State v. Yang Bin

• Decision Date: 08 December 2020
• Docket Number: DOCKET NO. A-0314-18T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. YANG BIN, a/k/a WANG BIN, WANG PING, BIN YANG, CHEN BIN, SUN BIN, YI CAO, YU CHEN, HUBI CHEN, YI CHO, CAO GU, WU YI, and CHEN MING, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. YANG BIN, a/k/a WANG BIN, WANG PING, BIN YANG,CHEN BIN, SUN BIN, YI CAO, YU CHEN, HUBI CHEN,YI CHO, CAO GU, WU YI, and CHEN MING, Defendant-Appellant.

DOCKET NO. A-0314-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 13, 2020

December 8, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-08-1735.

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

Catlin A. Davis, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Catlin A. Davis, of counsel and on the brief).

PER CURIAM

Following a three-day jury trial, defendant was convicted of third-degree computer theft, N.J.S.A. 2C:20-25(c); and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. The convictions stemmed from defendant stealing $550 of free slot play from the player card of a member of the Tropicana Casino's rewards program, and then using the stolen free play to win $750 at the casino. The trial proofs included video surveillance footage depicting the events, and defendant's unrecorded statement to police while in custody admitting that he paid another individual money for access to the card. Defendant was sentenced to an extended term of seven years' imprisonment and ordered to pay $1300 in restitution.

Defendant now appeals from his convictions and sentence, raising the following arguments for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN CONCLUDING THAT MIRANDA¹ DID NOT APPLY TO THIS CASE. OFFICER WHEELER PROMPTED

[DEFENDANT] TO GIVE A FORMAL STATEMENT WHILE IN A HOLDING CELL, GOING BEYOND A ROUTINE BOOKING INQUIRY AND SUBJECTING [DEFENDANT] TO A CUSTODIAL INTERROGATION, AND THE STATE CANNOT PROVE [DEFENDANT] KNOWINGLY WAIVED HIS RIGHTS DUE TO HIS LOW ENGLISH PROFICIENCY. SUPPRESSION IS REQUIRED.

POINT II

ALLOWING THREE WITNESSES TO TESTIFY TO THE CONTENTS OF THE SURVEILLANCE VIDEOS, AND MAKE IDENTIFICATIONS OF INDIVIDUALS PRESENT IN THE COURTROOM WITHOUT ANY FOUNDATION, VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL, NECESSITATING REVERSAL.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON HOW TO EVALUATE [DEFENDANT'S] INCULPATORY OUT-OF-COURT STATEMENT. (Not Raised Below).

POINT IV

A REMAND FOR RESENTENCING IS REQUIRED FOR RECONSIDERATION OF THE ORDER OF RESTITUTION.

Having considered the arguments and applicable law in light of the record, we affirm the convictions, but remand the matter for a restitution hearing.

I.

The following pertinent facts were presented to the jury. On January 28, 2017, Joseph Fazzia went to the Tropicana Casino to gamble. Based on his frequent gambling visits to the casino, Fazzia was a member of Tropicana's rewards program and was given a black player card with a unique identification number, 1960962. Fazzia's black card allowed him to earn rewards, including "free slot play," which was the equivalent of "slot cash." Prior to arriving at the Tropicana, Fazzia had arranged for a Tropicana marketing executive, Mary Lou Spatolla, to download his earned free slot play into his account. However, when he arrived at the casino and attempted to use his slot cash, his card had a zero balance.² Once he reported the issue to Spatolla, she reloaded his card with the missing free slot play and began investigating its disappearance.

Upon reviewing the casino's rewards redemption records for Fazzia's account, Spatolla learned that Fazzia's free slot play had been redeemed earlier that evening. According to the records, $500 of free slot play had been redeemed at 7:41 p.m., and an additional $50 of free slot play had been redeemed at 7:43 p.m. Both redemptions had occurred at slot machine number 5333 at locationB-0908 on the casino floor. Spatolla reported the suspicious activity to Alexis Gonzalez, a security supervisor at Tropicana, who commenced an investigation of slot machine 5333, beginning with obtaining the records for the machine.

The records for machine 5333 showed that Fazzia's black card had been inserted into the machine on two separate occasions on January 28, each time downloading his free slot play into the machine. On both occasions, immediately after the free slot play was downloaded, Fazzia's card was removed and a gold player card with identification number 3484253, registered to a player by the name of Bing Hua Lu, was inserted into the machine. Lu's card was then used to change the machine's settings and play the game, which ultimately lead to the printing of two winning vouchers, the first at 7:43 p.m. for $500, and the second at 7:44 p.m. for $250.

On February 1, 2017, after reviewing the machine records, Gonzalez requested the January 28 video surveillance footage from 7:09 p.m. to 7:50 p.m. for machine 5333 from Jeremy Edwards, a supervisor in Tropicana's surveillance department. Upon receipt, Gonzalez watched the video at approximately 4:00 p.m. on February 2, 2017, and identified the man using machine 5333 at the time in question as defendant. Immediately after viewingthe video, Gonzalez located defendant in the casino, escorted him to the casino security offices, and called the New Jersey State Police.

State Police Detective Jonathan Wheeler responded to the Tropicana and arrested defendant after Gonzalez informed Wheeler of his investigation and provided him with the documents he had collected. Wheeler transported defendant to the State Police headquarters in Atlantic City, placed him in a holding cell, and advised him of his Miranda rights. Although defendant "did not want to provide a formal statement[,]" when Wheeler informed defendant that he was going to be "charged with . . . some type of theft," defendant spontaneously responded that he did not "know why [he was] being charged," because he had "paid another Asian male $250 to access that account." Defendant explained that "he never held the . . . card." Instead, "when he played[,] . . . the Asian male would come up to him and put the . . . card in the machine, put in the account PIN . . . and then he would have access to their promotional play."

At trial, in addition to Fazzia, Spatolla, Gonzalez, Edwards, and Wheeler testifying for the State about their involvement in the incident, Tropicana Slot Operations Director, Robert Stewart, matched up the casino computer records with machine 5333's operations and confirmed that the records reflected whatwas depicted in the video surveillance footage. Defendant elected not to testify³ but, through cross-examination and summations, advanced the theory that the State could not prove he acted knowingly or purposely, the requisite mental states for commission of the offenses.

After the State rested, defendant moved for a judgment of acquittal, Rule 3:18-1, which was denied by the trial judge. Following the jury verdict, defendant moved for a new trial, Rule 3:20-1, arguing he was deprived of "a fair trial[,]" primarily due to the admission of his statement at trial in violation of Miranda, and the improper denial of his earlier Reyes⁴ motion for judgment of acquittal. On August 10, 2018, the judge denied defendant's motion but granted the State's motion to sentence defendant to a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The judge then merged the theft by unlawful taking count into the computer theft count and imposed a flatseven-year term of imprisonment.⁵ A memorializing judgment of conviction (JOC) was entered on August 24, 2018,⁶ and this appeal followed.

II.

In Point I, defendant argues the judge erred in finding that "Miranda's protections did not apply, but even if they did, that [defendant's] statement was voluntary." We disagree.

At the May 31, 2018 Miranda hearing, Detectives Jonathan Wheeler and Michael Nelson, both twelve-year veterans of the New Jersey State Police, testified for the State. According to Wheeler, after responding to the casino, he arrested and transported defendant to State Police headquarters, arriving at approximately 7:30 p.m., and "placed defendant in a holding cell" that did nothave recording capability.⁷ Assisted by Nelson, Wheeler immediately began reading defendant his rights verbatim from a standard Miranda card.⁸

Both detectives testified defendant was alert and appeared to understand what was read, nodding his head "up and down" to indicate he understood his rights. According to the detectives, defendant never spoke any language other than English, and never stated or physically gestured that he did not understand what was being said. While Wheeler acknowledged on cross-examination that defendant spoke with "[s]omewhat of an accent," and that his first language did not appear to be English, Nelson testified that defendant's first language "never really . . . came up . . . because the whole conversation was in English." Although neither detective offered defendant an interpreter, they testified defendant never requested an interpreter or an attorney. Nelson stated he did not believe defendant needed an interpreter because "[he] understood everything."

After administering the Miranda rights, the detectives began the booking process. Wheeler asked defendant if he wanted "to provide a formal statement[,]" to which defendant responded he did not. According to Wheeler, had defendant agreed to give a formal statement, he would have been "walked across the hall to [an] interview room" equipped with recording capability, and re-administered his Miranda rights. Continuing the booking...