Submitted October 7, 2014
Approved for Publication December 29, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-12-1792.
Joseph E. Krakora, Public Defender, attorney for appellant ( Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent ( Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).
Before Judges MESSANO, OSTRER and HAYDEN. The opinion of the court was delivered by OSTRER, J.A.D.
[438 N.J.Super. 476] OPINION
[438 N.J.Super. 477] OSTRER, J.A.D.
Defendant Maytee Cordero appeals from her conviction, after a jury trial, of third-degree shoplifting, N.J.S.A. 2C:20-11(b). The shoplifting incident involved the taking of over $1700 of merchandise from the Apple Store at Menlo Park Mall on July 26, 2011. Her co-defendant, Chris Perez, removed various items from the accessory wall and placed them into two large Abercrombie & Fitch (A& F) clothing bags that defendant was holding. Defendant and Perez then left the store without paying for the products.
The appeal requires us to address when it is appropriate for a trial court to rule on the admissibility of other-crimes-or-wrongs evidence under N.J.R.E. 404(b), when offered to rebut a defendant's proffered mistake, or lack of intent. The State sought an in limine ruling permitting it to introduce evidence of a previous alleged shoplifting incident at a Target store that involved defendant, Perez and a third person. The evidence was a video of that incident, as well as a recorded statement defendant gave shortly thereafter. The State proposed to use the evidence to rebut a proffered defense, set forth in a letter from defense counsel, that Cordero did not intend to shoplift from the Apple Store, and her removal of the items without paying was a mistake, as she was unaware Perez placed items in the bags.
Judge Joseph Paone declined to hold a formal hearing under N.J.R.E. 104, or issue
a definitive ruling in advance of defendant's testimony. However, to assist defendant in deciding whether to testify, the judge offered his tentative view that the 404(b) evidence was likely admissible. He did so before opening statements. After the State rested and the judge viewed the video, he reiterated his tentative view.
[438 N.J.Super. 478] On appeal, defendant argues that the court erred in refusing to issue a definitive ruling. She asserts that the tentative ruling was erroneous and infringed upon her right to testify. She also asserts the prosecutor committed misconduct in his summation.
We conclude that a trial court, in its discretion, may await the close of a defendant's case before determining the admissibility of 404(b) evidence that the State seeks to introduce to rebut the defendant's claim of lack of intent or mistake. We also discern no error in the court's decision to offer a tentative view of the issue. Finally, defendant's claim of prosecutorial misconduct lacks sufficient merit to warrant extended discussion. We therefore affirm.
The State presented its case through the testimony of two of the Apple Store's loss prevention officers -- Steve G. Yhap and Felix Melendez. The jury also heard briefly from the Edison Township police patrolman who arrested defendant and Perez.
Yhap and Melendez were in plain clothes while they monitored customers in the store. Yhap testified he saw Perez enter the store, look around while talking on his cell phone, then exit. Shortly thereafter, Perez entered again, accompanied by defendant. She was carrying two large A& F shopping bags. They both walked to one side of the store, where he selected a laptop case. He then walked to the other side of the store, and she followed. Yhap stated, " He would select items, and, then, he would conceal [them] behind the laptop case. She would, like, raise up her bag, and he would put [them] into the defendant's bag."
The two then exited the store without paying for the items. Yhap testified he confronted them, and placed Perez in handcuffs. Meanwhile, defendant placed both bags on the floor and began to walk or jog away, when Melendez stopped her. Yhap and Melendez [438 N.J.Super. 479] escorted the two to an office in the rear of the store, where they photographed the items in the bag.
Melendez generally confirmed Yhap's version of events. Melendez did not specifically state that defendant raised the bags while Perez placed the items inside. However, he confirmed that she carried both bags into and out of the store. Melendez testified that when he and Yhap identified themselves, " she slowly dropped the bags . . . [a]nd, then, she slowly tried to, like, make off -- like -- almost like a slow-motion running." She was apprehended.
The loss prevention officers also testified that defendant and Perez made self-incriminating statements. Melendez stated that defendant asked " if there's any way Chris Perez can just take all the charges, and to just let her go."  She explained that she was " concerned over opening up her own . . . used car sales lot" and feared
" she wouldn't get the license if she got charged. . . ."
Yhap testified that Perez told him " that he was responsible for it, because she's trying to open up a car dealership and he doesn't want her to take the rap for it." Defense counsel confronted Yhap with his report of the incident, which did not include that statement. Instead, it stated, " 'During the interview Christopher Perez admitted to stealing the items for his boss. And since he overheard management calling the local PD he said he wasn't going to give us any information unless we let them walk.'" None of the alleged statements by defendant and Perez were recorded, nor did the two sign written statements. Also, Yhap explained that because of ...