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State of New Jersey v. Charles R. Robinson

November 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES R. ROBINSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0894.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 12, 2011

Before Judges Sapp-Peterson and Ashrafi.

Defendant appeals his conviction, following a jury trial, for third-degree shoplifiting, N.J.S.A. 2C:20-11(b), and the sentence imposed, an eight-year extended custodial term along with a four-year period of parole ineligibility. We affirm the conviction but remand for re-sentencing.

At trial, the State's proofs revealed that a loss prevention officer, Mark Grimes, observed defendant "staging merchandise." Grimes testified that staging occurs when a person places merchandise in a particular location and leaves it, only to return later to retrieve it without being noticed. After staging the merchandise, defendant left the store. He returned shortly thereafter with a floral gift bag and headed towards the staged merchandise. A video recording captured defendant returning to the staged merchandise, looking around, and then placing the items in the floral gift bag. Defendant then walked past a store exit, at which time alarm sensors beeped. He dropped the floral gift bag in the vestibule and Grimes and another store employee followed him out of the store, where a struggle ensued. Police arrived minutes later and recovered the floral gift bag. It contained twenty Polo shirts.

On appeal, defendant raises the following points for consideration:

POINT I

PROSECUTORIAL MISCONDUCT IN OPENING ARGUMENT DEPRIVED MR. ROBINSON OF A FAIR TRIAL (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN PERMITTING TESTIMONY CONCERNING EVIDENCE THAT HAD BEEN DESTROYED AND IN FAILING TO INSTRUCT THE JURY THAT IT COULD DRAW AN ADVERSE INFERENCE AGAINST THE STATE BASED ON THE FACT THAT EVIDENCE HAD BEEN DESTROYED.

POINT III

THE TRIAL COURT ERRED IN RULING THAT THE STATE WOULD BE PERMITTED TO CONFRONT MR. ROBINSON WITH REMOTE CRIMINAL CONVICTIONS AND A VIOLATION OF PROBATION IF MR. ROBINSON WERE TO TESTIFY ...


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