STATE OF NEW JERSEY v. DAVID L. STEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2943-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID L. STEIN,

Defendant-Appellant.

_______________________________________

December 21, 2010

Submitted November 8, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-10-2439.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief.)

PER CURIAM

Defendant, David L. Stein, appeals from a judgment, following a bench trial, convicting him of disorderly persons theft, on a charge amended as trial commenced from one of third-degree theft. Following the trial court's finding of guilt, defendant was sentenced to time served in jail, 213 days; and appropriate fines and assessments were levied.

The only witnesses to testify at trial were produced by the State. They were Detective Arthur J. Ferrari, a member of the New Jersey State Police; and Rene Sagun, a surveillance supervisor with Bally's Casino Hotel.

Ferrari described an "undercover" operation in which "one trooper would act . . . as if he were sleeping at a slot machine with the gaming voucher hanging out of the slot machine while other troopers conducted surveillance . . . so that if someone did steal the voucher, an apprehension could be made." The casino's video surveillance equipment was "to record any activity in the area." Two hundred five dollars was inserted into the machine and "the cash-out button [was] hit[;] the machine generate[d] a gaming voucher [which was] positioned to be hanging out of the slot machine."

After a time, Ferrari observed defendant "approach." He "took the voucher out of the slot machine and departed the area." The surveillance team "apprehended him and recovered the voucher . . . . immediately." An arrest was made, and Ferrari obtained the video surveillance recording depicting the incident as it occurred.

In his cross-examination of Ferrari, defense counsel sought to establish a factual basis for arguments he later made that defendant was attempting to turn the voucher over to a casino security person and had not concealed the voucher on his person or in a bag he was carrying.

The video surveillance recording was authenticated, received in evidence, and played. The verbatim record depicts that the playback of the recording consumed one minute, eighteen seconds.

At the close of the State's case, defendant moved for a "directed verdict of not guilty based on State v. Reyes," arguing that "in the absence of the actual ticket itself or the voucher, . . . the State's proofs are insufficient[.]" The motion was denied in a ruling that "the State need[s] to prove only some value for a [disorderly persons] offense . . . and it does appear that the State has advanced some evidence of some value of this voucher."

The defense rested without presenting any affirmative evidence. On summation, counsel argued, inter alia, that the State had not proved beyond a reasonable doubt the element of the theft offense that defendant had engaged in his conduct "with the intent to permanently deprive" another of property.

Judge DeLury rendered his decision:

Based on the highly credible testimony of Detective Arthur Ferrari, I find beyond a reasonable doubt that . . . defendant unlawfully took a slot voucher from a slot machine being operated by Detective Ed Brick, who was feigning being asleep in an undercover operation which was proactively designed to catch slot voucher thieves. The voucher was generated by the machine and was hanging out of the machine. The value of the voucher was $205, it being redeemable for cash at the casino.

Defendant, after he snatched the voucher, went away from his victim and was immediately apprehended and found in possession of this voucher.

Additionally, the Court has based its conclusions on the recorded evidence, . . . which shows in particular and very convincing detail this very workaday theft by this defendant. I infer by the defendant's actions that he intended to permanently deprive the owner of this property, removing it as he did as he slept there.

On appeal, defendant advances a single point for our consideration:

THE CONVICTION OF DEFENDANT FOR THE OFFENSE OF THEFT FROM THE PERSON WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST THEREFORE BE REVERSED.

In making this weight-of-the-evidence argument, defendant renews, on appeal, the contentions he advanced before the trial court.

A trial court's findings and conclusions are binding on appeal when supported by adequate, substantial and credible evidence in the record. See State v. Johnson, 42 N.J. 146, 160-162 (1964). We are obliged to "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 161. See also State v. Locurto, 157 N.J. 463, 470-72 (1999). Cf. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

We have been given no reason to perceive that Judge DeLury's findings and conclusions in this case were unwarranted in the light of the evidence before him or that he misapplied his discretion in drawing the articulated inferences and in ruling as he did. See State v. Brown, 80 N.J. 587, 592 (1979) (citing State v. DiRenzo, 53 N.J. 360, 376 (1969) (explaining that a trier of fact may "draw an inference from a fact whenever it is more probable than not that the inference is true.")).