STATE OF NEW JERSEY v. CHARLES R. ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5159-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES R. ROBINSON,

Defendant-Appellant.

________________________________

November 2, 2011

Submitted July 12, 2011 - Decided

Before Judges Sapp-Peterson and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0894.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction, following a jury trial, for third-degree shoplifiting, N.J.S.A. 2C:20-11(b), and the sentence imposed, an eight-year extended custodial term along with a four-year period of parole ineligibility. We affirm the conviction but remand for re-sentencing.

At trial, the State's proofs revealed that a loss prevention officer, Mark Grimes, observed defendant "staging merchandise." Grimes testified that staging occurs when a person places merchandise in a particular location and leaves it, only to return later to retrieve it without being noticed. After staging the merchandise, defendant left the store. He returned shortly thereafter with a floral gift bag and headed towards the staged merchandise. A video recording captured defendant returning to the staged merchandise, looking around, and then placing the items in the floral gift bag. Defendant then walked past a store exit, at which time alarm sensors beeped. He dropped the floral gift bag in the vestibule and Grimes and another store employee followed him out of the store, where a struggle ensued. Police arrived minutes later and recovered the floral gift bag. It contained twenty Polo shirts.

On appeal, defendant raises the following points for consideration:

POINT I

PROSECUTORIAL MISCONDUCT IN OPENING ARGUMENT DEPRIVED MR. ROBINSON OF A FAIR TRIAL (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN PERMITTING TESTIMONY CONCERNING EVIDENCE THAT HAD BEEN DESTROYED AND IN FAILING TO INSTRUCT THE JURY THAT IT COULD DRAW AN ADVERSE INFERENCE AGAINST THE STATE BASED ON THE FACT THAT EVIDENCE HAD BEEN DESTROYED.

POINT III

THE TRIAL COURT ERRED IN RULING THAT THE STATE WOULD BE PERMITTED TO CONFRONT MR. ROBINSON WITH REMOTE CRIMINAL CONVICTIONS AND A VIOLATION OF PROBATION IF MR. ROBINSON WERE TO TESTIFY IN HIS OWN DEFENSE AT TRIAL (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL.

POINT V

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT VI

MR. ROBINSON'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RE[-]SENTENCING.

A. MR. ROBINSON MUST BE RE[-] SENTENCED IN ACCORDANCE WITH THE HOLDING IN STATE V. PIERCE[, 188 N.J. 155 (2006),] (NOT RAISED BELOW).

B. MR. ROBINSON MUST BE RE[-] SENTENCED IN ACCORDANCE WITH STATE V. DUNBAR[, 108 N.J. 80 (1987)].

POINT VII

THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BY FINDING UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).

With the exception of defendant's arguments related to his sentence, we find no merit in any of defendant's arguments related to his conviction and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments relative to Points I, II, and III, although not in the order raised.

The events leading up to defendant's arrest were recorded on the surveillance camera. The jury therefore had the opportunity to see the size and shape of the floral gift bag. Thus, the fact that the store failed to preserve the floral gift bag as evidence did not prejudice defendant's ability to cross-examine the State's witnesses relative to defendant's ability to stuff twenty Polo shirts into a gift bag.

Turning to defendant's contention that the court admitted his prior convictions without articulating specific findings relative to those convictions, we initially note defendant failed to raise this particular issue before the trial court. The sole issue before the court relative to defendant's prior convictions was the number of prior indictable convictions and the timing of those convictions. The court advised that it was inclined to admit all of defendant's prior convictions if the convictions were spaced over a period of time. The prosecutor advised the court that the convictions occurred in 1985, 1989, 1997, 2001 and 2005. Because defendant did not object to the admission of these prior convictions during this pre-trial conference, nor at the conclusion of the State's case when the court inquired whether he intended to testify and expressed its intention to admit the prior convictions, we review the claimed error under the plain error standard. R. 2:10-2. Specifically, we determine whether the claimed error was capable of producing an unjust result. Ibid. We conclude the court's determination to admit the prior convictions was well within its discretion and was consistent with the conditions for admissibility under State v. Sands, 76 N.J. 127 (1978), and State v. Brunson, 132 N.J. 377 (1993). Further, because there was no challenge to the State's proffer other than the number of convictions, which the prosecutor resolved the following day, the court's failure to include "some elaboration on the substantial danger of undue prejudice, or the absence thereof," as set forth in State v. Balthrop, 192 N.J. 542, 546 (1983), relied upon by defendant, was not capable of producing an unjust result. Ibid.

With respect to the prosecutor's statement during her opening that the jury should not allow the value of the stolen merchandise to "play a role" in its verdict, we do not view this comment, which was fleeting and not repeated, as "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). To warrant reversal, the conduct must have been "'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. Under the plain error standard, because defendant failed to object to the prosecutor's comment, we conclude there was no error capable of producing an unjust result. R. 2:10-2.

Finally, we turn our attention to the eight-year discretionary, extended term and four-year period of parole ineligibility imposed by the court. Defendant argues that the court's sentencing failed to comply with the dictates of State v. Pierce, 188 N.J. 155 (2006), and State v. Dunbar, 108 N.J. 80 (1987). We agree.

In Pierce, supra, the Court held that once a sentencing court determines that a defendant is statutorily eligible for sentencing to a discretionary extended term, the sentence to which a defendant may be subjected "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." 188 N.J. at 169. The minimum of the ordinary range of a custodial sentence for third-degree shoplifting starts at three years, while the maximum custodial sentence that could be imposed based upon an extended term is ten years. The court imposed an eight-year sentence. In doing so, however, the court failed to engage in the weighing and balancing of the aggravating and mitigating factors as it was required to do. Id. at 168. Similarly, the court also failed to engage in a separate weighing and balancing of the aggravating and mitigating factors before imposing a period of parole ineligibility. See N.J.S.A. 2C:43-6(b); see also Dunbar, supra, 108 N.J. at 92-94. Therefore, we remand to the trial court for re-sentencing. On remand, defendant may not be subject to a sentence above the sentence previously imposed. State v. Natale, 184 N.J. 458, 496 (2005).

The judgment of conviction is affirmed. We vacate the sentence imposed and remand for re-sentencing. We do not retain jurisdiction.