STATE OF NEW JERSEY VS. MICHAEL P. BUCCA (15-04-0754, OCEAN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0886-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL P. BUCCA,
Defendant-Appellant,
and
MALISSA BUCCA,
Defendant.
_______________________________
Argued September 26, 2018 - Decided January 23, 2019
Before Judges Fuentes, Accurso and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-04-0754.
Gregory V. Sharkey argued the cause for appellant
(Gregory V. Sharkey and Eli L. Eytan, on the brief).
Shiraz I. Deen, Assistant Prosecutor, argued the cause
for respondent (Joseph D. Coronato, Ocean County
Prosecutor, attorney; Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Shiraz I. Deen, on the
brief).
PER CURIAM
Defendant Michael P. Bucca was convicted along with his sister of third-
degree receiving stolen property, N.J.S.A. 2C:20-7, and third-degree dealing in
stolen property, N.J.S.A. 2C:20-7.1(b), and was sentenced to three years'
probation and sixty days in the county jail. He appeals his conviction, raising
the following issues:
POINT I
THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT FOR INSUFFICIENT PROOFS AND
GRAND JURY MISCONDUCT.
POINT II
THE JURY CHARGE WAS INADEQUATE,
INSUFFICIENTLY SPECIFIC TO THE CASE AND
CONFUSING TO THE JURY.
POINT III
THE TRIAL COURT DETERMINATION TO
PERMIT HEARSAY STATEMENTS OVER
DEFENDANT'S OBJECTION VIOLATED HIS
CONSTITUTIONAL RIGHT OF CONFRONTATION
AND OTHERWISE DENIED HIM A FAIR TRIAL.
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POINT IV
PROSECUTORIAL MISCONDUCT, ERRORS AND
OMISSIONS SO PREJUDICED DEFENDANT SO AS
TO DENY HIM A FAIR TRIAL.
POINT V
THE TRIAL COURT SHOULD HAVE GRANTED
MOTION FOR JUDGMENT OF ACQUITTAL AT
THE END OF THE STATE'S CASE.
POINT VI
THE TRIAL COURT SHOULD HAVE GRANTED
DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL N.O.V. OR IN THE ALTERNATIVE
FOR A NEW TRIAL.
POINT VII
THE CUMULATIVE TRIAL ERRORS RENDERED
THE TRIAL MANIFESTLY UNFAIR AND
CONSTITUTED A MISCARRIAGE OF JUSTICE.
(NOT RAISED BELOW).
Finding no error in defendant's indictment or subsequent conviction, we affirm.
Over the course of a two-day trial, the State proved its case against
defendant based largely on the testimony of one Hatch, an admitted drug addict
and convicted thief, and Detective DiMichele, who arrested her and prosecuted
defendant. Hatch testified she shoplifted blenders, coffee makers and Lego toys
from K-Mart, Bed, Bath & Beyond and Toys "R" Us in Toms River in January
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and February 2015 and subsequently sold them in their original packaging,
either directly or through her friend Bennett, to defendant or his sister at their
mother's pawn shops, Quick Cash, in Toms River and Bayville. She testified
she frequented Quick Cash because she knew the store would take the stolen
items and give her twenty-five percent of the retail value. She admitted she
provided a signed statement each time she sold items to Quick Cash that she was
the lawful owner of the merchandise. Hatch also testified defendant's sister once
told her, at defendant's direction, that Hatch should go to the Bayville store
because the Toms River store was implementing a new "Rapid" System that
would photograph her, the items she was selling and her identification and
transmit them to the police.
Detective DiMichele explained to the jury the Rapid (Regional Automated
Property Information Database) System was an electronic database allowing
police to track sales to pawn shops in real time. An ordinance in Toms River
required secondhand dealers and pawnbrokers to obtain a license and report
transactions electronically, including a photo of the goods purchased, the price
paid, and a photo of the seller and the seller's identification. Dealers were
required to retain all items purchased for a ten-day period in order to allow the
police to investigate whether the items were stolen. The detective explained
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Toms River's electronic system was instituted in January 2015. Before that,
dealers were required to maintain paper records of their transactions, which
police collected once a week. According to the detective, Berkeley Township,
where the Bayville store was located, did not convert to an electronic system
until after Toms River.
Detective DiMichele testified that he took a statement from Hatch on
January 22, 2015 following her arrest on shoplifting charges. Hatch confessed
to shoplifting various items and selling them at Quick Cash in Bayville on
January 12, 17, 18 and 21. DiMichele went to the store after taking her statement
and recovered thirty-four Lego sets and thirty-one blenders the store purchased
from Hatch on those dates.
Hatch was arrested again on February 4 and admitted to stealing a
shopping cart full of Lego sets from Toys "R" Us and giving them to Bennett to
sell at Quick Cash. When DiMichele went to the Toms River store to recover
the Legos sold by Bennett, defendant directed the employee assisting DiMichele
not to cooperate with him. DiMichele was familiar with defendant, having seen
him at the store a half a dozen times over the prior three or four years. The
detective testified defendant became so irate he was hindering the investigation
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and was arrested. The parties stipulated police seized thirty-seven sets of Legos
Bennett sold the Toms River and Bayville stores on February 1 and 3.
Defendant testified in his own behalf. He claimed he was responsible for
the recycling aspect of his mother's business and some bookkeeping and did not
work at either the Toms River or Bayville stores. Defendant testified the Rapid
System was new in January 2015 and everyone was having to adjust to the
changes. Although he denied directing Quick Cash's employee not to cooperate
with Detective DiMichele, he admitted he angrily cursed at the detective because
he seized merchandise the store paid Hatch $600 for the week before and failed
to do what was necessary to allow the store to recover that loss before appearing
again to seize additional merchandise.
Defendant claimed he never bought anything from Hatch and had only
seen her once, when she was in the Toms River store in January 2015. He
claimed there were plenty of places to go to purchase new merchandise of the
sort Hatch sold to Quick Cash, including online liquidation sites, flea markets
and auctions. Defendant testified he did not know the goods offered by Hatch
were stolen and would never knowingly purchase stolen merchandise.
Defendant's counsel argued defendant was only charged in retaliation for his
cursing at Detective DiMichele for failure to do his job.
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Having reviewed the entire record, we conclude none of the issues
defendant raises challenging his conviction is of sufficient merit to warrant
extended discussion in a written opinion. See R. 2:11-3(e)(2).
The Supreme Court has instructed a trial "court should dismiss an
indictment 'only on the clearest and plainest ground, and only when the
indictment is manifestly deficient or palpably defective.'" State v. Twiggs, 233
N.J. 513, 531-32 (2018) (quoting State v. Hogan, 144 N.J. 216, 228-29 (1996)).
The State survives a motion to dismiss an indictment so long as it "presents
'some evidence establishing each element of the crime to make out a prima facie
case.'" State v. Feliciano, 224 N.J. 351, 380 (2016) (quoting State v. Saavedra,
222 N.J. 39, 57 (2015)).
Applying that standard, Judge Blaney twice rejected motions by defendant
to dismiss the indictment, finding the evidence presented more than adequate to
sustain the charges. The State presented evidence that defendant was in charge
of both stores, and, through his sister, directed Hatch to the Bayville store after
Toms River implemented the Rapid System because he knew or suspected Hatch
had stolen the new merchandise she offered to Quick Cash. The evidence
defendant contends the State should have presented about the operation of the
Rapid system and the certifications Hatch and Bennett signed attesting to
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ownership of the merchandise was not so clearly exculpatory as to require
submission to the grand jury. See Hogan, 144 N.J. at 236 (explaining "the grand
jury cannot be denied access to evidence that is credible, material, and so clearly
exculpatory as to induce a rational grand juror to conclude that the State has not
made out a prima facie case against the accused").
Judge Blaney's instruction to the jury that it could infer defendant knew
the property was stolen if it found he obtained it "without having ascertained by
reasonable inquiry that the person from whom he . . . obtained it had a legal right
to possess or control it" was in accord with the model charge and not error. See
Model Jury Charges (Criminal), "Dealing in Stolen Property (N.J.S.A. 2C:20-
7.1(b))" (approved Dec. 2, 1996). The judge appropriately tailored the charge
to the facts by adding that if the jury found defendant's reliance on the
certificates of ownership provided by Hatch and Bennett was reasonable, it
could consider that "in determining whether . . . defendant[] had the requisite
knowledge or belief that the merchandise in question was stolen as required to
be proven by the State beyond a reasonable doubt."
Defendant's proffered instruction, that the jury "must not infer" the
requisite knowledge if it found defendant's reliance on the certificates was
reasonable, would have limited the jury's consideration of defendant's
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knowledge that the merchandise was stolen to the certificates, and thus was
properly rejected. A defendant's knowledge that property was likely stolen may
be proved in a variety of ways. Here, for example, the State argued defendant's
instruction to Hatch, through his sister, that she should go to the Bayville store ,
which had yet to implement the Rapid System, implied he knew the goods were
stolen. Because defendant's requested instruction was not a correct statement of
the law and ignored other facts in the case, it was not incumbent on the judge to
give it. See State v. Green, 86 N.J. 281, 291 (1981). Indeed, it would have been
error to do so.
We reject defendant's arguments that the hearsay statements attributed to
his sister directing Hatch to the Bayville store were improperly admitted under
N.J.R.E. 803(b)(5). The statement was made in furtherance of defendant and
his sister's plan to accept property stolen by Hatch at their Bayville store; it was
made in January 2015 after Toms River had implemented the Rapid System but
before Bayville did; and the State admitted evidence independent of the hearsay,
namely defendant's direction to other employees not to cooperate in the State's
investigation into Quick Cash's receipt of stolen property, of the existence of the
plan and defendant's relationship to it. See State v. Phelps, 96 N.J. 500, 509-10
(1984).
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Even were the statement admitted improperly, which was not the case, the
error would have been harmless in light of Hatch's testimony that she heard
defendant direct his sister to tell Hatch to sell her merchandise at the Bayville
store, making the statement admissible as the statement of a party-opponent
under N.J.R.E. 803 (b)(1). Defendant's argument that the admission of the
statement infringed his confrontation rights under the Sixth Amendment is
without merit. See Bourjaily v. United States, 483 U.S. 171, 181-84 (1987).
Defendant's claims of prosecutorial misconduct require only brief
comment. We agree with defendant that the questions the prosecutor put to
Detective DiMichele in the course of probing why he failed to charge Hatch with
theft by deception for selling the goods to Quick Cash, whether he thought
defendants "were aware that what they were buying was stolen" and "isn't that
the ultimate issue and isn't . . . that a reason why you wouldn't charge," were
improper. Judge Blaney, however, sustained defendant's objection to those
questions, and we cannot conclude they prejudiced defendant's right to have the
jury fairly evaluate his defense. See State v. Roach, 146 N.J. 208, 219 (1996).
The judge was alert to the testimony and responsive to objections posed,
providing curative instructions when necessary. Certainly none of the
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prosecutor's missteps, singly or in combination, were so egregious as to have
deprived defendant a fair trial. See State v. Smith, 167 N.J. 158, 181 (2001).
Defendants remaining arguments, that the court erred in denying his
motions for acquittal and that cumulative error rendered his trial manifestly
unfair, to the extent we have not addressed them, lack sufficient merit to warrant
any discussion in a written opinion. See R. 2:11-3(e)(2).
Affirmed.
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