STATE OF NEW JERSEY v. JOSEPH QUIONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04091-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH QUIONES a/k/a/

JOSEPH QUINONES,

Defendant-Appellant.

_________________________________________

August 7, 2014

Submitted February 26, 2014 Decided

Before Judges Fuentes and Haas.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0026-11.

The Corson Law Firm, LLC, attorneys for appellant (Marylou McAdams Corson, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Kerry DiJoseph, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Joseph Quiones, a/k/a Joseph Quinones, was originally charged with two counts of third degree computer theft, N.J.S.A. 2C:20-25c. The Atlantic County Prosecutor's Office amended or "downgraded" the charge to the disorderly persons offense of theft by unlawful taking of property valued under $200, N.J.S.A. 2C:20-3, and remanded the case for prosecution before the Atlantic City Municipal Court.

Defendant was tried in municipal court and found guilty of two counts of theft under $200. The municipal court sentenced defendant to pay a $250 fine for each offense, $158 in mandatory fees and court costs, and enjoined defendant from entering the Taj Mahal Casino for two years, commencing March 17, 2011.1 Defendant thereafter sought review of the municipal court conviction in the Law Division pursuant to Rule 3:23-2. As provided for in Rule 3:23-8(a), the Law Division judge reviewed the municipal court record de novo and again found defendant guilty of theft under $200. The State's case consisted of establishing defendant used player cards belonging to two other individuals to improperly transfer player credits from their cards to defendant's card. The theft consisted of an unauthorized electronic transfer.

At all times relevant to this case, Steve Osinski was employed as a Security Investigator by Trump Taj Mahal Casino. Osinski testified that in the early morning hours of July 3, 2010, he received a call from the surveillance room that a player card under the name of Regina Sudnik was being used.2 Accompanied by another investigator and a supervisor, Osinski approached defendant, who was on the casino floor, and asked him if he had any player cards other than his own. Defendant produced two player cards, one in the name of Regina Sudnik and the other in the name of Ronald Musolino. Osinski took possession of the two cards.

Osinski and the two other casino employees escorted defendant from the casino floor. Osinski then contacted the slot shift manager and asked him to "run" a "standard transaction report" (STR) to determine whether either Sudnik's and/or Musolino's cards had been used recently. This generated several STRs, which reflected the transaction history of these two cards. The STR indicated defendant had used Regina Sudnik's card to make two $50 e-cash withdrawals from a slot machine. He made a similar withdrawal in the amount of $200 e-cash using Ronald Musolino's player card.

Against this record, the Law Division judge found defendant guilty of the disorderly persons offense of unlawful taking of property valued under $200 in violation of N.J.S.A. 2C:20-3. Defendant now appeals raising the following arguments.

POINT I

THE MUNICIPAL COURT HAD NO JURISDICTION OVER THE UNDERLYING MATTER AS THE DEFENDANT WAS CHARGED WITH INDICTABLE CRIMES THE COMPLAINT WAS NOT PROPERLY AMENDED TO CHARGE DEFENDANT WITH A DISORDERLY PERSONS OFFENSE.

POINT II

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT QUIONES VIOLATED N.J.S.A. 2C:20-3.

A. HEARSAY EVIDENCE WAS IMPROPERLY ADMITTED.

B. DOCUMENTARY EVIDENCE WAS IN- CONCLUSIVE.

C. NO VIDEO EVIDENCE WAS PRODUCED.

D. CRITICAL WITNESS[ES] WERE NOT PRESENTED.

We affirm. Defendant's argument as reflected in Point I lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's argument as reflected in Point II, although equally without merit, requires a brief discussion. Citing N.J.R.E. 803(c)(6), defendant argues the STR relied on by the court to establish defendant's unauthorized use of the two player cards was improperly admitted into evidence under the business records exception to the hearsay rule. Defendant claims the State failed to establish, through proper testimony, that the information reflected in the STR was

made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

[N.J.R.E. 803(c)(6).]

In rejecting defendant's argument, the Law Division judge found a sufficient basis to admit the STR as a business record under N.J.R.E. 803(c)(6), based on Osinski's testimony. Osinski testified about how STRs are kept in the regular course of business by the Taj Mahal. In reviewing a trial court's ruling on the admissibility of evidence, we afford considerable deference to the trial court's findings based on the testimony of witnesses. State v. Buckley, 216 N.J. 249, 260 (2013). However, the court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Id. at 260-261 (internal citations omitted). We review the trial court's interpretation of law de novo. Ibid.

In a criminal case, a document is admissible as an exception to the hearsay rule only if it is not testimonial. Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177, 195 (2004). A party seeking to introduce a hearsay statement under the business records exception "must demonstrate that [1] the writing [was] made in the regular course of business, [2] the writing was prepared within a short time of the act, condition or event being described, and [3] the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 347 (2010) (internal citations omitted).

To lay the foundation for the admission of systematically prepared computer records as business records under N.J.R.E. 803(c)(6), all that is needed is for the witness: "(1) [to] demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 379-380 (2007) (internal citations omitted).

Here, the trial judge found Osinski's testimony satisfied this criteria. Applying a de novo standard of review, we discern no legal basis to disagree with the trial judge's determination finding the STR to be admissible as a business record kept by the casino in the ordinary course of business. Osinski testified he was familiar with the STRs and had reviewed them before the trial. He explained the STRs were "computer-generated within the machine" and kept in the regular course of business by the casino. As part of the security staff, he utilized the information contained in the STRs on a regular basis.

This computerized system contemporaneously recorded defendant's placement and removal of Sudnik's, Musolino's, and defendant's own cards into a slot machine, resulting in "e-cash" and "e-promo" withdrawals from Sudnik's and Musolino's accounts. Coupled with defendant's admission to possessing the two cards at issue, the record amply supports the Law Division finding defendant guilty, beyond a reasonable doubt, of committing the disorderly persons offense of theft under $200.

Affirmed.

1 Two documents generated by the Atlantic City Municipal Court intended to memorialize defendant's conviction and sentence reflect two different outcomes. The so-called "bench notes" reflect the theft conviction. An order signed by the municipal court judge erroneously indicates defendant was convicted on two counts of computer theft in violation of N.J.S.A. 2C:20-25c, as well as defiant trespass in violation of N.J.S.A. 2C:18-3b. The errors were detected and corrected by the Law Division judge on defendant's appeal.

2 Surveillance generated the alert because Sudnik had complained about problems with her card and had consented to having surveillance alerts linked to her account.