August 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TASHEMA COTMAN, A/K/A TASHEMA ROBINSON, SHAKEERAH ROBINSON, GOODWIN COTMAN, TASHEMA HARRIS, TYSHEMA ROBINSON, KIMMIE GREEN, SONIA GIBBS, SONIA CANTY, SHAKEERAH T. COTMAN, TASHEEMAH COTMAN, TASHEMA DUNN, TIYUNNA GREEN, KIMMIE GREENE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-1995.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012 -
Before Judges Lihotz and Baxter.
Following a jury trial, defendant Tashema Cotman appeals from her conviction of third-degree receiving stolen property, N.J.S.A. 2C:20-7, challenging the validity of the judge's instructions to the jury and the sufficiency of the State's evidence. She also maintains the sentence imposed by the trial judge was excessive. More specifically, on appeal defendant argues:
THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY AS TO THE CRIME OF RECEIVING STOLEN PROPERTY IN THE THIRD DEGREE BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.
THE TRIAL JUDGE MISAPPLIED THE LAW AND COMMITTED ERROR IN FAILING TO ENTER A DIRECTED VERDICT OF THE CHARGE OF RECEIVING STOLEN PROPERTY IN THE THIRD DEGREE AND IN FAILING TO FULLY GRANT DEFENDANT'S MOTION FOR A VOLUNTARY DISMISSAL PURSUANT TO R. 3:18-1 BECAUSE THE EVIDENCE INTRODUCED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION.
THE TRIAL JUDGE MISAPPLIED THE LAW BY IMPOSING AN EXCESSIVE SENTENCE.
The facts were adduced from the jury trial presided over by Judge Donald R. Venezia. On September 4, 2008, Luis Jimenez, a loss prevention officer for the Macy's department store located at the Garden State Plaza in Paramus, observed four juveniles as they entered the store's fashion jewelry department, carrying identical large, leather handbags, two white and one black. The group separated into two pairs and signaled to each other from their positions in the department. The first pair selected a quantity of items, put them in one of the leather handbags, and then walked toward the store's exit. Jimenez did not attempt to stop them, rather he continued to focus on the second pair's activities. Jimenez watched the second pair select jewelry from the fashion accessory racks, remove the store tags, and drop the items into their bags as they walked toward the exit. Macy's security video cameras captured some of this activity.
Jimenez followed the second pair through the store's Route 17 South exit doors, where he saw the first pair waiting. The second pair handed jewelry to the first pair. Jimenez identified himself as a loss prevention officer and told the group to stop. The first pair walked away, tossing the jewelry under a parked vehicle. Jimenez did not pursue them because his authority extended only twenty-five feet from the door. Jimenez detained the second pair at the sidewalk until Maya Carovac, another Macy's loss prevention officer, arrived and took them into custody.
From his unobstructed observation point on the store sidewalk, Jimenez watched the first pair approach a white Pontiac Grand Am. The pair entered the vehicle and emptied their bags, stuffing items under the seat and on the floor. He requested that the Paramus Police Department be called.
Uniformed Paramus Patrolman Mark Pinajian testified that he and his partner, Officer Brian Linden, arrived within forty-five seconds of receiving the call regarding the incident at Macy's. Also, Detective Robert von Schalscha arrived. After briefly questioning Jimenez, the police approached the first pair of juveniles as they stood in an empty parking spot adjacent to the Grand Am. Jimenez looked on. He saw merchandise strewn about the back seat of the Grand Am and recognized a white leather handbag that was identical to those carried by the four juveniles. Jimenez also retrieved the jewelry he saw the first pair of juveniles toss under a parked vehicle.
Jimenez then noticed two women, later identified as defendant and co-defendant, Tiffany L. Williams, who left Macy's Route 17 South exit and walked directly toward the Grand Am. He watched defendant enter the vehicle and begin "putting stuff in the back -- in the back seat of the car."
Officer Pinajian also saw the two women enter the passenger side of the Grand Am and "dump" items in the back seat. He approached defendant and Williams, instructing them to step away from the Grand Am. They complied. As Officer Pinajian questioned the two, Detective von Schalscha peered into the vehicle through the open passenger-side door. He saw piles of merchandise laying on the seat and floor, which were not contained by store bags typically provided at the time of purchase. He also noted some items contained a hole, where a sensor tag would normally be placed.
Defendant and Williams admitted they were with the two juveniles who were standing in the parking lot, asserted ownership of the vehicle and explained the merchandise in the car was theirs as a result of a day of shopping. When requested to produce receipts, which defendant and Williams did not have, they retracted their claims of owning the property. At Detective von Schalscha's direction, both were placed under arrest.
Jimenez inventoried the recovered jewelry. The retail value of ten items in possession of the second pair of juveniles totaled $303.98 and the value of the items recovered from the parking lot discarded by the first pair of juveniles totaled $248. Sixty-one items from different stores, valued at $1,437.67, were collected from the back seat of the Grand Am. The police also retrieved two oversized, leather handbags, one white and one black.
In addition to the testimony of Jimenez and the responding police officers, various documents were introduced into evidence by the State without objection, including inventories of the items seized. Further, Macy's security video was played for the jury.
At the close of the State's case, defendant, joined by co-defendant, moved for a judgment of acquittal. The motions were denied. Defendant rested after electing not to testify. The trial judge charged the jury and explained the verdict sheet. Following deliberations, the jury returned a unanimous guilty verdict, determining the amount of the theft exceeded $500. Defendant was sentenced to four years incarceration subject to a one-year period of parole ineligibility. Applicable fines and assessments were also imposed.
On appeal, defendant maintains the trial court erred in instructing the jury as to the third-degree offense of receiving stolen property. She contends the evidence was insufficient to support the conviction. Although couched as a challenge to the trial court's jury charge, the thrust of defendant's argument is the verdict was against the weight of the evidence.
A party claiming a jury verdict is against the weight of the evidence must file a motion for a new trial with the trial court, within ten days of the verdict. R. 3:20-2; R. 2:10-1.*fn1
See also State v. McNair, 60 N.J. 8, 9 (1972); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd 65 N.J. 45 (1974). Absent a motion for a new trial, we entertain a claim of insufficiency of evidence only when required in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.) (citing State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990)), certif. denied, 134 N.J. 476 (1993).
In this matter, defendant did not move for a new trial following conviction. Following our review, we decline to entertain defendant's challenge concluding it lacks merit. R. 2:11-3(e)(2), and defendant has not satisfied the interest of justice standard set forth in Smith, supra. We add these brief comments. The jury's verdict was grounded on the State's testimonial and physical evidence, which included Macy's security tape, Jimenez's eyewitness testimony, and the unexplained property in the Grand Am. These facts provided ample evidence to support the jury's verdict. "[A]bsent clear evidence on the face of the record that the jury was mistaken or prejudiced[,]" we will not intercede. Smith, supra, 262 N.J. Super. at 512 (citing State v. Haines, 20 N.J. 438, 446-47 (1956)).
Next, defendant argues the trial judge erred in denying her motion for acquittal at the conclusion of the State's evidence. Defendant argues the State failed to prove all of the items confiscated from the Grand Am were stolen and did not show the value of the alleged stolen merchandise exceeded $500.
Defendant was charged with N.J.S.A 2C:20-7a, which states in pertinent part: "A person is guilty of theft if he knowingly receives . . . movable property of another knowing that it has been stolen, or believing that it is probably stolen . . . . "Receiving" means acquiring possession, control or title, or lending on the security of the property." Theft constitutes a third-degree offense when "[t]he amount involved exceeds $500.00 but is less than $75,000.00[.]" N.J.S.A. 2C:20-2.
Having set forth the State's burden, we also discuss the standard applicable to review a motion for acquittal. A judgment of acquittal must be entered when the evidence "is insufficient to warrant a conviction." R. 3:18-1.*fn2 When considering a defendant's motion for acquittal, the trial court "is not concerned with the worth, nature or extent" of the evidence, "but only with its existence, viewed most favorably to the State." State v. Speth, 323 N.J. Super. 67, 81 (App. Div. 1999) (internal quotation marks omitted). The Court has clearly articulated the standard to be applied as whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59, (1967).]
Viewing the direct and circumstantial evidence most favorably to the State, we concur with the trial judge's determination that it was sufficient to allow a reasonable jury to find defendant was guilty of receiving stolen property in excess of $500, beyond a reasonable doubt. Patrolman Pinajian testified he saw defendant enter the passenger side of the Grand Am and place merchandise into the back seat. Detective von Schalscha explained defendant and co-defendant admitted ownership of the vehicle and claimed its contents resulted from their day of shopping. The State presented additional facts, including the absence of store bags, the nature and volume of merchandise (several of the same item were taken), holes appearing in some garments where a security sensor tag had been forcibly removed, defendant's actions of forcing items under the back seat or on the car floor, and the absence of receipts corresponding to the items in the vehicle. Further, defendant and Williams acknowledged to the police when questioned that they were with the juveniles, whom Jimenez watched steal items from Macy's and place them in the Grand Am. Jimenez identified the large leather handbags, found in the rear seat of the Grand Am, as identical to those carried by the juveniles when he observed them in Macy's.
That some of the State's evidence is circumstantial will not defeat the sufficiency of the State's overall proofs. See State v. Donohue, 2 N.J. 381, 389 (1949) (holding a criminal "conviction may be had on circumstantial evidence alone" if it established guilt beyond a reasonable doubt). Viewing the evidence as a whole, we determine the State proved each element of the offense charged. Accordingly, the trial judge properly denied defendant's motion for acquittal Defendant also argues the sentence imposed was excessive. She maintains if the court had properly considered the applicable mitigating factors the appropriate sentence should have been four years, without a mandatory period of parole ineligibility. Defendant identifies her drug dependence suggesting it should have been considered as "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" N.J.S.A. 2C:44-1b(4), and the hardship resulting because she has an eleven-year-old child warranted inclusion of N.J.S.A. 2C:44-1b(11). That conclusion is not supported by the record. We disagree.
Our role in reviewing a sentence is limited. State v. Natale, 184 N.J. 458, 489 (2005). "Although appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,] when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (alteration in original) (internal quotation marks and citations omitted). When "'conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . . , they need fear no second-guessing.'" Id. at 181 (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 365 (1984)). The sole exception to this standard, a sentence may be set aside if following our review of the facts presented, we determine the sentence shocks the judicial conscience. Cassady, supra, 198 N.J. at 181; Roth, supra, 95 N.J. at 365-66.
Judge Venezia found applicable aggravating factors three, six, and nine. N.J.S.A. 2C:44-1a(3) ("risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1a(6) ("extent of the defendant's prior criminal record" and "seriousness of" prior convictions); N.J.S.A. 2C:44-1a(9) ("need for deterring the defendant and others"). The judge also found no applicable mitigating factor. This was defendant's seventh indictable conviction and two additional drug-related offenses were pending. The judge was aware of defendant's claims of mitigation and rejected them. The presentence report included her assertion she was not a substance abuser and her son lived with her sister. We find no error in the judge's analysis requiring the sentence imposed to be altered.