NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4061-12T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, December 29, 2014 v. APPELLATE DIVISION
MAYTEE CORDERO, a/k/a MAYTTEE CORDERO, a/k/a TETI CORDERO,
Defendant-Appellant. ___________________________________
Submitted October 7, 2014 – Decided December 29, 2014
Before Judges Messano, Ostrer and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-12-1792.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Maytee Cordero appeals from her conviction, after
a jury trial, of third-degree shoplifting, N.J.S.A. 2C:20-11(b).
The shoplifting incident involved the taking of over $1700 of merchandise from the Apple Store at Menlo Park Mall on July 26,
2011. Her co-defendant, Chris Perez, removed various items from
the accessory wall and placed them into two large Abercrombie &
Fitch (A&F) clothing bags that defendant was holding. Defendant
and Perez then left the store without paying for the products.1
The appeal requires us to address when it is appropriate
for a trial court to rule on the admissibility of other-crimes-
or-wrongs evidence under N.J.R.E. 404(b), when offered to rebut
a defendant's proffered mistake, or lack of intent. The State
sought an in limine ruling permitting it to introduce evidence
of a previous alleged shoplifting incident at a Target store
that involved defendant, Perez and a third person. The evidence
was a video of that incident, as well as a recorded statement
defendant gave shortly thereafter. The State proposed to use
the evidence to rebut a proffered defense, set forth in a letter
from defense counsel, that Cordero did not intend to shoplift
from the Apple Store, and her removal of the items without
paying was a mistake, as she was unaware Perez placed items in
the bags.2
1 Perez pleaded guilty several months before defendant's trial, and was sentenced to a three-year prison term. 2 The record before us does not include the video, defendant's statement, or defense counsel's letter.
2 A-4061-12T1 Judge Joseph Paone declined to hold a formal hearing under
N.J.R.E. 104, or issue a definitive ruling in advance of
defendant's testimony. However, to assist defendant in deciding
whether to testify, the judge offered his tentative view that
the 404(b) evidence was likely admissible. He did so before
opening statements. After the State rested and the judge viewed
the video, he reiterated his tentative view.
On appeal, defendant argues that the court erred in
refusing to issue a definitive ruling. She asserts that the
tentative ruling was erroneous and infringed upon her right to
testify. She also asserts the prosecutor committed misconduct
in his summation.
We conclude that a trial court, in its discretion, may
await the close of a defendant's case before determining the
admissibility of 404(b) evidence that the State seeks to
introduce to rebut the defendant's claim of lack of intent or
mistake. We also discern no error in the court's decision to
offer a tentative view of the issue. Finally, defendant's claim
of prosecutorial misconduct lacks sufficient merit to warrant
extended discussion. We therefore affirm.
3 A-4061-12T1 I.
A.
The State presented its case through the testimony of two
of the Apple Store's loss prevention officers — Steve G. Yhap
and Felix Melendez. The jury also heard briefly from the Edison
Township police patrolman who arrested defendant and Perez.
Yhap and Melendez were in plain clothes while they
monitored customers in the store. Yhap testified he saw Perez
enter the store, look around while talking on his cell phone,
then exit. Shortly thereafter, Perez entered again, accompanied
by defendant. She was carrying two large A&F shopping bags.
They both walked to one side of the store, where he selected a
laptop case. He then walked to the other side of the store, and
she followed. Yhap stated, "He would select items, and, then,
he would conceal [them] behind the laptop case. She would,
like, raise up her bag, and he would put [them] into the
defendant's bag."
The two then exited the store without paying for the items.
Yhap testified he confronted them, and placed Perez in
handcuffs. Meanwhile, defendant placed both bags on the floor
and began to walk or jog away, when Melendez stopped her. Yhap
and Melendez escorted the two to an office in the rear of the
store, where they photographed the items in the bag.
4 A-4061-12T1 Melendez generally confirmed Yhap's version of events.
Melendez did not specifically state that defendant raised the
bags while Perez placed the items inside. However, he confirmed
that she carried both bags into and out of the store. Melendez
testified that when he and Yhap identified themselves, "she
slowly dropped the bags . . . [a]nd, then, she slowly tried to,
like, make off — like — almost like a slow-motion running." She
was apprehended.
The loss prevention officers also testified that defendant
and Perez made self-incriminating statements. Melendez stated
that defendant asked "if there's any way Chris Perez can just
take all the charges, and to just let her go."3 She explained
that she was "concerned over opening up her own . . . used car
sales lot" and feared "she wouldn't get the license if she got
charged. . . ."
Yhap testified that Perez told him "that he was responsible
for it, because she's trying to open up a car dealership and he
doesn't want her to take the rap for it." Defense counsel
confronted Yhap with his report of the incident, which did not
3 Defense counsel initially objected to the introduction of defendant's statement, asserting that it was not provided in discovery. However, in a N.J.R.E. 104 hearing conducted in the midst of Melendez's testimony, it was established that defendant's statement was recorded in Melendez's report that the State provided in discovery.
5 A-4061-12T1 include that statement. Instead, it stated, "'During the
interview Christopher Perez admitted to stealing the items for
his boss. And since he overheard management calling the local
PD he said he wasn't going to give us any information unless we
let them walk." None of the alleged statements by defendant and
Perez were recorded, nor did the two sign written statements.
Also, Yhap explained that because of his inexperience — he had
worked at Apple for only a few months — he did not preserve
video surveillance of the incident before it was over-written.
B.
As noted above, defense counsel advised the State before
trial that defendant intended to assert a defense of mistake or
lack of intent. Defense counsel's pre-trial letter apparently
notified the State that Perez intended to testify that he stole
the items without defendant's knowledge. Defense counsel
represented that Perez would testify that he ran into defendant
in the store; she asked that he take her phone number; so, he
handed the bags to her while he did so. In response to defense
counsel's letter, the State filed a motion seeking permission
under N.J.R.E. 404(b) to introduce evidence of the prior alleged
shoplifting incident involving Perez and defendant.
However, following jury selection, defense counsel
announced that she did not intend to call Perez as a witness,
6 A-4061-12T1 although he was present in the courthouse and available.
Nonetheless, the State sought a ruling on the admissibility of
the 404(b) evidence, because defense counsel stated that
defendant might testify.
Judge Paone ruled that the evidence could not be introduced
during the State's case in chief. As for whether it could be
offered in rebuttal, he stated, "I can't decide whether 404(b)
evidence is admissible until the State['s] case is done; [and]
your case is done." The judge stated that he would give
defendant "an indication as to . . . whether I believe the
evidence would be admissible . . . if the testimony were
consistent with the facts as represented . . . ." He would do
so, to "inform [her] . . . decision whether to testify."
However, the judge emphasized that he would not make a 404(b)
decision "prematurely." He inquired whether that was "all
right" with defense counsel, who responded, "Okay."
After the State rested, counsel revisited the 404(b) issue.
Defense counsel proffered that defendant would testify that
Perez tried to get defendant's phone number — slightly different
from the previous proffer that defendant asked Perez to take her
phone number — and when Perez took out his phone, he handed one
of the bags to defendant. They walked out of the store
together. According to the proffer, defendant would testify she
7 A-4061-12T1 was unaware the bag contained unpurchased items. Counsel
conceded this version was at odds with the two loss prevention
officers' observation that she held both bags.
The judge reiterated he could not make a final decision on
the admissibility of the 404(b) evidence until he heard
defendant's testimony. However, based on the State's
representation of what the video of the prior incident would
show, the judge stated his tentative view that the evidence
would be admissible. Defense counsel inquired whether the
court's view would remain the same if defendant simply gave a
general denial on the stand. The judge stated he was unsure.
Defendant was given until the following day to determine whether
she intended to testify.
The next morning, the court decided to view the video of
the previous incident in open court.4 The court's decision to
view the recording also enabled defendant to view it for the
first time. The video apparently consisted of various clips
from the store cameras, some showing the same actions but from
different angles. As described on the record, the video
apparently depicted defendant, Perez, and the third person — who
4 Once the court considered the video, it should have been marked for identification. See Manata v. Pereira, 436 N.J. Super. 330, 336 n.2 (App. Div. 2014). Furthermore, the record does not reflect that the court reviewed or considered defendant's post- arrest statement following the Target incident.
8 A-4061-12T1 was described as a Target employee — standing in front of a
locked case of video games and gaming consoles. Perez opened
the case with a key and placed various items in the shopping
cart. At one point, defendant herself placed a laptop case in
the cart. There was no obvious attempt to conceal the placement
of the items in the cart. Defendant later wheeled the cart
around the cashiers' section of the store, toward the exit
doors. She was stopped by loss prevention officers.
Defense counsel asserted at one point that the video
depicted defendant handing currency to Perez, which supported
defendant's claim that she believed that the third person
involved had arranged for defendant to purchase the various
items at a discount. She allegedly believed that the items in
the cart had been paid for. At one point, while Judge Paone
viewed the video, defendant interjected that she intended to pay
for the items.5
Judge Paone reviewed the four prongs of the test for
determining the admissibility of other crimes or wrongs
evidence, as set forth in State v. Cofield, 127 N.J. 328, 338
(1992):
5 Defendant was charged with third-degree shoplifting (concealment), pursuant to N.J.S.A. 2C:20-11(b)(2), in connection with the Target incident. She pleaded not guilty and was admitted to the pretrial intervention program.
9 A-4061-12T1 1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. (internal quotation marks and citation omitted).]
Before viewing the video, Judge Paone stated, "without
having the benefit of her testimony . . . all I can do is
indicate to you that there . . . would be a likelihood that
. . . this evidence would be admissible." He stated that prong
one was likely met because the evidence would refute defendant's
proffered defense that she removed the items from the Apple
Store by mistake.
Prong two was met because the prior incident occurred
within several months of the charged crimes, and involved
defendant's removal of items from a store without paying, in
concert with Perez. He was unpersuaded by defense counsel's
argument that the two incidents were dissimilar. Counsel
alleged that in the first incident, there was no apparent effort
to conceal the placement of the items in the cart, while in the
10 A-4061-12T1 second, there was an apparent effort to conceal the items placed
in the A&F bag.
As for prong three, once he viewed the video, Judge Paone
stated that there appeared to be clear and convincing evidence
that defendant participated in a prior shoplifting. However, he
left open the door for defendant to provide "an explanation for
that conduct" depicted on the video.
Judge Paone did not expressly address prong four, balancing
the prejudice against the 404(b) evidence's probative value.
However, he implicitly found it was satisfied by indicating,
tentatively, that the evidence would be admissible. The court
was unpersuaded by defense counsel's argument that there was
less prejudicial evidence — consisting of Yhap's and Melendez's
testimony — to rebut defendant's proffered defense.
Defendant declined to testify. The jury deliberated for
about half an hour before returning its verdict. Defendant
maintained her innocence at sentencing. The court imposed a
three-year term of probation, subject to conditions regarding
employment and community service.
Defendant raises two issues on appeal:
1. THE TRIAL COURT'S INDICATION THAT THE DETAILS OF A PREVIOUS CHARGE OF SHOPLIFTING WOULD BE ADMISSIBLE IN REBUTTAL IF DEFENDANT TESTIFIED VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO TESTIFY ON HER OWN BEHALF.
11 A-4061-12T1 2. THE PROSECUTOR'S IMPROPER COMMENT DURING HIS SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL.
II.
Defendant complains that the court declined to issue a
definitive decision on the admissibility of the 404(b) evidence,
despite the State's motion, and defendant's interest in a firm
decision. Defendant argues that the court was mistaken in
deciding to await defendant's testimony, given the defendant's
proffer. Furthermore, defendant argues that the court's
tentative opinion was, in effect, a ruling on the issue, which
misapplied the Cofield factors and deprived defendant of her
right to testify.
We are unpersuaded. We review a trial court's application
of N.J.R.E. 404(b) for an abuse of discretion. State v.
Marrero, 148 N.J. 469, 483-84 (1997). The State proposed to use
the other-crimes-or-wrongs evidence to prove intent, and the
absence of mistake. See N.J.R.E. 404(b) (stating that other-
crimes-or-wrongs evidence "may be admitted . . . as proof of . .
. intent . . . or absence of mistake or accident when such
matters are relevant to a material issue in dispute."). We
discern no error in Judge Paone's determination that a ruling on
12 A-4061-12T1 the admissibility of the 404(b) evidence should await
defendant's testimony.
Our courts generally disfavor in limine rulings on evidence
questions. "[A] trial judge generally should not rule on the
admissibility of particular evidence until a party offers it at
trial." State v. Cary, 49 N.J. 343, 352 (1967). "[M]ost
evidence problems are best and most expeditiously settled in the
atmosphere and context of the trial." State v. Hawthorne, 49
N.J. 130, 143 (1967). Pre-trial evidentiary rulings are often
made "in the abstract and not in the context of facts adduced at
trial"; consequently, "[r]equests for such rulings should be
granted only sparingly." Bellardini v. Krikorian, 222 N.J.
Super. 457, 464 (App. Div. 1988). "Where . . . the decision on
the in limine motion itself requires an analysis of evidence yet
to be presented or credibility determinations, such motions
should ordinarily be denied until a sufficient predicate is
established." Berrie v. Berrie, 252 N.J. Super. 635, 641-42
(App. Div. 1991).
Moreover, "[i]n the event the trial court addresses
[evidentiary] issues in a pre-trial proceeding, the trial court
must be sensitive to the need to revisit its pre-trial rulings
in light of the developing record at trial." State v. Jones,
308 N.J. Super. 15, 46 (App. Div. 1998). "The record developed
13 A-4061-12T1 at trial may differ from the record developed below on the
parties' motions, perhaps substantially." State v. Crumb, 277
N.J. Super. 311, 321 (App. Div. 1994).
On the other hand, we recognize that, as a general
principle, a trial court retains the discretion, in appropriate
cases, to rule on the admissibility of evidence pre-trial. See
Hawthorne, supra, 49 N.J. at 142 ("This is not to say that under
no circumstances can pretrial motions to exclude evidence be
made, or that in some situations evidence problems cannot be
settled at the pretrial conference. Obviously there is an area
in which the judge's discretion may operate."). See also
Berrie, supra, 252 N.J. Super. at 641 ("In limine motions have
their place where issues can be eliminated as a matter of law
prior to trial.").
In particular, our criminal practice rules expressly direct
courts to conduct pretrial hearings "to resolve issues relating
to the admissibility of statements by defendant, pretrial
identifications of defendant, sound recordings, and motions to
suppress." R. 3:9-1(d). "[U]nless otherwise ordered by the
court" such hearings are "held prior to the pretrial
conference." Ibid. "Upon a showing of good cause, hearings as
to admissibility of other evidence may also be held pretrial."
Ibid. In particular, a hearing under State v. Sands, 76 N.J.
14 A-4061-12T1 127 (1978), to determine the admissibility of prior convictions,
may be held pre-trial. State v. Whitehead, 104 N.J. 353, 358
(1986) ("In practice, the trial court makes its determination at
a hearing held before trial or, if at trial, out of the presence
of the jury.").
Our Court has cautioned that other-crimes-or-wrongs
evidence should not be admitted unless it "is material to a fact
genuinely in issue." State v. Stevens, 115 N.J. 289, 302
(1989). The fact that intent is an element of the offense does
not invariably justify admission of 404(b) evidence to prove
intent.
That evidence of prior crimes may have some bearing on motive, intent, plan, absence of mistake, knowledge or identity . . . does not automatically warrant its admission. If the defense in the instant case had been alibi or a general denial, these prior convictions might properly have been excluded even though they were relevant to intent. While intent would still be a necessary element of the prosecutor's case, the question of motive or intent would not have been raised by the evidence and thus the probative value of the prior offenses would likely be outweighed by their prejudicial effect.
[State v. Atkins, 78 N.J. 454, 462 (1979) (citations omitted).]
We have previously held that other-crimes-or-wrongs
evidence should be allowed "only to meet an issue relating to an
element of the offense which is projected by defendant either
15 A-4061-12T1 before or during trial or is necessarily raised by the
evidence." State v. Peltack, 172 N.J. Super. 287, 293 (App.
Div.), certif. denied, 84 N.J. 474 (1980). On the other hand,
the Court has rejected the suggestion that other-crimes-or-
wrongs evidence is inadmissible "to prove a material element of
a crime not specifically contested by the defendant nor
otherwise established by the evidence." Stevens, supra, 115
N.J. at 307. Such evidence may be necessary to prove an
essential element of the offense. Ibid. However, we have held
that an assertion in an opening statement does not suffice to
"open the door" to 404(b) rebuttal evidence. State v.
Anastasia, 356 N.J. Super. 534, 543 (App. Div. 2003) ("Opening
statements are not evidential and should not be responded to by
'rebuttal' evidence.").
We are persuaded that a trial court may, in its discretion,
await the conclusion of the defendant's case before deciding the
admissibility of 404(b) evidence to prove intent, or lack of
mistake.6 That view is supported by persuasive authority. See,
6 "When the cases refer to admission of other-crime evidence to show the intent of the defendant, it is often just as accurate to describe the evidence as negating the defenses of mistake and accident." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 11 on N.J.R.E. 404(b) (2014). See also State v. Sexton, 160 N.J. 93, 98-107 (1999) (discussing N.J.S.A. 2C:2- 4(a) and mistake of fact as a defense). Nonetheless, the (continued)
16 A-4061-12T1 e.g., United States v. Figueroa, 618 F.2d 934, 939 (2d Cir.
1980) ("[I]f the evidence is offered to prove the defendant's
knowledge or intent, the offer of similar acts evidence should
await the conclusion of the defendant's case and should be aimed
at a specifically identified issue.");7 United States v.
Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) (same); Moor v.
State, 709 P.2d 498, 506 (Alas. 1985) ("[W]here the prosecution
wishes to use the evidence to rebut an anticipated defense, the
trial court should seriously consider delaying the offer until
the prosecution's rebuttal in order to ensure that the
anticipated defense will in fact be raised.").
Awaiting the rebuttal case enables the court to confirm
that the defense will actually be offered, and to assess the
contours of the defense. That information will inform the
court's decision regarding the relevance of the 404(b) evidence,
(continued) State's proof of absence of mistake may be more likely to come into play only after a defendant has raised the defense. 7 The Second Circuit has recognized an exception to this rule "where there was no doubt that the issue of intent would be disputed in the case." United States v. Colon, 880 F.2d 650, 660 (2d Cir. 1989) (citing United States v. Caputo, 808 F.2d 963, 986 (2d Cir. 1987); United States v. Reed, 639 F.2d 896, 906-07 (2d Cir. 1981)). In Colon, where there existed uncertainty after opening statements regarding the defense that defendant would ultimately adopt, the court held, "[T]he proper course was to await [the defendant's] decision before permitting the similar acts evidence to enter the case by means of an opening statement or a witness' testimony." 880 F.2d at 661.
17 A-4061-12T1 and whether its probative value is outweighed by its prejudicial
effect. See Figueroa, supra, 618 F.2d at 939 (stating that
awaiting until defense rests "enables the trial judge to
determine whether the issue sought to be proved by the evidence
is really in dispute and, if so, to assess the probative worth
of the evidence on this issue against its prejudicial effect");
United States v. Adderly, 529 F.2d 1178, 1182 (5th Cir. 1976)
("It is only after the defense is presented that the trial judge
can know if intent or knowledge or any exception to the
exclusion rule is truly a disputed issue in the trial.").
Applying the foregoing principles, we discern no abuse of
discretion in Judge Paone's decision to postpone a ruling on the
admissibility of evidence of the prior alleged shoplifting until
defendant testified. The precise contours of defendant's
proposed testimony were unclear. More importantly, it was
virtually impossible to predict what defendant might say once
subjected to cross-examination. Even a general denial on direct
examination would have allowed cross-examination on the basis
for the denial. Conceivably, admissions by defendant on cross-
examination could constitute less prejudicial evidence of her
lack of mistake or intent than the video of the alleged
shoplifting at Target. See State v. P.S., 202 N.J. 232, 256
(2010) ("[I]n assessing the fourth prong [of the Cofield test],
18 A-4061-12T1 courts should consider whether the matter can be proved
adequately by other evidence."); Stevens, supra, 115 N.J. at 303
(same).
We also conclude that the trial judge did not abuse his
discretion in deciding to offer his tentative view on the
admissibility of the evidence of the prior incident, based on
the limited information available. When the judge proposed to
do so before opening statements, defense counsel did not object.
Defendant has provided no authority — and we are aware of none —
that precludes a trial judge from reasonably indicating his or
her preliminary views on a factual or legal issue, pending the
submission of proofs, legal authority, or argument. Such
expressions assist counsel in tailoring their proofs and
presentations. However, ultimately, it is the court's decision
— not its tentative expressions — that provides a basis for
appeal. "[A]ppeals are taken from orders and judgments and not
from opinions, oral decisions, informal written decisions, or
reasons given for the ultimate conclusion." Do-Wop Corp. v.
City of Rahway, 168 N.J. 191, 199 (2001).
A defendant's right to testify in his or her own defense is
an essential element of due process. State v. Savage, 120 N.J.
594, 626 (1990). However, the decision whether to testify is a
"strategic or tactical decision to be made by a defendant with
19 A-4061-12T1 the advi[c]e of . . . counsel." State v. Bogus, 223 N.J. Super.
409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988).
Defendant must bear the consequences of her decision in this
case. The judge did not infringe her rights by sharing his
tentative views on the 404(b) issue, while declining to rule
until the defense rested.
We also reject defendant's argument that the judge's
tentative opinion was, in actuality, a ruling on the merits.
The judge was scrupulous in stating that he was withholding a
final decision until defendant testified. Consistent with the
foregoing, we also decline to address defendant's arguments that
the court erred in its expressed view that the evidence of the
prior incident was likely admissible. The court did not
definitively rule on its admissibility.
In any event, defendant has failed to provide us with an
adequate record to review a decision on the merits. We have not
been provided with the 404(b) evidence that the State sought to
introduce — the video of the prior alleged shoplifting at
Target. Consequently, we are unable to review a finding that
the evidence was clear and convincing that defendant
participated in a prior shoplifting. Nor can we fully assess
the potential prejudice from the introduction of such evidence.
See R. 2:6-1(a) (stating that the appendix "shall contain . . .
20 A-4061-12T1 such other parts of the record . . . as are essential to the
proper consideration of the issues"); see also Cmty Hosp. v.
Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor
are we obliged to attempt review of an issue when the relevant
portions of the record are not included.")
We briefly address defendant's argument that she is
entitled to a new trial because the prosecutor discussed the
significance of the crime of shoplifting in his summation. The
prosecutor stated:
Now, the reason we're here . . . is the shoplifting. I know some of you — shoplifting — and I wish I'd gotten put on a jury for bank robbery or something maybe a little more dramatic. But, the truth is shoplifting is a plague in our society, as well. And . . . there are products that are taken and they aren't paid for. And, now, those companies are losing money and who is paying for that loss? It's passed on, then, in increased prices to the consumers. So there's . . . a reason that that's a crime. There's a reason that we're here. And the reason that we're prosecuting.
Defense counsel did not object.
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to
the scope of the evidence presented." State v. Frost, 158 N.J.
76, 82 (1999). Prosecutorial misconduct is grounds for a
reversal where the "misconduct was so egregious that it deprived
21 A-4061-12T1 the defendant of a fair trial." Id. at 83. "[A]n appellate
court must consider (1) whether defense counsel made timely and
proper objections to the improper remarks; (2) whether the
remarks were withdrawn promptly; and (3) whether the court
ordered the remarks stricken from the record and ordered the
jury to disregard them." Ibid. When reviewing the comments in
a closing statement, "the test is whether the incident is
'clearly capable of producing an unjust result.'" State v.
DiPaglia, 64 N.J. 288, 296 (1974) (quoting R. 2:10-2).
If no objection is made to the remarks, they will generally
not be deemed prejudicial. Frost, supra, 158 N.J. at 82.
Failure to object indicates that defense counsel did not
consider them improper at the time they were made, and failure
to object also deprives the court of the "opportunity to take
curative action." Id. at 84.
"Within reasonable limitations, the prosecutor should be
permitted to observe the serious social consequences of the
crime charged." State v. Perry, 65 N.J. 45, 48 (1974). In
Perry, a police officer was on trial for attempted extortion.
Id. The victim of the extortion was a convicted narcotics
dealer. Id. In his summation, the prosecutor raised the issue
of police corruption and the manner in which a certain class of
people was disadvantaged by police corruption. Id. at 46-47.
22 A-4061-12T1 The Court held that the trial court did not err in allowing the
prosecutor to comment on the social consequences of police
corruption, particularly since defense counsel did not object,
and "the comments comprised an insignificant portion of a
summation . . . ." Id. at 54.
Applying these principles, we discern no misconduct, let
alone misconduct so egregious that it deprived defendant of a
fair trial. To counter the possibility that some jurors might
feel that a shoplifting case was not serious enough to warrant
their time and effort, the prosecutor briefly, and without
emotion, discussed the societal impact of the crime. Defense
counsel did not object to the comments. They were a minor part
of the State's closing. Particularly in light of the
substantial evidence of guilt, the comments were not capable of
producing an unjust result.
Affirmed.
23 A-4061-12T1