STATE OF NEW JERSEY v. VINCENT SALERNO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2255-13T20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT SALERNO a/k/a CHRISTOPH

SALERNO, CHRISTOPH VINCENT, VICENT

SALERNO,

Defendant-Appellant.

__________________________________

August 5, 2015

Submitted June 2, 2015 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-06-00406.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nicole McGrath, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Sentenced to an eighteen-month custodial term after a jury convicted him of fourth-degree shoplifting, defendant Vincent Salerno appeals and raises the following points

POINT I

THE COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE JURY TO OBTAIN AND READ A TRANSCRIPT OF THE CO-DEFENDANT'S PLEA COLLOQUY, AND THEN MISLEADING THE JURY THAT THEY SHOULD ASCRIBE CREDIBILITY TO THE STATEMENT BECAUSE IT WAS MADE TO THE COURT UNDER OATH.

POINT II

DEFENDANT'S REQUEST FOR [A] SPECIAL JURY CHARGE REGARDING PROOF OF THE VALUE OF THE MERCHANDISE SHOULD HAVE BEEN GRANTED.

POINT III

THE DEFENDANT'S SENTENCE SHOULD BE REMANDED BECAUSE DEFENSE COUNSEL WAS PRECLUDED FROM MAKING ANY ARGUMENTS ON THE RECORD REGARDING MITIGATING FACTORS.

POINT IV

DEFENDANT'S STATEMENT TO POLICE SHOULD HAVE BEEN SUPPRESSED.

POINT V

DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO FAILURE TO OBJECT TO EVIDENCE THAT DEFENDANT SOLD THE STOLEN TELEVISION IN ORDER TO PURCHASE ILLEGAL DRUGS.

Although we agree with defendant's first point, namely, that the court committed error when it admitted the transcript of the co-defendant's plea, we conclude that the error was harmless. We find no merit in defendant's second, third and fourth points. We do not address defendant's claim that his counsel was ineffective. That issue must be presented in a petition for post-conviction relief (PCR).

A grand jury charged defendant and a co-defendant in a two-count indictment with one count each of fourth-degree shoplifting, N.J.S.A. 2C:20-11(b)(1). Following the indictment, defendant filed a motion to suppress his statement to police. The trial court denied the motion. Thereafter, a jury found defendant guilty of shoplifting and the court sentenced him to an eighteen-month prison term.

The facts concerning how the theft occurred were mostly undisputed, though defendant did dispute that he committed the theft. On January 31, 2012, Joshua Rea, a manager for the Toys R Us store in Raritan, was in his office when he was alerted by an audible alarm that the rear fire exit door had been opened. When he arrived at the exit, he found an empty shopping cart in front of the door. The fire exit door was used for "crisis or emergency type situation[s]" only, not for customers' general ingress and egress.

Rea returned to the office where he viewed a video surveillance tape that showed a person load an LCD TV into a shopping cart and head toward the fire exit door. The "white male [was] wearing a black T-shirt with a facial image of Marilyn Monroe, gray hooded-type sweatshirt, and a baseball hat[.]" After viewing another surveillance video showing the same white male entering the store earlier, Rea checked the store's computer and found that the store had not sold an LCD TV that day and that the television the white male placed in the shopping cart, a 32" LCD TV listed at $349.99, was missing from the store's inventory. Rea determined the selling price by taking the bar code from the shelf on which the TV was located and scanning the bar code through one of the store's registers. When Rea scanned the bar code, a receipt printed just as if a customer had purchased the TV.

One and one-half months later, on March 16, 2012, Roxbury Township Detective Dean Adone interrogated defendant during the course of a multi-jurisdictional "shoplifting theft investigation." In a statement recorded on audio and video, defendant confessed to stealing the LCD TV. He also admitted wearing the Marilyn Monroe t-shirt. He told the detective that he sold the TV to obtain money to buy drugs.

Prior to trial, defendant moved to suppress his statement to the police. The court conducted a Miranda1 hearing. Detective Dean Adone and Detective William Manisa of the Roxbury Township Police Department testified on behalf of the State. Detective Adone testified that he took a statement from defendant at the Riverdale police station after defendant had been taken into custody by Riverdale police officers. The detective explained that he informed defendant of his Miranda rights by using a form, which he read to defendant verbatim. Defendant said he understood and signed the bottom of the form. According to the detective, defendant did not appear to be under the influence of drugs or alcohol, acted and spoke coherently, and never asked to remain silent or for an attorney. Detective Adone testified he never threatened or promised defendant anything.

Detective Adone also testified that defendant had been apprehended by the Riverdale officers after fleeing from co-defendant's mother's car, which co-defendant had been driving before the police arrested her on a warrant. During the interrogation, defendant "was very concerned about the vehicle the entire time because he knew that it . . . belonged to [co-defendant's] mother, that she would be very upset if it got impounded." Defendant "was upset when he got in the [processing] room that possibly the vehicle wasn't going to be released" but another officer walked in and said he was going to get the vehicle released.

Defendant testified that he spoke to police officers outside the police station before he was brought in and interrogated

My conversation was when [the police officers] originally grabbed me was to call my lawyer, and then they threatened that they would take [co-defendant], who had never been in jail, so if I don't give a statement that it was a favor to release the car and to release [co-defendant] who had the warrant.

Defendant also testified that when he asked for a lawyer officers "promised to let [co-defendant] go if I said that I did stuff."

In rebuttal, Detective William Manisa testified that he first spoke with defendant in the processing room about unrelated matters and at some point left with defendant to have a cigarette outside. He stated that while defendant never requested an attorney, he "asked if he should get one." The detective responded, "[t]hat's up to you. We . . . don't give legal advice. That's up to the person."

Following the testimony, the court delivered its opinion from the bench. The court found the officers credible and defendant incredible. The court determined that defendant "was indeed capable of a knowing and voluntary consent and that his cognitive faculties relevant to that issue were not so impaired by his drug use as to render him incapable of giving voluntary and knowing consent. . . ." Further, the court found that "there were no threats or promises express or implied to defendant for reward or benefit to him or his codefendant[.]" Lastly, the court rejected as incredible defendant's testimony that he had asked for a lawyer. The court denied defendant's suppression motion.

In addition to presenting the testimony of the Toys R Us manager and defendant's confession, the State presented the testimony of co-defendant at trial. As part of her plea agreement, co-defendant had agreed to testify against defendant. In exchange, the State agreed that co-defendant could plead to an amended charge of disorderly persons shoplifting and pay a fine.

Co-defendant testified that she drove defendant to the Toys R Us store and while he entered, she sat in the car. She said that while he was in the store, he called her and told her to drive the car to the back of the store. She did. Defendant came out the back door with the TV and they left. Although she did "[n]ot specifically" know whether he paid for the TV, she knew he did not pay because "he came through the back door into my car." They sold the television for cash and "bought drugs." Co-defendant testified that the person in the Toys R Us surveillance video looked like defendant, but she could not be positive.

During co-defendant's cross-examination, the following exchange occurred

Q. Now, when you . . . knew that part of your agreement with the State was to testify truthfully, right?

A. Yes.

Q. In fact, your agreement was that you had to blame [defendant], right?

[Objection by prosecutor]

. . . .

Q. And they told you that truthful testimony was saying that [defendant] stole the TV, right?

[Objection by prosecutor]

. . . .

The trial court sustained both objections because defense counsel posed "an improper characterization of the agreement[.]"

Following the cross-examination, without undertaking any re-direct examination, the prosecutor sought to admit co-defendant's plea transcript to rebut defense counsel's charge of "recent fabrication." The prosecutor argued that defense counsel "cross-examined her. He made her seem that the only reason she was testifying today was due to the fact that she got a favorable plea agreement from the State, and I want to show that she testified previously consistent with the testimony she gave today."

The trial court admitted the plea transcript under N.J.R.E. 607, explaining that

It is certainly extrinsic evidence relevant to the issue of credibility and it will be admitted as an exception to the Rule that prior consistent statement shall not be admitted because it rebuts an express or implied charge against the witness of either recent fabrication or of improper influence or motive.

In response to a question from defense counsel, the court elaborated: "[your] cross-examination was clear, it was specific, and it implied that she was improperly motivated to testify as she did, and under 607 the State is entitled to rebut that implication."

The court told the jury that it was going to admit the transcript of co-defendant's plea. The court explained

And the reason I've done that is because during cross-examination it was suggested that [co-defendant] was improperly influenced to give the testimony she presented to you today. So in order to rebut that implied charge of recent fabrication or improper influence, I've permitted the State to introduce what she said under oath before me in regard to her plea . . ., and you will have that before you for your consideration in the jury room. We're not going to have a dramatic reading this morning. You'll have it.

The jury found defendant guilty of fourth-degree shoplifting. The trial court sentenced defendant to an eighteen-month custodial term, ordered him to pay $349.99 in restitution to Toys R Us, and imposed appropriate fines and penalties. Defendant appealed.

We begin our discussion with defendant's first point, in which he argues that the court committed reversible error by admitting into evidence and permitting the jury to read the transcript of co-defendant's plea. We agree that the court committed error; we disagree that the error requires reversal.

During cross-examination, defense counsel attacked co-defendant's credibility by suggesting that the State's lenient plea offer motivated her to lie and say that defendant stole the television. Defense counsel implied by his questions that it was actually co-defendant who placed the television in the cart and exited the store. Without much explanation, the court determined that defense counsel's cross-examination constituted a charge of "recent fabrication or improper influence." The court admitted co-defendant's plea transcript into evidence under N.J.R.E. 607.

N.J.R.E. 607 states

Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.

Admitting a prior consistent statement under N.J.R.E. 607 does not violate the rule against hearsay because "N.J.R.E. 803(a)(2) . . . allows admission of statements offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive." Neno v. Clinton, 167 N.J. 573, 580 (2001) (citation and internal quotation marks omitted). "The scope of the exception encompasses prior consistent statements made by the witness before the alleged 'improper influence or motive' to demonstrate that the witness did not change his or her story." Ibid. (citation omitted). Although this temporal factor does not constitute "a rigid admissibility requirement" and is not "absolutely controlling," State v. Muhammad, 359 N.J. Super. 361, 386, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003), "whether the statement was made before the asserted motive or influence to fabricate is a substantial factor in determining relevance." Id. at 388. "Where there are no factors other than the alleged improper influence or motive influencing the prior statement or its making, a post-motive statement should ordinarily be excluded." Ibid.

Here, defendant's cross-examination suggested that the State's plea offer constituted the "improper influence or motive" for co-defendant to fabricate defendant's culpability. Co-defendant's plea obviously took place after the plea offer. Absent other factors, co-defendant's "post-motive statement" should not have been admitted. The trial court cited no other factor and we can discern none. Consequently, we are constrained to conclude that the trial court misapplied its discretion by admitting the transcript of co-defendant's plea. See Moraes v. Wesler, 439 N.J. Super. 375, 378 (App. Div. 2015) (explaining that an abuse of discretion arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis).

Having concluded that the trial court erred, we must determine whether the error was harmless. Generally, a trial error "may be quantitatively assessed in the context of other evidence presented in order to determine whether it was harmless beyond a reasonable doubt." State v. Camacho, 218 N.J. 533, 547 (2014) (citation and internal quotation marks omitted). "For a hearsay error to mandate reversal, [t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Neno, supra, 167 N.J. at 586 (internal quotation marks omitted). Stated differently, the error must have been "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. That is not the case here.

The State's evidence could be characterized as virtually irrefutable. The evidence included surveillance videos of a person in a distinctive sweatshirt entering the store and later placing a television in a shopping cart and heading toward the exit. Defendant admitted that he stole the television to get money for drugs. His co-defendant testified against him. Her testimony was consistent with his confession and she testified that the person in the video looked like defendant. There was little if any likelihood that the jury would have reached any conclusion other than that defendant had stolen the television, even if co-defendant's plea transcript had not been given to the jury. The error can hardly be said to have been capable of producing an unjust result.

Defendant's second, third and fourth points are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-2(e)(2). We add only these brief comments.

Contrary to defendant's argument, the court did not tell the jury "that they were to find that the merchandise allegedly stolen 'was worth $349.99 on [the day of the theft].'" Defendant takes the court's statement out of context. Read in context, the court was recounting the testimony of Rea. The court's charge, considered in its entirety, made clear to the jury that it was required to find that the State had proved the "value" element of the offense beyond a reasonable doubt.

Similarly, a fair reading of the transcript of defendant's sentencing does not support his argument that the court precluded his attorney from participating in the sentencing proceeding. The court did nothing more than comment that it had read counsel's sentencing memorandum and thus there was no need to repeat the content of the submission.

Defendant's argument concerning his confession boils down to little more than a difference of opinion with the court about its fact and credibility determinations. The court's findings were supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014).

Lastly, as to defendant's fifth point, we decline to address his argument that his counsel was ineffective. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992) (citations omitted). Defendant can seek relief by filing a PCR petition.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).