendant had in his basket as multiple packages of adult and children's Tylenol, children's Motrin, and razor blades. The total value was $132.89.

On cross-examination, Coba was asked why he thought defendant was "suspicious" when first seen on camera. Coba responded it was his "activity," "his sunglasses," and "his movements." Defense counsel also questioned Coba about alleged inconsistencies between his testimony and statements he made during her pre-trial interview of him.

Defense counsel also reviewed Pathmark's training manual with Coba. He acknowledged that contrary to his belief that he could use "a reasonable amount" of force to apprehend someone suspected of shoplifting, the manual specifically advised employees to "release [a] subject immediately" if the situation posed any threat. Coba acknowledged that any "failure to follow the policy subject[ed] not only [him]self but Pathmark to liability." Defense counsel suggested that Coba omitted any mention of the injury to defendant's forehead from his official report because he was "scared of being sued...." In her re-cross, defense counsel again returned to the issue of whether Coba had violated Pathmark policy or had been "written... up for" his actions leading to defendant's arrest.

On re-direct examination, the prosecutor asked Coba about his "observations of th[e] individual... on the video...." The following ensued:

Q: When you first saw him... what about what he was doing drew your attention to him?

A: The things that drew... attention w[ere]... the quantity of items that he was taking and the type of merchandise that he was taking... is a high value and high resale for the black market.... [I]t's just suspicious that whatever he was taking[,] Tylenol and the quantity of it, it's a high sale product out there in the black market to be resold. Wherever it's going to be sold, we don't know....

[I]t's a black market item....

Q: Is that something that you've learned through your training and experience?

A: That's correct.

Q: And is that something that's also in the training manual?

A: It's in the manual and it's a videotape that all trainees watch a special FBI coverage [sic] of every item that's in the black market that's sold from... supermarkets, from retail stores. We are trained on that.

The prosecutor drew Coba's attention to the cross-examination concerning "previous conversations... [he] had with [defense counsel]." Coba recalled "me[e]t[ing] a couple of times with the public defender in her office." Defense counsel immediately asked for a sidebar, which was not transcribed. The jury was excused, and the attorneys attempted to agree upon language that Coba could repeat in front of the jury.*fn1 However, for reasons unexplained by the transcript, out of the presence of the jury, the prosecutor simply instructed Coba not to refer to defense counsel, or her investigator, as employees of the public defender's office. There was no further objection from defendant or any request for a curative instruction, and Coba uneventfully completed his testimony before the jury.

Sanchez testified that Coba called him, notified him of his suspicions regarding defendant, and asked for his assistance. Sanchez saw defendant as he was about to exit the store, and, when Coba showed his badge, defendant "threw [his] basket[] to the floor... pushed [Coba] and... tried to head to the door to go out." Coba and Sanchez grabbed defendant who was "still kicking."

On cross-examination and re-cross-examination, defense counsel asked Sanchez about his knowledge of Pathmark's employee manual and procedures. She asked Sanchez, who earlier testified that he left Pathmark because it conflicted with his college schedule, if he "quit" "because [he] w[as] concerned that [he] w[as] going to get in trouble or [be] sued... [.] Sanchez denied that was the case.

The State rested after calling its final witness, Elmwood Park police officer Thomas Giammanco who responded to the Pathmark store and formally arrested defendant. Defendant did not testify or call any witnesses on his behalf.

II.

(a)

Before the trial began, defendant moved in limine to bar any testimony by Coba regarding the nature of the items defendant placed in his shopping basket. Although no hearing was held pursuant to N.J.R.E. 104, the transcript reveals that the issue had been fully briefed by both sides, and the motion was argued extensively before the judge.

Defendant contended that any testimony regarding the items being valuable on the "black market" was unduly prejudicial, "speculative," and should be excluded under N.J.R.E. 403. The State countered by arguing that Coba's "training and experience" led him to "flag[]... that kind of behavior in the store...." The prosecutor contended that the nature of the items defendant placed in his basket provided a "basis for [Coba] to have some suspicion about [defendant's] conduct... and... justified [Coba]... following [defendant] through the closed circuit TV and watch what he continued to do throughout the store." The prosecutor further argued that excluding the evidence would permit the jury to "speculate as to... why... Coba [would] look at this particular patron to the exclusion of all others." Despite noting that Coba was relying upon his training and experience in considering defendant's actions, the prosecutor denied "this type of knowledge [wa]s specialized expert testimony...."

In denying defendant's motion in limine, the judge reasoned,

[Coba] [sh]ould be allowed to testify[,] assuming he c[ould] lay a necessary foundation as to his training and experience[,] why someone might be more apt to steal[] these types of items. I think he can testify to it because it may be a factor in what attracted his attention to the defendant, and I think it would also diffuse any speculation that perhaps any resulting apprehension of the defendant was not random or arbitrary.

The judge continued that defendant would be permitted to "undercut... Coba's theory about any so-called black market" by cross-examining about the "legitimate personal uses" for the items.

Defendant argues that Coba was allowed to testify as an expert on the operations of the "black market," that he was unqualified to do so, and that the judge never instructed the jury appropriately as to how it should consider expert testimony. The State contends that Coba's testimony was not "beyond the ken of average jurors," was proper rebuttal of defendant's cross-examination, did not expound upon the operations of the "black market," and, in any event, was of marginal relevance to the legal issues presented.

Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Although the State secured a favorable pre-trial ruling on admissibility, the prosecutor never introduced the concept of "black market" goods during her direct examination of Coba. Instead, after defense counsel cross-examined Coba repeatedly about why he became suspicious of defendant, the prosecutor asked a single question that led to Coba's testimony about a "black market" for certain items defendant was stealing.

While we disagree with the State's assertion that the average juror would have knowledge of the "black market," thus making Coba's comments lay opinion testimony, N.J.R.E. 701, as opposed to expert testimony, N.J.R.E. 702, we do agree that Coba's testimony fell far short of being true expert testimony. For example, he did not describe in any way the operation of the "black market," and why there was such a market for certain items. He specifically eschewed an opinion that defendant was stealing these items for resale on some particular "black market." The only point to the testimony was that it explained why, in part, Coba focused his attention on defendant as a potential shoplifter, an issue that was specifically a subject of cross-examination.

It would be preferable for the judge to have provided a limiting instruction on the issue. However, defendant never requested one. Nonetheless, in light of the substantial evidence of defendant's guilt, the marginal relevance that the issue had to the entire case, and defendant's cross-examination that invited the response in the first instance, we conclude that even if Coba's references to the "black market" should have been excluded from evidence, the error was harmless. See State v. Hunt, 115 N.J. 330, 368 (1989); see also R. 2:10-2.

(b)

The parties agreed that the jury should be charged on the lesser-included offense of shoplifting. During the charge conference, the State requested that the judge instruct the jurors as to a merchant's statutory immunity from criminal and civil liability for detaining a suspected shoplifter if supported by probable cause. See N.J.S.A. 2C:20-11(e). Defendant objected, arguing that the issue of civil liability was not relevant and the instruction would only "confuse" the jury. In rejecting defendant's argument, the trial judge specifically noted that defense counsel, in her opening and cross-examination of Coba and Sanchez, had introduced the issue. As part of his charge on shoplifting, the judge gave the following instruction:

Now, during this trial you have heard certain reference to civil liability as it may bear upon the credibility of the witnesses. It is not your function to determine whether Pathmark or its employees are civilly liable for causing the arrest of [defendant].

As I have previously advised you, there is a different standard of proof that applies in civil matters. You are advised, however, that a separate section of the shoplifting statute provides that a merchant who causes the arrest of a person for shoplifting shall not be criminally or civilly liable in any manner or to any extent whatever when the merchant has probable cause for believing that the person arrested committed the offense of shoplifting. [(Emphasis added).]

Defendant argues that "[t]here was no valid reason for the court to give th[e] charge" because it essentially tracked verbatim the language in N.J.S.A. 2C:20-11(e), a statute that was unrelated to "the elements of [the] charged offense and was never intended to be included in a jury instruction at the trial of the alleged shoplifter." The State counters by arguing that the charge was proper "in view of defendant's extensive questioning and argument... as to whether Coba's conduct toward defendant subjected him and Pathmark to civil liability."

N.J.S.A. 2C:20-11(e) "provides an immunity from criminal and civil liability for certain detentions and arrests of suspected shoplifters where there is probable cause to believe the offense has been committed." Cannel, New Jersey Criminal Code Annotated, comment 8 on N.J.S.A. 2C:20-11 (2008). In a civil trial, the affirmative defense provided by the statutory immunity requires the merchant to "bear[] the burden of proving probable cause...." Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 216 (App. Div. 1996). In this context, "probable cause is an objective standard." Cannel, supra, comment 8 on N.J.S.A. 2C:20-11 (citing Pantalone v. Bally's Park Place Casino Hotel, 228 N.J. Super. 121, 127 (App. Div. 1988)).

However, this was a criminal prosecution, and we see little relevance to the entire second paragraph of the charge, or any necessity to have given it to the jury. While it is true that defense counsel repeatedly interjected the notion of potential civil liability into the case, she did so in the context of cross-examining the motives for Coba and Sanchez to testify as they did, i.e., they believed that they would subject themselves or their employer to civil liability if they detained defendant unlawfully, in violation of Pathmark's procedure manual, or if they used excessive force. The judge appropriately told the jury expressly in the first paragraph of his charge that it was not its "function" to decide any issue regarding civil liability. Having told the jury the issue was not relevant to the case, we see little point in the judge's further explanation of the statutory immunity, particularly since the jury was never instructed at all on the concept of "probable cause."

It is axiomatic "that correct and complete jury charges are essential to a fair trial." State v. Eldridge, 388 N.J. Super. 485, 495 (App. Div. 2006) (citing State v. Collier, 90 N.J. 117, 122 (1982) certif. denied, 189 N.J. 650 (2007); State v. Green, 86 N.J. 281, 287 (1981)). Since defendant objected, "the applicable standard of review is whether the alleged defective jury charge constitutes harmless error." State v. Josephs, 174 N.J. 44, 94-95 (2002). "Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986) (citations omitted); State v. Lykes, 192 N.J. 519, 537 (2007).

As we have already noted, the issue of potential civil liability was immaterial to the jury's deliberations. The judge clearly told the jury as much in the first paragraph of his charge, and defendant does not object to those instructions having been given. Nor does defendant contend that the judge's statement of the law in the second paragraph was inaccurate; he only argues that it was "gratuitous." While that may be so, the jury never considered defendant's guilt on the lesser-included offense of shoplifting, having been instructed not to consider the charge unless it determined that the State failed to prove the elements of robbery. Thus, while the additional instructions may have been unnecessary, considering the totality of the circumstances, the fact that they were provided does not "'undermine[] our confidence that the deliberative process produced a just result....'" Lykes, supra, 192 N.J. at 537 (quoting State v. Parsons, 270 N.J. Super. 213, 224-25 (App. Div. 1994) (citations omitted)). Therefore, we find no basis to reverse on this ground.

(c)

Lastly, defendant contends that Coba's testimonial reference to having "met a couple of times" before the trial with the "public defender" in her office was prejudicial and deprived him of a fair trial. We disagree.

It is clear that testimony regarding a defendant's representation by the "public defender" should not be elicited because it implies defendant's impecuniosity. State v. Farr, 183 N.J. Super. 463, 468 (App. Div. 1982). However, in this case the prosecutor did not intentionally elicit the information, did not imply it was circumstantial evidence of defendant's motive for committing the robbery, and the reference was indeed fleeting. See State v. Martini, 131 N.J. 176, 266-76 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995). Defense counsel immediately requested a sidebar, resulting in Coba being instructed not to refer to counsel or her investigator as being affiliated with the public defender. Defense counsel never asked for a curative instruction, and the matter never arose again. In short, Coba's comment provides no basis to reverse defendant's conviction. See R. 2:10-2.

Affirmed.


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