STATE OF NEW JERSEY v. VYLISHA BELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1844-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VYLISHA BELL,

Defendant-Appellant.

_________________________________

September 22, 2010

Argued September 13, 2010 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 56-09.

Robert J. Weatherly argued the cause for appellant (Law Offices of Joy R. Spriggs, attorneys; Richard W. Carlson, on the brief).

Jennifer Stonerod, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Stonerod, of counsel and on the brief).

PER CURIAM

Defendant Vylisha Bell1 appeals from her December 16, 2009 shoplifting conviction by the Law Division, and from the 180 day jail sentence imposed. We affirm the conviction. We remand to the Law Division to reconsider the sentence.2

I

These are the most pertinent facts, as elicited at the June 25, 2009 suppression motion in the municipal court. While defendant was shopping at a TJ Maxx store, two of the store s loss prevention employees saw defendant place two pairs of expensive shoes in her handbag and leave the store without paying for them. One of the employees then saw defendant place the shoes between the back seat cushions of a parked car. According to police witnesses, the store contacted them to report a shoplifting incident. When the police arrived, the store employees showed them a security video on which the shoplifting incident was recorded. Two police officers testified that defendant consented to a search of the car. During the search, the shoes were found concealed in the back seat cushions.

At the suppression hearing, neither attorney asked the police witnesses whether they had advised defendant of her right to refuse consent to search. Defense counsel did not argue the issue following the testimony, or otherwise raise the issue of whether defendant knew she had the right to withhold her consent. After hearing the testimony and argument of counsel, the municipal judge denied the motion, concluding that the police had probable cause for the search. She also reasoned that there were exigent circumstances, because the car was owned by defendant s companion, who was not under arrest and could have driven the car away at any time. However, she further found that defendant had consented to the search thereby obviating the need for a search warrant.

At the municipal trial, a store employee described in detail that she observed defendant place two pairs of orange shoes and two pairs of leopard print shoes in her shopping cart, and she then saw defendant place one pair of each type of shoe in a large purse. The employee, who was dressed like an ordinary shopper, followed defendant to the check-out counter and observed that she did not pay for the shoes in the purse. When defendant then proceeded through the first set of exit doors into the store s vestibule, the employee stopped her and asked to see the contents of her purse. Defendant "flipped out," accused the employee of falsely accusing her of theft, and threatened to file a lawsuit. She brushed past the employee and ran to a parked car. Following defendant, the employee saw her empty the shoes out of her handbag onto the back seat of the car. Either defendant or her male companion then drove the car up to the front of the store. Defendant exited the car and opened her purse to show the employees that it contained no merchandise.

According to the employee witness, when the police arrived, defendant had "all this merchandise . . . laid outside the car" and told the police to check that merchandise for the shoes. After the employee told the police that she had seen the shoes inside the car, the police "asked [defendant] for permission to . . . search the car. She said go ahead, the shoes are not in the car." The police at first found nothing, but eventually found the shoes hidden behind the back seat cushions. During her testimony, the store employee identified a photograph of the stolen shoes. That photograph was also authenticated by a police witness, who confirmed that consistent with police practice, they photographed the stolen merchandise and returned the shoes to the store.

In his trial testimony, when asked if he requested defendant s permission to search the car, the officer who recovered the shoes clarified that defendant "offered" to allow the police to search the car; "she told us to search the vehicle." He also testified that it was defendant who first called the police, complaining that a security guard had pushed her. When the police arrived they became aware that the employee was accusing defendant of shoplifting.

At the trial, defendant testified that she only had two pairs of shoes in her possession and she paid for them. However, she returned to the store when a security alarm beeped as she was leaving. After a security guard pushed her, she called the police to report that store employees were harassing and pushing her. She also denied placing any shoes in the car. Her testimony did not address the issue of her consent to search the car.

Finding the store employee and the police officers credible and defendant not credible, the municipal judge found defendant guilty of shoplifting. The prosecution did not recommend a sentence, leaving that issue to the judge s discretion. The judge imposed a 180 day jail term and a $l000 fine.

In a de novo hearing on defendant s municipal appeal, the Law Division judge found as fact that defendant called the police, and then "invited the [police] officer to search the car." Therefore, the search was valid, based on defendant s spontaneous invitation. The judge also found that, even without the fruits of the search, the State had proven its case beyond a reasonable doubt based on the "extremely credible" detailed testimony of the store security employee who personally witnessed the theft. As did the municipal court, the Law Division judge imposed a 180 day jail sentence.

II

On this appeal, defendant raises the following issues:

POINT I: THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AS THE POLICE WERE REQUIRED TO BUT FAILED TO OBTAIN A SEARCH WARRANT.

A. Absent A Finding Of Operation, The Automobile Exception To The Warrant Requirement Cannot Apply.

B. Exigent Circumstances Do Not Apply.

C. Any Consent Given By The defendant Was Legally Insufficient.

POINT II: ABSENT THE FRUITS OF THE ILLEGAL SEARCH, DEFENDANT'S CONVICTION FOR SHOPLIFTING CANNOT STAND.

POINT III: THE SENTENCE OF CUSTODIAL TIME TO THIS DEFENDANT IS EXCESSIVE.

On this appeal, we must defer to the factual findings of the Law Division judge so long as they are supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 474 (1999). Those findings are entitled to particular deference when both the municipal judge, who observed the live testimony, and the Law Division judge find the same witnesses credible. Ibid. Having reviewed the record, in light of that legal standard, we find no merit in defendant s challenge to her conviction.

Relying on State v. Pena-Flores, 198 N.J. 6 (2009), defendant claims the court should have granted her motion to suppress, because there were no exigent circumstances, and the police searched the parked car without a warrant. We agree with defendant that there were no exigent circumstances. However, there is sufficient credible evidence in the record to support the Law Division s finding that defendant, evidently believing that she had effectively hidden the stolen shoes, spontaneously invited the police to search the car. Under those circumstances, a search warrant was not required.3 Moreover, we agree with the Law Division judge that the store employee s testimony was sufficient to support the shoplifting conviction even without the fruits of the search. Therefore, even if the Law Division had erred in deciding the suppression issue, the error would have been harmless. See State v. Macon, 57 N.J.325, 339-41 (1971).

We next address defendant s challenge to the 180 day sentence. By statute, a ninety day sentence is mandatory for her fourth shoplifting conviction, N.J.S.A. 2C:20-11c. However, she contends that in imposing an additional ninety days beyond the statutory minimum, the Law Division judge did not consider the extent to which defendant's imprisonment would "entail excessive hardship" to her children. See N.J.S.A. 2C:44-1b(11).

Defendant has infant twins, for whom she was caring at the time she was sentenced. Clearly, in light of her prior criminal record, some period of incarceration is warranted as well as legally mandated. However, the difference between a three-month separation from a parent and a six-month separation may be significant in the life of an infant. The judge did not directly or clearly address the hardship issue or explain why the additional ninety day sentence was nonetheless justified in light of the hardship claim. See State v. Dalziel, 182 N.J. 494, 504-05 (2005). We therefore remand this issue to the trial court for reconsideration. The issue on remand should be decided before defendant reports to jail, so that she can make appropriate arrangements for the care of her children in light of the length of her sentence.

Affirmed in part, remanded in part.

1 Defendant s first name is spelled "Vylesha" in some documents in the record; we use the spelling that appears in the judgment of conviction.

2 Defendant was also charged with hindering her own arrest. However, she was acquitted of that charge in the Law Division. Defendant s sentence for shoplifting was stayed pending this appeal.

3 Because defendant invited the police to search her car, without waiting to be asked for her consent, we need not address her contention that the police failed to advise her of her right to refuse consent. See State v. Johnson, 68 N.J. 349, 353-54 (1975).