STATE OF NEW JERSEY VS. GARY VANLEW (15-11-0616 AND 15-12-0666, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 16, 2020
• Docket: A-0372-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0372-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY VANLEW,

Defendant-Appellant. ____________________________

Argued January 9, 2020 – Decided September 16, 2020

Before Judges Alvarez and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 15-11- 0616 and 15-12-0666.

Douglas R. Helman argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Douglas R. Helman, Assistant Deputy Public Defender, of counsel and on the brief).

Lauren E. Bland argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Lauren E. Bland, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Gary Vanlew appeals from June 30, 2017 judgments of

conviction of third-degree shoplifting, N.J.S.A. 2C:20-11(b), and fourth-degree

shoplifting, N.J.S.A. 2C:20-11(b), entered with respect to two indictments

joined for trial. We affirm.

I.

The following facts are derived from the record. On January 9, 2014, a

man approached the manager of GameStop, a video game store in Bernardsville.

The manager testified that the man was middle-aged, with salt-and-pepper hair

and facial hair, in a baseball cap and that he asked to return previously purchased

merchandise. After the manager returned the items for cash, the man asked to

buy an item not kept on the retail floor. The manager went to the back room to

retrieve the item, which the man bought with the cash he had just received. He

placed the item in a bag and left the store.

The manager was later informed merchandise was missing from the store.

Video surveillance recordings showed the man walk behind the counter when

the manager was in the back room. He grabbed merchandise from the shelves,

which he placed in his bag, and took items from a display on his way out of the

store. An investigation failed to identify the suspect.

A-0372-17T4 2 On September 2, 2015, the assistant manager of a GameStop store in

Bridgewater noticed a man whose behavior suggested he was shoplifting. The

assistant manager notified mall security, relaying that a white, heavyset, middle-

aged man wearing a baseball cap, shorts, a white tank top, and flip flops was

heading out of the store carrying a GameStop bag. Security officers approached

a man who met the description and informed him he was the subject of a

complaint by GameStop. They asked him to return to the store to present a

receipt for the merchandise he was carrying.

An officer agreed to the suspect's request to make a phone call. The

suspect left the bag of merchandise, walked out of the mall, entered a car, and

sped off. A license plate search revealed the car had been rented to defendant.

Another search produced defendant's New Jersey and Florida driver's licenses

with color photographs of a person who matched the description of the suspect.

A video surveillance recording from the store showed the man putting

merchandise into the bag he was carrying and exiting the store without paying.

The detective who investigated the Bernardsville incident reopened his

investigation after being notified of the Bridgewater incident. Using the license

plate number of the car fleeing the Bridgewater incident, the detective reviewed

a surveillance video recording of the parking lot of the Bernardsville store. The

A-0372-17T4 3 recording showed the car in the Bernardsville parking lot at the time of the

Bernardsville incident. The officer traced the car to a parking space and then

traced the driver to the GameStop store.

The officer obtained a photograph of defendant, which he used in a photo

array. The store manager identified defendant with what she described as a 100

percent certainty from an array of photographs at the police station.

A grand jury indicted defendant for third-degree shoplifting, N.J.S.A.

2C:20-11(b)(1), for the Bridgewater incident. A month later, defendant was

again indicted for third-degree shoplifting, N.J.S.A. 2C:20-11(b)(1), this time

for the Bernardsville incident.

The State moved pursuant to Rule 3:15-1(a) to join the indictments for

trial, arguing that pursuant to N.J.R.E. 404(b) the evidence relating to each of

would be admissible in both trials if the matters were tried separately.

Defendant did not file opposition.

On the return date of the motion, defense counsel objected to joinder,

arguing the State was, in effect, seeking to use other crimes evidence to show

defendant had a propensity to shoplift. The court granted the motion as

unopposed and did not issue findings of facts or conclusions of law.

A-0372-17T4 4 At trial, defendant denied being involved in either incident, arguing he

was misidentified as the shoplifter. The manager of the Bernardsville store

testified and identified defendant as the shoplifter at her store. The assistant

manager of the Bridgewater store also testified and identified defendant as the

shoplifter at his store. An employee of the rental car company testified,

identifying defendant as the person who rented the car connected to both

incidents. The Bernardsville manager's out-of-court identification of defendant

was admitted at trial.

The jury found defendant guilty of third-degree shoplifting for the

Bernardsville incident and fourth-degree shoplifting for the Bridgewater

incident. The differing degrees reflect the jury's valuation of the stolen

merchandise. The court sentenced defendant to concurrent terms of 364 days in

the county jail and three years of probation.

This appeal follows. Defendant makes the following arguments.

POINT I

JOINDER OF THE TWO INDICTMENTS FOR TRIAL PREJUDICED MR. VANLEW AND VIOLATED N.J.R.E. 404(B) BECAUSE EVIDENCE OF EITHER EVENT WOULD NOT HAVE BEEN ADMISSIBLE IN SEPARATE PROCEEDINGS.

A. THE 404(B) EVIDENCE WAS NOT INTRODUCED FOR A PROPER PURPOSE, THUS

A-0372-17T4 5 THE JOINDER MOTION FAILED 404(B)'S THRESHOLD INQUIRY.

B. EVEN IF THE COURT FINDS THAT THE EVIDENCE SURPASSES THE PURPOSE INQUIRY, THE TRIAL JUDGE FAILED TO APPLY THE COFIELD FACTORS.

POINT II

AFTER THE INDICTMENTS WERE JOINED, THE JUDGE FAILED TO USE THE 404(B) MODEL CHARGE AND TELL THE JURY TO EVALUATE EACH INDICTED OFFENSE INDEPENDENTLY.

POINT III

THE STATE'S EYEWITNESS TESTIMONY WAS IMPERMISSIBLY STRENGTHENED BECAUSE THE JUDGE FAILED TO CAUTION THE JURY THAT EYEWITNESS RELIABILITY IS IMPAIRED WHEN THE SUSPECT WEARS A DISGUISE.

II.

Rule 3:15-1(a) provides that "[t]he court may order 2 or more indictments

or accusations tried together if the offenses . . . could have been joined in a

single indictment or accusation." Rule 3:7-6 provides that

[t]wo or more offenses may be charged in the same indictment or accusation . . . if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

A-0372-17T4 6 Where a defendant "is prejudiced by a . . . joinder of offenses . . . the court

may order an election or separate trials of counts . . . or direct other appropriate

relief." R. 3:15-2(b). The rule addresses the inherent

danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all.

[State v. Pitts, 116 N.J. 580, 601 (1989) (quoting United States v. Lotsch, 102 F.2d 35, 36 (2d Cir. 1939)).]

In addition, a jury may use the evidence of another crime to conclude defendant

has a criminal propensity. State v. Reldan, 185 N.J. Super. 494, 502 (App. Div.

1982). Such an inference could lead the jury to "employ an entirely different

. . . calculus of probabilities to determine the defendant's guilt or innocence."

State v. Stevens, 115 N.J. 289, 303 (1989) (quotations omitted).

"The test for assessing prejudice is whether, assuming the charges were

tried separately, evidence of the offenses sought to be severed would be

admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State

v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting State v.

Chenique-Puey, 145 N.J. 334, 341 (1996) (internal quotations omitted)).

N.J.R.E. 404(b) provides, in relevant part, as follows:

A-0372-17T4 7 (b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Except as otherwise provided by Rule 608(b), 1 evidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition.

(2) Permitted Uses. This evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The Supreme Court established four factors to be weighed when deciding if

other crimes evidence is admissible under N.J.R.E. 404(b):

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.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

In addition, the other crimes evidence must be "necessary as proof of the

disputed issue." State v. Hernandez, 170 N.J. 106, 118-19 (2001).

1 Rule 608(b) is not applicable here. A-0372-17T4 8 Defendant argues he was prejudiced by the joinder of the indictments

because the State, in effect, used the evidence of each incident to show defendant

had a propensity to commit shoplifting. He argues this is particularly true with

respect to the use of the recording of the Bridgewater incident, where the proof

of defendant's identification is arguably stronger, to provide his guilt in the

Bernardsville incident, where the proof of identification is weaker.

Generally, we review the court's decision to join indictments for an abuse

of discretion. Sterling, 215 N.J. at 73. However, our review is de novo where

the court admits other crimes evidence without considering the four Cofield

factors. State v. Darby, 174 N.J. 509, 518 (2001). Because the court did not

issue findings of fact and conclusions of law when it granted the State's motion

we undertake a de novo review.

After reviewing the record in light of these precedents, we conclude the

court did not err by joining the indictments. Each of the four Cofield factors is

supported by the record. First, evidence of each incident is relevant to a material

issue in the trial of the other incident: defendant's identity.

The recording of the Bridgewater incident was relevant to the identity of

the shoplifter in the Bernardsville incident because defendant was identified as

the man in the Bridgewater recording through motor vehicle records of the car

A-0372-17T4 9 he used to escape the scene and an in-court identification. An investigation

identified the same car in the parking lot of the Bernardsville store on the day

of incident and traced the car's occupant to the GameStop. In addition, the jury

could use the Bridgewater recording to decide whether defendant was depicted

in the Bernardsville recording by comparing the physical appearance,

mannerisms, demeanor, and clothing of the suspect in both recordings.

The recording of the Bernardsville incident was relevant to the

Bridgewater trial because the jury could compare the two recordings to decide

if defendant was depicted in the Bridgewater recording. In addition, the

Bernardsville evidence tied defendant to the car used in Bridgewater.

Second, the other crimes evidence was similar in kind. The recordings

and in-court identifications related to shoplifting similar items from GameStop

stores using similar techniques.

Third, the other crime evidence is clear and convincing. The recordings

clearly and convincingly depict shoplifting. The in-court and out-of-court

identifications clearly and convincingly identified defendant in both incidents.

Finally, the probative value of the other crimes evidence is not outweighed

by potential prejudice to defendant. The evidence is highly probative of the

identity of the man recorded shoplifting in both incidents. The Bridgewater

A-0372-17T4 10 evidence was essential to establishing defendant's identity in the Bernardsville

incident. Without the identification of defendant through the Bridgewater

recording, the investigator would not have identified his car in the Bernardsville

parking lot or secured an out-of-court identification of defendant.

The Bernardsville evidence was less crucial to establishing identity in the

Bridgewater incident, given the security officer's use of the license plate to

identify defendant and the car rental employee's testimony. However, the

Bernardsville evidence was probative in the Bridgewater trial because it gave

the jurors additional evidence to determine if defendant was depicted in the

Bridgewater recording.

III.

During a jury charge conference with counsel, the court raised the

question of whether the standard N.J.R.E. 404(b) limiting instruction – that the

other crimes evidence could be used only to identify defendant as the man in the

recordings and not prove criminal propensity, see State v. Blakney, 189 N.J. 88,

92-92 (2006) – should be given to the jury. The court and both counsel shared

the view that the instruction was not necessary:

THE COURT: You're going to concentrate on the two indictments that you have?

A-0372-17T4 11 [THE STATE]:2 Correct.

THE COURT: So the evidence is going to relate to the two indictments that you have?

[THE STATE]: Yes, Judge.

THE COURT: Unless something happens in the defense part of this case that causes you to bring in some information with regard to 404[(b)] . . . .

[THE STATE]: Yeah, that's the idea.

THE COURT: Is that your understanding too?

[DEFENSE COUNSEL]: Yes, it is Judge.

THE COURT: Okay, so presently I don't need a 404[(b)] charge, because you're concentrating on the two indictments. Because each of them are [sic] going to introduce elements of each of those separate counts in the indictment.

[DEFENSE COUNSEL]: Correct.

THE COURT: All right?

[THE STATE]: Correct . . . .

Defendant's counsel expressly agreed with the State and the court that a

N.J.R.E. 404(b) other crimes limiting instruction was not necessary. Any error

in the instruction, therefore, is an invited error. Errors that were "induced,

2 The transcript twice mistakenly refers to defense counsel. A-0372-17T4 12 encouraged or acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal . . . ." State v. Corsaro, 107 N.J. 339, 345

(1987) (alteration in original) (quoting State v. Harper, 128 N.J. Super. 270, 277

(App. Div. 1974)). Only an invited error that "cut[s] mortally into the

substantive rights of the defendant" will be reviewed on appeal. State v. A.R.,

213 N.J. 542, 562 (2013) (quoting Corsaro, 107 N.J. at 345). We see no basis

to review defendant's invited error.

A N.J.R.E. 404(b) instruction would have reinforced that the evidence of

the separate crimes could be used to identify defendant as the shoplifter in both

incidents. Defense counsel may have made the strategic decision not to request

the instruction in order to avoid highlighting that fact for the jury. We do not

reward a litigant who, by error or strategic decision, fails to request an

instruction. State v. Krivacska, 341 N.J. Super. 1, 43 (App. Div. 2001).

Even we do not preclude defendant from raising the argument, where "the

defendant does not object to the charge at the time it is given, there is a

presumption that the charge was not error and was unlikely to prejudice the

defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). "[T]he failure

to object to a jury instruction requires review under the plain error standard."

State v. Wakefield, 190 N.J. 397, 473 (2007).

A-0372-17T4 13 As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).]

The mere possibility of an unjust result is not enough to warrant reversal of a

conviction. State v. Jordan, 147 N.J. 409, 422 (1997). The error "must be

evaluated in light 'of the overall strength of the State's case.'" State v. Walker,

203 N.J. 73, 90 (2010) (quoting Chapland, 187 N.J. at 289).

The court instructed the jury to separately consider the two charges:

Here there are two separate offenses in the indictment. These are separate counts of the indictment.

In your determination of whether the State has proven the [d]efendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the [d]efendant is entitled to have each count considered separately, by the evidence which is relevant and material to that particular charge . . . .

We presume jurors follow instructions, State v. Loftin, 146 N.J. 295, 390 (1996),

which "clearly convey[] the principle that the jury [is] prohibited from

considering the cumulative impact of the evidence of all the offenses in

A-0372-17T4 14 determining whether a particular charge had been proven." Krivacska, 341 N.J.

Super. at 43.

In addition, the record contains strong evidence of defendant's guilt of

each charge. The Bernardsville employee identified defendant in a photo array

and in court as the shoplifter at her store. The Bridgewater employee identified

defendant in court as the shoplifter at his store. The rental car employee

identified defendant in court as the person who rented the car involved in both

incidents. We cannot fairly say the trial court's failure to give a N.J.R.E. 404(b)

instruction was plain error.

IV.

Finally, defendant argues the court erred by not instructing the jury the

eyewitness testimony should be discounted because the shoplifter in both

incidents used a disguise. Defense counsel invited the error about which

defendant complains. During the charge conference, the court asked defense

counsel if a disguise instruction was necessary:

THE COURT: Nobody's intoxicated, so we'll strike that. Disguises.

[DEFENSE COUNSEL]: No.

THE COURT: I don't think it's really a disguise, wearing a hat.

A-0372-17T4 15 [DEFENSE COUNSEL]: Wearing a hat, no.

....

THE COURT: Is there anything else on the identity charge that you want me to go over?

[THE STATE]: I don't have anything.

[DEFENSE COUNSEL]: I don't either, Judge.

We see no basis in the record to conclude that this invited error should be

reviewed on appeal. State v. A.R., 213 N.J. at 562. Nor, if we were to consider

defendant's argument, does the record support a conclusion that the failure to

give a disguise instruction had the clear capacity to bring about an unjust result.

The jury was aware that it was to decide the credibility of the eyewitness

identifications and that the suspect in the recordings was wearing a baseball cap.

That a hat may affect the ability to make an accurate identification is not so

technical or difficult a concept that jurors would not grasp it without specific

instructions from the court.

Affirmed.

A-0372-17T4 16