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State v. Dellisanti

March 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK DELLISANTI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-05-1133.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2010

Before Judges Skillman and Simonelli.

Defendant Frank Dellisanti appeals from the denial of his petition for post conviction relief (PCR) grounded on ineffective assistance of counsel. We affirm.

A grand jury indicted defendant for third-degree shoplifting, N.J.S.A. 2C:20-11; third-degree falsifying a record (a New Jersey driver's license), N.J.S.A. 2C:21-4a; second-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(7); third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree falsifying records, N.J.S.A. 2C:21-4a.

The charges against defendant stem from an incident on January 28, 2002, at the Lowe's Home Improvement store located in North Bergen (North Bergen Lowe's). According to the trial testimony of Seth Carey, North Bergen Lowe's loss prevention and safety manager, while monitoring the store's closed-circuit television he saw defendant place an object into his sock, later identified as a baggie containing Universal Product Code (UPC) labels. Defendant then placed numerous items into his shopping cart, removed the UPC labels from the items, and replaced those labels with UPC labels from the baggie. Defendant placed the baggie in his waistband, proceeded to the checkout area, and entered a line to the registers.

When defendant arrived at a register, the closed-circuit television zoomed in, enabling Carey to see the items defendant was purchasing. After noticing "a very substantial difference" between the actual cost of the items and "what was ringing up in the system[,]" Carey accessed the store's electronic journal system, which recorded the transaction, to check the numbers, descriptions, quantity and prices of the items. Defendant then paid for the items with a merchandise credit and exited the store.

Carey confronted defendant outside the store and escorted him back into the loss prevention office, where a pat down search revealed the baggie containing the UPC labels. During questioning, defendant gave a false name and fraudulent driver's license. When advised the police would be called, defendant became defensive and "completely unresponsive." He then lunged from his seat, pushed Carey, and fled. Carey caught defendant, and the two began wrestling. Defendant pushed Carey against a wall, causing injury to Carey's head. Another employee subdued defendant and handcuffed him. The entire incident was captured on videotape. It was later determined that defendant paid $255.41 for the items he had purchased, which actually cost $1093.70.

The trial began on May 7, 2003, and ended in a mistrial. Prior to the second trial, defendant, represented by a new attorney (hereinafter referred to as plea counsel), pled guilty to third-degree shoplifting and simple assault, a disorderly persons offense. At the plea hearing, defendant established the following factual basis for his plea to shoplifting:

[PLEA COUNSEL]: Calling your attention to on or about January 29th or 28th of 2002, were you in Lowe's Store in North Bergen?

THE DEFENDANT: Yes, sir.

[PLEA COUNSEL]: And did you have ...


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