STATE OF NEW JERSEY v. LAWRENCE C. JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4395-04T54395-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE C. JONES,

Defendant-Appellant.

______________________________________________________

 

Submitted February 28, 2007 - Decided March 22, 2007

Before Judges Stern and Collester.

On appeal from the Superior Court of New

Jersey, Law Division, Passaic County

Docket No. 4486.

John Vincent Saykanic, attorney for appellant.

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant and co-defendant Salvatore Manno were convicted in the Clifton Municipal Court of shoplifting. Defendant was again convicted on trial de novo in the Law Division. He argues that "the conviction must be reversed and a judgment of acquittal entered since the State failed to prove defendant Jones's guilt beyond a reasonable doubt" and because the "guilty finding is against the weight of the evidence and reasonable doubt exists as to the defendant Jones's guilt." He also argues that reversal of the conviction is required because of the violation of the municipal judge's sequestration order; a state's witness improperly testified as an expert; the "prosecutor improperly elicited that the defendant Jones had a prior conviction for shoplifting." Defendant further argues that the complaint should have been dismissed because of "the failure of the State to proceed when the matter was listed as 'try or dismiss'"; "defendant's right to a speedy trial was violated," and that the complaint should have been dismissed for "failure of the State to timely provide the store's videotape and boxes that [co-defendant] Manno brought into the store." Finally, defendant asserts that "[n]umerous legal errors occurred which aggregately, if not individually, deprived the defendant of a fair trial."

Manno received money for items defendant had just placed in a shopping cart at a Stop & Shop in Clifton, using prior receipts for the same items. Manno received $121.45 in cash before his arrest when he was allegedly about to leave the store empty handed without buying the items in the cart. Manno testified that he planned to pay for the items in the cart, but was stopped as he was headed towards the check out area before he was able to do so. Defendant testified that he expected Manno to buy the items in defendant's cart and apply what he was returning towards the purchase price.

The facts developed in the municipal court revealed the following: On April 23, 2003, Michael O'Connell, a loss prevention employee at the Stop & Shop, observed defendant entering the store with an empty store shopping cart and no other items. O'Connell testified that he observed defendant take items from the shelves and place them in the shopping cart. Specifically, O'Connell saw defendant place Oil of Olay, Venus razors, arthritis medication and frozen dinners in his cart.

There was no dispute that while defendant was in the store, co-defendant Manno took pot pie containers and a bottle of soda out of the trunk of the car in which the two arrived. Manno testified that he intended to "exchange" the pot pies for "the stuff" defendant "put in the cart," and exchange the regular soda for diet soda.

As O'Connell observed defendant move toward the exit, he also observed Manno enter the store and proceed in the direction of defendant. A security photo shows that Manno entered the store with two or three plain white shopping bags that did not come from the store. O'Connell later discovered in the bags approximately six or seven empty frozen food boxes containing only the tins.

O'Connell observed defendant walk away from the shopping cart and Manno take the cart to the checkout area of the store. Defendant testified that he handed Manno the shopping cart for him to pay for the items, after which defendant continued shopping.

Manno testified that he approached a cashier to ask if he could exchange the items he brought in for credit toward his purchase. The cashier then directed Manno to the customer service desk.

Manno presented two receipts to Thomas Halpin, a clerk at the customer service desk. One receipt came from a Stop & Shop in Somers, New York, and was dated March 6, 2003. The second receipt came from a Stop & Shop in Dobbs Ferry, New York, and was dated April 7, but the year was not indicated. Manno testified that he presented these two receipts to Halpin because the pot pies were listed on one receipt and the soda was listed on the other. However, the items listed on the two receipts corresponded to the Oil of Olay, razors, arthritis medication, and frozen food that defendant selected while in the store. Defendant testified that Manno did not know which items defendant was planning on selecting.

Halpin testified that Manno presented a bag of pot pies, claiming that they were "no good," as well as "arthritis medicine and Oil of Olay products" to return with a receipt for these items. In accordance with store policy, Halpin called the manager to verify the refund because it totaled over fifteen dollars. The manager verified the refund and Halpin continued with the transaction.

Both defendant and Manno testified that defendant was returning the pot pies and using the refund as a credit to purchase the items that defendant selected and placed in the cart.

O'Connell testified that as long as the customer has a receipt, the store policy is to refund the money with "no questions asked." Stop & Shop also requires customers to write their personal information on a receipt that documents the refund. However, Manno wrote on the receipt that his name was Z. Collins and his address was 353 Broadway Avenue, Cape May. He signed the receipt as "Z. Collins." Defendant testified that he and Manno live together in Ossining. Manno testified that he told Halpin that he was not going to put his real name or address on the receipt because he did not want to receive junk mail.

Manno further testified that he returned four to six pot pies, each having a value of $4.00, but claimed that he "did not count" the money he received from the exchange. However, Halpin testified that he gave Manno a cash refund of $121.00 for the items, and counted the amount in his presence, a fact disputed by Manno.

O'Connell testified that the items that Manno presented for a refund were the same items that defendant "took off the shelf." Defendant testified that the items he selected and the items on Manno's receipts coincided because they regularly "eat" and "use" the same items.

Manno also testified that he left the customer service desk to obtain a new bottle of soda and intended to return to customer service "to get the items that [he] had paid for." However, O'Connell stopped him as he approached the exit, and "escorted him to the security office."

After O'Connell took Manno to the security office, he waited for defendant to exit the store, and then "escorted him to the security office" as well.

The municipal court judge found the defendants lacking in credibility. He did not believe that the defendants intended to purchase the Oil of Olay, razors, and arthritis medication on April 23, 2003, because these items appeared on the April 7 receipt and were not items that are purchased "very frequently." He found both defendants guilty of shoplifting in violation of N.J.S.A. 2C:20-11b(1).

On trial de novo, Judge Randolph Subryan agreed with the municipal court's assessment of credibility, and found that the State had proven beyond a reasonable doubt that the defendants "purposely converted merchandise for [their] own use," and "did so without paying the merchant the full retain value thereof." According to the judge,

The evidence shows that the items in the shopping cart were exchanged for or returned for cash and were never previously purchased by Jones or Manno. Because those items were never purchased, they remained the property of Stop & Shop. As soon as the items were exchanged for money and the money was given to Manno, he did not pay anything to Stop & Shop and an unlawful conversion of those Stop & Shop items occurred.

The refund value of those items were unlawfully obtained by Manno and Stop & Shop was never paid the full retail value of those items. Plus, the merchandise was converted without full retail value being paid to the merchant.

. . . .

Here, this Court finds that circumstantial evidence is sufficient to support the finding that Jones and Manno purposely converted merchandise for their own use. This Court finds beyond a reasonable doubt that the evidence supports a finding that the defendants were engaged in a shoplifting scheme.

Judge Subryan specifically noted that the Oil of Olay purchased in the Dobbs Ferry, New York, Stop & Shop was paid for with a coupon, making the total price per item $15.99 and not the $19.99 that defendant received as the refund at the Clifton store. He also found it difficult to accept "Jones' claim that he was simply selecting merchandise that he regularly uses," given the types of products that were selected and the fact that these same products were very recently purchased in New York. On the other hand, Judge Subryan found O'Connell and Halpin to be credible.

In a comprehensive opinion, 13T 48-55, Judge Subryan also rejected defendants' legal arguments addressed to the record before him and to the convictions. We find that the record supports the findings and affirm defendant's conviction, substantially for the reasons expressed by Judge Subryan in his oral opinion of April 15, 2005. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Johnson, 42 N.J. 146, 162 (1964); R. 2:11-3(e)(2). We need not agree with every statement of the judge or react to each separate contention of defendant, if, as here, the record as a whole supports the conclusion. State v. Locurto, supra, 157 N.J. at 474. We add that the record reflects no motion for a new trial in the municipal court. See R. 7:10-1.

We also reject defendant's legal contentions.

Halpin testified that he discussed the case for "a few minutes" with O'Connell before they went into the court room. The municipal court denied a motion to dismiss the case for violation of the sequestration order, and Judge Subryan found that if there was a violation of the sequestration order, it was harmless error because Halpin's testimony was "not crucial to the decision" of the municipal court. We cannot disagree with that assessment in this non-jury case. See State v. Tillman, 122 N.J. Super. 137, 144 (App. Div.), certif. denied, 62 N.J. 428 (1973).

We also find no abuse of discretion in permitting the testimony of O'Connell which was based upon his observations and perceptions as a loss prevention specialist, see State v. LaBrutto, 113 N.J. 187, 197 (1989); N.J.R.E. 701, particularly because much of this testimony was either not objected to, or was developed by defense counsel on cross-examination. As Judge Subryan noted, O'Connell did not testify as an expert, and the municipal court relied not on his opinion, but on the "hard facts." In any event, Judge Subryan made his independent findings on the trial de novo.

Jones' prior shoplifting conviction was not for a crime and could not have been admitted to affect his credibility. State v. Sands, 76 N.J. 127, 144-45 (1978). We need not consider whether it was admissible because the State introduced it to test "the basis for defendant's claim that he would never participate in a shoplifting scheme because he knew that 'black people going into the store' raise a 'red flag,'" as the State claims. However, defendant did not object to its admission, and we do not believe it constituted plain error warranting reversal. See State v. Macon, 57 N.J. 325, 337 (1971). Moreover, Judge Subryan found it "harmless error," so we believe he did not consider it in finding defendant guilty.

Defendant contends that the municipal court should have dismissed the case because a "try or dismiss" order had been entered on September 29, 2003. However, defendant failed to appear in court on the next date, October 20, 2003. Defendant claims that, while in court on October 20, Manno began to bleed following oral surgery, and defendants left to go to the store to obtain medication. Defendant asserts that Manno told his attorney who advised that they did not have to be back in court until "9:30 [or] ten o'clock," but that when they returned they found that court was over for the evening. Accordingly, because the defendant argues that he was not at fault for his non-presence on October 20, the "try or dismiss" rule should have been honored at the January 26, 2004 appearance. However, the trial commenced without objection on December 8, 2003. Defendant also contends that the court erred in not dismissing because the State had not produced the videotape as of January 26, 2004. Db 39-30.

We agree with Judge Subryan's rejection of the contention. It is true that on September 29, 2003, defendant asked that the matter be "speeded up," when it was adjourned that night after counsel did not appear and the matter was listed as "try or dismiss." However, Judge Subryan found that of the "11 times this case was marked for another calendar date, 3 adjournments were made at the request of the State, 3 were made because it was the end of the court day and 5 adjournments were made at the request of" the defendants. We find no basis for disturbing Judge Subryan's ruling notwithstanding that "try or dismiss" order, given the events of October 20, 2003. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972); State v. Gallegan, 117 N.J. 345, 355 (1989).

Finally, defendant claims that the complaint should have been dismissed because the State did not provide the videotape in a timely fashion and never provided as evidence the chicken pot pie boxes that Manno brought into the store. When the State initially had difficulty producing the Stop & Shop videotape, the municipal judge ordered that the State produce the tape. After its production, the State was unable to play the videotape in court due to technical difficulties. It was not moved into evidence, but the defendant submits that the complaint should have been dismissed based on the State's "failure to provide the videotape." Because the tape was not introduced into evidence, defendant had an opportunity to review it, did not endeavor to play or introduce it in court, and does not assert anything exculpatory thereon, we find no support for defendant's assertion that dismissal of the complaint was required. See State v. Laganella, 144 N.J. Super. 268, 281-83 (App. Div.), appeal dismissed, 74 N.J. 256 (1976) (reversing dismissal of indictment that was based on State's failure to furnish the tape, where State's conduct was neither unfair nor deliberate).

Lastly, defendant argues that he was prejudiced because the State failed to retain and enter into evidence the chicken pot pie boxes that Manno brought into the Stop & Shop for a refund. Db 44. However, he does not specify how he was prejudiced, and we find no basis for rejecting Judge Subryan's conclusion that "it is irrelevant [that] the defendants were returning something else when they were converting other items."

We recognize that defendant did not present the items for refund or obtain the cash. However, despite his claim to the contrary, we cannot disagree with the Law Division (or the municipal court, although we review only the trial de novo) that it was not a coincidence that the items he placed in the cart were exactly the same as those listed on the submitted receipt.

As we find no error or an aggregate warranting reversal, the judgment is affirmed.

 

O'Connell testified that the exact total of the receipt was $121.45.

No issue concerning the sentence is raised before us.

The State contends there was no violation of the order. However, the municipal prosecutor told the judge that he had asked Halpin to review his testimony with O'Connell and him before Halpin testified.

On January 26, 2004 defendant moved to dismiss the complaint because the video could not be played, but the judge denied the motion because he "had to issue warrants for the defendants subsequent" to marking the case "try or dismiss."

(continued)

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A-4395-04T5

March 22, 2007