On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Following a jury trial, defendant was convicted of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); ten counts of fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1); one count of third-degree unlawful use of a credit card, N.J.S.A. 2C:21-6(d)(1); and one count of third-degree theft by deception, N.J.S.A. 2C:20-4. Trial Judge Robert C. Billmeier granted the State's motion for an extended term covering the theft conviction and the ten convictions for credit card theft, and imposed a ten-year term with a five-year parole ineligibility. The judge also imposed a consecutive five-year term subject to a two-and-a-half year parole disqualification for third-degree unlawful use of a credit card. We affirm.
These were the State's proofs. On August 11, 2007, at approximately 11:45 a.m., Carol Schoenberg and her six-year-old son arrived at a Panera Bread restaurant in Princeton for lunch. Schoenberg removed her wallet from her pocketbook, retrieved a $20 bill to pay for her food, and placed the wallet back into her pocketbook. After eating lunch, she left the store and noticed that her wallet was missing from her pocketbook, which she had placed underneath the table where she had eaten lunch. At that time, she reported the theft to the Princeton Borough Police Department, including a description of the credit cards stored in her wallet. She also contacted her credit card companies. She then learned that one of her credit cards had been used at a Lowe's Home Center store in West Windsor to purchase two $1,000 gift cards and two cans of bug spray. The purchases totaled $2017.06. This transaction had taken place at 12:55 p.m., on the same day Schoenberg noticed the wallet missing.
Later that day, Princeton Borough Police Sergeant Jonathan Bucchere went to Panera Bread to investigate the theft, and reviewed the restaurant's videotape surveillance footage. According to him, the footage showed a black male wearing a white and black striped shirt standing behind Schoenberg at the time she paid for her food. Then the man sat at a table behind Schoenberg. There the videotape showed the man bent down and placed his jacket over Schoenberg's chair. Also, the videotape purportedly showed the man engaged in a brief conversation with a female wearing light blue clothing.
Bucchere asserted that he asked Panera Bread to preserve the entire footage. However, Panera Bread did not keep the portion of the videotape that showed Schoenberg in line at the ordering counter.
Two days later, West Windsor Detective Stephen J. Skwierawski asked Lowe's to check its surveillance archives to locate the transaction involving Schoenberg's credit card. He watched the tape, which depicted the same female who was present at Panera Bread using Schoenberg's credit card.
On September 24, 2007, Princeton Borough Police Detective Michael Bender sent still photographs of the two suspects to other police departments. Subsequently, a West Windsor Police Department sergeant identified the male suspect as defendant. Detective Bender obtained an arrest warrant and sent it to defendant's last known address. Princeton Borough Police Detective Sergeant Christopher Quaste interrogated defendant in a recorded interview. During the interrogation, Quaste showed defendant the Panera Bread surveillance videotape. According to Quaste, at one point, he froze a shot of the female accomplice. Defendant identified her as "Kim Porter." Quaste was never able to locate a "Kim Porter." During the interrogation, defendant asserted that he received a portion of the proceeds from the transaction at Lowe's.
On appeal, defendant contends:
THE STATE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AS RECOGNIZED IN BRADY V. MARYLAND WHEN IT FAILED TO COLLECT AND PRESERVE THE EXCULPATORY PORTIONS OF THE PANERA BREAD VIDEOTAPE.
Defendant argues that the State violated the rule articulated in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), by failing to "collect and preserve all material portions" of the Panera Bread surveillance tape. Defendant argues that the jury should have seen other portions of the tape showing that "other individuals had an equal opportunity to take Ms. Schoenberg's wallet."
Because the State had relied heavily on the video, the result of the proceeding would have likely been different had the jury been shown the omitted portions. We disagree.
Defendant did not object to the introduction of the surveillance video at trial. Therefore, the plain error rule applies. That is, we will reverse only where the error was "clearly capable of producing an unjust result." R. 2:10-2.
It is a deprivation of an accused person's due process rights for the State to suppress exculpatory material evidence. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; see also R. 3:13-3(c) (governing criminal defendant's right to discovery from prosecution).
We conclude that defendant did not demonstrate a violation of his Brady rights because the police never had possession of a small portion of the surveillance video that showed defendant standing in line behind the victim of the theft, and nothing in the record indicates that the missing footage contained exculpatory evidence. Furthermore, the police did not act in bad faith in failing to obtain the entirety of the surveillance recording before Panera Bread failed to preserve that part of the recording.
THE TRIAL COURT ERRED WHEN IT ADMITTED THE PANERA BREAD VIDEOTAPE INTO EVIDENCE AS
THE STATE FAILED TO PROPERLY AUTHENTICATE SAID VIDEOTAPE.
Defendant argues that the Panera Bread surveillance footage was not properly authenticated because Detective Bucherre was not present at Panera Bread at the time of the crime and the State did not offer the testimony of anyone from the restaurant to describe the tape's "creation" or segregation. Although we agree that Detective Bucherre was not qualified to authenticate the video, it was not plain error because Schoenberg later authenticated the video as an accurate representation of the August 11, 2007 events.
Defendant did not object to the introduction of the surveillance video at trial, so, pursuant to Rule 2:10-2, this court ...