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State v. Rosario

Superior Court of New Jersey, Appellate Division

October 9, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
ALCY ROSARIO, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 20, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-03-0441.

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Theresa Richardson, attorney for respondent.

Before Judges Graves and Simonelli.

PER CURIAM

By leave granted, the State appeals from the January 9, 2013 Law Division order, which granted defendant Alcy Rosario's motion to suppress evidence seized without a warrant. Because we conclude that the police had a reasonable and articulable suspicion to detain defendant, we reverse.

Prior to November 18, 2011, David Ortiz (Ortiz), the certified loss prevention officer at the K-Mart store in Hazlet, investigated a customer's report of unauthorized purchases made with her credit card. Using the customer credit card information, Ortiz determined the date, time and location of the unauthorized purchases. He then reviewed surveillance video of the purchases and saw two men jointly purchasing electronics items using three different credit cards, each of which was declined, before successfully completing the unauthorized purchases with the customer's credit card.

On November 18, 2011, Ortiz saw a man in the store's electronics department making a purchase that mirrored the transactions on the surveillance video of the prior unauthorized purchases. Ortiz saw the man use three different credit cards, each of which was declined, before successfully completing the purchase with a fourth credit card. Ortiz believed that the man resembled one of the two men he had seen in the surveillance video.

After the man purchased the item and left the store, Ortiz began monitoring the electronics department via the store's closed-circuit television system to see if the second man he had seen on the surveillance video would appear. While doing so, he also reviewed the surveillance video of the prior unauthorized purchases. Shortly thereafter, he saw a person who resembled the second man, later identified as defendant, enter the electronics department and order a "high-priced" video-game system. Defendant waited at the cash register while the cashier went to the stockroom to get the item defendant had ordered.

Believing that defendant was about to make an unauthorized credit card purchase, Ortiz called the Hazlet Township Police Department. He advised the dispatcher about his prior investigation of unauthorized credit card purchases, that the person he now saw in the store may be the same person who was involved in the prior transactions, and that this person was in the electronics department attempting to purchase electronic items. Ortiz also gave a description of the individual.

The dispatcher advised Police Officer Adam Cullen that Ortiz, K-Mart's loss prevention officer, had called and reported that there was an individual in the store's electronics department attempting to make a purchase with a fraudulent credit card. The dispatcher gave the officer the same description of the individual that Ortiz had given the dispatcher.

Officer Cullen, who was in uniform, arrived at the K-Mart approximately three minutes after receiving the dispatch, where he met Sergeant Lynch. The two officers entered the store and went to the electronics department, where Ortiz met them. Ortiz pointed out defendant to the officers as the person he had reported to the dispatcher and told the officers that defendant was attempting to purchase some ...


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