State of New Jersey v. Maytee Cordero ( 2014 )


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  •                   NOT FOR PUBLICATION WITHOUT THE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