State v. Fitzmaurice

• Decision Date: 28 January 1974
• Citation: 314 A.2d 606,126 N.J.Super. 361
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William James FITZMAURICE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 361

126 N.J.Super. 361

314 A.2d 606

STATE of New Jersey, Plaintiff-Respondent, v. William James FITZMAURICE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 15, 1974.

Decided Jan. 28, 1974.

Robert C. Gruhin, Belleville, for defendant-appellant.

Theodore R. Carron, Asst. Pros., for plaintiff-respondent State of New Jersey (Sherwin D. Lester, Pros. of Bergen Co., attorney).

Lois DeJulio, Deputy Atty. Gen., for plaintiff-respondent (George F. Kugler, Jr., Atty. Gen., attorney; John DeCicco, Deputy Atty. Gen., of counsel).

Before Judges HALPERN, MATTHEWS and BISCHOFF.

PER CURIAM.

Defendant was convicted in municipal court of shoplifting, in violation of N.J.S.A. 2A:170--99. He appealed to the County Court where he was again convicted after a trial De novo on the record. He appeals from that conviction and the custodial sentence of six months imposed.

On April 14, 1972 the manager of a food store in Oakland, New Jersey, observed defendant in the store and approached him. Defendant, upon observing the manager, ran to the rear of the store. The manager ran to the rear also, where he viewed defendant disposing of three packages of meat (lamb) in the turkey case.

The manager escorted defendant to the front of the store and had him arrested. Defendant was searched by a police officer and found to be wearing: a T-shirt (thoroughly bloodstained in the back) and, under his shirt and around his body, two or three belts or straps.

Defendant contends the judge erred in finding him guilty on the evidence presented. We disagree.

Bearing in mind the bloodstained shirt; the belts, which provided the basis for a legitimate inference they were to be used to secret the packages; defendant's flight, State v. Copeland, 94 N.J.Super. 196, 227 A.2d 523 (App.Div.1967) as well as defendant's replacement of the packages of meat, there was ample credible evidence to support the finding of the trial judge. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).

It is next contended that the statute under which he was convicted is unconstitutional in that it creates a presumption which constitutes a deprivation of due process and improperly eliminates the element of intent as an ingredient of the offense.

The statute reads Any person willfully concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of converting the same to his own use without paying the purchase price thereof within the meaning of section 1 of this act, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of willful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

It is clear that the use of a statutory presumption in a criminal statute is proper so long as there is a rational connection between the fact proved and the ultimate fact presumed. Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1942); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); State v. DiRienzo, 53 N.J. 360, 251 A.2d 99 (1969).

A rational connection exists here, where the statutory scheme...