Opinion
DOCKET NO. A-1052-10T2
09-02-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JACKIE LUGO-PAGAN, Defendant-Appellant.
Andrew K. Murray, attorney for appellant. Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-0116.
Andrew K. Murray, attorney for appellant.
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from her conviction for shoplifting, N.J.S.A. 2C:20-11(b)(2). We affirm.
On September 23, 2009, Sara Adele Higgins, an Assistant Asset Protection Officer for the Wal-Mart Center in Boonton (Wal-Mart), was reviewing video surveillance tapes pertaining to an unrelated investigation when she observed suspicious activity in the jewelry department. She observed defendant, the jewelry manager, stuffing Wal-Mart bags with merchandise. Higgins pulled all cash register receipts for the jewelry department and found no purchases for the merchandise she had seen defendant placing in the Wal-Mart bags.
After consulting with her supervisor, Higgins set up surveillance of defendant. Throughout the rest of the day, she observed defendant place additional merchandise on top of a blue basket and then put them into a Wal-Mart bag, moving all items out of the range of the store surveillance cameras.
At the end of her shift, defendant clocked out. She purchased four items, totaling $12.27 from a cashier in the jewelry department and walked to the front of the store. Defendant saw Higgins and asked if she was leaving and would like to walk out with her. Higgins declined. Defendant pushed a shopping cart toward the front door with the four items she had purchased in one bag and thirty-six items of merchandise she had not paid for in another bag. She presented her receipt for the four items she purchased to the door greeter and proceeded to the vestibule to exit the building. Although the security scan alarms went off as defendant passed through, she attempted to walk out the exit door. Higgins stopped defendant and asked her to return to the building.
The police were called. Higgins went through all the merchandise for which defendant did not have receipts, which totaled $274. Defendant told Higgins that she intended to pay for those items. Wal-Mart staff photographed the bags holding the unpaid merchandise and threw them away. Defendant was charged with shoplifting.
On September 30, 2009, defendant made a request for discovery, which included a request for all videotapes or other recordings. On November 24, 2009, the municipal court entered an order directing Wal-Mart to "provide copies of all video recordings of the Wal-Mart Center in Boonton taken on September 23, 2009" to defense counsel within fifteen days. Two videotapes were provided to defendant in December 2009. Defendant contended that the tapes were each only five minutes long and not useful. Upon application, the municipal court judge amended the November 2009 discovery order in March 2010 to require the State to provide defense counsel with copies of videotapes taken at specific locations within Wal-Mart between 3:10 and 3:30 p.m. on September 23, 2009 "provided the recordings are still available for production." By letter dated March 25, 2010, "Jane," the Asset Protection Coordinator for Wal-Mart advised defense counsel as follows:
Your request for more video on the date of Sept 23, 2009 cannot be processed. This store only has records for 30 days. Your first request for the video of the events leading up to and the day of were sent to you via federal express on 12-17-2009 at our expense. Tracking number 8634-6385-5618.
Thereafter, defendant made a motion to dismiss the complaint based upon the State's failure to provide discovery. Higgins was available at the hearing on the motion and advised the court that Wal-Mart had provided "everything that we had pertaining to this situation," that the additional tapes requested were not available, that Wal-Mart kept tapes for thirty days, and the videotapes were taped over prior to the municipal court's order of November 24, 2009. The municipal court judge stated it was his intent in entering the order that the videos would be provided "as long as they were still available." He found that the videotapes were taped over prior to the order because Wal-Mart did not anticipate the additional request for videotapes and did not see any prejudice to defendant. The motion was therefore denied.
At the trial, Higgins, the arresting officer and defendant testified. Defendant stated she intended to purchase the items she had not paid for, that she put a note on them to be saved for her in Customer Service and she would return to buy them. However, Higgins testified that there was no such note in the bag.
The municipal court judge found defendant guilty of shoplifting and sentenced her to pay a fine of $700, $30 in costs, and the following penalties: $50 VCCB, $75 SNSF and $5 ATS fee. Defendant appealed and, following a trial de novo in the Law Division, was again convicted of shoplifting. The Law Division judge sentenced defendant to a fine of $100, $30 in costs, $50 VCCB, and $75 SNSF.
The sole argument raised by defendant in this appeal is that the State's failure to provide potentially exculpatory evidence in discovery requires a reversal of her conviction. Defendant does not contend that the State destroyed the videotapes or photographs of the bags in question or indeed, ever had those items in its possession. As a preliminary matter, therefore, this is not a case in which the State withheld any evidence from defendant. Nonetheless, she contends that the denial of her right to discovery requires a reversal. After giving due consideration to the record and briefs, we are satisfied that her argument lacks any merit.
Rule 3:13-3 governs discovery in criminal cases. Notably, the obligation imposed upon the State is to produce items that are within its possession or control. When a party fails to comply with the continuing duty to provide discovery, Rule 3:13-3(g) authorizes the court to order the production of discovery, a continuance, to prohibit the introduction of withheld evidence at trial or to enter such other order it deems appropriate. Neither this Rule nor any authority cited by defendant authorizes the reversal of a conviction based solely upon the State's failure to produce items that were not in its possession or control.
Even if the videotapes had been in the State's possession, the State does not have "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988). The Supreme Court held "that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Ibid . In determining whether a due process violation has occurred when there has been suppression, loss, or destruction of physical evidence, we focus upon three factors: (1) bad faith by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced. See State v. Greeley, 354 N.J. Super. 432, 437 (App. Div. 2002), rev'd on other grounds, 178 N.J. 38 (2003); State v. Dreher, 302 N.J. Super. 408, 482-83 (App. Div. 1997).
It is undisputed that Wal-Mart, and not the police, destroyed the evidential value of the videotapes by taping over them, pursuant to its policy, thirty days later. Where tapes were erased by the police "as a matter of routine," our Supreme Court found no evidence of bad faith by the police. State v. Reynolds, 124 N.J. 559, 569 (1991). Certainly, the erasing of tapes by Wal-Mart cannot be considered evidence of bad faith by the police here. See also State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009)(no due process violation where videotape was destroyed before defendant's motion was filed and defendant could only argue that the evidence was "potentially" useful or exculpatory). Accordingly, defendant's argument fails.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION