State of New Jersey v. Maytee Cordero

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4061-12T1

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 29, 2014
v. APPELLATE DIVISION

MAYTEE CORDERO, a/k/a MAYTTEE
CORDERO, a/k/a TETI CORDERO,

Defendant-Appellant.
___________________________________

Submitted October 7, 2014 – Decided December 29, 2014

Before Judges Messano, Ostrer and Hayden.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 11-12-1792.

Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).

Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Jason
Boudwin, Assistant Prosecutor, of counsel
and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Maytee Cordero appeals from her conviction, after

a jury trial, of third-degree shoplifting, N.J.S.A. 2C:20-11(b).

The shoplifting incident involved the taking of over $1700 of
merchandise from the Apple Store at Menlo Park Mall on July 26,

2011. Her co-defendant, Chris Perez, removed various items from

the accessory wall and placed them into two large Abercrombie &

Fitch (A&F) clothing bags that defendant was holding. Defendant

and Perez then left the store without paying for the products.1

The appeal requires us to address when it is appropriate

for a trial court to rule on the admissibility of other-crimes-

or-wrongs evidence under N.J.R.E. 404(b), when offered to rebut

a defendant's proffered mistake, or lack of intent. The State

sought an in limine ruling permitting it to introduce evidence

of a previous alleged shoplifting incident at a Target store

that involved defendant, Perez and a third person. The evidence

was a video of that incident, as well as a recorded statement

defendant gave shortly thereafter. The State proposed to use

the evidence to rebut a proffered defense, set forth in a letter

from defense counsel, that Cordero did not intend to shoplift

from the Apple Store, and her removal of the items without

paying was a mistake, as she was unaware Perez placed items in

the bags.2

1
Perez pleaded guilty several months before defendant's trial,
and was sentenced to a three-year prison term.
2
The record before us does not include the video, defendant's
statement, or defense counsel's letter.

2 A-4061-12T1
 Judge Joseph Paone declined to hold a formal hearing under

N.J.R.E. 104, or issue a definitive ruling in advance of

defendant's testimony. However, to assist defendant in deciding

whether to testify, the judge offered his tentative view that

the 404(b) evidence was likely admissible. He did so before

opening statements. After the State rested and the judge viewed

the video, he reiterated his tentative view.

On appeal, defendant argues that the court erred in

refusing to issue a definitive ruling. She asserts that the

tentative ruling was erroneous and infringed upon her right to

testify. She also asserts the prosecutor committed misconduct

in his summation.

We conclude that a trial court, in its discretion, may

await the close of a defendant's case before determining the

admissibility of 404(b) evidence that the State seeks to

introduce to rebut the defendant's claim of lack of intent or

mistake. We also discern no error in the court's decision to

offer a tentative view of the issue. Finally, defendant's claim

of prosecutorial misconduct lacks sufficient merit to warrant

extended discussion. We therefore affirm.

3 A-4061-12T1
 I.

A.

The State presented its case through the testimony of two

of the Apple Store's loss prevention officers — Steve G. Yhap

and Felix Melendez. The jury also heard briefly from the Edison

Township police patrolman who arrested defendant and Perez.

Yhap and Melendez were in plain clothes while they

monitored customers in the store. Yhap testified he saw Perez

enter the store, look around while talking on his cell phone,

then exit. Shortly thereafter, Perez entered again, accompanied

by defendant. She was carrying two large A&F shopping bags.

They both walked to one side of the store, where he selected a

laptop case. He then walked to the other side of the store, and

she followed. Yhap stated, "He would select items, and, then,

he would conceal [them] behind the laptop case. She would,

like, raise up her bag, and he would put [them] into the

defendant's bag."

The two then exited the store without paying for the items.

Yhap testified he confronted them, and placed Perez in

handcuffs. Meanwhile, defendant placed both bags on the floor

and began to walk or jog away, when Melendez stopped her. Yhap

and Melendez escorted the two to an office in the rear of the

store, where they photographed the items in the bag.

4 A-4061-12T1
 Melendez generally confirmed Yhap's version of events.

Melendez did not specifically state that defendant raised the

bags while Perez placed the items inside. However, he confirmed

that she carried both bags into and out of the store. Melendez

testified that when he and Yhap identified themselves, "she

slowly dropped the bags . . . [a]nd, then, she slowly tried to,

like, make off — like — almost like a slow-motion running." She

was apprehended.

The loss prevention officers also testified that defendant

and Perez made self-incriminating statements. Melendez stated

that defendant asked "if there's any way Chris Perez can just

take all the charges, and to just let her go."3 She explained

that she was "concerned over opening up her own . . . used car

sales lot" and feared "she wouldn't get the license if she got

charged. . . ."

Yhap testified that Perez told him "that he was responsible

for it, because she's trying to open up a car dealership and he

doesn't want her to take the rap for it." Defense counsel

confronted Yhap with his report of the incident, which did not

3
Defense counsel initially objected to the introduction of
defendant's statement, asserting that it was not provided in
discovery. However, in a N.J.R.E. 104 hearing conducted in the
midst of Melendez's testimony, it was established that
defendant's statement was recorded in Melendez's report that the
State provided in discovery.

5 A-4061-12T1
include that statement. Instead, it stated, "'During the

interview Christopher Perez admitted to stealing the items for

his boss. And since he overheard management calling the local

PD he said he wasn't going to give us any information unless we

let them walk." None of the alleged statements by defendant and

Perez were recorded, nor did the two sign written statements.

Also, Yhap explained that because of his inexperience — he had

worked at Apple for only a few months — he did not preserve

video surveillance of the incident before it was over-written.

B.

As noted above, defense counsel advised the State before

trial that defendant intended to assert a defense of mistake or

lack of intent. Defense counsel's pre-trial letter apparently

notified the State that Perez intended to testify that he stole

the items without defendant's knowledge. Defense counsel

represented that Perez would testify that he ran into defendant

in the store; she asked that he take her phone number; so, he

handed the bags to her while he did so. In response to defense

counsel's letter, the State filed a motion seeking permission

under N.J.R.E. 404(b) to introduce evidence of the prior alleged

shoplifting incident involving Perez and defendant.

However, following jury selection, defense counsel

announced that she did not intend to call Perez as a witness,

6 A-4061-12T1
although he was present in the courthouse and available.

Nonetheless, the State sought a ruling on the admissibility of

the 404(b) evidence, because defense counsel stated that

defendant might testify.

Judge Paone ruled that the evidence could not be introduced

during the State's case in chief. As for whether it could be

offered in rebuttal, he stated, "I can't decide whether 404(b)

evidence is admissible until the State['s] case is done; [and]

your case is done." The judge stated that he would give

defendant "an indication as to . . . whether I believe the

evidence would be admissible . . . if the testimony were

consistent with the facts as represented . . . ." He would do

so, to "inform [her] . . . decision whether to testify."

However, the judge emphasized that he would not make a 404(b)

decision "prematurely." He inquired whether that was "all

right" with defense counsel, who responded, "Okay."

After the State rested, counsel revisited the 404(b) issue.

Defense counsel proffered that defendant would testify that

Perez tried to get defendant's phone number — slightly different

from the previous proffer that defendant asked Perez to take her

phone number — and when Perez took out his phone, he handed one

of the bags to defendant. They walked out of the store

together. According to the proffer, defendant would testify she

7 A-4061-12T1
was unaware the bag contained unpurchased items. Counsel

conceded this version was at odds with the two loss prevention

officers' observation that she held both bags.

The judge reiterated he could not make a final decision on

the admissibility of the 404(b) evidence until he heard

defendant's testimony. However, based on the State's

representation of what the video of the prior incident would

show, the judge stated his tentative view that the evidence

would be admissible. Defense counsel inquired whether the

court's view would remain the same if defendant simply gave a

general denial on the stand. The judge stated he was unsure.

Defendant was given until the following day to determine whether

she intended to testify.

The next morning, the court decided to view the video of

the previous incident in open court.4 The court's decision to

view the recording also enabled defendant to view it for the

first time. The video apparently consisted of various clips

from the store cameras, some showing the same actions but from

different angles. As described on the record, the video

apparently depicted defendant, Perez, and the third person — who

4
Once the court considered the video, it should have been marked
for identification. See Manata v. Pereira, 436 N.J. Super. 330,
336 n.2 (App. Div. 2014). Furthermore, the record does not
reflect that the court reviewed or considered defendant's post-
arrest statement following the Target incident.

8 A-4061-12T1
was described as a Target employee — standing in front of a

locked case of video games and gaming consoles. Perez opened

the case with a key and placed various items in the shopping

cart. At one point, defendant herself placed a laptop case in

the cart. There was no obvious attempt to conceal the placement

of the items in the cart. Defendant later wheeled the cart

around the cashiers' section of the store, toward the exit

doors. She was stopped by loss prevention officers.

Defense counsel asserted at one point that the video

depicted defendant handing currency to Perez, which supported

defendant's claim that she believed that the third person

involved had arranged for defendant to purchase the various

items at a discount. She allegedly believed that the items in

the cart had been paid for. At one point, while Judge Paone

viewed the video, defendant interjected that she intended to pay

for the items.5

Judge Paone reviewed the four prongs of the test for

determining the admissibility of other crimes or wrongs

evidence, as set forth in State v. Cofield, 127 N.J. 328, 338

(1992):

5
Defendant was charged with third-degree shoplifting
(concealment), pursuant to N.J.S.A. 2C:20-11(b)(2), in
connection with the Target incident. She pleaded not guilty and
was admitted to the pretrial intervention program.

9 A-4061-12T1
 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.

[Id. (internal quotation marks and citation
omitted).]

Before viewing the video, Judge Paone stated, "without

having the benefit of her testimony . . . all I can do is

indicate to you that there . . . would be a likelihood that

. . . this evidence would be admissible." He stated that prong

one was likely met because the evidence would refute defendant's

proffered defense that she removed the items from the Apple

Store by mistake.

Prong two was met because the prior incident occurred

within several months of the charged crimes, and involved

defendant's removal of items from a store without paying, in

concert with Perez. He was unpersuaded by defense counsel's

argument that the two incidents were dissimilar. Counsel

alleged that in the first incident, there was no apparent effort

to conceal the placement of the items in the cart, while in the

10 A-4061-12T1
second, there was an apparent effort to conceal the items placed

in the A&F bag.

As for prong three, once he viewed the video, Judge Paone

stated that there appeared to be clear and convincing evidence

that defendant participated in a prior shoplifting. However, he

left open the door for defendant to provide "an explanation for

that conduct" depicted on the video.

Judge Paone did not expressly address prong four, balancing

the prejudice against the 404(b) evidence's probative value.

However, he implicitly found it was satisfied by indicating,

tentatively, that the evidence would be admissible. The court

was unpersuaded by defense counsel's argument that there was

less prejudicial evidence — consisting of Yhap's and Melendez's

testimony — to rebut defendant's proffered defense.

Defendant declined to testify. The jury deliberated for

about half an hour before returning its verdict. Defendant

maintained her innocence at sentencing. The court imposed a

three-year term of probation, subject to conditions regarding

employment and community service.

Defendant raises two issues on appeal:

1. THE TRIAL COURT'S INDICATION THAT THE
DETAILS OF A PREVIOUS CHARGE OF SHOPLIFTING
WOULD BE ADMISSIBLE IN REBUTTAL IF DEFENDANT
TESTIFIED VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHT TO TESTIFY ON HER OWN
BEHALF.

11 A-4061-12T1
 2. THE PROSECUTOR'S IMPROPER COMMENT DURING
HIS SUMMATION CONSTITUTED PROSECUTORIAL
MISCONDUCT WHICH DENIED DEFENDANT A FAIR
TRIAL.

II.

A.

Defendant complains that the court declined to issue a

definitive decision on the admissibility of the 404(b) evidence,

despite the State's motion, and defendant's interest in a firm

decision. Defendant argues that the court was mistaken in

deciding to await defendant's testimony, given the defendant's

proffer. Furthermore, defendant argues that the court's

tentative opinion was, in effect, a ruling on the issue, which

misapplied the Cofield factors and deprived defendant of her

right to testify.

We are unpersuaded. We review a trial court's application

of N.J.R.E. 404(b) for an abuse of discretion. State v.

Marrero, 148 N.J. 469, 483-84 (1997). The State proposed to use

the other-crimes-or-wrongs evidence to prove intent, and the

absence of mistake. See N.J.R.E. 404(b) (stating that other-

crimes-or-wrongs evidence "may be admitted . . . as proof of . .

. intent . . . or absence of mistake or accident when such

matters are relevant to a material issue in dispute."). We

discern no error in Judge Paone's determination that a ruling on

12 A-4061-12T1
the admissibility of the 404(b) evidence should await

defendant's testimony.

Our courts generally disfavor in limine rulings on evidence

questions. "[A] trial judge generally should not rule on the

admissibility of particular evidence until a party offers it at

trial." State v. Cary, 49 N.J. 343, 352 (1967). "[M]ost

evidence problems are best and most expeditiously settled in the

atmosphere and context of the trial." State v. Hawthorne, 49

N.J. 130, 143 (1967). Pre-trial evidentiary rulings are often

made "in the abstract and not in the context of facts adduced at

trial"; consequently, "[r]equests for such rulings should be

granted only sparingly." Bellardini v. Krikorian, 222 N.J.

Super. 457, 464 (App. Div. 1988). "Where . . . the decision on

the in limine motion itself requires an analysis of evidence yet

to be presented or credibility determinations, such motions

should ordinarily be denied until a sufficient predicate is

established." Berrie v. Berrie, 252 N.J. Super. 635, 641-42

(App. Div. 1991).

Moreover, "[i]n the event the trial court addresses

[evidentiary] issues in a pre-trial proceeding, the trial court

must be sensitive to the need to revisit its pre-trial rulings

in light of the developing record at trial." State v. Jones,

308 N.J. Super. 15, 46 (App. Div. 1998). "The record developed

13 A-4061-12T1
at trial may differ from the record developed below on the

parties' motions, perhaps substantially." State v. Crumb, 277

N.J. Super. 311, 321 (App. Div. 1994).

On the other hand, we recognize that, as a general

principle, a trial court retains the discretion, in appropriate

cases, to rule on the admissibility of evidence pre-trial. See

Hawthorne, supra, 49 N.J. at 142 ("This is not to say that under

no circumstances can pretrial motions to exclude evidence be

made, or that in some situations evidence problems cannot be

settled at the pretrial conference. Obviously there is an area

in which the judge's discretion may operate."). See also

Berrie, supra, 252 N.J. Super. at 641 ("In limine motions have

their place where issues can be eliminated as a matter of law

prior to trial.").

In particular, our criminal practice rules expressly direct

courts to conduct pretrial hearings "to resolve issues relating

to the admissibility of statements by defendant, pretrial

identifications of defendant, sound recordings, and motions to

suppress." R. 3:9-1(d). "[U]nless otherwise ordered by the

court" such hearings are "held prior to the pretrial

conference." Ibid. "Upon a showing of good cause, hearings as

to admissibility of other evidence may also be held pretrial."

Ibid. In particular, a hearing under State v. Sands, 76 N.J.

14 A-4061-12T1
127 (1978), to determine the admissibility of prior convictions,

may be held pre-trial. State v. Whitehead, 104 N.J. 353, 358

(1986) ("In practice, the trial court makes its determination at

a hearing held before trial or, if at trial, out of the presence

of the jury.").

Our Court has cautioned that other-crimes-or-wrongs

evidence should not be admitted unless it "is material to a fact

genuinely in issue." State v. Stevens, 115 N.J. 289, 302

(1989). The fact that intent is an element of the offense does

not invariably justify admission of 404(b) evidence to prove

intent.

That evidence of prior crimes may have some
bearing on motive, intent, plan, absence of
mistake, knowledge or identity . . . does
not automatically warrant its admission. If
the defense in the instant case had been
alibi or a general denial, these prior
convictions might properly have been
excluded even though they were relevant to
intent. While intent would still be a
necessary element of the prosecutor's case,
the question of motive or intent would not
have been raised by the evidence and thus
the probative value of the prior offenses
would likely be outweighed by their
prejudicial effect.

[State v. Atkins, 78 N.J. 454, 462 (1979)
(citations omitted).]

We have previously held that other-crimes-or-wrongs

evidence should be allowed "only to meet an issue relating to an

element of the offense which is projected by defendant either

15 A-4061-12T1
before or during trial or is necessarily raised by the

evidence." State v. Peltack, 172 N.J. Super. 287, 293 (App.

Div.), certif. denied, 84 N.J. 474 (1980). On the other hand,

the Court has rejected the suggestion that other-crimes-or-

wrongs evidence is inadmissible "to prove a material element of

a crime not specifically contested by the defendant nor

otherwise established by the evidence." Stevens, supra, 115

N.J. at 307. Such evidence may be necessary to prove an

essential element of the offense. Ibid. However, we have held

that an assertion in an opening statement does not suffice to

"open the door" to 404(b) rebuttal evidence. State v.

Anastasia, 356 N.J. Super. 534, 543 (App. Div. 2003) ("Opening

statements are not evidential and should not be responded to by

'rebuttal' evidence.").

We are persuaded that a trial court may, in its discretion,

await the conclusion of the defendant's case before deciding the

admissibility of 404(b) evidence to prove intent, or lack of

mistake.6 That view is supported by persuasive authority. See,

6
"When the cases refer to admission of other-crime evidence to
show the intent of the defendant, it is often just as accurate
to describe the evidence as negating the defenses of mistake and
accident." Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 11 on N.J.R.E. 404(b) (2014). See also State
v. Sexton, 160 N.J. 93, 98-107 (1999) (discussing N.J.S.A. 2C:2-
4(a) and mistake of fact as a defense). Nonetheless, the
(continued)

16 A-4061-12T1
e.g., United States v. Figueroa, 618 F.2d 934, 939 (2d Cir.

1980) ("[I]f the evidence is offered to prove the defendant's

knowledge or intent, the offer of similar acts evidence should

await the conclusion of the defendant's case and should be aimed

at a specifically identified issue.");7 United States v.

Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) (same); Moor v.

State, 709 P.2d 498, 506 (Alas. 1985) ("[W]here the prosecution

wishes to use the evidence to rebut an anticipated defense, the

trial court should seriously consider delaying the offer until

the prosecution's rebuttal in order to ensure that the

anticipated defense will in fact be raised.").

Awaiting the rebuttal case enables the court to confirm

that the defense will actually be offered, and to assess the

contours of the defense. That information will inform the

court's decision regarding the relevance of the 404(b) evidence,

(continued)
State's proof of absence of mistake may be more likely to come
into play only after a defendant has raised the defense.
7
The Second Circuit has recognized an exception to this rule
"where there was no doubt that the issue of intent would be
disputed in the case." United States v. Colon, 880 F.2d 650,
660 (2d Cir. 1989) (citing United States v. Caputo, 808 F.2d
963, 986 (2d Cir. 1987); United States v. Reed, 639 F.2d 896,
906-07 (2d Cir. 1981)). In Colon, where there existed
uncertainty after opening statements regarding the defense that
defendant would ultimately adopt, the court held, "[T]he proper
course was to await [the defendant's] decision before permitting
the similar acts evidence to enter the case by means of an
opening statement or a witness' testimony." 880 F.2d at 661.

17 A-4061-12T1
and whether its probative value is outweighed by its prejudicial

effect. See Figueroa, supra, 618 F.2d at 939 (stating that

awaiting until defense rests "enables the trial judge to

determine whether the issue sought to be proved by the evidence

is really in dispute and, if so, to assess the probative worth

of the evidence on this issue against its prejudicial effect");

United States v. Adderly, 529 F.2d 1178, 1182 (5th Cir. 1976)

("It is only after the defense is presented that the trial judge

can know if intent or knowledge or any exception to the

exclusion rule is truly a disputed issue in the trial.").

Applying the foregoing principles, we discern no abuse of

discretion in Judge Paone's decision to postpone a ruling on the

admissibility of evidence of the prior alleged shoplifting until

defendant testified. The precise contours of defendant's

proposed testimony were unclear. More importantly, it was

virtually impossible to predict what defendant might say once

subjected to cross-examination. Even a general denial on direct

examination would have allowed cross-examination on the basis

for the denial. Conceivably, admissions by defendant on cross-

examination could constitute less prejudicial evidence of her

lack of mistake or intent than the video of the alleged

shoplifting at Target. See State v. P.S., 202 N.J. 232, 256

(2010) ("[I]n assessing the fourth prong [of the Cofield test],

18 A-4061-12T1
courts should consider whether the matter can be proved

adequately by other evidence."); Stevens, supra, 115 N.J. at 303

(same).

We also conclude that the trial judge did not abuse his

discretion in deciding to offer his tentative view on the

admissibility of the evidence of the prior incident, based on

the limited information available. When the judge proposed to

do so before opening statements, defense counsel did not object.

Defendant has provided no authority — and we are aware of none —

that precludes a trial judge from reasonably indicating his or

her preliminary views on a factual or legal issue, pending the

submission of proofs, legal authority, or argument. Such

expressions assist counsel in tailoring their proofs and

presentations. However, ultimately, it is the court's decision

— not its tentative expressions — that provides a basis for

appeal. "[A]ppeals are taken from orders and judgments and not

from opinions, oral decisions, informal written decisions, or

reasons given for the ultimate conclusion." Do-Wop Corp. v.

City of Rahway, 168 N.J. 191, 199 (2001).

A defendant's right to testify in his or her own defense is

an essential element of due process. State v. Savage, 120 N.J.

594, 626 (1990). However, the decision whether to testify is a

"strategic or tactical decision to be made by a defendant with

19 A-4061-12T1
the advi[c]e of . . . counsel." State v. Bogus, 223 N.J. Super.

409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988).

Defendant must bear the consequences of her decision in this

case. The judge did not infringe her rights by sharing his

tentative views on the 404(b) issue, while declining to rule

until the defense rested.

We also reject defendant's argument that the judge's

tentative opinion was, in actuality, a ruling on the merits.

The judge was scrupulous in stating that he was withholding a

final decision until defendant testified. Consistent with the

foregoing, we also decline to address defendant's arguments that

the court erred in its expressed view that the evidence of the

prior incident was likely admissible. The court did not

definitively rule on its admissibility.

In any event, defendant has failed to provide us with an

adequate record to review a decision on the merits. We have not

been provided with the 404(b) evidence that the State sought to

introduce — the video of the prior alleged shoplifting at

Target. Consequently, we are unable to review a finding that

the evidence was clear and convincing that defendant

participated in a prior shoplifting. Nor can we fully assess

the potential prejudice from the introduction of such evidence.

See R. 2:6-1(a) (stating that the appendix "shall contain . . .

20 A-4061-12T1
such other parts of the record . . . as are essential to the

proper consideration of the issues"); see also Cmty Hosp. v.

Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor

are we obliged to attempt review of an issue when the relevant

portions of the record are not included.")

B.

We briefly address defendant's argument that she is

entitled to a new trial because the prosecutor discussed the

significance of the crime of shoplifting in his summation. The

prosecutor stated:

Now, the reason we're here . . . is the
shoplifting. I know some of you —
shoplifting — and I wish I'd gotten put on a
jury for bank robbery or something maybe a
little more dramatic. But, the truth is
shoplifting is a plague in our society, as
well. And . . . there are products that are
taken and they aren't paid for. And, now,
those companies are losing money and who is
paying for that loss? It's passed on, then,
in increased prices to the consumers. So
there's . . . a reason that that's a crime.
There's a reason that we're here. And the
reason that we're prosecuting.

Defense counsel did not object.

"Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to

the scope of the evidence presented." State v. Frost, 158 N.J.

76, 82 (1999). Prosecutorial misconduct is grounds for a

reversal where the "misconduct was so egregious that it deprived

21 A-4061-12T1
the defendant of a fair trial." Id. at 83. "[A]n appellate

court must consider (1) whether defense counsel made timely and

proper objections to the improper remarks; (2) whether the

remarks were withdrawn promptly; and (3) whether the court

ordered the remarks stricken from the record and ordered the

jury to disregard them." Ibid. When reviewing the comments in

a closing statement, "the test is whether the incident is

'clearly capable of producing an unjust result.'" State v.

DiPaglia, 64 N.J. 288, 296 (1974) (quoting R. 2:10-2).

If no objection is made to the remarks, they will generally

not be deemed prejudicial. Frost, supra, 158 N.J. at 82.

Failure to object indicates that defense counsel did not

consider them improper at the time they were made, and failure

to object also deprives the court of the "opportunity to take

curative action." Id. at 84.

"Within reasonable limitations, the prosecutor should be

permitted to observe the serious social consequences of the

crime charged." State v. Perry, 65 N.J. 45, 48 (1974). In

Perry, a police officer was on trial for attempted extortion.

Id. The victim of the extortion was a convicted narcotics

dealer. Id. In his summation, the prosecutor raised the issue

of police corruption and the manner in which a certain class of

people was disadvantaged by police corruption. Id. at 46-47.

22 A-4061-12T1
The Court held that the trial court did not err in allowing the

prosecutor to comment on the social consequences of police

corruption, particularly since defense counsel did not object,

and "the comments comprised an insignificant portion of a

summation . . . ." Id. at 54.

Applying these principles, we discern no misconduct, let

alone misconduct so egregious that it deprived defendant of a

fair trial. To counter the possibility that some jurors might

feel that a shoplifting case was not serious enough to warrant

their time and effort, the prosecutor briefly, and without

emotion, discussed the societal impact of the crime. Defense

counsel did not object to the comments. They were a minor part

of the State's closing. Particularly in light of the

substantial evidence of guilt, the comments were not capable of

producing an unjust result.

Affirmed.

23 A-4061-12T1