STATE OF NEW JERSEY v. SALVADOR SANCHEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4553-04T14553-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALVADOR SANCHEZ,

Defendant-Appellant.

_______________________________

 

Submitted October 24, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 02-05.

Maynard & Truland, attorneys for appellant (Joe B. Truland Jr., on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Leo J. Hurley, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction in Secaucus Municipal Court on a charge of shoplifting, N.J.S.A. 2C:20-11b. He was found not guilty on a charge of assault, N.J.S.A. 2C:12-1a. Defendant was sentenced to a fine of $150, together with court costs and other assessments. Defendant appealed to the Superior Court, Law Division, Hudson County, and that court, in a trial de novo, again convicted defendant of the shoplifting charge and imposed the same sentence as had been imposed by the Municipal Court. These proceedings took place after a previous conviction had been set aside.

This case arose from an incident at a Home Depot store on June 28, 2003, at about 3:00 p.m., when Joseph Pepe, a loss prevention investigator for the store, allegedly observed defendant pocket certain packages containing wall plate covers. According to Pepe's testimony, he approached defendant and asked him to step into the loss prevention office. For reasons that included his concern about the number of times that Pepe had already testified in the same municipal court as a loss prevention investigator in other cases, defendant sought a change of venue, but that request was not granted.

According to the State, the alleged assault occurred in the loss prevention office. When defendant began standing up and was told that he would be handcuffed if he did not remain in his seat, he lunged from his seat and swung his arms at Pepe.

In his brief on this appeal, defendant asserts the following points:

POINT I: THE DEFENDANT'S MOTION FOR CHANGE OF VENUE FOLLOWING THE VACATION OF THE CONVICTION AND REMAND BY THE SUPERIOR COURT SHOULD HAVE BEEN GRANTED.

POINT II: THE DEFENDANT MUST BE FOUND NOT GUILTY OF THE OFFENSE OF SHOPLIFTING.

In the Municipal Court trial, the judge stated in her decision placed on the record on December 21, 2004, that she did not find defendant's testimony credible. She also held that, based on the evidence presented, defendant intended beyond a reasonable doubt to remove the items from the store without paying for them.

We reject as without merit defendant's first point that his conviction should be reversed because of the failure to grant his change of venue motion. Although defendant asserted that the Municipal Court judge exhibited a "belligerent attitude" toward him, there has been no "showing of bias or prejudice," and in the absence of that showing "the participation of a judge in previous proceedings in the case before him is not a ground for disqualification." State v. Walker, 33 N.J. 580, 591 (1960). Additionally, we are satisfied that the conclusion in the Law Division by Judge Frederick J. Theemling is essentially correct because he determined that the record does not reveal any bias. He noted that the Municipal Court judge "heard facts of a case, heard testimony of two sides, and found that Mr. Pepe or the State's main witness on that side was more credible than Mr. Sanchez."

Because we conclude that Judge Theemling's conclusion in that respect was correct, and because we are satisfied in light of the record and the applicable law that this contention is without merit on appeal, we affirm without further discussion in this opinion. R. 2:11-3(e)(2).

With respect to defendant's remaining point, his contention that he should be found not guilty of shoplifting in effect invites us to depart from our well-established duty. We are obligated to defer to the trial judge's findings based on substantial evidence in the record and to consider the trial judge's "feel" of the case, an advantage which of course we do not enjoy. State v. Locurto, 157 N.J. 463, 471 (1999). It is manifest from the Municipal Court judge's determination that she based defendant's conviction on credibility grounds. Moreover, in the Law Division on the municipal appeal, Judge Theemling, in finding defendant guilty, not only reached a conclusion that was in accord with that of the Municipal Court judge but also observed that she "is the one I am relying on for the determination of credibility [.]" Defendant's assertion that Pepe was a biased witness is persuasive of nothing. Most witnesses have some bias or other, and we do not dispute defendant's assertion that Pepe's testimony might well have been biased in favor of his employer, for whom he seems to have testified in a number of other matters. But that does not dictate that his testimony be ignored, nor can we ignore it in view of the municipal judge's credibility determination and a corresponding determination by the Law Division judge. To those judges, the testimony of defendant was less credible than that of Pepe. Thus, because the findings are supported by substantial credible evidence, and involve the trial court's resolution of credibility issues to which we must defer, we affirm the conviction and sentence.

 
Affirmed.

Defendant pled guilty to the shoplifting charge on January 3, 2004, with the assault charge to be dismissed inasmuch as defendant had pled guilty to shoplifting. The Law Division ultimately reversed and remanded his conviction pursuant to this guilty plea because a factual basis to support his guilty plea was not set forth.

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A-4553-04T1

November 15, 2005