STATE OF NEW JERSEY v. QING PEI WANG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4767-05T34767-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QING PEI WANG,

Defendant-Appellant.

___________________________________________________

 

Submitted December 6, 2006 - Decided February 13, 2007

Before Judges Stern and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Morris County,

Docket No. 05-054.

Feng Li, attorney for appellant.

Michael M. Rubbinaccio, Morris County

Prosecutor, attorney for respondent

(Joseph P. Connor, Jr., Assistant Prosecutor,

on the brief).

PER CURIAM

This is an appeal from a judgment of conviction for shoplifting entered on trial de novo. Defendant argues that there was insufficient evidence on which to convict her, and that she was denied access to exculpatory evidence, received ineffective assistance of trial counsel in municipal court, and was denied a speedy trial. According to defendant, trial counsel never asked for discovery and never received any, despite numerous adjournments. We affirm the conviction.

The evidence admitted in the Municipal Court reveals the following:

On May 4, 2005, defendant accompanied by her friend went to Century 21 department store in Morristown. While there, defendant tried on a pair of Giorgio Armani "tan pump" shoes and continued her shopping. Defendant claims to have worn the shoes while in the store for approximately 30-45 minutes before realizing that the parking meter where her car was parked had expired. According to defendant, she quickly attempted to leave the store to put change in the meter, forgetting that she was still wearing the unpurchased shoes.

Cordell Johnson, a Century 21 security guard observed defendant on a television monitor while she attempted to leave the store, when an alarm went off indicating that unpurchased merchandise was being removed from the store. According to Johnson, defendant responded to the alarm by quickly "kick[ing] the shoes off under the T stand" and attempting to leave before she was stopped.

Loss Prevention Officer Sacha Fredericks was stationed at the door when the alarm went off. According to Fredericks, after the alarm sounded, defendant removed the shoes and attempted to take her sneakers out of her Louis Vuitton handbag, put them on, and leave the store. Fredericks also observed that the price tag on the shoes had been "peeled off." The shoes were valued at $350.

Defendant testified that she thought the shoes were priced at "a hundred some dollars," and she had no intention of stealing the shoes. Her friend, Lydia Du, corroborated her story that they were shopping and had "two shopping carts full of clothes," before remembering that the "parking meter had already expired," at which point defendant "disappeared." According to Du, "we . . . decided to buy . . . this pair of shoes" and defendant did not take them off "because this pair of shoes did not come with -- with a box."

Defendant argues that the trial court "clearly decided the charge in error since there is no intent showed." Defendant further claims that she left the store with the shoes on because of a "forgetful mistake" or negligence, not because she intended to steal them. But her culpability was a fact question for the judge to decide based upon the testimony and totality of proofs which could be circumstantial and based on inference. State v. Locurto, 157 N.J. 463, 470-71 (1999). The fact defendant asserts that "she corrected the mistake" and "voluntarily took off the store shoes as soon as she realized what set off the alarm," is hardly dispositive. While citing the statutory presumption, N.J.S.A. 2C:20-11(d), the law Division did not rely on it. Rather, the judge found Johnson and Fredericks to be credible witnesses whose testimony warranted the conviction.

Defendant asserts a Brady violation, arguing that the destruction of the store security videotape precluded defendant from demonstrating that she was wearing the store shoes as a result of her "forgetful mistake," and that destruction of the tape must be "imputed to the government" because the police responded to the call of Century 21 and decided to prosecute the matter at its request. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But even assuming there was a videotape and that non-retention of the tape, if any ever existed, or its destruction, was "suppression by the government" or its agent, there is no dispute of what was on the tape or what it showed. Accordingly, we fail to understand how it could have been exculpatory. There is no dispute that defendant was wearing unpurchased shoes while attempting to leave the store, thereby setting off the alarm.

Although the Law Division rejected her contentions regarding the lack of discovery and defendant's claim of ineffective assistance of counsel, defendant can petition for post-conviction relief (PCR) and build a record concerning the effectiveness of counsel. See State v. Preciose, 129 N.J. 451, 459-60 (1992); R. 7:10-2.

There was no denial of a speedy trial under the Barker v. Wingo ad hoc balancing test which the State acknowledges to apply to non-indictable offenses. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 116-17 (1972); State v. Gallegan, 117 N.J. 345, 355 (1989). Defendant was arrested on May 4, 2005. Trial commenced on July 22, 2005 and was carried to November 17, 2005. The trial de novo occurred on March 30, 2006. Final judgment on the trial de novo was entered on April 7, 2006 within a year of the filing of the complaint.

Defendant states that "[a]t the end of trial" on July 22, 2005, the municipal court adjourned the case over objection, until November 17, 2005. But a new trial was not commenced. The court merely continued the trial because the State's final witness was not present due to illness, and the court had to leave for the day. It was carried for a period to accommodate the schedule of defense counsel. There was no assertion of actual prejudice, and no denial of a speedy trial. See State v. Gallegan, supra, 117 N.J. at 355.

The bottom line in this case is that defendant was wearing shoes she did not purchase, when she attempted to leave the store, which set off the alarm. The question was whether or not she had an intent to steal. The judge in the Law Division so concluded, and under Locurto, supra, 157 N.J. at 470-71, we are obligated to affirm the conviction. See also R. 2:11-3(e)(2).

Affirmed.

 

Defense counsel on trial de novo advised the trial judge that she was told that Century 21 preserves videotapes of arrests but "could not find it" in this case. She tried to subpoena documents for the trial de novo. The only testimony before the municipal court to which defendant refers in support of her argument was by Officer Johnson who said that a camera "records 24 hours a day on that door."

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A-4767-05T3

February 13, 2007