Opinion
DOCKET NO. A-3076-12T2
05-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALNARDO RIVERA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Hudson County Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-11-02058.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Hudson County Prosecutor, on the brief). PER CURIAM
Tried by a jury, defendant Alnardo Rivera appeals from the January 9, 2013 judgment of conviction for disorderly-persons shoplifting, N.J.S.A. 2C:20-11(c). Rivera argues only one point on appeal, claiming that his right to a fair trial was violated when the trial judge "reprimanded defense counsel in front of the jury." We find no merit in Rivera's contention and affirm.
I.
We glean the facts from the trial record. On August 18, 2011, Rivera was observed, via closed-circuit surveillance equipment, by two employees of a Hollister clothing store in Jersey City collecting "random amounts of large quantities of merchandise" and concealing the items in "a generic blue shopping bag." The employees — Jonathan Grogan, the store's District Loss Prevention Manager, and Gaston Celi, a loss prevention agent — confronted Rivera as he exited without paying for the goods. According to Grogan, inside the blue bag, he recovered twenty-one T-shirts valued at $459.50. Shortly thereafter Jersey City police arrived, and placed Rivera under arrest for shoplifting.
During the three-hour trial in January 2013, Grogan and Celi testified about their recollections of the events of August 18, 2011. During Celi's cross-examination, Rivera's attorney questioned the witness about the presence of other persons, including other Hollister employees, who were in the store at the time of the shoplifting. The following sixty-second exchange occurred:
[Defense counsel]: And there were other employees about and around in the store as well, correct?
[Celi]: There were, but they were not in that room.
[Defense counsel]: There were no employees in the Dudes Room?
[Celi]: There was no — there was no employees in that room, except for that customer.
[Defense counsel]: So, you didn't know any — did you see any other employees folding clothes and doing other things with clothing in that room?
[Celi]: In the other depart — in the other rooms, yes. But in the specific —
[Defense counsel]: There were no other rooms on the — on the camera?
The Court: Counselor, counsel. He's got to be able to finish the question, please.
[Celi]: [A]ll right. In the room that you're talking about and where the incident happened there was no one else in that room, except for that one customer. And that one customer was long gone before Mr. — partner next to you committed to act.
[Defense counsel]: Let me ask you this. Prior to Mr. Rivera entering the store and at the point when he's at the desk, at the table, you don't see any other employees there holding —
[Prosecutor]: Judge, objection. Asked and answered.
The Court: Overruled.
[Defense Counsel]: I didn't ask the question.
The Court: I'll — I'll take care of that. I don't need you to give me a comment afterwards. Okay.
[Defense counsel]: I'm — I'm not, Judge. I'm just trying to ask questions.
The Court: Yes, you were. Ask your question. And I don't need the look either.
[Defense counsel]: I'm sorry, Judge?
After the State rested, Rivera declined to call any witnesses. The jury convicted Rivera of disorderly-persons shoplifting, finding that the value of the merchandise taken was less than $200. The trial court sentenced Rivera to a term of six months in the Hudson County Jail. This appeal followed.
II.
On appeal, as we already noted, Rivera raises the following single argument:
POINT I: RIVERA'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE JUDGE REPRIMANDED DEFENSE COUNSEL IN FRONT OF THE JURY.Rivera contends that the trial judge "openly reprimanded" defense counsel during her cross-examination of Celi, and during a colloquy outside the presence of the jury, the trial judge "responded in an intemperate manner, at times raising his voice and banging the bench." Nevertheless, Rivera concedes that
defense counsel's cross-examinations of the State's witnesses were thorough and rigorous, revealing deficiencies in the State's proofs, particularly on the issue of value. Indeed, the jury found that the State had not proved that the value of the merchandise was over $250 [sic], and acquitted Rivera of fourth-degree shoplifting.
It is self-evident that a trial judge's "official expressions of displeasure or disapproval may convey to the jury the belief that defense counsel was somehow acting improperly, disrespectfully, or deceptively; or worse yet, give the impression that the judge has an opinion of defendant's guilt or innocence." State v. Tilghman, 385 N.J. Super. 45, 59 (App. Div. 2006) (citing State v. Guido, 40 N.J. 191, 208 (1963); State v. Christie, 91 N.J. Super. 420, 424 (App. Div. 1966)). Therefore, "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Id. at 60. (internal quotation marks and citations omitted). "Complete neutrality must be maintained, and the [trial] judge has a duty to refrain from making any comment that may be telegraphed or interpreted as judicial disparagement, disbelief or disapproval." Ibid. (citations omitted).
Examining the remarks cited by Rivera, we do not find the trial judge's comments to defense counsel to be deprecatory or prejudicial. Rather, our review reveals that the trial judge was, albeit abrupt, committed to an efficient presentation of the case to the jury, and he never prevented defense counsel from pursuing her (ultimately successful) defense.
Based upon our review of the record as a whole, we conclude that there is no basis to reverse the conviction. The trial judge did not display bias or prejudgment. His stray criticism and comments made to defense counsel neither interfered with Rivera's ability to present his case nor had the capacity to negatively influence the jury against the defense.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION