June 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JANICE D. CRAWFORD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-1226.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief).
Bfore Judges Messano and Ostrer.
Following a jury trial, defendant Janice D. Crawford was convicted of third-degree shoplifting, N.J.S.A. 2C:20-11(b). The judge sentenced defendant to a five-year term of imprisonment and imposed a two and one-half year period of parole ineligibility. Defendant's subsequent motion for reconsideration of her sentence was denied, and she now appeals.
Defendant raises the following points for our consideration:
POINT ONE – THE TRIAL COURT'S JURY INSTRUCTION ON THE CRIME OF SHOPLIFTING WAS PLAIN ERROR
POINT TWO – THE TESTIMONY OF NICOLE ROBINSON EXCEEDED THE SCOPE OF PROPER LAY OPINION AND CONSTITUTED IMPROPER EXPERT TESTIMONY
POINT THREE – THE ADMISSION OF HEARSAY TESTIMONY DENIED DEFENDANT A FAIR TRIAL
POINT FOUR – THE COMMENT ON DEFENDANT'S SILENCE AT THE TIME OF HER ARREST DENIED DEFENDANT A FAIR TRIAL
POINT FIVE – THE ADMISSION OF EVIDENCE OF A "BAD ACT" BY DEFENDANT WAS TRIAL ERROR WHICH UNDULY PREJUDICED DEFENDANT AND DENIED HER A FAIR TRIAL
POINT SIX – THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
POINT SEVEN – DEFENDANT RECEIVED AN EXCESSIVE SENTENCE
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On April 22, 2009, Nicole Robinson was employed as a "[l]oss prevention detective" at Macy's in the Woodbridge Mall. She was watching the store's closed circuit television (CCTV) monitor, in particular the area of the store where the women's handbags were located. Without objection, Robinson testified that she was watching that area because the store had "a couple of hits" between 8:30 p.m. and "closing" time and she was directed to "watch that area . . . ."
As the surveillance video was played for the jury, Robinson identified defendant in court as the person shown therein. Robinson observed defendant "clip the sensors" from some merchandise, emerge from behind a rack of handbags and walk to the women's clothing department. Robinson saw defendant remove "two shirts" from their hangars and place them inside a bag she was carrying. While she was in that department, Robinson observed defendant "clip the other sensor . . . on the handbag." Robinson identified, without objection, an item seized from defendant when apprehended as "a tool that most shoplifters use when they're trying to cut" security wires from items. She testified that defendant "[p]ut [the cutters] back in the bag." She also identified an exhibit as demonstrative of "an alarm tag" on Macy's merchandise used "to prevent theft." Robinson acknowledged that the actual "tags [on the handbags] were discarded afterwards" because "[t]hey're no more . . . use." She claimed "pictures" were taken, but none were produced at trial.
Robinson relayed her observations of defendant to a co-worker, Chris Maples, with whom she was communicating by cell phone. Defendant was stopped "after she passed the last point of sale[, ]" that is the "last cash register that one would pass . . . ." Robinson left her station and assisted Maples in apprehending defendant. Without objection, Robinson stated she assisted because defendant "wouldn't come downstairs with the other officer. She refused." Robinson stated, again without objection, that defendant was "[u]ncooperative" because "[s]he wouldn't give us any information on her[self]." Defendant was "handcuffed[, ]" and police were called.
Robinson acknowledged that only "two shirts, " not the clippers, were in the "bag" defendant carried when apprehended. The bag itself was "thrown away" and not retained as evidence. Robinson also admitted that, when defendant was stopped, there was still one security tag on one of the purses, and that might have triggered an alarm when defendant left the store.
On re-direct, however, Robinson testified that the particular handbags defendant had ordinarily required a sales associate to remove them from the sales rack. Another sensor was then removed at "the register." Over defense counsel's objection that the proffered testimony was beyond the scope of cross-examination, Robinson testified that the two handbags were valued at $295 and $375, and the two shirts were $29 each.
Woodbridge police officer Matthew Ventre testified that he was dispatched to the Macy's store at 9:27 p.m. Ventre was given a pair of "wire cutters" by Robinson and provided with "a printout" of the items defendant had in her possession when apprehended, which included two handbags and two blouses, valued respectively at "a little over $600" and "$58." Ventre testified, without objection, that during the processing, defendant "urinated on the floor and bench . . . she was sitting on."
The State rested after seeking to admit certain items in evidence, specifically, the video from the CCTV, a "demonstrative security tag, " and the wire cutters. Defense counsel only objected to the "security tag, " arguing the tag was not the same one defendant allegedly removed. The judge overruled the objection.
Defendant moved for a judgment of acquittal, see R. 3:18-1, challenging the State's proof as to the alleged "value" of the items. In this regard, counsel also argued that the State failed to prove that defendant had passed "the last point of sale." The judge denied the motion. Defendant elected not to testify, and no defense witnesses were produced.
We first consider seriatim the various challenges defendant asserts to the trial evidence, i.e., Points Two through Five. She contends that: improper expert testimony was adduced when Robinson identified the "wire cutters" as the type used by shoplifters; improper hearsay testimony was introduced when Robinson indicated she was directed to use the CCTV to observe conduct in the handbag area because of prior "hits" in that area near closing time; Robinson improperly referred to defendant's silence when apprehended; and, Ventre's testimony regarding defendant's urination in the holding cell was improperly admitted as "bad act" testimony in violation of N.J.R.E. 404(b).
Defendant acknowledges that no objection was lodged to any of this testimony, and, therefore, we review the claims under the plain error standard. See R. 2:10-2 (permitting an appellate court to "in the interests of justice, notice plain error" when "it is of such a nature as to have been clearly capable of producing an unjust result"); and see State v. Stas, 212 N.J. 37, 49 (2012) (recognizing that a defendant's failure to object at trial invokes plain error standard upon appellate review).
In order to reverse defendant's conviction, it would be necessary for us to conclude that the challenged evidence, singly or collectively, "raise[s] a reasonable doubt" that its admission "led the jury to a result it otherwise might not have reached." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (internal quotation marks omitted). After thoroughly reviewing the record, we are firmly convinced that admission of the challenged evidence did not amount to plain error.
As to Robinson's reference to the wire cutters, the video revealed defendant's use of the device to remove a security tag from one of the handbags. Robinson testified to her observations in this regard, and the wire cutters were retrieved from defendant and introduced in evidence at trial. Robinson's comment that such tools were commonly used by shoplifters was fleeting and not repeated again during the trial or the prosecutor's summation.
As to the testimony that Robinson's attention was directed by her superiors to the handbag area because of prior thefts, the State contends it was not hearsay, because it was not offered to prove the truth of Robinson's statement, but, rather, it only explained why she directed her attention to that part of the store. See State v. Branch, 182 N.J. 338, 351 (2003) (recognizing that "a police officer generally may testify that he went to the scene of a crime based 'upon information received, ' in order to show that the officer was not acting in an arbitrary manner") (quoting State v. Bankston, 63 N.J. 263, 268 (1973)). We agree.
But, even if our assessment as to the admissibility of this particular testimony is wrong, we are firmly convinced that its admission was not plain error. The testimony never "impl[ied] to the jury that [Robinson] possesse[d] superior knowledge, outside the record, that incriminate[d] . . . defendant." Branch, supra, 182 N.J. at 351.
The State contends that Robinson's testimony regarding defendant's refusal to provide personal information did not improperly infringe upon defendant's right to remain silent. Recently, the Court said, "even silence that precedes the administration of Miranda warnings -- if it is at or near the time of a defendant's arrest -- cannot be used for any purpose at trial." Stas, supra, 212 N.J. 57-58 (citations and internal quotation marks omitted).
However, assuming arguendo this prohibition applies to private security guards hired to apprehend potential shoplifters, we have held that "booking procedures and the routine questions associated [with that process] are ministerial in nature and beyond the right to remain silent." State v. Bohuk, 269 N.J.Super. 581, 591 (citations omitted), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S.Ct. 183, 130 L.Ed.2d 117 (1994). We acknowledge the lack of relevancy of such testimony; but, the fleeting comment by Robinson was not repeated, and the prosecutor did not argue to the jury that it was indicative of defendant's guilt. Admission of the testimony did not amount to plain error.
Finally, although we agree that Ventre's comment that defendant urinated on the floor and bench while being detained was completely irrelevant and should not have been admitted at trial, there was no objection, and it, too, never was repeated during the remainder of the trial or summation.
We next consider defendant's challenge to the jury charge. Again, there was no objection below, so we review the claim utilizing the plain error standard.
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate for rehabilitation' under the plain error theory, " Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. The failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J.Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
N.J.S.A. 2C:20-11(b)(1) and (2) 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.
The indictment charged defendant with "unlawfully tak[ing] possession of, conceal[ing] and/or carry[ing] away merchandise with an aggregate value of over $500 . . . ." N.J.S.A. 2C:20-11(d) provides:
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 . . . .
The trial judge provided instructions on this permissive inference as part of his general instructions on the crime of shoplifting, but he limited his instructions to the crime as defined by N.J.S.A. 2C:20-11(b)(1), reasoning that the State's contention was that defendant took possession of all the items with the intent to carry them away. He utilized, essentially verbatim, the model jury charges as to this particular offense, which includes instructions regarding the permissive inference in subsection (d) of the statute. See Model Jury Charge (Criminal), "Shoplifting" [Carrying Away] (N.J.S.A. 2C:21-11b(1)) (approved 11/7/05).
Defendant now contends for the first time on appeal that the charge was error because defendant was not charged with the "concealment" form of shoplifting, and, even if appropriate, the judge should have added clarifying language to the charge regarding the permissive inference because it was undisputed that defendant only concealed two blouses and not the handbags.
The arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). It suffices to say that the permissive inference is available under both definitions of the offense of shoplifting, and we are convinced that the jury understood the instructions and was not misled in any way from fair consideration of the evidence in light of the applicable law.
Lastly, defendant reiterates the arguments made below and claims it was error to deny her motion for acquittal because the State failed to prove that the value of the merchandise exceeded $500, the lowest monetary amount that defines shoplifting in the third degree. See N.J.S.A. 2C:20-11(c)(2). We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, 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, 459 (1967) (citation omitted).]
Defendant argues that, because the judge limited his charge to the "carrying away" offense and gave the permissive inference instruction regarding concealment, it was only appropriate for the jury to consider the value of the items actually concealed, i.e., the two blouses valued at $58, in determining the necessary value element of the crime. See State v. Castaldo, 271 N.J.Super. 254, 258 (App. Div. 1994) (holding that "the amount involved in a theft is an element of the offense required to be determined by the jury").
The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). The value of the total merchandise defendant either concealed in her bag or carried on her person as she passed the last point for payment in the store exceeded $500. The jury's verdict was amply supported by the evidence.
Defendant argues her sentence was excessive because the judge imposed the maximum possible sentence for a third-degree crime. She claims the judge failed to consider appropriate mitigating sentencing factors. We disagree.
The State sought an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a), arguing defendant was a "persistent offender" based upon her prior criminal history. The judge acknowledged that defendant was eligible for imposition of a sentence of imprisonment between three and ten years. He noted defendant's "extensive record, " which dated back to juvenile delinquency adjudications in 1977, and included "six prior Superior Court convictions, three of which were drug[-]related and three [of which] were for shoplifting." The judge considered the various substance abuse programs defendant had attended without success in curbing her "drug problem."
The judge found aggravating factors three, six, nine and eleven. N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); (6) extent and nature of defendant's prior record); (9) (the need to deter); and (11) (the imposition of a monetary fine, penalty or restitution would be "perceived . . . merely as part of the cost of doing business"). He found no mitigating factors. See N.J.S.A. 2C:44-1(b).
Although the judge was clearly convinced the aggravating factors "substantially outweigh[ed] the mitigating factors, " he decided not to impose an extended term. He did, however, impose a mandatory term of imprisonment during which defendant would not be eligible for parole. See N.J.S.A. 2C:43-6(b) (permitting, as part of the sentence, a period of parole ineligibility equal to one-half of the term imposed "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors").
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Although not presented at the time of sentencing, defendant now contends the judge erred by not finding mitigating factor four applied, i.e., "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[, ]" N.J.S.A. 2C:44-1(b)(4). The judge specifically rejected this claim when offered for the first time, along with other proposed mitigating factors, at the hearing on defendant's motion for reconsideration of sentence.
Defendant now points to a reference in the pre-sentence report, in which defendant self-reported that she suffered from high blood pressure, depression and anxiety, had received treatment for depression in 1990 and was taking Prozac and blood pressure medication. There are no expert reports or medical records as part of the appellate record that support defendant's claim that these conditions in anyway affected her judgment at the time these crimes were committed. As a result, we cannot conclude that the judge erred in not finding mitigating factor four.
The aggravating factors found by the judge are amply supported by the record. He properly considered and weighed them in crafting the sentence actually imposed, which does not shock the judicial conscience.