Opinion
DOCKET NO. A-2300-13T1
12-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHANNA ORTIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-08-00878. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
After the trial court denied her motion to dismiss Morris County Indictment No. 12-08-00878, defendant Johanna Ortiz pled guilty to third-degree conspiracy to commit shoplifting, N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:20-11b(1). Pursuant to a plea agreement, the court dismissed a charge of third-degree shoplifting, N.J.S.A. 2C:20-11b(1), and sentenced defendant to two years probation. The judge ordered that this sentence run concurrent to a two-year probationary term defendant received after earlier pleading guilty to Essex County Accusation No. 12-02-00153. Defendant appeals from the judgment of conviction entered on August 28, 2013. After reviewing the record in light of the contentions advanced on appeal, we affirm the denial of defendant's motion to dismiss the Morris County indictment.
On December 19, 2011, defendant shoplifted merchandise from a toy store in Essex County. Sometime later that day, defendant shoplifted computer tablets from a Morris County toy store that was part of the same national chain of stores. After the thefts were discovered, store personnel reviewed security footage and identified defendant as one of the individuals involved in the thefts.
On December 29, 2011, defendant was charged in Essex County with shoplifting and conspiracy to commit shoplifting at the Essex County toy store. On February 24, 2012, defendant pled guilty pursuant to a plea agreement to both counts of Essex County Accusation No. 12-02-00153. On April 20, 2012, the trial court sentenced defendant to two years of probation.
On March 2, 2012, defendant was charged in connection with the theft from the Morris County toy store. On August 7, 2012, a Morris County grand jury returned Indictment No. 12-08-00878, charging defendant with shoplifting and conspiracy to commit shoplifting.
Defendant filed a motion to dismiss the Morris County indictment on the grounds that the rules of joinder and fundamental fairness prohibited multiple indictments based on the same set of events. Judge Robert Gilson denied the motion and set forth his reasons in an oral opinion. The judge found that, because the offenses were not part of "the same episode[,]" joinder of the charges was not required under State v. Yoskowitz, 116 N.J. 679 (1989). Defendant then pled guilty to conspiracy to commit shoplifting and this appeal followed.
On appeal, defendant presents the following contentions:
POINT IWe are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm substantially for the reasons set forth in Judge Gilson's oral opinion. We add the following brief comments.
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INSTANT INDICTMENT BECAUSE NEW JERSEY'S RULES OF JOINDER REQUIRE CHARGES ARISING FROM A SINGLE EPISODE OF CRIMINAL CONDUCT TO BE BROUGHT TOGETHER.
POINT II
INDICTMENT NO. 12-08-00878 MUST BE DISMISSED OUT OF FUNDAMENTAL FAIRNESS TO THE DEFENDANT.
To support her argument that the Morris County indictment should have been dismissed, defendant relies upon the mandatory joinder rule, R. 3:15-1(b) and N.J.S.A. 2C:1-8(b). Rule 3:15-1(b) states:
Except as provided by R. 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.This rule was incorporated into N.J.S.A. 2C:1-8(b), which reads as follows:
Except as provided in subsection c. of this section, a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.
Pursuant to the mandatory joinder rule, all crimes known to the prosecutor arising out of a single transaction must be joined and any omitted offense will be barred. State v. Williams, 172 N.J. 361, 368 (2002); State v. Veney, 409 N.J. Super. 368, 383 (App. Div. 2009). In Yoskowitz, supra, 116 N.J. at 701, the Supreme Court identified four criteria a defendant must satisfy to invoke the mandatory joinder rule:
(1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose from the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court.
In this case, Essex County Accusation No. 12-02-00153 and Morris County Indictment No. 12-08-00878 charged defendant with shoplifting offenses in connection with thefts from two stores that were part of the same national chain. However, as Judge Gilson found, these were distinct acts, at two different stores, at two different times, and in two different counties. Nonetheless, defendant argues that mandatory joinder was required because the charges involved similar offenses in similar stores. We disagree.
In State v. Pillot, 115 N.J. 558 (1989), the Supreme Court considered whether the defendant's criminal activity, consisting of six armed robberies in a nine-week period, constituted "criminal offenses based on the same conduct or arising from the same criminal episode." Id. at 567 (internal quotation marks omitted). The Court stated:
Although defendant characterizes her criminal conduct as the result of a short period of aberrant behavior, she committed
six different armed robberies against six different victims in six different locations at different times over a nine-week period. These circumstances do not indicate the crimes are the product of a continuing plan or common scheme or that they constitute a single episode. The only circumstance that serves to make these crimes comparable and ties them together is the modus operandi used by the defendant -- their manner of execution was similar. Even applying broad standards of "flexibility" in determining whether separate criminal incidents can be fused into a single criminal episode, the offenses here are factually distinct in terms of time, place, and victim, if not manner. We would not, therefore, conclude that the joinder of these offenses was required[.]
[Ibid. (internal citations omitted).]
We are similarly persuaded that the fact that defendant shoplifted from two toy stores on the same day in different locations and in different counties does not require the fusing of her offenses nor preclude prosecution for the offenses charged in Morris County Indictment No. 12-08-00878 under either mandatory joinder rules or the doctrine of fundamental fairness.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION