STATE OF NEW JERSEY v. BRIAN J. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0018-05T40018-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN J. WILLIAMS,

Defendant-Appellant.

____________________________

 

Submitted October 30, 2006 - Decided November 20, 2006

Before Judge Lintner, S.L. Reisner

and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Morris

County, 04-12-1553.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of

counsel and on the brief).

Michael M. Rubbinaccio, Morris County

Prosecutor, attorney for respondent

(Joseph Connor, Jr., Assistant

Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction, after a bench trial, of a one-count indictment charging second-degree robbery, N.J.S.A. 2C:15-1(a)(1). He does not appeal from the sentence imposed. We affirm.

On appeal, defendant argues that the conviction was against the weight of the evidence. Defendant did not seek a new trial. Because this was a bench trial, he was not required to do so as a condition of raising the issue on appeal. See State in Interest of L.E.W., 239 N.J. Super. 65, 76 (App.Div.), certif. denied, 122 N.J. 144 (1990). The trial involved defendant's conduct at a Pathmark supermarket in Parsippany on July 7, 2004. There was no dispute that defendant had taken merchandise and left the store without paying for it. The focus of the trial was on what occurred thereafter. The judge made the following factual findings:

The defendant proceeded after taking the merchandise through the You-Scan out to the exit to the vestibule where he was confronted by the store personnel which included Mr. Rodriguez and Miss Boggio.

Miss Boggio indicated that although she was not in her sheriff's uniform, she did have a badge around her neck that identified her as a security officer of Pathmark.

She also identified herself as such, not as a sheriff's officer but as a security personnel.

She advised the defendant as to what they had observed and what they observed the defendant to have done. The defendant upon being confronted by the security personnel hurriedly retraced his steps, he entered the exit from the vestibule, passed the You-Scan a short distance to the produce department and removed the boxes of Pepto-Bismol [from where they had been secreted on his person]. He actually discarded the evidence after he was detected.

. . .

At any rate, the defendant ran back in by the produce department where he again in my view was confronted by Miss Boggio. She described the defendant at that point as being agitated, his fist was clenched, he was perspiring. She indicated that she wanted to discuss the matter further with him in the loss prevention office. There was some remark about if you don't pay for the items you're going to be arrested for shoplifting. There was no expansion upon that commentary either in direct or cross examination. So I'm not fully satisfied with what specifically that conversation entailed.

At any rate, the defendant said that he would go with Ms. Boggio and Ms. -- Mr. Rodriguez, but in the process of doing so, he stopped and he changed his mind. According to her testimony, he said that he was not going. According to his testimony, he testified he changed his mind immediately. And the reason he did that is because he knew that if he went in that loss prevention door, the door would be locked, he would be arrested and he would be charged. And he indicated that he did not want to go to jail.

During the testimony, it was pointed out on direct of the defendant's testimony by questioning of his own attorney that he has had periods of incarceration, one very substantial. So he didn't want to go to jail.

Ms. Boggio indicated that he would have to talk to her in the office. They were starting to make a scene. And at some point shortly thereafter she was assisted by the store manager, Mr. Rodriguez, and an unnamed individual from the produce department. They were all in the vestibule area. But that did not block the defendant's ability to leave.

And quite frankly I viewed this as important. The defendant when he testified indicated that he walked outside after an elderly woman who had finished her purchases, and that while in the vestibule he was not prevented from leaving. At any rate, while they were there, the defendant was described as uncooperative. The store manager went to call the police and at that point the defendant decided to leave.

The testimony was that he ran through Ms. Boggio. Ms. Boggio indicated she attempted to stop him or hold on to him and they actually exited the store. At that point the defendant threw her against a concrete pillar until Mr. Rodriguez was able to bring the defendant to the ground.

During the handcuffing process I find that Ms. Boggio was bit in the arm.

Now, she is in fact and was in fact small in stature. The defendant although larger here at the time of this trial, at least as testified to, was smaller then but I believe the testimony was about 230 pounds, still large. The physician's assistant who attended to Miss Boggio at Saint Clare's Hospital, confirmed that the mark was in fact a human bite mark in the right forearm, for which medication was prescribed. He testified also that the doctor who attended confirmed his diagnosis.

I found that witness credible. I found Mr. Rodriguez and Miss Boggio to be credible. I observed a scarring on Miss Boggio's arm at the area where she indicated she had been bitten.

And quite frankly I found some of the things that the defendant testified to as credible. But I found also that other things were not. And as the fact finder, I am entitled to accept those things that are credible and disregard those things that I find are not credible.

At any rate, after the police arrived, the arresting officer was an Officer Keiser. He observed what he also described as a bite mark. He heard the excited statement made by Miss Boggio. It was to the extent that he inquired as to whether or not an ambulance should be called and whether she should be brought to the hospital in an ambulance. But she chose to go in her own vehicle where she did go. And the times were testified to and the times would indicate that there wasn't much delay.

She was treated at the hospital, she was given instructions for treatment that required her to do something as I recall in three days, and something else in six weeks and something else in three months.

She was concerned as others might be about the potential for H.I.V. or another communicable disease.

Those factual findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Accordingly, they should not be disturbed on appeal. Ibid. Defendant does not contest that principle. He argues, however, that those facts are insufficient to support a conviction for robbery.

A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another[.]

. . .

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

[N.J.S.A. 2C:15-1(a) (emphasis added).]

The trial judge recognized that he was required to determine if defendant's

flight had been concluded when he returned past the You-Scan and deposited the items on the floor. And appeared to have accompanied security to the loss prevention office. Or whether this was still clearly a part of a continuous transaction so as to constitute in the course of committing a theft.

That analysis was correct. The question was whether "defendant's infliction of bodily injury . . . after he was returned to the store occurred after flight had been concluded and defendant was in custody." State v. Jordan, 240 N.J. Super. 115, 121 (App. Div.) (citing State v. Mirault, 92 N.J. 492, 500-01 (1983)), certif. denied, 122 N.J. 328 (1990).

The judge here concluded that the assault on Boggio occurred as part of an attempt to flee that had not been interrupted by the initial, and very temporary, movement toward Boggio's office. He explained:

I'm satisfied beyond a reasonable doubt that force or an assault has occurred. That assault can be characterized as one continuous event when the defendant ran through Officer Boggio, threw her against the concrete pillar, and bit her on the arm.

. . . .

So, the most difficult part of this case is whether the offense occurred in the course of committing a theft which includes the attempt to commit the theft, or an immediate flight after the attempt or commission.

Here the theft, whether it be shoplifting or not, had already been committed. Thereafter, the defendant quickly returned to the main portion of the store and deposited the merchandise he had taken on the floor. He did not return it to the shelf from which it was taken as might a customer who had changed his or her mind about the purchase. Or one who found that they had insufficient funds to pay for the merchandise that they had taken. Issues that were raised by way of cross examination. He discarded the merchandise, the evidence, in a fashion I find as was described by Mr. Rodriguez and Miss Boggio, and as eventually admitted by the defendant when he testified.

Having done that, he no longer had the merchandise when asked for or asked or directed by Miss Boggio to return to the loss prevention office. Although he initially indicated he would, he knew immediately that he was not going to because he knew if he did what would happen. In other words, he'd be locked in that room, he'd be charged, he'd be arrested. He did not want to go to jail.

The question is whether the flight had been concluded when he returned past the You-Scan and deposited the items on the floor. And appeared to have accompanied security to the loss prevention office. Or whether this was still clearly a part of a continuous transaction so as to constitute in the course of committing a theft.

. . . .

And in my view, the defendant committed an assault, and an assault and a theft, the two events being a single or continuous transaction. They thus constituted in the course of committing a theft as defined in the statute and as clarified by case law.

That conclusion, although not compelled, was certainly supported by the evidence. Defendant's initial agreement to go with Boggio to the security office was accompanied by an "immediate" intention to escape. The judge's determination that the flight had not been concluded by either the return to the store or the initial move toward the security office finds substantial record support.

Indeed, defendant's reference to Jordan, supra, 240 N.J. Super. at 121, underscores the point. In that case, we remanded because the jury could have concluded that defendant's flight had ended when he was returned to the store and the assault that took place thereafter did not occur in the course of committing a theft. Ibid. That conclusion was not compelled, however, and the jury might also have concluded that the flight had not then concluded and that the assault did occur in the course of committing a theft. A similar choice was presented to Judge Ahto. He thoughtfully evaluated the evidence as he found it, in accordance with the appropriate legal principles. We have no warrant to disturb either his findings of fact or his conclusions of law.

We note a dispute between the parties as to the appropriate standard of review. Defendant asserts that we should decide if the verdict was "a miscarriage of justice under the law." See

R. 2:10-1. The State urges that we should determine if the verdict might have been reached by a reasonable fact-finder. See State v. Reyes, 50 N.J. 454, 458-59 (1967). In the context of this case, we perceive no substantive difference. Because a reasonable fact-finder might have come to the verdict reached by the judge, the verdict is not a miscarriage of justice.

Affirmed.

 

(continued)

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A-0018-05T4

November 20, 2006