STATE OF NEW JERSEY VS. ANNA N. TALIAFERRO(10-12-0179, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 18, 2017
• Docket: A-5494-13T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5494-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANNA N. TALIAFERRO,

Defendant-Appellant. _____________________________

Argued May 10, 2017 – Decided July 18, 2017

Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-12-0179.

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

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

Defendant Anna Taliaferro appeals from the May 15, 2014

judgment of conviction, after a jury found her guilty of second- degree official misconduct, N.J.S.A. 2C:30-2; second-degree

pattern of official misconduct, N.J.S.A. 2C:30-7(a); second-degree

theft by deception, N.J.S.A. 2C:20-4; third-degree tampering with

public records or information, N.J.S.A. 2C:28-7; third-degree

forgery, N.J.S.A. 2C:22-1; and second-degree misconduct by a

corporate official, N.J.S.A. 2C:21-9(c). We affirm the

conviction, however, we remand for re-sentencing consistent with

this opinion.

Defendant worked in the Paterson School District (District)

from 1970 until 2007. In 1974, defendant became Paterson's Title

One parent coordinator. Title One is a federal program "to provide

all children significant opportunity to receive a fair, equitable,

and high-quality education and to close educational achievement

gaps," 20 U.S.C.A. § 6301, and provides federal grants to state

educational agencies for this purpose. 20 U.S.C.A. § 6311. Each

school receiving grant money was required, among other things, to

"convene an annual meeting . . . , to which all parents of

participating children shall be invited and encouraged to attend,

to inform parents of their school's participation . . . and to

explain the requirements of [Title One] and the right of the

parents to be involved." 20 U.S.C.A. § 6318(c)(1).

Defendant's implementation of these mandated annual meetings

using Title One grant money through the Parent Resource Center

2 A-5494-13T2 (PRC) is the focus of this case. Defendant was the District-wide

parent coordinator, and eventually Supervisor for the PRC, whose

responsibilities included participating and assisting in all

school-related parenting activities on a District, state, and

national level.

In the 1980s, defendant helped create the New Jersey

Association for Parent Coordinators (NJAPC), a non-profit

corporation with goals mirroring those of the PRC, and eventually

became the president of the entity. The NJAPC started holding

conferences in the 1990s, and defendant used her District office

to plan and organize the conferences for parents and NJAPC during

work hours. The purpose and objectives of the NJAPC and PRC were

similar.

The primary function of the NJAPC was to plan and host the

annual parent conferences with the New Jersey Department of

Education (NJDOE). The NJAPC organized the annual parent

conferences using Title One grant money from school districts,

including the District. The NJAPC operated out of the PRC office

and funded itself through fees collected for the conferences.

Defendant retained decision-making authority for both the

NJAPC and the PRC. As president of the NJAPC, defendant presided

over, organized, and ran the NJAPC during regular business hours

using District offices, employees, equipment, and resources.

3 A-5494-13T2 District employees prepared for the annual parent conferences at

defendant's behest during District work hours. District email

addresses, telephones, and fax numbers appeared on NJAPC

letterheads.

The NJAPC set the parent conference fees and charged the

school districts, including the District, for each parent

participating in the annual conferences. The conferences were

held at a hotel, and attendee costs included registration fees,

lodging fees, and meal fees. In her capacity as parent coordinator

for the PRC, defendant was the liaison between the District and

the NJAPC, and she provided the District's initial funding approval

for money to be disbursed to her in her other role at the NJAPC.

District officials were aware of the arrangement, at least

in part, and offered oversight, which defendant considered

sanctioned her conduct. Defendant's supervisor at the District

was aware of defendant's dual roles for the PRC and NJAPC. Other

witnesses from the District and NJDOE were aware defendant was

associated with the NJAPC. Defendant asserts every District

superintendent, to whom she reported, was aware of her affiliation

with the NJAPC and her role as president of the NJAPC was prominent

on conference programs. Some District and NJDOE officials knew

of and even encouraged NJAPC's use of the District's office and

equipment.

4 A-5494-13T2 However, some District officials involved in approving

funding and overseeing defendant in her capacity as a PRC parent

coordinator were unaware of overcharges by the NJAPC. Some

officials were unaware the NJAPC was using District offices,

employees, equipment, and resources.

Between 2003 and 2007, the NJAPC received over $1.4 million

with approximately $655,000 coming from the District. One of the

allegations leveled against defendant is the NJAPC overcharged the

District by $191,885.21 and defendant personally benefitted

therefrom. According to District officials, any overage or surplus

in charges to the District should have resulted in a credit or

refund to the District. Defendant denied submitting false purchase

orders and insisted the NJAPC purchase orders were accurate.

Of particular concern were payments made to defendant's son,

Thomas Taliaferro (Thomas), for providing information technology

services. He received a monthly salary for those services. He

also provided technology services at each of the annual conferences

for additional stipends of up to $18,000. Testimony elicited at

trial stated Thomas performed minimal work for the PRC or NJAPC

despite using District offices for personal use.

Both defendant and Thomas used debit cards to draw from the

NJAPC corporate account. The majority of Thomas's withdrawals

were for uses in Virginia, where he lived as a musician. Thomas

5 A-5494-13T2 made purchases and cash withdrawals using NJAPC cards for hundreds

of thousands of dollars between 2003 and 2007, and funded the

construction of a recording studio in Virginia Beach. Transactions

were made at electronics stores, car rentals, hotels, and

restaurants. He also used the NJAPC tax identification number to

make purchases free of sales tax. Thomas also received $127,000

in checks and wire transfers from the corporate account.

In addition to using debit cards for personal use, defendant

received four checks from the NJAPC totaling $30,378. In 2007,

defendant directed Shalimar Williams, an NJAPC employee not

authorized to execute checks, to write out a check for $25,000 and

sign it as NJAPC's treasurer, Joann Williams-Harris, the only

other NJAPC official authorized to execute checks.

The School Ethics Act, N.J.S.A. 18A:12-21 to -34, required

defendant to fill out a School Ethics Commission Personal/Relative

and Financial Disclosure Form for District employees each year.

See also N.J.S.A. 18A:12-26. The forms require disclosure of

various financial interests from the previous calendar year,

including any source of personal income received by defendant or

an immediate family member in excess of $2,000, or compensation

for a financial interest held by defendant, relative, or any

business that was party to a contract with the District. The

forms require disclosure of fees, expenses, or reimbursements of

6 A-5494-13T2 aggregate amounts over $250 received by District employees. From

2003 to 2007, defendant made no disclosures on behalf of herself

or Thomas. Defendant reported the $25,000 check as income on her

tax returns but did not list it in the disclosure forms.

Based on the foregoing, a December 13, 2010 indictment charged

defendant with various crimes between February 13, 2003, and July

6, 2007. Count one alleged defendant engaged in official

misconduct: by not disclosing her employment and financial

interest in the NJAPC in her annual ethics disclosures; creating

the false impression the NJAPC was an entity with which she or a

relative had no financial or personal involvement; hiring the

NJAPC as an outside vendor for the annual parent conferences;

utilizing District employees and equipment on behalf of the NJAPC;

overcharging the District through the NJAPC; and directing a

District employee to forge a check in excess of $200. Count two

alleged defendant engaged in a pattern of official misconduct by

committing two or more acts of official misconduct.

Count three alleged defendant committed theft by deception

by obtaining $102,226.811 from the District by overcharging the

District for the parent conferences and tampering with public

records or information by making false entries in government

1 This amount was subsequently amended to $191,885.21 and is not disputed by defendant.

7 A-5494-13T2 documents or records. Count four charged defendant with forgery

for presenting a check for $25,000 knowing it was not authorized

and the signature was forged. The final count charged defendant

committed misconduct by a corporate official for using the NJAPC

to further defendant's criminal objectives and derive a benefit

in excess of $75,000.

Defendant moved to dismiss the indictment on September 26,

2013. The motion was denied and trial was conducted between

October 2, 2013 and December 26, 2013.

On November 19, 2013, defendant moved for acquittal based on

the State's failure to present sufficient evidence and convict.

The judge issued a preliminary denial of the motion but did not

provide a statement of reasons for his denial until after the jury

verdict. The jury found defendant guilty on all seven counts on

December 26, 2013.

On May 15, 2014, the trial judge sentenced defendant to a

term of five years in state prison on each count, to run

concurrent, with five-year period of parole ineligibility on

counts one through three, two-year parole period of parole

ineligibility on counts four and five, and flat sentences on counts

six and seven. On June 5, 2014, the judge granted defendant's

motion for bail pending appeal.

On appeal, defendant raises the following arguments:

8 A-5494-13T2 POINT I DEFENDANT WAS ENTITLED TO JUDGMENTS OF ACQUITTAL ON EACH OF THE COUNTS IN THE INDICTMENT.

A. THEFT BY DECEPTION.

B. OFFICIAL MISCONDUCT.

C. TAMPERING WITH PUBLIC RECORDS.

D. FORGERY.

E. MISCONDUCT BY A CORPORATE OFFICIAL.

POINT II THE JURY CONSIDERED ACTS OUTSIDE THE STATUTE OF LIMITATIONS ON THE OFFICIAL MISCONDUCT, PATTERN OF OFFICIAL MISCONDUCT, AND THEFT BY DECEPTION COUNTS.

POINT III THE JURY'S VERDICT CANNOT SUPPORT A CONVICTION FOR A PATTERN OF MISCONDUCT.

POINT IV THE JURY INSTRUCTIONS AND VERDICT SHEET WERE INADEQUATE, CONFUSING AND MISLEADING.

POINT V THE TRIAL COURT ADMITTED IMPROPER LAY OPINION TESTIMONY ON THE ULTIMATE FACTUAL ISSUE.

POINT VI THE TRIAL COURT ADMITTED IMPROPER "OTHER CRIMES" EVIDENCE.

POINT VII THE TRIAL COURT'S REFUSAL TO DOWNGRADE THE CONVICTIONS AND WAIVE THE PERIOD OF PAROLE INELIGIBILITY WERE AN ABUSE OF DISCRETION; COUNTS THREE THROUGH SIX SHOULD HAVE BEEN MERGED; AND RESTITUTION WAS IMPROPERLY IMPOSED.

9 A-5494-13T2 I.

Turning to defendant's first argument, we address the

applicable standard of review. Rule 3:18-1 provides defendants

with a mechanism for seeking a judgment of acquittal at the close

of the State's case. The standard governing such motions is set

forth in State v. D.A., 191 N.J. 158, 163 (2007):

On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

[(citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

Our review of a trial court's denial of a motion for acquittal

is "limited and deferential[,]" and is governed by the same

standard as the trial court. State v. Reddish, 181 N.J. 553, 620

(2004).

Defendant challenges her conviction based on the judge's

denial of her motion for acquittal. On January 2, 2014, following

defendant's conviction, the judge offered his reasoned denial of

defendant's motion applying the Reyes standard viewing the

evidence in its entirety, and giving the State "the benefit of all

10 A-5494-13T2 its favorable testimony and . . . inferences which reasonably

could be drawn therefrom." See Reyes, supra, 50 N.J. at 458-59.

The heart of defendant's challenge to her conviction for

theft by deception is the lack of evidence of an agreement stating

the District promised to pay only NJAPC's actual costs to conduct

the conferences, and conversely, the lack of evidence of an

obligation to refund overpayments. Relying on the Reyes standard,

the judge found ample evidence to support a conviction for the

offense.

A person may be convicted of theft by deception if he or she

purposely

[c]reates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he [or she] did not subsequently perform the promise[.]

[N.J.S.A. 2C:20-4(a).]

Theft by deception "occurs where one obtains the property of

another by purposely creating a false impression." State v.

Krueger, 241 N.J. Super. 244, 249 (App. Div. 1990) (quoting State

v. Talley, 184 N.J. Super. 167, 169 (App. Div. 1982), rev'd on

other grounds, 94 N.J. 385, 388 (1983)).

11 A-5494-13T2 Viewing the State's evidence in a favorable light, the proofs

demonstrated defendant oversaw both the NJAPC and the PRC, and the

NJAPC charged the PRC more than it needed to pay for the

conferences. Defendant and Thomas derived a benefit through

personal receipt of NJAPC monies. Defendant provides no legal

support for the contention an agreement between the parties (or

lack thereof) would nullify the State's ability to satisfy the

elements of theft by deception. Whether defendant purposely

overcharged the District is a question of fact for the jury. The

existence, or non-existence, of a refund agreement or policy is

not a legal bar to conviction. Moreover, testimony from the

various District officials asserted overcharges paid by the

District should have resulted in a credit or refund to the

District, as outlined in the District's policy's and purchasing

procedures and the employee handbook. The District's failure to

prevent defendant from retaining fees not spent on conference

bills does not sanction the conduct.

Defendant's argument with respect to official misconduct2

focuses on her state of mind. She denies taking action she knew

to be unauthorized; the District acquiesced in her conduct and

2 Defendant was acquitted on the allegation in count one that she committed official misconduct by "[d]irecting a subordinate [District] employee to forge the signature of another employee on [a] NJAPC check[.]"

12 A-5494-13T2 should have advised her she was engaging in criminal wrongdoing

subject to charges. We reject defendant's argument.

Four elements must be demonstrated:

(1) defendant was a 'public servant' within the meaning of the statute, (2) who, with the purpose to obtain a benefit or deprive another of a benefit, (3) committed an act relating to but constituting an unauthorized exercise of her office, (4) knowing that such act was unauthorized or that she was committing such act in an unauthorized manner."

[State v. Saavedra, 222 N.J. 39, 58 (2015) (citing State v. Thompson, 402 N.J. Super. 177, 191-92 (App. Div. 2008)).]

See also N.J.S.A. 2C:30-2.

Here, the State's theory was two-fold: first, defendant

appropriated District funds to which she was not entitled by

overcharging, using District resources, and second, she ignored

the obligation to refund overcharges. Defendant argues she was

unaware the NJAPC was not entitled to amass a profit from sums the

District paid, and she did not know she had an obligation to refund

overcharges. Hence, there are elements of misfeasance and

nonfeasance.

There was sufficient evidence to demonstrate active

misfeasance because, among other things, defendant made

misrepresentations on her school ethics disclosure forms,

13 A-5494-13T2 overcharged the District on behalf of the NJAPC (and derived a

benefit therefrom), and misused District employees and resources.

In order to convict a person of official misconduct by

nonfeasance, the duty to act must be "so clear that the public

servant is on notice as to the standards that he must meet." Ibid.

(citing State v. Hinds, 143 N.J. 540, 545-46 (1996)). Such notice

must be clear so as to avoid prosecuting public officials for a

"mere breach of good judgment." Hinds, supra, 143 N.J. at 546

(citing Cannel, New Jersey Criminal Code Annotated, cmt. on

N.J.S.A. 2C:3-2).

There was also sufficient evidence to demonstrate defendant's

misconduct by nonfeasance because she did not refund overcharges

to the District. Defendant's argument no one at the District

imposed an affirmative obligation to refund overcharges is belied

by the policies and procedures set out in the employee handbook.

District officials were aware of and encouraged defendant's

participation in the NJAPC, but some District officials were not

aware how defendant's participation in the PRC and NJAPC benefitted

defendant and Thomas, or the extent to which she was using District

resources. Defendant's knowledge of her own wrongdoing is

corroborated by evidence showing she and Thomas used Title One

grant money for personal use.

14 A-5494-13T2 In light of the foregoing considerations and viewed in a

favorable light, the evidence put forth by the State was sufficient

to lead to a conviction. There was at least a scintilla of

evidence in existence which, when viewed in a light favorable to

the State, set forth a prima facie cause for conviction. See

State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000)

(quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div.

1974), certif. denied, 67 N.J. 72 (1975)).

Defendant asserts she is arguably responsible only for

ethical violations not criminal conduct. In State v. Thompson,

we overturned criminal liability for conduct that violated

conflict of interest laws, N.J.S.A. 52:13D-23, because those

ethical violations did not provide sufficient notice such

misconduct would lead to a criminal conviction. 402 N.J. Super.

177, 197-204 (App. Div. 2008). We reasoned while a criminal

prosecution could not arise based on a violation of certain ethical

rules alone, we recognized a person could be convicted for

acceptance of a benefit for violating an official duty defined by

ethical rules. Id. at 201. Here, defendant's conduct exceeded

mere ethical transgression because she personally profited from

misapplication of public funds, among other things. Defendant

offers no authority for the proposition either NJAPC or she were

15 A-5494-13T2 personally entitled to retain public funds collected and not used

to pay for conferences.

Finally, we reject defendant's argument she did not hide her

affiliation with the NJAPC and that the State alleged she "hid"

her affiliation. Her leadership of the NJAPC was not the issue.

The indictment alleges she hid her financial interest in the NJAPC.

With respect to tampering with public records, defendant

contends she did not knowingly include false information on the

financial disclosure statements. She again asserts her

affiliation with the NJAPC was not hidden.

Pursuant to N.J.S.A. 2C:28-7(a)(1), a person tampers with

public records or information if he or she "[k]nowingly makes a

false entry in, or false alteration of, any record, document or

thing belonging to, or received or kept by, the government for

information or record, or required by law to be kept by other for

information of the government." Here, defendant oversaw the

preparation of and presented the District with financial

disclosure forms and purchase orders. Both sets of documents

contained false information. The forms were regularly exchanged

between the District and defendant, either in her capacity as a

PRC Supervisor or as president of the NJAPC.

Defendant argues she should have been acquitted of forgery

because she was entitled to compensation for years of service even

16 A-5494-13T2 though the NJAPC was a non-profit corporation. She further

contends no one was defrauded or injured and the check was a

genuine instrument to pay her $25,000, which was legal for NJAPC

to do.

Defendant misconstrues the alleged offense. A person commits

an act of forgery when he or she, "with purpose to defraud or

injure anyone, or with knowledge that he [or she] is facilitating

a fraud or injury to be perpetrated by anyone, . . . [a]lters or

changes any writing of another without his [or her] authorization."

N.J.S.A. 2C:21-1(a)(1).

When viewed in a light favorable to the State, the evidence

showed defendant instructed an NJAPC official who had no check-

writing authority to execute a check to defendant using the

signature of another individual without that individual's consent

or knowledge. Defendant's argument "no one was defrauded or

injured" fails as testimony revealed she directed payment to

herself and benefitted from sums of grant money otherwise earmarked

for Title One objectives.

Finally, defendant repeats many of the reasons given above

to assert the State failed to prove misconduct by a corporate

official. An individual may be convicted of misconduct by a

corporate official if the individual "purposely or knowingly uses,

controls or operates a corporation for the furtherance or promotion

17 A-5494-13T2 of any criminal object." N.J.S.A. 2C:21-9(c). We disagree with

defendant for the same reasons discussed above. Defendant was

president of the NJAPC who maintained total control over its

operation.

II.

Defendant's next argument concerns the timeframe of the

indictment, which is a question of law. "A trial court's

'interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference.'"

State v. Twiggs, 445 N.J. Super. 23, 28 (App. Div. 2016) (quoting

State v. Pomianek, 221 N.J. 66, 80 (2015)). Where a trial court

"resolve[s] an issue of law in construing a statute, [its]

determinations are reviewed de novo." In re Expungement Petition

of J.S., 223 N.J. 54, 72 (2015) (citing State v. J.D., 211 N.J.

344, 354 (2012)); see also State v. Cagno, 211 N.J. 488, 505-06

(2012) (citing State v. Hupka, 203 N.J. 222, 231 (2010)), cert.

denied, 568 U.S. 1104, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).

Defendant argues we should reverse her conviction on counts

one through three because the jury considered acts outside the

applicable statutes of limitations on those counts. We disagree.

The first three counts of the indictment allege defendant

committed acts constituting official misconduct between February

13, 2003, to July 6, 2007. N.J.S.A. 2C:1-6(b)(3) provides a seven-

18 A-5494-13T2 year limitation period for official misconduct, while the

remaining counts are subject to a five-year limitation, pursuant

to N.J.S.A. 2C:1-6(b)(1). The State presented evidence outside

the seven-year period, and defendant objected during trial. The

judge overruled the objections concluding the statute of

limitations on official misconduct does not toll until the official

leaves public office.

"An offense is committed when every element of the offense

occurs or 'at the time when the course of conduct or the

defendant's complicity therein was terminated [when it] plainly

appears' that the Legislature intended to prohibit a continuing

course of conduct." State v. Diorio, 216 N.J. 598, 613 (2014)

(quoting N.J.S.A. 2C:1-6(c)). A continuing offense "involves

conduct spanning an extended period of time and generates harm

that continues uninterrupted until the course of conduct ceases."

Id. at 614 (citing State v. Ireland, 126 N.J.L. 444, 445 (1941)).

Theft by deception can be a "complex scheme involving many persons

or businesses and play out over the course of many days, weeks,

months, or even years." Id. at 618. Similarly, official

misconduct may be considered a continuing offense for "as long as

[the public official] is in office" and is able to "use his [or

her] influence" to achieve the criminal purpose. Id. at 617.

Thus, when there is a continuing offense, the applicable statute

19 A-5494-13T2 of limitations period only begins to run when the course of conduct

is complete.

Defendant argues State v. Childs, 242 N.J. Super. 121 (App.

Div.), certif. denied, 127 N.J. 321 (1990), stands for the

proposition that the aggregation of thefts is a question for the

jury, and each conference was a separate event. In Childs, we

found "theft by deception is a continuing offense for purposes of

the statute of limitations when the defendant is engaged in a

continuing scheme or course of behavior to obtain funds by

deception." Diorio, supra, 216 N.J. at 616 (citing Childs, supra,

242 N.J. Super. at 131). Additionally, "the finder of fact must

first determine whether the thefts are constituent parts of a

single scheme or course of conduct" before aggregating "the amount

involved in two or more thefts." Childs, supra, 242 N.J. Super.

at 131.

Here, defendant's statute of limitations objections were

questions of law determined by the judge, but the underlying facts

in dispute were questions for the jury. The jury found beyond a

reasonable doubt defendant committed the crimes enumerated in

counts one through three and her actions between 2003 and 2007

"constitute[d] one continuous scheme or course of conduct (as

opposed to separate incidents)." Thus, we agree with the trial

judge defendant's maintenance of public office and continuing

20 A-5494-13T2 course of conduct tolled the applicable repose statutes, because

defendant engaged in a pattern of continuing conduct through the

timeframe in the indictment.

III.

Defendant argues the trial judge erred by instructing the

jury if it found defendant guilty of two or more of the acts

enumerated in count one,3 then the jury must find her guilty on

count two. Relying on State v. Quezada, 403 N.J. Super. 277 (App.

Div. 2008), defendant contends because she was convicted of

official misconduct, only one act was committed, and therefore,

there was no pattern.

Defendant did not object to the jury charge or verdict sheet

at the time of trial. Defendant is therefore barred from raising

jury charge issues, because "no party may urge as error any portion

of the charge to the jury or omissions therefrom unless objections

are made thereto before the jury retires to consider its

3 Count one alleges defendant engaged in official misconduct through the following acts: failing to list her employment and financial interest in the NJAPC in her annual ethics disclosures; creating the false impression that the NJAPC was a separate business entity with no financial or personal involvement by defendant or a relative; hiring the NJAPC as an outside vendor for the annual parent conferences, which were funded with Title One grant monies; utilizing District employees and equipment on behalf of the NJAPC; improperly charging the District through the NJAPC; and directing a District employee to forge a check in excess of $200.

21 A-5494-13T2 verdict[.]" R. 1:7-2. The failure to object raises the

presumption that these instructions were adequate. State v.

Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citing State v.

Macon, 57 N.J. 325, 333 (1971)), certif. denied, 177 N.J. 572

(2003). Thus, the plain error standards applies. See State v.

Vallejo, 198 N.J. 122, 140 (2009) (quoting State v. Burns, 192

N.J. 312, 341 (2007)).

Here, unlike in Quezada, defendant was not charged with

multiple counts of official misconduct, only one count of official

misconduct with multiple instances of misconduct contained within,

and one count of pattern of misconduct. Because the jury found

defendant committed more than two of the acts from count one,

defendant could also be convicted of count two. We reject the

argument defendant was punished twice for the same offense, and

based on our review of the record, we find no plain error in the

instruction.

IV.

Defendant argues the jury instructions and verdict sheet for

official misconduct were inadequate, confusing, and misleading

because the judge "refus[ed] to instruct the jury as to the defense

of mistake of fact or law," or "that, for purposes of official

misconduct, an act cannot be unauthorized if permitted by policy

or practice." Defendant contends the instructions regarding

22 A-5494-13T2 certain ethical standards was misleading and the verdict sheet was

inadequate because it did not require the jury to find whether an

unauthorized act resulted in a benefit to her or to Thomas.

When a claim of error is made on appeal for an unchallenged

jury charge, it will be considered plain error if it "prejudicially

affect[s] the substantial rights of the defendant." State v.

R.B., 183 N.J. 308, 321-22 (2005) (quoting State v. Hock, 54 N.J.

526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26

L. Ed. 2d 797 (1970)).

Here, the judge charged the jury regarding defendant's state

of mind at the time she committed the crimes in a manner

inconsistent with the model jury charges, see Model Jury Charge

(Criminal), "Ignorance or Mistake" (May 7, 2007). Defendant is

correct the judge erred holding defendant did not provide proper

notice, pursuant to Rule 3:12-1, of the defense of ignorance or

mistake as to a matter of fact or law, N.J.S.A. 2C:2-4(a), because

such notice is only required if a defense asserted to N.J.S.A.

2C:2-4(c) is raised. R. 3:12-1. However, the error is harmless.

The judge declined to include language in the charge that an

act is "not unauthorized" if permitted "by policy or practice."

Considering the totality of the entire charge, the jury was not

"misinformed as to the controlling law." See R.B., supra, 183

N.J. at 324. The jury heard testimony about the District policies,

23 A-5494-13T2 as well as contradicting testimony regarding defendant's and

District's actual practices and the NJAPC's actual practices. The

jury was free to consider such testimony in reaching a verdict.

Finally, we reject defendant's argument the verdict sheet was

misleading because it did not specifically identify who benefitted

from defendant's misconduct. The verdict sheet tracked the

language of the official misconduct statute and only required a

finding the misconduct was carried out "with purpose to obtain a

benefit for [defendant] or another." N.J.S.A. 2C:30-2. Extensive

testimony demonstrated the benefits defendant and Thomas received

from NJAPC's overcharging the District. The verdict sheets are

clear and understandable, and based on the testimony presented,

the jury could reach a verdict without confusion. Moreover,

defendant did not object.

Defendant argues the judge admitted lay testimony in the

absence of expert testimony on a critical factual issue. She

argues the judge improperly allowed multiple witnesses to give

testimony regarding whether defendant had a duty to refund money.

We disagree.

"[A] trial court's evidentiary rulings are 'entitled to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment.'" State v. Brown, 170 N.J.

24 A-5494-13T2 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)). We do not substitute our own judgment for that of the

trial court, unless "the trial court's ruling was so wide of the

mark that a manifest denial of justice resulted." Ibid. (quoting

Marrero, supra, 148 N.J. at 484). We do not accord deference to

the trial judge's legal conclusions. State v. Nantambu, 221 N.J.

390, 402 (2015). "To the extent [a] defendant's argument . . .

raises a question of law, . . . our review is de novo and plenary."

State v. J.D., 211 N.J. 344, 354 (2012).

Pursuant to N.J.R.E. 702, "[i]f scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training,

or education may testify thereto in the form of an opinion or

otherwise." Expert opinion must be based on facts or data

"perceived by or made known to the expert at or before the

hearing." N.J.R.E. 703. The facts or data "need not be admissible

in evidence" if it is "of a type reasonably relied upon by experts"

in the relevant field. Ibid. Error in the admission of evidence

is not harmful if the defendant's fundamental rights were not

impaired and the cumulative evidence against the defendant enjoys

great weight. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.),

certif. denied, 170 N.J. 209 (2001).

25 A-5494-13T2 The State elicited testimony from District officials about

their knowledge of defendant's role with the NJAPC and the NJAPC's

overcharging of the District, including testimony regarding

policies and procedures within the District's employee handbook

and the impropriety of operating a corporation using District

offices, equipment and resources on District hours. When

questioning a business administrator regarding the District's

policy for recovery of overcharges, the following exchange took

place:

Prosecutor: [A]nd now per the [District's] policy, if a purchase order is approved, [the District] will be the vendor. And then the [District] later finds out that the actual cost was less than what [the District] paid to the vendor. Per the [District's] policies, what does —

Counsel: [I am] going to object.

. . . .

Counsel: Your [h]onor, she asked him to speculate and asked him to give — he assumes there is a policy. That [has not] been testified to up to this point.

The court: Well, I [do not] know it asked for speculation; and I [do not] know that it asked for an opinion.

26 A-5494-13T2 [There is] really only one of two answers. I guess there could be more. But either the [answer is] going to be ["]well, we let them keep the money because it was our mistake and, you know; or [it is] going to be no, if we paid someone and they paid less, we would expect a refund.["]

I [do not] think that [that is] something that is beyond the ken of a juror. I [do not] think it calls for expert opinion. I [do not] think [it is] speculating.

I think [it is] pretty basic to the business world at all levels that if someone overpays for something, they feel they want a refund. I [cannot] think of many examples where that [does not] happen.

The judge held a hearing outside the presence of the jury to

determine whether the answer was admissible, and permitted the

witness to answer:

Prosecutor: Mr. Assara, per the school district's policy, what if a purchase order is approved, [the District] pays the vendor, and then the school district later found out that the actual cost was less than what [the District] paid to the vendor? What would the school district expect the vendor to do?

27 A-5494-13T2 Witness: Refund the overpayment.

Another District business administrator testified no overt

agreement existed permitting the NJAPC to retain overages, and

proffered what the District's response would have been had it

known there were overcharges. Defendant objected, and the judge

overruled the objection because the District's response to

overcharges was supported by previous testimony about its purchase

manual.

Defendant argues these witnesses offered expert opinions.

The witnesses did not offer opinions as to defendant's innocence

or guilt and both witnesses' testimony related to their normal

business practices or to previous testimony. Their testimony was

therefore within the permissible scope and did not include

technical or speculative testimony outside the ken of the average

juror. Townsend v. Pierre, 221 N.J. 36, 53 (2015); State v. Kelly,

97 N.J. 178, 208 (1984). We discern no abuse of the court's

discretion.

VI.

Defendant argues the judge erred by admitting evidence of

other crimes, contrary to N.J.R.E. 404(b), without applying the

four-part test promulgated in State v. Cofield, 127 N.J. 328

(1992). In particular, defendant argues the judge should not have

28 A-5494-13T2 admitted evidence of Thomas's expenditures or evidence of the

monies paid to the NJAPC by other unnamed school districts.

Defendant did not object at trial, and the issue is therefore

subject to a plain error analysis. See R. 2:10-2. Because we

view the evidence of Thomas's use of NJAPC funds for personal

reasons and the NJAPC's overcharging of other districts as

intrinsic evidence "exempt from the strictures of [N.J.R.E.]

404(b)," we need not reach defendant's Cofield arguments. See

State v. Rose, 206 N.J. 141, 177 (2011).

Generally, "evidence of other crimes, wrongs, or acts is not

admissible to prove the disposition of a person in order to show

that such person acted in conformity therewith." N.J.R.E. 404(b).

In order to admit such evidence "for other purposes," such evidence

is limited as "proof of motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake or accident when

such matters are relevant to a material issue in dispute." Ibid.

The admissibility of evidence pursuant to N.J.R.E. 404(b) is

subject to the four-part Cofield test. Cofield, supra, 127 N.J.

at 338.

However, where evidence "is intrinsic to the charged crime

. . . even if it constitutes evidence of uncharged misconduct that

would normally fall under [N.J.R.E.] 404(b)[,]" such evidence is

not subject to the Cofield test "because it is not 'evidence of

29 A-5494-13T2 other crimes, wrongs, or acts.'" Rose, supra, 206 N.J. at 177.

The key distinction between intrinsic evidence and evidence that

is otherwise subject to an N.J.R.E. 404(b) analysis turns on

whether such evidence is of other crimes. Id. at 179. Borrowing

from the Third Circuit, our Supreme Court has identified two types

of intrinsic evidence subject only to a relevancy analysis pursuant

to N.J.R.E. 403 and not 404(b):

we . . . reserve the "intrinsic" label for two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to [N.J.R.E.] 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." But all else must be analyzed under [N.J.R.E.] 404(b).

[Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).]

Defendant correctly notes she was not charged for any

impropriety regarding other school districts or for Thomas's

purchases, and no Cofield analysis was used before the subject

evidence was permitted. However, no Cofield analysis was necessary

because the evidence was of "uncharged acts performed

contemporaneously with the charged crime" because those acts

30 A-5494-13T2 "facilitate[d] the commission of the charged crime." Ibid. The

overcharges and Thomas's personal expenditures were inextricably

linked to defendant's overall scheme to defraud the District and

other school districts. The evidence was intrinsic to a continuing

scheme by defendant to accumulate money in an NJAPC account and

convert it for personal use by defendant and her son.4

VII.

Defendant raises three sentencing arguments: (1) the

convictions on counts one and two should have been downgraded, and

the parole disqualifiers on those counts should have been waived;

(2) counts three through six should have been merged with counts

one and two because the offenses in those counts constituted the

basis of the official misconduct; and (3) no restitution should

4 Even under a Cofield analysis, no reversal is warranted because the proffered "other crimes" evidence was: (1) "admissible as relevant to a material issue[,]" namely, defendant's actions in her capacity as NJAPC President and supervisor of the annual parent conference preparations; (2) "similar in kind and reasonably close in time to the offense charged[,]" as any overcharges to other districts were contemporaneous with overcharges to the District, and Thomas's personal use of the NJAPC accounts included use of other district's money; (3) "clear and convincing[,]" given the extensive testimony and financial proofs presented to the jury; and (4) permissible pursuant to N.J.R.E. 403, specifically, its "probative value . . . [was] not . . . outweighed by [any] apparent prejudice." See Cofield, supra, 206 N.J. at 159-60. As noted by the State, the "uncharged" misconduct "tend[ed] to established the existence of a larger continuing plan or scheme," and the "vast extent of defendant's [alleged] deceptive theft over several years." See N.J.R.E. 404(b).

31 A-5494-13T2 have been ordered. We agree counts three through six should have

merged with counts one and two for sentencing and a restitution

hearing should have been conducted.

"Appellate review of a sentence is restricted to whether the

determination of the sentencing factors was appropriate, whether

the determination was supported by competent evidence in the

record, and whether the sentence is so unreasonable that it shocks

the judicial conscience." State v. Paduani, 307 N.J. Super. 134,

148 (App. Div.) (citing State v. O'Donnell, 117 N.J. 210, 215-16,

(1989)), certif. denied, 153 N.J. 216 (1998); State v. Roth, 95

N.J. 334, 364-65 (1984); State v. Bull, 268 N.J. Super. 504, 508-

09 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).

First, the judge declined to downgrade defendant's

convictions and sentence her in the third-degree range, finding

the aggravating and mitigating factors were in equipoise and

defendant's case was not idiosyncratic. See State v. Jarbath, 114

N.J. 394, 413 (1989) (noting instances where "the character and

condition of the defendant are so idiosyncratic that incarceration

or extended imprisonment for the purposes of general deterrence

is not warranted"); N.J.S.A. 2C:44-1(f)(2) (allowing sentencing

courts to downgrade convictions for sentencing purposes where the

court is clearly convinced the mitigating factors outweigh the

aggravating factors and where the interest of justice so demands).

32 A-5494-13T2 In particular, the judge found aggravating factors four,

nine, ten, and eleven, pursuant to N.J.S.A. 2C:44-1(a). The judge

applied mitigating factors five, seven, ten, and eleven, pursuant

to N.J.S.A. 2C:44-1(b). Applying mitigating factor five, the

judge criticized the District at length for its lack of oversight.

Given the balance of the aggravating and mitigating factors, the

judge sentenced defendant at the lowest possible range for her

convictions on counts one and two. The judge engaged in a

satisfactory analysis of the applicable facts and found the

aggravating and mitigating factors in balance. The judge's

sentences on counts one and two were "grounded in competent,

reasonably credible evidence." Roth, supra, 95 N.J. at 363.

Moreover, he applied the correct legal analysis pursuant to

N.J.S.A. 2C:44-1(f)(2), Jarbath, and State v. Rice, 425 N.J. Super.

375, 389 (App. Div.), certif. denied, 212 N.J. 431 (2012). We

discern no clear error of judgment that would shock the judicial

conscience. Roth, supra, 95 N.J. at 364.

Although the judge did not abuse his discretion in his

sentencing analyses, we agree counts three through six should have

merged with count one. In Quezada, the defendant firefighter was

convicted of official misconduct and setting false fire alarms.

Quezada, supra, 402 N.J. Super. at 287-88. We found merger of the

defendant's false alarm convictions with the conviction for

33 A-5494-13T2 official misconduct was appropriate because the false alarms

constituted official misconduct. Id. at 290.

The merger of offenses requires a double-jeopardy analysis.

Id. at 287-88; see State v. Miles, __ N.J. __ (2017) ("We now join

the majority of jurisdictions in returning to the Blockburger

same-elements test as the sole test for determining what

constitutes the 'same offense' for purposes of double jeopardy.").

This analysis requires two steps, and "[t]he first step requires

the court to consider whether the legislature intended to impose

multiple punishments." Id. at 288.

If, however, the legislative intent to allow multiple punishment is not clear, the Court must then apply the test articulated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to determine whether the defendant is unconstitutionally faced with multiple punishment for the "same" offense.

[Ibid. (citations omitted).]

Here, the offenses in counts three through six constituted the

official misconduct charge. These offenses should have merged.

Finally, defendant contends restitution was improper because

the judge determined defendant was unable to pay a fine, and no

restitution hearing took place. We agree, and remand for a

restitution hearing.

34 A-5494-13T2 N.J.S.A. 2C:44-2 provides a defendant can be required to pay

restitution if "the victim . . . suffered a loss" and "[t]he

defendant is able to pay." A sentencing judge has "considerable

discretion" when determining whether a defendant has the present

or future ability to pay. State v. Scribner, 298 N.J. Super. 366,

371 (App. Div. 1997). The judge must "explain the reasons

underlying the sentence, including the decision to order

restitution, the amount of the restitution, and its payment terms."

Ibid. (citing State v. Newman, 132 N.J. 159, 1164-64 (1993)).

"[T]here must be an explicit consideration of defendant's ability

to pay." Ibid. (citing State v. Corpi, 297 N.J. Super. 86, 93

(App. Div. 1997)).

Here, the judge found defendant did not have the ability to

pay a fine but granted restitution without a hearing based on the

State's proofs at trial. Because the ability to pay is a

prerequisite to imposing restitution under N.J.S.A. 2C:44-2, and

the judge found defendant could not pay a fine, the trial judge's

imposition of over $190,000 in restitution is incongruous. For

this reason, we remand for a restitution hearing.

Affirmed in part, and remanded for re-sentencing and a

35 A-5494-13T2