2C: 20-11C(4)-Shoplifting Less Than $200

 

2C :20-11  Shoplifting.    a.   Definitions.  The following definitions apply to this section:    (1)   "Shopping cart"  means those push carts of the type or types which are commonly provided by grocery stores, drug stores or other retail mercantile establishments for the use of the public in transporting commodities in stores  and markets and, incidentally, from the stores to a place outside the store;    (2)   "Store or other retail mercantile establishment"  means a place where merchandise is displayed, held, stored or sold or offered to the public for sale;    (3)   "Merchandise"  means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof;    (4)   "Merchant" means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or proprietor;    (5)   "Person" means any individual or individuals, including an agent, servant or employee of a merchant where the facts of the situation so require;    (6)   "Conceal" means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation;    (7)   "Full retail value" means the merchant's stated or advertised price of the merchandise;    (8)   "Premises of a store or retail mercantile establishment" means and includes but is not limited to, the retail mercantile establishment; any common use areas in shopping centers and all parking areas set aside by a merchant or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of such retail mercantile establishment;    (9)   "Under-ring" means to cause the cash register or other sale recording device to reflect less than the full retail value of the merchandise;    (10) "Antishoplifting or inventory control device countermeasure" means any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device;    (11) "Organized retail theft enterprise" means any association of two or more persons who engage in the conduct of or are associated for the purpose of effectuating the transfer or sale of shoplifted merchandise.    b.   Shoplifting.  Shoplifting shall consist of any one or more of the following acts:    (1)   For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.    (2)   For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.    (3)   For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.    (4)   For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.    (5)   For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.    (6)   For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the  merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.    c.   Gradation.  (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is  $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.     (2)   Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than  $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.    (3)   Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.    (4)   Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.    The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.    Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C :43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows:  for a first offense, at least ten days of community service;  for a second offense, at least 15 days of community service;  and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.    d.   Presumptions.  Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.    e.   A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.    Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section.    A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.    f.   Any person who possesses or uses any antishoplifting or inventory control device countermeasure within any store or other retail mercantile establishment is guilty of a disorderly persons offense.

Permissibility of Plea Agreements in Remaining State v. Cassidy DWI Cases

  Permissibility of Plea Agreements in Remaining State v. Cassidy DWI Cases

ALCOTEST CASES - PERMISSIBILITY OF PLEA AGREEMENTS IN
REMAINING STATE V. CASSIDY DWI CASES - SUPREME COURT ORDER

In the attached June 27, 2023 Order, the Supreme Court confirms the continuance of its December 18, 2019 rule relaxation permitting plea bargaining in post-conviction relief driving while intoxicated (DWI) cases affected by the Court's decision in State v. Eileen Cassidy. 235 N.J. 482 (2018).

As background, plea bargaining DWI cases is prohibited by the Guidelines for Operations of Plea Agreements in the Municipal Courts of New Jersey, (Guidelines), an Appendix to Part VII of the Court Rules.

In State v. Cassidy. 235 N.J. 482 (2018), the Court held Alcotest results from certain breath-test machines that were calibrated without using a thermometer that produces NIST-traceable temperature readings in the calibration process to be inadmissible as evidence in DWI cases. The Court by Order dated January 29, 2019 established a centralized process for the handling of these cases and by Order dated December 18, 2019 relaxed the Guidelines to permit plea agreements in postconviction relief cases affected by Cassidy. By Order of May 6, 2022 the Court concluded the centralized process for the handling of Cassidy matters, effective June 1, 2022 .

The attached June 27, 2023 Order confirms and clarifies that the Court's May 6, 2022 Order did not terminate the temporary and limited rule relaxation in the Court's December 18, 2019 Order and that plea agreements in Cassidy affected post-conviction relief proceedings may proceed.

This Order also provides that before a court acts on a proposed plea agreement, the Municipal Court Prosecutor shall submit the proposed plea agreement to the Office of Attorney General or the Attorney General's designee
for review.

The Guidelines prohibiting plea bargaining in DWI cases remain in full force and effect for cases not affected by the Court's decision in Cassidy.

Document Date: July 19, 2023

Tip of black man with gun not enough for Terry stop here State v. Hill A-2119-21

 Tip of black man with gun not enough for Terry stop here State v. Hill A-2119-21

Defendant appealed the denial of his motion to suppress a handgun seized during a Terrystop based on an alleged tip from a confidential informant. At the suppression hearing, the arresting officer testified that he and his partner were dispatched to respond to a report of a Black man with a gun. The officers got the report from detectives working for the prosecutor's office, who allegedly received a tip from a confidential informant. Neither officer knew anything about the CI. The officers spotted defendant, who matched the description in the report. The officers did not observe defendant do anything illegal and did not see any evidence that he was armed. However, when defendant turned away from the officers, they grabbed his hands and performed a pat-down, recovering a handgun. The trial court denied defendant's suppression motion, distinguishing the case from Florida v. J.L., 529 U.S. 266, by noting that defendant's act of reaching towards his waistband while turning away from the officers, along with the corroborated description of defendant, justified the pat-down. On appeal, the court reversed, agreeing that the officers lacked reasonable suspicion to stop and frisk defendant. The court ruled that defendant's "unusual movement" was insufficient to provide reasonable suspicion for the stop, which was based on an anonymous tip about a Black man with a gun. The court noted that the arresting officers knew nothing about the CI who allegedly provided the tip. Source NJLJ July 19, 2023

Defendant in private complaint entitled to discovery of records State v. Burke A-0503-22

Defendant in private complaint entitled to discovery of records State v. Burke  A-0503-22  

Defendant appealed orders denying a forensic examination of the complainant's cellphone and discovery of complainant's employment and disciplinary records with the State Police in a quasi-criminal municipal court matter initiated by a civilian complainant. A verbal altercation developed between complainant and defendant. Police officer took statements about an ongoing property dispute. Complainant did not make any mention of traffic violations allegedly committed by defendant. Officer concluded the matter was a "civil issue" and no action was needed. A month later, complainant swore out a complaint against defendant for alleged traffic violations during the dispute. Defendant pled not guilty and requested discovery. Complainant only provided printed images of alleged traffic violations he recorded on his cellphone. State denied defendant's discovery requests as not relevant. Municipal judge entered a protective order barring discovery of complainant's records and employment information and forensic examination of the cellphone. Defendant appealed to the Law Division and State introduced an expungement order for the disciplinary and criminal records requested by defendant. Law Division denied defendant's request. Court reversed and remanded finding the records sought by defendant were relevant to impeachment evidence and State had an affirmative duty to gather and disclose any relevant Brady/Giglio material from State's testifying witnesses. source NJLJ July 19, 2023 

Hindering his own apprehension affirmed State v. Shabaan A-0559-21

 Hindering his own apprehension affirmed  State v. Shabaan A-0559-21  

Defendant appealed his convictions for hindering his own apprehension by providing a false name to law enforcement and driving with a revoked or suspended license. During trial, defendant and his wife testified that she was the driver and defendant was in the rear of the minivan with their children. The arresting officer testified that at precinct headquarters, defendant broke down and admitted he was the driver. Municipal court found the testifying police officer more credible than defendant and his wife and thus found defendant guilty on the charges of hindering apprehension and driving under a suspended license. Defendant appealed, and trial de novo was conducted on a review of the municipal court record. Trial court rejected defendant's assertions that municipal court erred by: failing to conduct a hearing on the admissibility of his statement at the police headquarters; crediting the officer's testimony; and permitting testimony regarding a records abstract showing the names that dispatch had run through the NCIC database. Trial court concluded defendant's statement admitting he was the driver would be admissible as a statement against interest and was voluntary rather than the result of interrogation. Ultimately, however, trial court did not consider defendant's statement in determining guilt on the charges alleged. Trial court further deemed the records abstract and the NCIC information it reflected were admissible as business records and public records. Finally, trial court independently credited the officer's testimony and deemed defendant's testimony, and that of his wife, to be self-serving and not credible. Trial court imposed same fine, costs, and assessments imposed by municipal court. Defendant appealed. Court affirmed. Court rejected defendant's challenges as lacking sufficient merit to warrant further discussion. Court affirmed for substantially the reasons set forth by trial court, noting that trial court did not consider defendant's police headquarters statement in its determination, the disputed abstract and NCIC information were not admitted into evidence, and trial court's factual and credibility findings were supported by the record.

source NJLJ July 31, 2023

State v. Evangelista A-2481-21

Expired Brazil license no defense to driving without license in NJ

State v. Evangelista A-2481-21

Defendant appealed trial court's order after a trial de novo of his municipal conviction for driving without a license. Defendant, a Brazilian national residing in New Jersey, was charged with the unlicensed operation of a motor vehicle and other motor vehicle violations. With representation by counsel, defendant appeared via Zoom at a remote municipal court proceeding in which he pleaded guilty to violating N.J.S.A. 39:3-10 in exchange for dismissal of the remaining charges. Municipal court accepted the plea and sentenced defendant to thirty days in jail. Defendant appealed and obtained a trial de novo. Trial court upheld municipal court's decision and sentenced defendant to thirty days in jail. Defendant appealed, arguing municipal court applied an obsolete version of N.J.S.A. 39:3-10, he was not guilty because he was previously licensed in Brazil, his sentence was illegal, and the proceedings were flawed because no Portuguese translator was provided. Court affirmed. As amended in 2021, N.J.S.A. 39:3-10 might have made it easier for defendant, as an immigrant, to obtain a valid New Jersey driver's license, but the fact remained that defendant still had not done so on the date of his violation in October 2021. Defendant knew he was not permitted to drive in New Jersey with his Brazilian license because he had a prior conviction for the same infraction, for which he received jail time. Nor was defendant's sentence illegal. The statute provides that a driver who has never been licensed, in New Jersey or elsewhere, may only be punished with a fine, but defendant previously held a driver's license in Brazil. That made him eligible for imprisonment under N.J.S.A. 39:3-10. Defendant's sentence also was in keeping with his record of infractions and related factors. Finally, there was no flaw in the proceedings merely because Portuguese was defendant's first language. Neither defendant nor his counsel requested an interpreter or indicated defendant had difficulty communicating in English. source NJLJ July 26, 2023

 

Blood test could be given where driver claimed chest tightness State v. Brennan A-1951-20

  Blood test could be given where driver claimed chest tightness State v. Brennan  A-1951-20

Defendant appealed his de novo trial conviction for DWI and reckless driving. An officer responding to a report of a suspicious vehicle observed a vehicle idling its engine in the middle of the road. The officer approached the vehicle and saw defendant in the driver's seat, noting a strong odor of alcohol and defendant's slurred speech and watery eyes. Defendant was ordered out of the vehicle and submitted to field sobriety tests. Although defendant advised the officers that he had a leg injury, he claimed that he could still perform the leg lift test. However, the officers testified that defendant could not remain steady for more than a couple of seconds. The officers also determined that defendant failed the heel-toe walk test. The officers accordingly arrested defendant. Although defendant agreed to submit to an Alcotest, he claimed to be suffering symptoms of an asthma attack. Defendant initially requested his inhaler, but when the officers could not find it in defendant's vehicle and he began claiming chest tightness, defendant was transported to the hospital without having performed the Alcotest. At the hospital, defendant declined to submit to a blood draw, leading officers to apply for a warrant. When officers could not reach a municipal judge, they conducted a warrantless blood draw based on exigency. Testing revealed that defendant had a BAC of 0.19. Defendant moved to suppress the blood draw based on the lack of probable cause or a search warrant. The municipal court denied the motion, finding that there was probable cause to arrest defendant based on his unsatisfactory performance of field sobriety tests. Defendant appealed to the trial court, which ruled that the officers had not unreasonably or deliberately created an exigency when they failed to perform an Alcotest or obtain a search warrant for the blood draw. On appeal, the court affirmed defendant's conviction. The court agreed that exigent circumstances excused the warrant requirement to obtain a blood draw since defendant required medical attention for his asthma symptoms after officers could not locate his inhaler. source NJLJ July 24, 2023 

Saying I don’t want to talk invokes Miranda State v. Bass A-2533-21

Saying I don’t want to talk invokes Miranda State v. Bass 

Defendant appealed her conviction after she entered a conditional guilty plea. Police responded to a stabbing in defendant's father's home. Officers found defendant with blood on her clothes near her father's house and took her to police station to interview her. Detective testified defendant was a suspect in the killing but was not under arrest. Detectives told her they would read her Miranda rights to her, she responded "So I'm locked up?" and detectives said "No." That conversation occurred several times. Defendant also clearly said "I don't want to talk now…" and "I don't have nothing to say" before she waived her rights by signing the Miranda card. Defendant finally said I ain't got shit else to say." Detective testified it was her "general practice" to continue to give Miranda warnings even if a suspect said she did not wish to speak before the full warnings were given and asserted defendant "wanted to control the interview." Court reversed trial court's order denying defendant's motion to suppress and remanded the case. Court found trial court erred in ignoring "specific language" and found defendant invoked her right to silence three minutes into the questioning when she said "I don't want to talk now…" Defendant did not have to wait for the proper administration of her Miranda rights to invoke her right to silence. A-2533-21  NJLJ June 30, 2023

STATE OF NEW JERSEY VS. DAANDRE J. WADE

 In May 2019, defendants were found in possession of two loaded handguns while driving a car on public roads.  Neither defendant had a permit to carry a handgun.  Both defendants were indicted for second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Following the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants moved to dismiss those criminal charges, arguing that the version of the gun-carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.  The trial court agreed and dismissed the charges.  This court granted the State leave to appeal the order.

The court holds that defendants did not have standing to challenge the gun permit statutes because neither defendant had applied for a handgun-carry permit. Nevertheless, the court addresses the merits of the constitutional challenge and holds that the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.  Accordingly, the court reverses the order dismissing the charges and remands with direction that the trial court reinstate both counts of unlawful possession of a handgun without a permit.

STATE OF NEW JERSEY VS. TYSHON M. NIEVES

 In this appeal from an order denying defendant's motion to suppress evidence seized following the 5:00 a.m. execution of a knock-and-announce search warrant at a residence, the court finds the law enforcement officers did not wait a reasonable period after knocking and announcing their presence before forcibly breaching and entering the home's front door.  The court determines that based on the circumstances presented, the officers' forcible entry into the home after waiting less than five seconds after after knocking and announcing their presence was unreasonable and rendered the subsequent search of the home and seizure of evidence unconstitutional.  The court determines the exclusionary rule requires suppression of the evidence, reverses the order denying the suppression motion, and remands for further proceedings.

Leander Williams v. New Jersey State Parole Board

The Parole Board cannot mandate participation in an RTP for inmates administratively paroled under the EYWO Act. Although N.J.S.A. 30:4-123.59 generally authorizes the Parole Board to impose parole conditions on adult inmates who have been administratively released under the EYWO Act, an RTP is not among the conditions that can be imposed in that setting.

State v. Quintin D. Watson

 (1) Based on the identification evidence alone, defendant’s conviction cannot stand. The inherently suggestive nature of first-time in-court identifications, conducted in front of a jury, risks depriving defendants of their due process rights. The Court holds that first-time in-court identifications may only be conducted when there is good reason for them and sets forth certain practices that must be observed in connection with in-court identifications. (2) The narration evidence in this case also ran afoul of the evidence rules, which do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording. The Court identifies certain safeguards to underscore the limited use of narration evidence and adds that a party intending to present narration evidence should provide opposing counsel with a written summary of the proposed testimony before trial. (3) Confrontation Clause challenges are fact-specific. The testimony here about consultation with other law enforcement agencies violated defendant’s right to confrontation, and the Court provides guidance for remand.

State v. Dante C. Allen

 The Court disagrees with the Appellate Division’s conclusion that the trial court should have excluded all the detective’s narration of the surveillance video. The trial court properly permitted the detective to testify about the manner in which he used the surveillance video to guide his investigation. Applying principles stated today in State v. Watson, _ N.J. _ (2023) (slip op. at 46-60), the detective’s testimony opining that the video showed defendant turning and firing his weapon should have been excluded from evidence. However, that error was harmless given the strength of the State’s evidence.

State v. Roberson Burney

The trial court erred in admitting both the testimony placing defendant’s phone at or near the crime scene and the first-time in-court identification. Those errors, in combination, deprived defendant of a fair trial.