May 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL A. LUTAWAN, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-06-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Rodríguez and Chambers.
Defendant Michael A. Lutawan, Jr. appeals from his conviction, following a trial de novo in the Law Division for shoplifting $157 worth of merchandise at the Boscov's Department Store, N.J.S.A. 2C:20-11b(1). The Law Division judge imposed the following sanctions: a $300 fine; $33 for costs; $50 Violent Crimes Compensation Fund penalty; $75 Safe Neighborhood surcharge; and twenty days community service. We affirm.
These are the facts. Defendant was employed at Boscov's Department Store in Voorhees as a cashier in the cosmetic/ cologne department for one-year-and-three-months. Kelli Ann Webb, the loss prevention manager at Boscov's, was monitoring the cosmetic department via a video camera. At approximately 10:20 a.m., Webb saw defendant walk into the stockroom and return carrying a bag and box. Webb later identified the bag as a "Perry Ellis gift bag." Defendant returned to his station and "rang the bag" up on the register. However, defendant did not place any money in the register. According to Webb, the gift bag was a "free item" for customers. Thus, it comes up zero on the register. Defendant placed the gift bag into a white bag and then placed the white bag underneath the register.
Approximately thirty-five to forty minutes later, Webb observed defendant leave the cosmetic department and walk to the accessories section in the men's department area. Defendant removed a black tie from the rack and folded the tie in his hand. Defendant returned to the cosmetic department and put on the tie.
Thirty to forty-five minutes later, Webb saw defendant walk to another counter and remove cologne from the box taken previously from the stock room. The box was packed with "Styrofoam peanuts." The merchandise was placed on the counter. However, there was one box of cologne left in the larger box and defendant walked over with the larger box towards the cash register and placed it underneath the register. Defendant then dumped the "Styrofoam peanuts" into the trash, broke down the larger box and placed it to the side.
Webb continued to watch defendant from 11:00 a.m. until 5:15 p.m. Around 5:15, defendant went to the register and removed the white bag from underneath the register and went upstairs into the "break room."
Webb waited for defendant at the employee entrance at 5:30. She watched defendant clock out. Defendant wished Webb a goodnight and Webb did the same. As defendant placed his hand on the door to leave, Webb requested to search defendant's lunch bag. Defendant handed Webb his bag. Webb opened the bag and questioned what the item was inside. Defendant indicated that it was a free gift. Webb opened the gift bag. The gift bag contained a bottle of Euphoria perfume. Webb questioned defendant why a bottle of perfume was in the free gift bag. Defendant responded that he did not know why.
Webb requested defendant to accompany her to her office. Webb questioned defendant about the tie around his neck. Defendant responded that he planned to pay for it. Defendant conceded that he did not pay for the tie and disclosed what he did with the tag. Webb went upstairs to retrieve the tag. After returning to her office, Webb informed defendant that she must search his person. A bottle of perfume, later identified as a Euphoria cologne tester, was found in defendant's left coat pocket. Defendant stated that he planned to purchase the perfume. Webb questioned defendant how he planned to pay for the items if he was intending to leave. Defendant did not respond.
Defendant refused to sign a statement that he possessed the items. Webb informed defendant that his conduct constituted shoplifting despite defendant's claim that the perfume was a "tester." According to Webb, testers are not provided to the employees for free.
Defendant testified that on the date of the incident he forgot to wear a tie to work. Employees are required to wear ties. A week prior to the incident, a co-worker informed defendant that if he forgot to wear a tie, he could borrow a tie from the store and return it afterwards. Defendant testified that he did not "duck or dodge" while putting the tie on in the cosmetic department. He could not pay for the tie while working so he had to wait until he clocked out.
Defendant testified that the white box which was found in his coat pocket was a tester. He placed the tester in his pocket on the day of the incident because it was "free to everyone." He has taken testers before. Employees can provide testers to customers and take testers themselves for free. Defendant did not think that he was stealing. It is a "common practice" for employees to take testers.
According to defendant, he provided Webb's friend, who works in the pocketbook department, with free samples. Webb was aware of this. Defendant presented a tester in court, which was provided to him by a representative of Elizabeth Arden. He did this to demonstrate that he has an "abundance" of free testers. Elizabeth Arden ships $250 worth of products to defendant's house each month. On one occasion, defendant provided Webb with "Fifth Avenue" perfume. Defendant also gave Webb the UPS tracking number to quell any of Webb's suspicions. Webb, in turn, hugged defendant and indicated that she planned to do something "nice for [him]."
Defendant testified that his mother made a purchase at another Boscov's and she was entitled to receive the gift bag. Customers are permitted to take their receipts to other store locations to obtain the free products if a store runs out. Defendant told Webb that he would bring his mother's receipt to prove that he was entitled to the gift bag. Webb indicated that she was not interested in defendant obtaining the receipt because his "intention was to steal."
Defendant denied placing the bottle of "Euphoria" in the gift bag. Defendant claimed that he merely walked into the stock room and randomly picked a gift bag. Defendant did not notice that the bag weighed unusually heavy.
According to defendant, during his employment at Boscov's, the employees and department managers frequently take "free gifts," i.e., umbrellas when it is raining. Finally, defendant denied that he was about to leave the store after he clocked out.
Defendant's wife, Candice Lutawan, testified and corroborated his allegations that employees routinely rang up "their own free gifts and free umbrellas." This observation was made while Candice shopped at the store "from time to time." Candice witnessed employees ringing up free gifts while Webb was present.
On appeal, defendant contends that he did not form the requisite mental intent to commit the crime alleged, the municipal court refused to permit defendant to present key evidence during his defense and defendant's counsel failed to present a witness critical defendant's defense. We disagree with these contentions.
The applicable law criminalizing shoplifting provides:
[f]or any person purposely to take possession, carry away, transfer or cause to be to carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.
The merchandise involved here meets the definition set by N.J.S.A. 2C:20-11a(3). The statute requires purposeful conduct. Thus, the State must prove beyond a reasonable doubt that it was the defendant's "conscious objective" to deprive Boscov's of the merchandise. N.J.S.A. 2C:2-2b. Moreover, the shoplifting statute sets forth certain presumptions, which include:
[a]ny person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.
These presumptions operate as permissive inferences. State v. Humphrey, 183 N.J. Super. 580, 584 (Law. Div. 1982), aff'd, 209 N.J. Super. 152 (App. Div. 1986).
Here, the Law Division judge found that the State met its burden. The judge agreed with the municipal court's credibility findings that Webb's testimony was more credible than defendant's testimony. Moreover, the judge noted that the Defendant possessed four items, not merely one or two items, rendering it difficult "to explain."
Our scope of review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). We should not engage in an independent assessment of the evidence as if we were the court of first instance. State v. Locurto, 157 N.J. 463, 470-71 (1999). We must defer to the municipal court's credibility findings, which are based on character and demeanor of witnesses and common human experience that are not transmitted by the record. Id. at 474. Moreover, the rule of deference is more compelling where the municipal court and the Law Division have entered concurrent judgments on purely factual issues. Ibid.
Applying this standard, we conclude that the record contains sufficient, credible evidence to support the Law Division judge's findings. We note that the record reflects that defendant concealed three of the merchandise items. The fact that the gift bag, bottle of Euphoria and Euphoria tester were concealed in defendant's lunch bag and in his pocket supports the negative inferences drawn by the judge while reviewing the municipal court record. See N.J.S.A. 2C:20-11d.
Although defendant wore the tie conspicuously, we have recognized that shoplifting encompasses merchandise that is worn in plain view or carried as though it had been purchased. Henry v. Shopper's World, 200 N.J. Super. 14, 18 (App. Div. 1985). Moreover, defendant did not leave the tags on the tie and did not pay for the tie immediately after his shift.
Defendant also contends that the municipal court erred in not providing him the opportunity to obtain the receipt and present it as evidence that his mother was entitled to the "free gift." Defendant argues that his counsel requested the municipal court for a continuance but was denied. We disagree.
Municipal judges are permitted to grant adjournments. R. 7:8-3. The applicable rule provides:
[o]n or before the first scheduled trial date, the court may adjourn the trial for not more than fourteen days, except that an adjournment for a longer period or additional adjournments may be granted if the court deems postponement of the trial to be reasonably necessary in the interest of justice. In contested matters, the court shall specify the new trial date in granting the adjournment and shall cause the complaining witness, all defendants, and all other known witnesses to be notified of the adjournment and of the new trial date.
Further, the granting of a continuance rests within the sound discretion of the trial court and the exercise of such discretion will not be reversed unless there is a showing of abuse of discretion causing the defendant a manifest wrong or injury. State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985) (citing State v. Lamb, 125 N.J. Super. 209, 213 (App. Div. 1973)).
Here, Judge McNeill agreed with the municipal court's finding that defendant was not credible regarding the alleged missing receipt. In particular, Judge McNeill noted that there typically is a "paper trail" following a purchase from a department store allowing transactions to be easily identified. The judge further noted that defendant could have corroborated his allegation by presenting the testimony of his mother to establish that she was entitled to the gift bag.
Defendant was arrested on February 3, 2007. Defendant appeared in municipal court on March 5, 2007 without the receipt. Defendant testified as to the following:
Q: (Court): Sir, do you have the receipt that your mother brought something?
A: I haven't visited her since the incident, but I told her [Webb] that I would try to get it from my mom and show it to her, if my mom still had it. But she didn't want to hear none of that. She said my intention was to steal, and that's all that she had in her mind.
Regardless of whether defendant's mother was entitled to the gift bag, the record reflects that defendant was in possession of three other merchandise items. Although arguably the cologne tester may not have supported a conviction, defendant's intent to leave the store with the tie and bottle of Euphoria perfume supports the municipal conviction. Defendant's argument that the receipt would have absolved him of shoplifting lacks merit.
Defendant also contends that his municipal court counsel failed to present the testimony of a witness, Josh Gray, who would have testified that Boscov's had an ongoing practice of allowing employees to take and give away free samples and testers. This testimony, according to defendant, would establish that defendant did not have the requisite intent to commit shoplifting. This contention lacks merit.
New Jersey follows the federal rule in evaluating an ineffective assistance of counsel claim. State v. Fritz, 105 N.J. 42 (1987) (adopting the United States Supreme Court test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Therefore, in order to establish a prima facie case for ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. This test establishes a two-pronged analysis. Ibid. The first prong requires the defendant to demonstrate that counsel's performance was deficient. Ibid. The second prong requires the defendant to demonstrate that she was prejudiced by counsel's deficient performance. Ibid. Defendant has failed to satisfy either prong of the test.
First, defendant cannot establish that counsel was ineffective. A defendant must do more than make bald assertions that he was denied effective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (1999). The defendant must allege facts sufficient to demonstrate counsel's alleged deficient performance. Ibid. Here, defendant has not set forth any evidentiary basis establishing the substance of Gray's testimony, i.e., a certification. Defendant therefore has not met his burden.
Second, defendant cannot establish that he was prejudiced by counsel's failure to present the testimony of Gray. The record contained ample evidence to convict defendant of shoplifting, in light of the fact that he was observed taking three items and possessed four merchandise items while attempting to leave the store. Further, the testimony of Webb established that it was Boscov's policy to preclude employees from taking free gifts. Thus, defendant's claim lacks merit.
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