August 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RIYAD A. HASAN, DEFENDANT-APPELLANT
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-06-00566.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012 -
Before Judges Cuff and St. John.
After a jury trial, defendant Riyad A. Hasan was found guilty of third-degree knowingly exhibiting a document falsely purported to be issued by a governmental agency meant to verify his identity, N.J.S.A. 2C:21-2.1c; and fourth-degree knowingly possessing the document, N.J.S.A. 2C:21-2.1d. A bench trial was then held on the disorderly persons charge of shoplifting, N.J.S.A. 2C:20-11b, and the judge found defendant guilty. The trial judge merged the possession charge into the exhibiting charge and sentenced defendant to one-year probation and time served, 277 days. On the shoplifting charge, defendant was sentenced to a 90-day custodial term to run concurrent to the exhibiting charge. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.
In pre-trial proceedings, defendant's motion to suppress certain statements was denied by the trial judge. At trial, Michael Bailey testified for the State that on March 8, 2009, defendant entered a Wegman's supermarket in Mount Laurel, carrying a white opaque plastic bag, and proceeded to the baby formula section. Unbeknownst to him, his actions were being monitored on a video system by Bailey, Wegman's security personnel. Bailey observed defendant remove a can of formula from the shelf and walk to the "Nature's Market" section of the store with the can. He then removed a separate can from his bag, put it on a shelf, and placed the can of formula into the plastic bag. He left the store without paying and went to his car in the parking lot. After a few minutes, he reentered the store and proceeded to the customer-service desk to effect a return and refund of the formula. At this point, Bailey approached defendant and asked him if he had a receipt for the product. When defendant answered in the negative, Bailey requested that defendant accompany him to the security office. Once inside the office, Bailey asked defendant for identification (ID). Defendant handed Bailey an ID for a Jose Rodriquez, purportedly issued by the New Jersey Motor Vehicle Commission. When defendant was unable to recite the information on the card, Bailey asked him if the card was genuine. Defendant stated it was not and that he had purchased it on Broadway Street in Camden for $10.
Bailey telephoned the Mount Laurel Township police and Officer Brian Michigan responded to the store. Bailey recounted to Michigan what had transpired, and handed him the ID. At trial, Michigan testified that there appeared to be a license number on the back of the ID, which he entered into the computer database. The search result returned as invalid. Michigan also noted that the ID had Camden misspelled as "Camdem." Michigan placed defendant under arrest, orally gave him his Miranda*fn1 rights, and transported him to police headquarters. There, defendant was again read his Miranda rights. Defendant stated he bought the card in Camden for $10 and that the name on the ID was not his.
Joseph Vasil, a supervisor in the security investigations document fraud unit of the New Jersey Motor Vehicle Commission, testified as an expert witness for the State. He testified that the ID was not issued by the Commission. He further testified as to certain security features on governmental documents such as driver's licenses and his familiarity with documents issued by the State. During the final charge to the jury, the trial judge did not give the expert testimony model charge.*fn2
On appeal, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. I., PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE EXPERT TESTIMONY CHARGE FROM THE MODEL JURY INSTRUCTIONS (CRIMINAL) TO THE JURY. (Not raised below). POINT II
THE STATE FAILED TO ESTABLISH INTENT AS REQUIRED UNDER N.J.S.A. 2C:20-11(b)(1) AND, THEREFORE, DEFENDANT'S SHOPLIFTING CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. (Not raised below).
THE ISSUES RAISED IN DEFENDANT'S PRO SE NOTICE OF APPEAL AND PRO SE SUPPORTING BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE. Defendant's primary arguments focus on the judge's charge to the jury, however, defense counsel did not object to any aspect of the jury charge. We therefore review the issues raised for plain error, R. 2:10-2, and briefly set forth the standards we must apply when considering issues as to the charge.
We first acknowledge that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "It is the independent duty of the court to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004).
Defendant did not request the specific jury instruction of expert testimony and did not object to any portion of the final charge; therefore, the court's failure to sua sponte give such an instruction requires reversal only if it can be deemed plain error, that is an error clearly capable of producing an unjust result. R. 2:10-2; State v. Nero, 195 N.J. 397, 407 (2008). When reviewing the propriety of a jury charge, we look to the charge as a whole to determine whether it was ambiguous, misleading, or legally incorrect. State v. R.B., 183 N.J. 308, 324 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). "If, on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand." State v. Setzer, 268 N.J. Super. 553, 564 (App. Div. 1993), cert. denied, 135 N.J. 468 (1994).
We also observe that a party's failure to timely object at trial may make it "'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).
Applying this standard, we are satisfied that any error in omitting the expert testimony charge was harmless. Indeed, defense counsel cross-examined Vasil extensively about whether the ID purported to be a governmentally issued document. Further, Bailey and Michigan's testimony overwhelmingly supported the jury's finding of defendant's guilt. We conclude that any error in not charging expert testimony did not have the capacity to change the outcome of the trial and does not warrant reversal.
Defendant asserts the State failed to prove that he violated the shoplifting statute, N.J.S.A. 2C:20-11b. In pertinent part the statute provides:
Shoplifting shall consist of any one or more of the following acts:
(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.
(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.
d. Presumptions. Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise. [N.J.S.A. 2C:20-11b.]
Defendant's argument claiming the verdict is against the weight of the evidence presents a procedural dilemma. Our consideration of whether to consider such issue on appeal incorporates, by rule, a condition precedent -- the filing of a motion for a new trial. R. 2:10-1.
Defendant concedes that trial counsel failed to move for a new trial. However, he argues we should consider the merits even though a new trial motion was not made, as we have previously done in the interests of justice. See State v. McNair, 60 N.J. 8, 9 (1972); State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993); State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990).
We recognize that an appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). A trial court's findings should not be disturbed simply because an appellate court "might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side." State v. Johnson, 42 N.J. 146, 162 (1964). Rather an appellate court must defer to the trial court's findings that "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 161 (citation omitted). Despite that deference, if the trial court's findings are so clearly mistaken "that the interests of justice demand intervention and correction," then the appellate court should review "the record as if it were deciding the matter at inception and make its own findings and conclusions." Id. at 162 (citations omitted). Of course, a reviewing court owes no deference to the trial court in deciding matters of law. State v. Gandhi, 201 N.J. 161, 176 (2010). When a question of law is at stake, the appellate court must apply the law as it understands it. Ibid.
The court's duty is to determine whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. See also State v. Carter, 91 N.J. 86, 96 (1982). "The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Carter, supra, 91 N.J. at 96.
Here, defendant contends that "the State failed to meet its burden to establish that [he] intended to return the stolen formula for cash." That assertion acknowledges that the formula was stolen. Additionally, the offense of shoplifting does not contain an element that the State must prove defendant intended to return the stolen formula for cash. N.J.S.A. 2C:20-11(b).
There were ample facts in the record to support the trial judge's determination that shoplifting had occurred. See State v. Masino, 94 N.J. 436, 447 (1983); State v. Sims, 65 N.J. 359, 373-74 (1974); State v. Reyes, 50 N.J. 454, 459 (1967).
We find defendant's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).