STATE OF NEW JERSEY v. MICHAEL P. BUCCA

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." 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-0886-16T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

MICHAEL P. BUCCA,

         Defendant-Appellant,

and

MALISSA BUCCA,

     Defendant.
_______________________________

                   Argued September 26, 2018 - Decided January 23, 2019

                   Before Judges Fuentes, Accurso and Moynihan.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 15-04-0754.

                   Gregory V. Sharkey argued the cause for appellant
                   (Gregory V. Sharkey and Eli L. Eytan, on the brief).

                   Shiraz I. Deen, Assistant Prosecutor, argued the cause
                   for respondent (Joseph D. Coronato, Ocean County
            Prosecutor, attorney; Samuel J. Marzarella, Chief
            Appellate Attorney, of counsel; Shiraz I. Deen, on the
            brief).

PER CURIAM

      Defendant Michael P. Bucca was convicted along with his sister of third-

degree receiving stolen property,  N.J.S.A. 2C:20-7, and third-degree dealing in

stolen property,  N.J.S.A. 2C:20-7.1(b), and was sentenced to three years'

probation and sixty days in the county jail. He appeals his conviction, raising

the following issues:

            POINT I

            THE TRIAL COURT ERRED BY DENYING
            DEFENDANT'S MOTION TO DISMISS THE
            INDICTMENT FOR INSUFFICIENT PROOFS AND
            GRAND JURY MISCONDUCT.

            POINT II

            THE JURY CHARGE WAS INADEQUATE,
            INSUFFICIENTLY SPECIFIC TO THE CASE AND
            CONFUSING TO THE JURY.

            POINT III

            THE TRIAL COURT DETERMINATION TO
            PERMIT   HEARSAY   STATEMENTS      OVER
            DEFENDANT'S OBJECTION VIOLATED HIS
            CONSTITUTIONAL RIGHT OF CONFRONTATION
            AND OTHERWISE DENIED HIM A FAIR TRIAL.



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            POINT IV

            PROSECUTORIAL MISCONDUCT, ERRORS AND
            OMISSIONS SO PREJUDICED DEFENDANT SO AS
            TO DENY HIM A FAIR TRIAL.

            POINT V

            THE TRIAL COURT SHOULD HAVE GRANTED
            MOTION FOR JUDGMENT OF ACQUITTAL AT
            THE END OF THE STATE'S CASE.

            POINT VI

            THE TRIAL COURT SHOULD HAVE GRANTED
            DEFENDANT'S MOTION FOR JUDGMENT OF
            ACQUITTAL N.O.V. OR IN THE ALTERNATIVE
            FOR A NEW TRIAL.

            POINT VII

            THE CUMULATIVE TRIAL ERRORS RENDERED
            THE TRIAL MANIFESTLY UNFAIR AND
            CONSTITUTED A MISCARRIAGE OF JUSTICE.
            (NOT RAISED BELOW).

Finding no error in defendant's indictment or subsequent conviction, we affirm.

      Over the course of a two-day trial, the State proved its case against

defendant based largely on the testimony of one Hatch, an admitted drug addict

and convicted thief, and Detective DiMichele, who arrested her and prosecuted

defendant. Hatch testified she shoplifted blenders, coffee makers and Lego toys

from K-Mart, Bed, Bath & Beyond and Toys "R" Us in Toms River in January


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and February 2015 and subsequently sold them in their original packaging,

either directly or through her friend Bennett, to defendant or his sister at their

mother's pawn shops, Quick Cash, in Toms River and Bayville. She testified

she frequented Quick Cash because she knew the store would take the stolen

items and give her twenty-five percent of the retail value. She admitted she

provided a signed statement each time she sold items to Quick Cash that she was

the lawful owner of the merchandise. Hatch also testified defendant's sister once

told her, at defendant's direction, that Hatch should go to the Bayville store

because the Toms River store was implementing a new "Rapid" System that

would photograph her, the items she was selling and her identification and

transmit them to the police.

      Detective DiMichele explained to the jury the Rapid (Regional Automated

Property Information Database) System was an electronic database allowing

police to track sales to pawn shops in real time. An ordinance in Toms River

required secondhand dealers and pawnbrokers to obtain a license and report

transactions electronically, including a photo of the goods purchased, the price

paid, and a photo of the seller and the seller's identification. Dealers were

required to retain all items purchased for a ten-day period in order to allow the

police to investigate whether the items were stolen. The detective explained


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Toms River's electronic system was instituted in January 2015. Before that,

dealers were required to maintain paper records of their transactions, which

police collected once a week. According to the detective, Berkeley Township,

where the Bayville store was located, did not convert to an electronic system

until after Toms River.

      Detective DiMichele testified that he took a statement from Hatch on

January 22, 2015 following her arrest on shoplifting charges. Hatch confessed

to shoplifting various items and selling them at Quick Cash in Bayville on

January 12, 17, 18 and 21. DiMichele went to the store after taking her statement

and recovered thirty-four Lego sets and thirty-one blenders the store purchased

from Hatch on those dates.

      Hatch was arrested again on February 4 and admitted to stealing a

shopping cart full of Lego sets from Toys "R" Us and giving them to Bennett to

sell at Quick Cash. When DiMichele went to the Toms River store to recover

the Legos sold by Bennett, defendant directed the employee assisting DiMichele

not to cooperate with him. DiMichele was familiar with defendant, having seen

him at the store a half a dozen times over the prior three or four years. The

detective testified defendant became so irate he was hindering the investigation




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and was arrested. The parties stipulated police seized thirty-seven sets of Legos

Bennett sold the Toms River and Bayville stores on February 1 and 3.

      Defendant testified in his own behalf. He claimed he was responsible for

the recycling aspect of his mother's business and some bookkeeping and did not

work at either the Toms River or Bayville stores. Defendant testified the Rapid

System was new in January 2015 and everyone was having to adjust to the

changes. Although he denied directing Quick Cash's employee not to cooperate

with Detective DiMichele, he admitted he angrily cursed at the detective because

he seized merchandise the store paid Hatch $600 for the week before and failed

to do what was necessary to allow the store to recover that loss before appearing

again to seize additional merchandise.

      Defendant claimed he never bought anything from Hatch and had only

seen her once, when she was in the Toms River store in January 2015. He

claimed there were plenty of places to go to purchase new merchandise of the

sort Hatch sold to Quick Cash, including online liquidation sites, flea markets

and auctions. Defendant testified he did not know the goods offered by Hatch

were stolen and would never knowingly purchase stolen merchandise.

Defendant's counsel argued defendant was only charged in retaliation for his

cursing at Detective DiMichele for failure to do his job.


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      Having reviewed the entire record, we conclude none of the issues

defendant raises challenging his conviction is of sufficient merit to warrant

extended discussion in a written opinion. See R. 2:11-3(e)(2).

      The Supreme Court has instructed a trial "court should dismiss an

indictment 'only on the clearest and plainest ground, and only when the

indictment is manifestly deficient or palpably defective.'" State v. Twiggs,  233 N.J. 513, 531-32 (2018) (quoting State v. Hogan,  144 N.J. 216, 228-29 (1996)).

The State survives a motion to dismiss an indictment so long as it "presents

'some evidence establishing each element of the crime to make out a prima facie

case.'" State v. Feliciano,  224 N.J. 351, 380 (2016) (quoting State v. Saavedra,

 222 N.J. 39, 57 (2015)).

      Applying that standard, Judge Blaney twice rejected motions by defendant

to dismiss the indictment, finding the evidence presented more than adequate to

sustain the charges. The State presented evidence that defendant was in charge

of both stores, and, through his sister, directed Hatch to the Bayville store after

Toms River implemented the Rapid System because he knew or suspected Hatch

had stolen the new merchandise she offered to Quick Cash. The evidence

defendant contends the State should have presented about the operation of the

Rapid system and the certifications Hatch and Bennett signed attesting to


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ownership of the merchandise was not so clearly exculpatory as to require

submission to the grand jury. See Hogan,  144 N.J. at 236 (explaining "the grand

jury cannot be denied access to evidence that is credible, material, and so clearly

exculpatory as to induce a rational grand juror to conclude that the State has not

made out a prima facie case against the accused").

      Judge Blaney's instruction to the jury that it could infer defendant knew

the property was stolen if it found he obtained it "without having ascertained by

reasonable inquiry that the person from whom he . . . obtained it had a legal right

to possess or control it" was in accord with the model charge and not error. See

Model Jury Charges (Criminal), "Dealing in Stolen Property ( N.J.S.A. 2C:20-

7.1(b))" (approved Dec. 2, 1996). The judge appropriately tailored the charge

to the facts by adding that if the jury found defendant's reliance on the

certificates of ownership provided by Hatch and Bennett was reasonable, it

could consider that "in determining whether . . . defendant[] had the requisite

knowledge or belief that the merchandise in question was stolen as required to

be proven by the State beyond a reasonable doubt."

      Defendant's proffered instruction, that the jury "must not infer" the

requisite knowledge if it found defendant's reliance on the certificates was

reasonable, would have limited the jury's consideration of defendant's


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knowledge that the merchandise was stolen to the certificates, and thus was

properly rejected. A defendant's knowledge that property was likely stolen may

be proved in a variety of ways. Here, for example, the State argued defendant's

instruction to Hatch, through his sister, that she should go to the Bayville store ,

which had yet to implement the Rapid System, implied he knew the goods were

stolen. Because defendant's requested instruction was not a correct statement of

the law and ignored other facts in the case, it was not incumbent on the judge to

give it. See State v. Green,  86 N.J. 281, 291 (1981). Indeed, it would have been

error to do so.

      We reject defendant's arguments that the hearsay statements attributed to

his sister directing Hatch to the Bayville store were improperly admitted under

N.J.R.E. 803(b)(5). The statement was made in furtherance of defendant and

his sister's plan to accept property stolen by Hatch at their Bayville store; it was

made in January 2015 after Toms River had implemented the Rapid System but

before Bayville did; and the State admitted evidence independent of the hearsay,

namely defendant's direction to other employees not to cooperate in the State's

investigation into Quick Cash's receipt of stolen property, of the existence of the

plan and defendant's relationship to it. See State v. Phelps,  96 N.J. 500, 509-10

(1984).


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      Even were the statement admitted improperly, which was not the case, the

error would have been harmless in light of Hatch's testimony that she heard

defendant direct his sister to tell Hatch to sell her merchandise at the Bayville

store, making the statement admissible as the statement of a party-opponent

under N.J.R.E. 803 (b)(1). Defendant's argument that the admission of the

statement infringed his confrontation rights under the Sixth Amendment is

without merit. See Bourjaily v. United States,  483 U.S. 171, 181-84 (1987).

      Defendant's claims of prosecutorial misconduct require only brief

comment. We agree with defendant that the questions the prosecutor put to

Detective DiMichele in the course of probing why he failed to charge Hatch with

theft by deception for selling the goods to Quick Cash, whether he thought

defendants "were aware that what they were buying was stolen" and "isn't that

the ultimate issue and isn't . . . that a reason why you wouldn't charge," were

improper. Judge Blaney, however, sustained defendant's objection to those

questions, and we cannot conclude they prejudiced defendant's right to have the

jury fairly evaluate his defense. See State v. Roach,  146 N.J. 208, 219 (1996).

The judge was alert to the testimony and responsive to objections posed,

providing curative instructions when necessary.         Certainly none of the




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prosecutor's missteps, singly or in combination, were so egregious as to have

deprived defendant a fair trial. See State v. Smith,  167 N.J. 158, 181 (2001).

      Defendants remaining arguments, that the court erred in denying his

motions for acquittal and that cumulative error rendered his trial manifestly

unfair, to the extent we have not addressed them, lack sufficient merit to warrant

any discussion in a written opinion. See R. 2:11-3(e)(2).

      Affirmed.




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