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State of New Jersey

July 6, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1461-10.

Per curiam.



Submitted April 4, 2011

Before Judges Alvarez and Ostrer.

L.S.A., a juvenile, appeals from an adjudication of delinquency for the disorderly persons offense, had it been committed by an adult, of shoplifting, N.J.S.A. 2C:20-11(b)(1) and N.J.S.A. 2C:20-11(c)(4). We affirm.

As a result of the adjudication, the juvenile was sentenced to a year of probation with conditions, including payment of a penalty to the Violent Crimes Compensation Fund. On appeal, the juvenile's only contention is that the verdict was against the weight of the evidence. The facts and circumstances developed during the bench trial can be briefly summarized.

William Ferguson testified that he was on duty as a Walmart asset protection officer on July 30, 2009, around 5:15 p.m., when his attention was drawn to a group of youngsters. He observed L.S.A., who was carrying a small backpack or a personal bag, remove the plastic packaging from a paintball carbon dioxide tank offered for sale for $26.97. Ferguson saw L.S.A. place the unwrapped tank in his backpack, and followed him as he and the other juveniles made their way through the garden center section of the store to an exit at which there was no register. Ferguson detained L.S.A. and another juvenile also observed shoplifting, J.A., not included in this appeal, outside the doors and explained the reason they were being stopped. L.S.A. then dropped the bag on the ground. The remainder of the group walked away through the parking lot towards an adjacent highway. Ferguson and another officer picked up both boys' bags and escorted them to the manager's office. L.S.A. was cooperative during this process.

L.S.A. testified to the contrary. He claimed Ferguson attempted to search through his bag for no apparent reason while he was shopping, accompanied by some young friends. When he told Ferguson that he was not authorized to rummage through his belongings, L.S.A. said Ferguson "got like a[n] attitude." At that point, L.S.A. testified Ferguson grabbed him and told him to leave the store. When L.S.A. objected, he said Ferguson pulled him to the front of the store by his shirt. As he was being hauled to the manager's office, L.S.A. further claimed Ferguson planted the carbon dioxide tank in his bag after removing the packaging, while telling him that no one would believe him.

The Family Part judge found Ferguson to be a credible witness, in contrast with L.S.A., whom he found not to be credible. There were some minor discrepancies in Ferguson's testimony, and Ferguson attempted to explain away these discrepancies when they did not appear favorable to him. Nonetheless, the judge found that overall, despite his reluctance to admit to having made mistakes, Ferguson was truthful.

On the other hand, the judge noted that L.S.A.'s testimony was given in a "mechanical fashion" and that he was often "led by his attorney in his testimony." The narrative was illogical. Since the juvenile did not ever offer an explanation as to the reasons Ferguson would falsely charge him, the court concluded that L.S.A. was incredible and that, therefore, the State had proven its case of shoplifting beyond a reasonable doubt.

The court noted that the juvenile characterized Ferguson's failure to retain the store video of the shoplifting as suspect. But Ferguson explained the store's continuous video loop extends over ninety days and, after that point, the machine simply records over the old tape. He said duplicates of a video sequence are made only when an incident occurs involving violence, an item of great value is stolen, or the event in some other fashion is unusual. A duplicate was not requested when available, and there was nothing idiosyncratic about this shoplifting such as would have warranted making a duplicate. Accordingly, no video existed of L.S.A. removing the packaging from the stolen item and placing it in his book bag, but the court ruled that the omission was innocent.

The standard of review for bench trials is whether there is "sufficient credible evidence in the record to support the judge's determination." State ex rel. R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Therefore, we ask only whether there is substantial, credible evidence in the record as a whole. State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div. 2004). We defer to the judge's factual findings, which are so often substantially influenced by his or her feel of the case, particularly as to credibility determinations. Ibid.

Here, the judge determined, based on straightforward proofs, that the store employee was credible, not just because of his demeanor but the details of his narrative. She drew the corresponding conclusion that the juvenile was not credible, not just because of his demeanor while testifying, but because it was implausible that Ferguson would have concocted the charges against the juvenile. In our ...

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