STATE OF NEW JERSEY v. ASHTON FUNK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1963-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ASHTON FUNK,
Defendant-Appellant.
____________________________
Submitted January 25, 2018 – Decided May 8, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Municipal
Appeal No. 001-16.
Jacobs & Barbone, PA, attorneys for appellant
(Louis M. Barbone, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Melinda A. Harrigan,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant, a
former firefighter and lifeguard for the city of Margate, was
convicted of shoplifting,
N.J.S.A. 2C:20-11(b)(1), a disorderly
persons offense. The conviction stemmed from the theft of four
items valued at $7.98 from the local Wawa convenience store. He
was sentenced to pay $308 in fines and costs, and ordered to
forfeit his public employment pursuant to
N.J.S.A. 2C:51-2.
Defendant now appeals from the judgment of conviction and order
of forfeiture, raising the following arguments for our
consideration:
POINT I1
DEFENDANT’S CONVICTION ON DE NOVO APPEAL WAS
NOT BASED ON SUFFICIENT CREDIBLE EVIDENCE IN
THE RECORD, AND WAS A CLEARLY MISTAKEN
FINDING, REQUIRING INTERVENTION AND
CORRECTION BY THE APPELLATE DIVISION THROUGH
APPRAISAL OF THE RECORD AND BY MAKING ITS OWN
FINDINGS AND CONCLUSIONS.
A. THE DE NOVO COURT'S FINDING THAT
LT. BAUMGARDNER WAS CREDIBLE IS NOT
BASED ON SUFFICIENT CREDIBLE
EVIDENCE IN THE RECORD.
B. THE DE NOVO COURT'S FINDING THAT
DEFENDANT WAS NOT A REGULAR CUSTOMER
WHO ROUTINELY PAID FOR HIS
MERCHANDISE WAS AGAINST THE
SUBSTANTIAL CREDIBLE EVIDENCE IN
THE RECORD.
C. THE DE NOVO COURT'S FINDING THAT
THERESA MACINAW LACKED WEIGHT AND
RELIABILITY WAS UNSUPPORTED BY
SUFFICIENT CREDIBLE EVIDENCE IN THE
RECORD.
1
We condensed the points for clarity.
2 A-1963-16T2
POINT II
THE PROSECUTOR'S FAILURE TO SEEK A WAIVER OF
FORFEITURE PURSUANT TO
N.J.S.A. 2C:51-2(E) WAS
AN ABUSE OF DISCRETION, AS FACTUALLY CONFIRMED
BY THE TRIAL COURT, AND THE TRIAL COURT'S
ORDER OF FORFEITURE WAS ERROR AS A MATTER OF
LAW.
After considering the arguments presented in light of the record
and applicable law, we affirm.
The following facts were adduced from the municipal court2
trial record. Lt. Joseph Baumgardner of the Longport Police
Department testified that at approximately 8:55 a.m. on August 17,
2015, he arrived at the Margate Wawa, where he goes every morning
for coffee. Before entering the store, he observed defendant,
whom he knew through defendant's employment with the Margate City
Fire Department. After entering the store, Baumgardner approached
the coffee bar where he greeted defendant.
Thereafter, Baumgarner observed defendant pick up a pre-made
breakfast sandwich, a bottle of Gatorade, a bag of sunflower seeds,
and a cup of coffee. While standing at the checkout counter,
Baumgarder observed defendant "retrace[] back through . . . the
store, loop[] around . . . and then exit[] out the front door"
without paying for the items. Baumgardner explained that there
2
The case was transferred from Margate to Egg Harbor Township
Municipal Court.
3 A-1963-16T2
were two open lines to pay, but defendant entered neither line
before leaving the store. Baumgardner admitted that at one point,
he stopped observing defendant for "a few seconds" but, apart from
those brief moments, he had been consistently watching defendant
in the store.
After paying for his own merchandise, Baumgardner exited the
store and confronted defendant, who was already seated in his
vehicle. Baumgarder asked defendant how he got ahead of him.
According to Baumgarder, defendant essentially replied that "[the]
guy in line let me in front of him . . . ." Baumgarder testified
he never asked defendant whether he paid for the four items,
accused him of shoplifting, or ordered him back into the store,
but rather let him leave. Baumgardner subsequently reported the
incident to his police chief, who in turn contacted the County
Prosecutor's Office, which led to an investigation resulting in
the filing of the shoplifting charge.
During the investigation, Prosecutor's Office Detective
Sergeant Jason Kangas interviewed defendant on August 18, 2015.
During the interview, defendant claimed that prior to leaving the
store with the four items, someone offered to purchase the items
for him. Defendant eventually described his benefactor as a six-
foot tall male in his upper fifties with dirty blond hair. After
initially indicating that the interaction occurred by the coffee
4 A-1963-16T2
bar, defendant revised his account and ultimately stated that the
conversation with his benefactor occurred in the back right area
of the store.
Kangas reviewed the Wawa video surveillance tapes3 he obtained
from Raymond Cheung, a Wawa shift manager, but could not locate
anyone matching defendant's description of his benefactor. Cheung
knew defendant as a regular customer who always paid for his
merchandise, but explained that if someone wanted to pay for
someone else's order, "[t]hey would have to physically bring the
items up" to "be scanned and accounted for . . . ."
Kangas also examined the transaction journal provided by
Daniel Blake Loper, the Wawa store manager. The journal consisted
of all the sales occurring between 8:30 a.m. and 9:30 a.m on the
date in question. However, Kangas could not identify a single
transaction that included a cup of coffee, a breakfast sandwich,
Gatorade, and sunflower seeds. Loper also knew defendant as a
regular customer who always paid for his merchandise, and confirmed
that in order to pay for someone else's order, "[t]hey would still
have to bring it up to the register . . . ."
In the course of the investigation, Kangas also interviewed
Wawa cashiers, Martia McShan and Theresa Macinaw. At trial, McShan
3
The video surveillance footage was admitted into evidence.
5 A-1963-16T2
testified consistent with her statement to Kangas that at no point
during her shift on the date in question had anyone paid for
someone else's items. Moreover, she never rang up a cup of coffee,
a breakfast sandwich, Gatorade, and sunflower seeds in a single
transaction. She also confirmed that normally, if someone wanted
to purchase an item for another person, both patrons must come to
the register with the items so that the items could be scanned
into the system. Otherwise, she would not permit the sale.
Macinaw, who was also a Wawa shift manager, testified that
she was working the register on the date in question. When asked
whether she heard anyone say that they wanted to pay for someone
else's order, she replied, "I recollect that I, I mean I can't be
sure but I'm pretty sure that I did hear that, yes." She believed
a patron named "Rich" made the offer, as he had purchased items
for other customers in the past. However, Macinaw denied ringing
up a cup of coffee, a breakfast sandwich, Gatorade, and sunflower
seeds in one transaction and, when specifically asked if Rich paid
for defendant's items, responded "[e]vidently that day that
probably didn't happen." Macinaw claimed she did not tell Kangas
about Rich's offer to pay because she did not remember it when she
was interviewed.
Richard Cramer, the man identified as "Rich[,]" testified on
defendant's behalf. According to Cramer, he occasionally
6 A-1963-16T2
purchased items for defendant at the Wawa. However, when asked
on cross-examination whether he saw defendant on August 17, 2015,
he responded, "No."
On September 15, 2016, Judge Bernard E. DeLury, Jr. issued a
written decision, finding defendant guilty of shoplifting. Judge
DeLury found both Baumgardner's and Kangas' testimony "credible"
and made factual findings consistent with their testimony. The
judge noted that while the testimony of Macinaw and Cramer also
"appeared to be credible, . . . the facts they related were not
dispositive of . . . [d]efendant[']s contentions that he did not
shoplift the items and that the State failed to prove the requisite
intent." Judge DeLury acknowledged that while "Macinaw's
testimony was credible[,]" it "lack[ed] weight and reliability,
as she was soon contradicted by other evidence[,]" including
"Cramer's testimony that he was not even in the store that day."
Further, the judge compared defendant's statement to
Baumgardner at the scene, that someone permitted him to cut in
line, to defendant's statement to Kangas during questioning, that
someone offered to pay for his items. The judge concluded that
"[n]either version has the ring of truth" and explained that the
statements "are obviously inconsistent[,]" and "at odds with the
testimonial and video evidence in the case." Moreover, the judge
noted that if
7 A-1963-16T2
[d]efendant was a regular in the Wawa, he
would then have likely known that at least two
of the items, the sunflower seeds and the
Gatorade, had to be scanned, even if they were
going to be paid for by someone else. More
importantly, the video clearly shows . . .
[d]efendant walking around the people in line
and exiting the store without ever having paid
for the items.
After delineating the elements of shoplifting, Judge DeLury
concluded that "the credible evidence" established "beyond a
reasonable doubt" that "[d]efendant purposely took possession of
items offered for sale by Wawa; that Wawa [was] a store or other
retail mercantile establishment; and that [d]efendant acted with
the purpose of depriving Wawa of the merchandise without paying
Wawa the value thereof." As to the first element, the judge
stated:
[T]he State's evidence was most compelling and
persuasive. The State proved beyond a
reasonable doubt that . . . [d]efendant
carried out of the Wawa four items that were
displayed for sale in the store, namely a cup
of coffee, a Sizzli breakfast sandwich, a bag
of sunflower seeds and a bottle of Gatorade.
The testimony of Lt. Baumgardner and the
composite video recording from Wawa provided
ample proof of this element.
As to defendant's intent, Judge DeLury explained:
The State has also proven beyond a reasonable
doubt that . . . [d]efendant acted purposely
in carrying away the items. Based on Lt.
Baumgardner's testimony and the video
evidence, it is clear that . . . defendant
moved about the store with the purpose of
8 A-1963-16T2
obtaining the items and that he made a direct
and purposeful exit from the store after a few
minutes. This was not a case of absent-minded
browsing in a store where a person may pick
up an item, hold on to it and then
unintentionally or thoughtlessly wander out of
the store. . . . Defendant's conduct in this
case showed that he acted purposely with
respect to the nature and result of his
conduct. From the totality of the
circumstance[s] and in light of the credible
evidence, the []court infers that it was
. . . [d]efendant's conscious object to carry
away the retail merchandise from the Wawa
without paying for it with the purpose to
deprive Wawa of its property, that is, to
steal the four food and drink items. It is
not the [c]ourt’s role to speculate what may
have happened in the past when . . .
[d]efendant shopped at the Wawa. Nor is
[d]efendant's argument about his "open and
conspicuous" behavior and the unlikelihood of
him shoplifting dispositive of . . .
[d]efendant's purpose and conduct on August
17, 2015. The [c]ourt understands . . .
[d]efendant's argument that it made no sense
for him to shoplift from his neighborhood Wawa
where he was a regular customer. However,
people do senseless, curious, and unfathomable
and unlawful things that are not in their best
interest all the time. . . . In this case, if
the [c]ourt were to speculate, it is just as
likely that . . . [d]efendant's purpose in
shoplifting the items was rooted in the fact
that the store was crowded and busy and he may
not have wanted to wait in line to pay for a
few items of small value. In any event, and
leaving all conjecture aside, . . .
[d]efendant's unlawful purpose in carrying
away the items has been sufficiently proven
by the State's evidence.
As to defendant's possession of the items, the judge reasoned:
9 A-1963-16T2
Similarly, the State has proven beyond a
reasonable doubt that . . . [d]efendant
possessed the four retail items knowingly. .
. . He had knowing, intentional control of the
items accompanied by a knowledge of their
character. Specifically, the [c]ourt infers
. . . [d]efendant's knowing possession from
his actions in preparing his coffee and
individually selecting his food and beverage
items. Based on the evidence, it is clear
that . . . [d]efendant knew he was in
possession of the four items. It is equally
clear that . . . [d]efendant's possession was
neither passing, fleeting or uncertain. He
was aware of his control of the items and could
have relinquished his control of them at any
time before he left the Wawa.
Addressing the remaining elements, Judge DeLury noted "the
State's evidence established beyond a reasonable doubt that the
full retail value was $7.98, thereby grading the matter as a
disorderly persons offense." Further, the judge explained that
"[t]he State's evidence showed beyond a reasonable doubt that the
Wawa in Margate is a merchant within the meaning of the statute[,]"
and "[t]he State's evidence has given the [c]ourt ample basis to
infer that . . . [d]efendant acted with the intent to deprive Wawa
of the property permanently[,] inasmuch as "[t]hese items were
consumable and were destined for . . . [d]efendant's immediate
consumption."
After finding defendant guilty of shoplifting, on January 8,
2016, the municipal judge granted the State's application to
forfeit defendant's public employment. In a written opinion dated
10 A-1963-16T
2 December 5, 2016, Judge DeLury denied defendant's motion to waive
the forfeiture of public employment pursuant to
N.J.S.A. 2C:51-
2(e). After considering the prosecutor's statement of reasons for
declining to waive forfeiture, the judge found no abuse of
discretion. First, acknowledging that the forfeiture was
predicated upon defendant's conviction for shoplifting, which
satisfied the "offense of dishonesty" requirement of
N.J.S.A.
2C:51-2(a)(1), the judge noted that although it was "a relatively
petty theft involving less than eight dollars in retail value[,]"
[n]evertheless, the real gravamen of the
offense for the purpose of the forfeiture
statute is that the offense is one of moral
turpitude, which warrants the application of
the statute in this case . . . . Another
factor to consider is the high standard that
public safety employees are held to. . . .
Defendant is a firefighter and lifeguard. As
such, he should be held to a higher standard
of conduct.
. . . .
[T]he community is entitled to employ
those of high moral character who do not stoop
to petty theft, a theft that was done in the
public view.
Next, Judge DeLury acknowledged that waiver of forfeiture is
permitted under
N.J.S.A. 2C:52-2 "where the conviction is of a
petty disorderly persons offense" and "discretion to grant such a
waiver is reserved . . . exclusively to the county prosecutor and
the Attorney General[,]" subject to review under an abuse of
11 A-1963-16T2
discretion standard. Citing State v. Rone,
410 N.J. Super. 589,
603 (App. Div. 2009), the judge noted it was defendant's burden
to prove that "good cause exists to waive forfeiture." However,
after considering the prosecutor's decision not to seek a waiver
in light of the sixteen factors delineated in State v. Flagg,
171 N.J. 561, 571 (2002),4 the judge concluded that the prosecutor
4
Those factors are as follows:
1. The totality of the circumstances
surrounding the event;
2. The nature of the offense, including its
gravity and substantiality, whether it was a
single or multiple offense and whether it was
continuing or isolated;
3. The quality of moral turpitude or the
degree of guilt or culpability, including the
employee's reasons, motives and personal gain;
4. The duties of the employee;
5. The relationship between the offense and
the duties of the employee, including but not
limited to, whether the criminal activity took
place during work hours or involved work
facilities, contacts, relationships, or
equipment;
6. The employee's length of service;
7. The employer's desires;
8. The needs and interests of the victim and
society, including consideration of the
victim's desires;
9. The extent to which the employee's offense
constitutes part of a continuing pattern of
anti-social behavior;
10. The employee's prior record of convictions
and disciplinary infractions;
11. The threat presented to coworkers or the
public if the employee is permitted to retain
his or her position;
12 A-1963-16T2
"considered all permissible bases" and "articulated several
rational bases that are embraced by established policies" in
deciding against waiver.
Notably, the judge pointed out that the prosecutor considered
as aggravating circumstances the fact that defendant, who has been
a Margate City firefighter since 2011 and on the Margate City
Beach Patrol for nineteen years, held positions that "are held in
high esteem" "particularly in the close-knit beach communities of
[the] County . . . ." According to the prosecutor, because
defendant was "entrusted with the lives and property of his fellow
citizens[,]" he "must adhere to the highest standards of conduct."
12. Any involvement of the employee with
organized crime;
13. Whether the employee has been granted
waiver on a prior occasion;
14. The impact of waiver on the employment
status of codefendants as to avoid an
injustice if similarly situated culpable
individuals are tried in separate trials;
15. Whether waiver of forfeiture of office
would undermine public confidence in the
integrity of important governmental
functions, including but not limited to law
enforcement functions; and
16. Nature and scope of cooperation with the
prosecuting authorities.
[Attorney General Guidelines for Deciding
Whether to Apply for a Waiver of Forfeiture of
Public Office Pursuant to
N.J.S.A. 2C:51-
2(e) 9-10, available at
http//www.state.nj.us/lps/dcj/agguide/waiver
offorfeiture.pdf.]
13 A-1963-16T2
Instead, "defendant committed the offense minutes before his shift
at the fire station was to begin" and "was wearing a part of his
fire fighter uniform, a Margate City Fire Fighter hat, as well as
shorts which were purchased by the [Margate City] Beach Patrol
. . . ." Further, "[d]efendant was less than candid with law
enforcement" and provided "two different versions of what occurred
. . . , neither of which reflected the unvarnished truth."
Additionally, defendant appeared to have been "motivated by
unlawful personal gain" and evinced "a guilty state [of] mind" in
committing an offense that "impose[s] significant costs on
retailers[,]" which "costs are ultimately passed on to consumers
in the form of higher prices." His conduct suggested to the
prosecutor that "he believe[d] he [was] above the law." Further,
in the prosecutor's view "[d]efendant's propensity to steal
present[ed] a threat to the public as he is given access to
people[']s home[s] as a fire fighter often at times when residents
are vulnerable or are in a physically or mentally compromised
state."
While the judge rejected the prosecutor's consideration of
two prior theft allegations that did not result in charges or
convictions, the judge noted that the prosecutor's consideration
of two prior "[d]isciplinary [i]nfractions" in connection with his
position with the Beach Patrol as well as a prior out-of-state
14 A-1963-16T2
"[d]riving [u]nder the [i]nfluence" conviction was proper.
Likewise, given the employer's ambivalence, the absence of "a
clear indication . . . that the employer desire[d] a waiver[,]"
weighed against defendant and in favor of the prosecutor's
decision. The prosecutor "was mindful of the claimed hardships
that will be attendant with the loss of public employment" but
determined that "such hardships [were] not undue under the
circumstances."
The judge concluded
[T]he Prosecutor's reasons for not seeking a
waiver demonstrate an appropriate exercise of
prosecutorial and executive discretion. The
court is mindful that the Prosecutor's
decision not to seek a waiver in this case
will result in [the] end of . . . defendant's
long-held public employment. However, since
the Prosecutor has considered all applicable
factors and has soundly exercised her
discretion, the application of the forfeiture
requirement will not work as an "instrument
of injustice" in this case. No doubt the
result will be very serious, costly, weighty
and embarrassing to . . . defendant and his
family. This result, however, under the law
is a just one and the individual consequences
that follow from . . . defendant's dishonesty
are not sufficient to render the prosecutor's
decision into an instrument of injustice.
Judge DeLury entered a memorializing order on December 14, 2016,
ordering the immediate forfeiture of defendant's "positions of
employment with Margate City[,]" and this appeal followed.
15 A-1963-16T2
On appeal, while acknowledging that the record establishes
"the prima facie elements necessary" for "a shoplifting charge[,]"
defendant argues that there was insufficient credible evidence for
the trial judge to find him guilty beyond a reasonable doubt.
Specifically, defendant challenges the judge's credibility
assessments of Baumgardner's and Macinaw's testimony, as well as
the judge's finding that he was not a regular customer who
routinely paid for his items. Defendant argues further that while
the conviction triggered the forfeiture provisions of
N.J.S.A.
2C:51-2, the prosecutor abused her discretion in denying him a
waiver because he lacked "moral culpability[.]" Defendant also
asserts the prosecutor's reliance on "prior 'suspicions'" that
never resulted in "a criminal charge" or "a disciplinary
infraction" was the "essence of an ordinary abuse of discretion"
that invalidated the "waiver analysis." We disagree and affirm
substantially for the reasons detailed in Judge DeLury's well-
reasoned and cogent opinions. We add only the following comments.
On an appeal of a municipal conviction to the Law Division,
the Law Division judge must decide the matter de novo on the
record. State v. Adubato,
420 N.J. Super. 167, 176 (App. Div.
2011). This means that the Law Division judge must independently
make his or her own factual findings, rather than determining
whether the findings of the municipal judge were supported by
16 A-1963-16T2
sufficient credible evidence. See ibid.; State v. Johnson,
42 N.J. 146, 157 (1964). However, in making findings about witness
credibility, the Law Division judge should give "due" but "not
necessarily controlling" weight to the municipal judge's
credibility determinations, because the municipal judge had the
opportunity to observe the testimony firsthand. Adubato,
420 N.J.
Super. at 176 (quoting Johnson,
42 N.J. at 157).
When we review the Law Division judge's decision, our standard
is different. We do not decide the facts de novo. Rather we
decide whether the Law Division judge's factual findings are
supported by sufficient credible evidence. Adubato,
420 N.J.
Super. at 176; State v. Locurto,
157 N.J. 463, 470-71 (1999).
Where both the municipal judge and the Law Division judge have
found a witness credible, we owe particularly strong deference to
the Law Division judge's credibility finding. Locurto,
157 N.J.
at 474. Moreover, when the municipal court and the Superior Court
"have entered concurrent judgments on purely factual issues[,]"
we do not disturb those findings "absent a very obvious and
exceptional showing of error." Ibid. However, we review legal
conclusions de novo. See State v. Rivera,
411 N.J. Super. 492,
497 (App. Div. 2010).
Turning to the forfeiture order, pursuant to
N.J.S.A. 2C:51-
2(a)(1), "[a] person holding any public office, position or
17 A-1963-16T2
employment . . . who is convicted of an offense [involving
dishonesty] shall forfeit such office, position or employment . .
. ." The forfeiture requirement is triggered when "[a] public
official [is] convicted of a crime of dishonesty, no matter how
petty . . . ." State v. Hamm,
121 N.J. 109, 125 (1990). However,
"to avoid the harshness of forfeiture and disqualification for a
few minor offenses in which the circumstances dictate
otherwise[,]" Flagg,
171 N.J. at 571,
N.J.S.A. 2C:51-2(e) provides
that "[a]ny forfeiture or disqualification . . . which is based
upon a conviction of a disorderly persons [offense] . . . may be
waived by the court upon application of the county prosecutor or
the Attorney General and for good cause shown." While "[d]efendant
ha[s] the burden of proof to establish the presence of good cause
to warrant a waiver of the forfeiture . . . that would otherwise
flow from [the] conviction[,]" State v. Rone,
410 N.J. Super. 589,
607 (App. Div. 2009), a county prosecutor's decision not to apply
for a waiver of forfeiture is subject to judicial review under the
abuse of discretion standard. Flagg,
171 N.J. at 571-72.
An abuse of discretion arises when a decision is "made without
a rational explanation, inexplicably departed from the established
policies, or rests on an impermissible basis." Id. at 571 (quoting
Achacoso-Sanchez v. Immigration & Naturalization Serv.,
779 F.2d 1260, 1265 (7th Cir. 1985). "Ordinarily, an abuse of discretion
18 A-1963-16T2
will be manifest if defendant can show that a prosecutorial veto
(a) was not premised upon a consideration of all relevant factors,
(b) was based upon a consideration of irrelevant or inappropriate
factors, or (c) amounted to a clear error in judgment." Ibid.
(quoting State v. Baynes,
148 N.J. 434, 444 (1997)). In
determining whether a prosecutor's decision to not seek waiver
constitutes an abuse of discretion, in Flagg, our Supreme Court
articulated sixteen specific factors for consideration, which
factors were encompassed in the Attorney General's guidelines
intended to assure state-wide uniformity in the handling of waiver
of forfeiture applications. Id. at 579. See Attorney General
Guidelines for Deciding Whether to Apply for a Waiver
of Forfeiture of Public Office Pursuant to
N.J.S.A. 2C:51-2(e) 9-
10, available at http//www.state.nj.us/lps/dcj/agguide/waiver
offorfeiture.pdf.
Here, we are satisfied that the record contains ample support
for defendant's conviction for shoplifting. We also agree with
Judge DeLury's determination that the decision against waiver
reflected no abuse of prosecutorial discretion.
Affirmed.
19 A-1963-16T2
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