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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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