STATE OF NEW JERSEY v. DEREK BETHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5738-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEREK BETHEA,

Defendant-Appellant.

_____________________________

November 1, 2016

Submitted September 22, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-11-3043.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Garima Joshi, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his June 12, 2014 convictions for swindling and cheating at casino gaming, N.J.S.A. 5:12-113(a). We affirm.

On August 15, 2013, a craps dealer at the Borgata Casino saw what he believed to be a cheating incident occur at his table. When the dice were released, the winning number was established and the dealer turned to speak with the boxman next to him. When the dealer turned back, he noticed a large bet of $1,100 in the field, which had not been present when the dice were thrown.

After the dealer refused to pay the bet, the player argued with the dealer and the supervisor instructed the dealer to pay the player, who then left the casino. The Borgata surveillance team reviewed footage of the incident and notified police of a suspected cheating incident.

New Jersey State Police (NJSP) Detective Victor Sherman arrived at the Borgata, reviewed the surveillance footage and created a "be on the lookout" (BOLO) alert, which included a description of the alleged criminal activity and a picture of the suspect, to be distributed to other casinos.

As a result of the BOLO, defendant was detained by security at the Tropicana Casino the following day for suspected past-posting.1 NJSP Detective Joseph Vicari responded to the Tropicana and identified defendant as the man in the BOLO picture.

When Detective Vicari asked defendant if he knew why he was detained, defendant began talking about how the Borgata did not know the rules of the game and he should have been paid on the bet. Defendant was charged with past-posting at the Borgata and was issued a complaint-summons by Detective Vicari.

On August 30, 2013, a casino floor supervisor assigned to a craps table at Resorts Casino concluded defendant had placed an illegal bet and refused to pay him. The floor supervisor believed the bet was placed after the dice landed because the bet was not on the table when the dice were out or when the dice landed. When defendant's bet was not paid, he began to argue and was detained by security.

Detective Sherman responded to Resorts Casino for the past-posting complaint and recognized defendant as the man pictured in the August 15, 2013 BOLO for past-posting at the Borgata. When Detective Sherman entered the room where defendant was detained, defendant was already speaking with security personnel, arguing the casino should have paid him. Detective Sherman introduced himself and defendant continued to assert he had behaved appropriately in the casino. After reviewing the surveillance footage, Detective Sherman explained to defendant a player is not permitted to place a wager after the dice have been thrown and doing so constitutes illegal past-posting. Detective Sherman charged defendant with past-posting at the Resorts Casino. A new BOLO was created with an updated photo and was sent to other casinos to alert them of defendant's activities.

The next day, a supervisor at Revel Casino was overseeing a craps table and observed a man placing his bet after the dealer called "no more bets." She instructed the dealer to not pay the bet. Defendant argued with the supervisor and was escorted out of the casino by security. The surveillance department reviewed footage of the incident and Detective Sherman was called to Revel Casino. He reviewed the surveillance footage and believed the suspect was defendant and determined he had past-posted a bet at the craps table.

Later that day, defendant was arrested at the Atlantic Club Casino for similar conduct. Detective Sherman reviewed the Atlantic Club surveillance video and believed that defendant was involved in the past-posting bets. At the police station, Detective Sherman noted that defendant was wearing the same clothing from the BOLO photo taken at Revel Casino. Defendant continued to repeat that the casino industry was wrong and he should be paid for his bet. Defendant was charged with the past-posting at Revel Casino.

Defendant was indicted for three counts of swindling and cheating at casino gambling, N.J.S.A. 5:12-113(a). He represented himself at trial, with the assistance of stand-by counsel from the Office of the Public Defender.

Before trial, the State moved to introduce defendant's 2005 convictions for swindling and cheating for past-posting at one roulette game and two craps games, as well as evidence of past-posting on August 15, 2013. The court admitted evidence of the 2005 conviction under N.J.R.E. 404(b), and the August 15, 2013 attempts to past-post bets as uncharged acts intrinsic to the charged crime.

After trial, the jury convicted defendant of all counts. The trial court sentenced defendant to an aggregate seventeen-year term of imprisonment with seven-and-a-half years of parole ineligibility for his convictions and five counts of contempt.

On appeal defendant argues

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING INTO EVIDENCE DEFENDANT'S 2005 CONVICTION AND OTHER ALLEGED BAD ACTS IN VIOLATION OF THE STANDARDS SET FORTH IN N.J.R.E. 404(b), 403, AND STATE V. COFIELD, 127 N.J. 328 (1992).

II. DEFENDANT'S STATEMENT TO THE STATE POLICE OFFICERS WAS THE RESULT OF A CUSTODIAL INTERROGATION WITHOUT A KNOWING WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION AND SHOULD BE SUPPRESSED.

III. THE TRIAL COURT FAILED TO SEVER THE THREE UNRELATED CRIMINAL INCIDENTS CHARGED IN THE INDICTMENT, THEREBY PREJUDICING DEFENDANT.

IV. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION PURSUANT TO R. 3:18-1 FOR A JUDGMENT OF ACQUITTAL.

V. THE DECISION OF THE COURT TO CONTINUE WITH THE TRIAL DESPITE THE ABSENCE OF STANDBY COUNSEL DEPRIVED DEFENDANT OF A FAIR TRIAL (Not Raised Below).

VI. THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

I.

Defendant asserts the judge erred by admitting evidence of his prior conviction from 2005 for swindling and cheating and his August 15, 2013 attempts. We disagree.

We review a trial court's determination of evidence under N.J.R.E. 404(b) with great deference. State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). The admissibility of other-crime evidence is left to the discretion of the trial court because of its intimate knowledge of the case. State v. Covell, 157 N.J. 554, 564 (1999). Only a "clear error of judgment" can justify disturbing that decision. Ibid.

Here, the trial judge appropriately exercised discretion to admit evidence of defendant's 2005 conviction because it demonstrated evidence of intent, knowledge, and absence of mistake. The 2005 conviction and the incidents charged herein were similar in that defendant approached various gaming tables and waited until the winning outcome had been established before placing his bet in the winning field.

N.J.R.E. 404(b) prohibits the use of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." Such evidence may be used for other purposes, including "motive . . . intent . . . knowledge . . . or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

The purpose of N.J.R.E. 404(b) is to prevent the "suggest[ion] that because a defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial." State v. Weeks, 107 N.J. 396, 406 (1987). Evidence that qualifies as a "bad act" under N.J.R.E. 404(b) should only be presented to the jury if it passes the four prong test set forth in Cofield, supra, 127 N.J. at 338. The Cofield test requires

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing;

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Id.]

The 2005 conviction was relevant to show defendant's intent, knowledge, and absence of mistake.2 The 2005 conviction demonstrated defendant understood the rules of craps, intended to cheat, and defendant's intent could be inferred from prior conduct. The 2005 conviction satisfied the temporal requirement; as it occurred eight years before, which is not too remote to demonstrate motive and intent, mistake, or lack of knowledge, and was both relevant and clear and convincing.

The evidence for the August 15, 2013 acts was admitted under a different standard. The trial court heard testimony and observed a video of defendant's acts on August 15, 2013. Certain evidence of uncharged conduct does not require analysis under N.J.R.E. 404(b). If it is "intrinsic" to the crime charged, evidence is admissible if relevant under N.J.R.E. 401 and 402, and not excludable under N.J.R.E. 403. State v. Rose, 206 N.J. 141, 177-78 (2011). N.J.R.E. 403 provides for the admission of evidence unless its probative value is outweighed by prejudice.

Intrinsic evidence is admitted "as 'necessary parts of the proof of an entire deed,' or as 'inseparable elements of the deed,' or as 'concomitant parts of the criminal act . . . .'" Id. at 177. In determining what evidence is "intrinsic," we follow the Supreme Court's adoption of the definition stated in United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010), cert. denied, 562 U.S. 942 (2010). Under that definition,

the "intrinsic" label [applies to] two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If the uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime."

[Rose, supra, 206 N.J. at 180 (emphasis in original) (quoting Green, supra, 617 F. 3d at 248-49).]

In the present case, the court found the evidence of the August 15, 2013 act was intrinsic because it was performed contemporaneously with the charged crime and facilitated the commission of the charged crime. Rose, supra, 206 N.J. at 180. The first two instances occurred roughly an hour before the charged act and involved defendant attempting to place a bet, but pulling his bet back when he saw the winning number. In the third instance, which occurred eight minutes before the charged act, at an adjacent table, defendant again attempted to place a bet, but pulled his hand back. The court found the acts facilitated the crime for which defendant was charged, because they were clearly attempts to commit that crime.

Moreover, the court properly instructed the jury on the limited use of other bad acts. State v. Hernandez, 170 N.J. 106, 131 (2001); N.J.R.E. 105. "In setting forth the prohibited and permitted purposes of the evidence the trial court must include within the instruction 'sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" Ibid. (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).

The court gave accurate and thorough limiting instructions, both prior to opening statements and during the jury charge. The court emphasized evidence of other bad acts was introduced for a specific, narrow purpose to prove the defendant's intent, absence of mistake, and knowledge. The judge instructed the jury not to use the evidence to determine that defendant had a tendency to commit wrongs.

II.

We also reject defendant's argument the trial court improperly denied his motion to suppress his statements to casino employees. The trial court ruled defendant was not subject to custodial interrogation when he made two statements, which were overheard by Detectives Sherman and Vicari. Because defendant was not in custody when he made the statements, the protections afforded by Miranda3 do not apply.

During the suppression hearing, Detective Vicari testified he responded to the Tropicana Casino on August 16, 2013, to speak with a suspect who was detained for a cheating offense after he matched the BOLO alert from the prior day. Detective Vicari testified, as he walked into the room, defendant was arguing with security that the casino did not understand the rules of craps and heard defendant's statements before he even had a chance to speak with him. Defendant was later charged on a complaint-summons.

Detective Sherman testified, when he walked into the room where defendant was detained on August 30, 2013, defendant was arguing with casino personnel that it was unfair he was not being paid and he had behaved appropriately and within the rules. When Detective Sherman responded to the Atlantic Club the following day, defendant was again describing why he should have been paid for his bet and why he had done nothing illegal. Detective Sherman testified defendant's statements on both days were not the result of police questioning.

The trial judge denied defendant's suppression motion finding defendant had not been speaking to the detectives, but to security personnel as the officers entered the room and the statements were made without prompting or questions from the detectives. The court also found defendant had made voluntary spontaneous utterances and the state's witnesses were credible and trustworthy.

Miranda applies only when a defendant is in custody and being interrogated. Miranda, supra, 384 U.S. 436, 86 S. Ct., 16 L. Ed 2d. "Whether or not a person is in custody is an objective determination, based on 'how a reasonable [person] in the suspect's position would have understood his situation.'" State v. Carlucci, 217 N.J. 129, 144 (2014) (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1985)). Although defendant was detained by casino security when he made the statements in question, he was not in police custody and was not subject to interrogation at the time he made the statements. Defendant gave his opinion on his actions and the casino rules while being detained by casino personnel, not by police. Defendant's statements were not made in response to police questioning, but were spontaneous.

III.

We reject defendant's argument that the trial court erred in denying his motion to sever Counts One, Two, and Three of the indictment. The trial court determined the three counts of swindling and cheating were mandatorily joined because the three instances of defendant's conduct arose from the same criminal act. The decision to grant a severance "rests within the trial court's sound discretion and is entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990). See also State v. Pitts, 116 N.J. 580, 601 (1989).

Pursuant to Rule 3:7-6,

[t]wo or more offenses may be charged in the same indictment . . . in a separate count for each offense if the offenses charged are of the same or similar character or based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.

Relief from prejudicial joinder shall be afforded as provided by Rule 3:15-2. That Rule provides,

[e]xcept as provided by R. 3:15-2b, a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court. R. 3:15-1.

In addition to these requirements, multiple offenses based upon the same criminal episode and part of the same essential transaction known to the prosecutor when an indictment is first sought must be joined in a single trial or prosecution, and any omitted offenses will later be barred. State v. Gregory, 66 N.J. 510, 518-19 (1975).

The offenses herein were based on the same conduct or the same criminal episode. The offenses were committed within two weeks of each other and each instance occurred in a casino in Atlantic City. Defendant's conduct indicates his overall scheme was to defraud casinos. In each instance, defendant waited for the craps dealer to become distracted and then placed his bet after the winning number was called.

The trial court concluded joinder was mandatory because the offenses arose from the same, identical conduct, which occurred over two weeks and constituted a continuing scheme. As compared to separate trials, a joint trial would not have significantly prejudiced defendant, as the evidence of other crimes would have been admissible under N.J.R.E. 404(b), to show knowledge, intent, or absence of mistake. The court made clear in jury instructions that each offense was to be considered separately based on the evidence that was material and relevant to each particular charge.

IV.

Defendant next argues the trial judge erred by denying his motion for a judgment of acquittal.4 Defendant is entitled to a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard for determining the sufficiency of evidence to sustain a conviction is whether the State's evidence, be it direct or circumstantial, viewed in its entirety and in the light most favorable to the State, is such that a jury can rationally "find beyond a reasonable doubt that defendant was guilty of the crime charged." State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)). After outlining the Reyes standard, considering the evidence and testimony presented, the court denied defendant's motion stating "guilt of this charge could be found beyond a reasonable doubt, given the State's evidence, all reasonable inferences, and all [the] testimony."

A conviction under N.J.S.A. 5:12-113(a) requires a defendant "purposely or knowingly by any trick or sleight of hand performance or by fraud or fraudulent scheme, cards, dice, or device, for himself or for another, wins or attempts to win money." A person acts purposely as to conduct or the result thereof if it is his conscious objective to engage in conduct of that nature or to cause such a result. Jurors were informed defendant must be found guilty if they found defendant knowingly through fraud, fraudulent scheme, trick, or sleight of hand performance won or attempted to win money.

Giving the state the benefit of all favorable testimony and inferences, a reasonable jury could have found beyond a reasonable doubt defendant was guilty of swindling and cheating. The State's evidence established defendant, on multiple occasions, visited casinos and placed his bet on the craps table after knowing the winning number. The jury heard the testimony of the investigating officers and numerous experts who reviewed the surveillance footage and opined that defendant had attempted to cheat.

The trial court stated, "[t]o the extent a response to [d]efendant's [m]otion may be deemed necessary, this [c]ourt finds [the motion] to be factually and legally insufficient, based purely on [d]efendant's personal beliefs and self-serving biased quasi-affidavits." There was sufficient evidence in the record for a jury to find beyond a reasonable doubt defendant committed the charged crimes; accordingly, the trial court did not err in denying defendant's motion for judgment of acquittal.

V.

Defendant argues, for the first time on appeal, the court should not have continued with the trial with substitute standby counsel when defendant's original standby counsel was briefly unavailable. Generally, we will not consider any issue that an appellant failed to raise before a trial tribunal, unless it pertains to the jurisdiction of the tribunal or concerns matters of substantial public interest. State v. Robinson, 200 N.J. 1, 20-22 (2009). Because appellant's argument does neither, we need not analyze it further.

VI.

Defendant asserts his extended-term sentence of seventeen-years imprisonment with a seven-and-a-half-year parole disqualifier for three counts of swindling and cheating, and five concurrent 180-day terms for contempt, to run consecutively to the third count of swindling and cheating, is excessive. We disagree.

We apply a deferential standard when reviewing sentencing determinations. State v. Lawless, 214 N.J. 594, 606 (2013). The appellate court must affirm the sentence unless the sentencing guidelines were violated, the aggravating and mitigating factors found during sentencing were not based on credible evidence in the record, or the application of the guidelines make the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Fuentes, 217 N.J. 57, 70 (2014).

Before imposing the extended term, the court undertook the four-step analysis outlined in State v. Dunbar, 108 N.J. 80, 88 (1987), and considered the practical application of the persistent offender statute. The court examined defendant's prior history and details of the most recent conviction, and determined defendant was eligible for an extended sentence. The court noted defendant was convicted of a third-degree offense, was over age twenty-one, and had been previously convicted on at least two occasions of two crimes, at different times, when he was at least eighteen years of age, and his last release from confinement was within ten years of the date of the present crime. Defendant had previously been convicted of ten felonies and was released from prison on his most recent conviction in 2013. The court chose to impose the extended sentence based on the nature of the crime and defendant's persistent offender status as he had been sentenced for the same offense on four prior occasions.5

The judge found aggravating factors three, six, and nine, the risk that defendant would commit another offense; defendant's extensive criminal record; and the need to deter defendant and others from continuing and engaging in such conduct, N.J.S.A. 2C:44-1a(3), (6), (9) and no applicable mitigating factors. The court found defendant had a clear propensity toward persistent criminal conduct and noted by the second and third offenses, defendant knew his acts were criminal because he had been arrested and charged for the offense, despite this, he continued to commit similar acts.

Affirmed.

1 In craps, past-posting refers to a form of cheating in which the bettor places a bet after knowing the outcome of the dice roll.

2 Defendant also argues a State v. Sands, 76 N.J. 127 (1978) or State v. Brunson, 132 N.J. 377 (1993) inquiry was the appropriate means of allowing the 2005 conviction into evidence. A Sands inquiry would have been necessary if defendant chose to take the stand and the State sought to admit evidence of the 2005 conviction to impeach defendant's credibility. Because the 2005 conviction was admissible under Rule 404(b), the court gave narrow limiting instructions, and the State made no attempt to impeach defendant through the evidence, a Brunson sanitization was unnecessary.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 At the end of the State's case defendant made a "motion for a mistrial" which the trial judge treated as a motion for judgment of acquittal under Rule 3:18-1.

5 The court also noted defendant's five contempt charges, stemming from his failure to maintain himself appropriately during trial, ignoring the court's directions, and obstructing proceedings to the extent that jurors had to be removed on four occasions to maintain order. After each occasion, the court held a contempt hearing pursuant to Rule 1:10 and provided defendant with an immediate opportunity to respond. At each of the five contempt hearings, defendant failed to give a compelling justification for his behavior.