On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-10-2439.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010
Before Judges Kestin and Newman.
Defendant, David L. Stein, appeals from a judgment, following a bench trial, convicting him of disorderly persons theft, on a charge amended as trial commenced from one of third-degree theft. Following the trial court's finding of guilt, defendant was sentenced to time served in jail, 213 days; and appropriate fines and assessments were levied.
The only witnesses to testify at trial were produced by the State. They were Detective Arthur J. Ferrari, a member of the New Jersey State Police; and Rene Sagun, a surveillance supervisor with Bally's Casino Hotel.
Ferrari described an "undercover" operation in which "one trooper would act . . . as if he were sleeping at a slot machine with the gaming voucher hanging out of the slot machine while other troopers conducted surveillance . . . so that if someone did steal the voucher, an apprehension could be made." The casino's video surveillance equipment was "to record any activity in the area." Two hundred five dollars was inserted into the machine and "the cash-out button [was] hit[;] the machine generate[d] a gaming voucher [which was] positioned to be hanging out of the slot machine."
After a time, Ferrari observed defendant "approach." He "took the voucher out of the slot machine and departed the area." The surveillance team "apprehended him and recovered the voucher . . . . immediately." An arrest was made, and Ferrari obtained the video surveillance recording depicting the incident as it occurred.
In his cross-examination of Ferrari, defense counsel sought to establish a factual basis for arguments he later made that defendant was attempting to turn the voucher over to a casino security person and had not concealed the voucher on his person or in a bag he was carrying.
The video surveillance recording was authenticated, received in evidence, and played. The verbatim record depicts that the playback of the recording consumed one minute, eighteen seconds.
At the close of the State's case, defendant moved for a "directed verdict of not guilty based on State v. Reyes," arguing that "in the absence of the actual ticket itself or the voucher, . . . the State's proofs are insufficient[.]" The motion was denied in a ruling that "the State need[s] to prove only some value for a [disorderly persons] offense . . . and it does appear that the State has advanced some evidence of some value of this voucher."
The defense rested without presenting any affirmative evidence. On summation, counsel argued, inter alia, that the State had not proved beyond a reasonable doubt the element of the theft offense that defendant had engaged in his conduct "with the intent to permanently deprive" another of property.
Judge DeLury rendered his decision:
Based on the highly credible testimony of Detective Arthur Ferrari, I find beyond a reasonable doubt that . . . defendant unlawfully took a slot voucher from a slot machine being operated by Detective Ed Brick, who was feigning being asleep in an undercover operation which was proactively designed to catch slot voucher thieves. The voucher was generated by the machine and was hanging ...