NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5937-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS WEIR,
Defendant-Appellant.
Argued December 19, 2019 – Decided May 12, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 14-04-0277.
Kalman Harris Geist argued the cause for appellant.
Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ali Y. Ozbek, of counsel and on the brief).
PER CURIAM A jury convicted defendant Thomas Weir of third-degree theft by
deception,1 N.J.S.A. 2C:20-4(a) (count one); third-degree money laundering,
N.J.S.A. 2C:21-25(a)(b)(1) and (2) (count two); failure to pay New Jersey state
income tax, N.J.S.A. 54:52-9 (count three); and filing a false New Jersey income
tax return, N.J.S.A. 54:52-10 (count four). On July 16, 2018, the trial judge
imposed two and one-half years of probation on the theft by deception charge,
to be served concurrently to equivalent terms of probation on counts three and
four. He also imposed, as required by statute, a consecutive two and one-half
year term of probation on the money laundering conviction. See N.J.S.A. 2C:21-
27(c). Finally, the judge imposed a $75,000 fine and $75,000 in restitution
payable from defendant's 401k, after deducting $2500 already paid to the victim,
for a total of $148,030 due within forty-five days. We affirm.
Pre-trial, and during the trial, defendant moved to dismiss the indictment
on the basis of alleged prejudicial errors; while testifying before the grand jury,
the victim mentioned that the thefts stopped when defendant was briefly
incarcerated, and resumed when he was released. We more fully describe the
exchange in the relevant sections. Defendant further argued that since the State
1 The jury found the amount did not exceed $75,000. The theft by deception and money laundering convictions were therefore in the third-degree range, not the second-degree range as charged in the indictment. A-5937-17T4 2 had not preserved access to text messages on his cell phone, which he claimed
would have been exculpatory, dismissal was required. We detail the
circumstances more fully below.
At trial, the victim, who began a stone fabrication and installation business
in around 2002, testified he hired defendant to act as his bookkeeper/accountant.
The two men had known each other for over thirty years. The victim had not
completed high school, and was unfamiliar with the records that needed to be
maintained for operational reasons and for the filing of tax returns. Thus, he
hired defendant to work for him part-time to maintain the books.
As the years passed, defendant's responsibilities grew. He made bank
deposits, answered phones, assisted customers, calculated and disbursed payroll,
paid monthly bills, maintained business records, wrote all the business checks
for the victim's signature, and prepared business tax returns. Only defendant
had operated the company computer, which sat on his desk, and which the victim
did not access until after his departure. In the morning, defendant would text
the victim about the status of the business's bank account, and whether
outstanding receivables needed to be collected so business bills could be paid.
The victim did not review his bank statements until 2013, shortly after he
terminated defendant's services due to an unrelated disagreement. The victim
A-5937-17T4 3 then realized that defendant had made frequent unauthorized payments to
himself from the accounts, at times almost daily. These included transactions
such as the purchase of $2470 worth of food from an upscale restaurant near the
office, travel two or three times a year to the Dominican Republic, withdrawal
of cash, and payment of incidental expenses while traveling. Defendant at one
point obtained a cash advance using his own credit, and had the business
reimburse him. Upon discovering the transactions, the victim filed a civil case
against defendant, as well as against the business's bank, demanding $500,000
in damages, and lodged formal criminal charges against defendant.
Detective Tamara L. MacDonald of the Passaic County Prosecutor's
Office's Financial Crimes Unit testified, offering her analysis of the business
bank statements and other documents. Defendant maintained Chase credit card
accounts with Continental Airlines, paid by electronic transfers from the
business. Defendant made withdrawals from business funds to pay utilities at
his second home in upstate New York, and gasoline expenses for his personal
vehicle. He also bought candy and miscellaneous merchandise while on trips to
New York City, in addition to making purchases at various retail outlets and
restaurants with business funds. Defendant transferred funds from the company
A-5937-17T4 4 account to his personal accounts from 2008 to 2013. MacDonald did not
preserve the drafts of her final report.
Bruce Stuck, a supervisory special agent at the New Jersey Department of
Treasury, Division of Taxation, Office of Criminal Investigation, also testified
at trial. Defendant owed taxes on $194,029.14 in unreported income from 2008
to 2012. By the State's calculations, defendant transferred a total of $211,097.95
from the business to various accounts in his name between 2008 and 2013.
Defendant testified to the contrary. He claimed all electronic transfers
were valid reimbursements for purchases he made for the business and for the
victim personally. Defendant presented evidence of his purchase—using his
own credit card—of a computer and printer on November 12, 2003, for which
he was reimbursed, to establish a course of conduct. He also presented proof of
a $3500 loan he had made to the victim in 2005. Defendant alleged the victim
enjoyed a lavish lifestyle, funded through the business, and that the company
was in dire financial straits because of the victim's excessive spending.
Defendant claimed that he constantly communicated with the victim,
including daily text messages, and that the text messages would have supported
his version of the facts. When his expert attempted to retrieve text messages
from a cell phone the prosecutor's office had seized, the phone was locked.
A-5937-17T4 5 Defendant said those text messages would have corroborated his testimony that
all transfers and cash advances were authorized by the victim.
Defendant also claimed he logged each purchase in a green notebook,
which contained a list of the expenditures, with dates, that would have further
corroborated his testimony. He said he kept the notebook in the right bottom
drawer of his desk at the office, but that when his attorney attempted to retrieve
it, the victim denied it ever existed.
The victim did not dispute that at times he reimbursed defendant for
purchases. He testified the expenses were minor, and the reimbursements all in
cash. The sums never exceeded $100.
The prosecutor's cross-examination of defendant included questions about
his previous employment with another company. He said "[d]idn't the principals
get into trouble? Did you hear that?" Defense counsel objected, and the judge
sustained the objection. He immediately instructed the jury that they must not
include any portion of the testimony in their deliberations.
Defendant asked the judge to charge that unless the jury found defendant
guilty of theft by deception, it had to acquit him of money laundering. The judge
refused, as the offenses had different elements independent of each other. He
instructed the jury in accord with model instructions. See Model Jury Charge
A-5937-17T4 6 (Criminal), "Theft by Deception" (rev. Apr. 15, 2013); Model Jury Charge
(Criminal), "Financial Facilitation of Criminal Activity" (approved Jan. 2019).
While deliberating, the jury asked the court, "[c]an the defendant be guilty
of money laundering while be[ing] innocent of theft by deception?" In response,
the judge reinstructed, again tracking the model charges, on theft by deception
and money laundering. Defense counsel renewed his request that the jury be
charged that money laundering and theft by deception were interdependent,
which was denied.
Defense counsel further argued that the tax evasion count could not be
considered by the jury if they acquitted defendant of theft by deception, and also
requested that they be instructed accordingly. The judge denied this request as
well.
After four days of deliberations, the jury sent a note asking "[w]hat if we
cannot come to an agreement?" Some jurors indicated that continuing
deliberations was difficult because they were no longer being paid. The judge
asked the panel to serve an additional day and offered to call their employers.
Defense counsel moved for a mistrial on the basis that the jury was
deadlocked. Because the hotly contested trial had spanned six days, the judge
elected to give the model jury charge on further jury deliberations. See Model
A-5937-17T4 7 Jury Charges (Criminal), "Judge's Instructions on Further Jury Deliberations"
(approved Jan. 2013). The jury resumed deliberations and reached the verdict
of guilty as to all counts on the same day.
At sentencing, the State contended the victim's losses totaled $211,097.95,
the total transfers from the business bank accounts to defendant's various
personal accounts. In light of the jury finding that the theft did not exceed
$75,000, crediting defendant for the $2500 payment he made in the civil suit,
the judge capped the restitution figure at $72,500.
On appeal, defendant raises the following points of error:
POINT I THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE INSINUATED WITHOUT ANY GOOD FAITH BASIS WHATSOEVER THAT DEFENDANT HAD ENGAGED IN BAD ACTS IN A FORMER COMPANY WHERE HE HAD BEEN EMPLOYED AS THE COMPTROLLER AND WHERE THE PRINCIPALS GOT INTO TROUBLE SHORTLY AFTER HE HAD LEFT THE COMPANY.
POINT II THE DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE MONEY LAUNDERING COUNT SHOULD HAVE BEEN GRANTED BECAUSE THE MONEY LAUNDERING STATUTE REQUIRES TWO TRANSACTIONS INVOLVING ORGANIZED CRIMINAL ACTIVITY: THE UNDERLYING CRIMINAL ACTIVITY GENERATING THE PROPERTY AND THE USE OF
A-5937-17T4 8 THE ALLEGEDLY STOLEN FUNDS IN SOME TYPE OF LEGITIMATE BUSINESS ACTIVITY OR CRIMINAL ACTIVITY.
POINT III THE JURY SHOULD HAVE BEEN INSTRUCTED THAT IT COULD NOT FIND DEFENDANT GUILTY OF MONEY LAUNDERING IF IT WERE TO ACQUIT DEFENDANT OF THEFT BY DECEPTION.
POINT IV THE COURT SHOULD HAVE GRANTED THE DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THEFT BY DECEPTION BECAUSE THE STATE DID NOT ESTABLISH THAT A DECEPTION HAD TAKEN PLACE.
POINT V THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THAT IT COULD NOT CONVICT DEFENDANT ON THE TAX CHARGES UNLESS IT FOUND THAT HE HAD COMMITTED THEFT BY DECEPTION.
POINT VI THE TRIAL COURT FAILED TO DISMISS THE INDICTMENT DUE TO THE STATE’S FAILURE TO PROTECT AND PRESERVE THE EXCULPATORY EVIDENCE OF TEXT MESSAGES CONTAINED WITHIN DEFENDANT’S CELL PHONE.
POINT VII THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL BY FAILING TO PROVIDE AN ADVERSE INFERENCE CHARGE REGARDING THE STATE’S FAILURE TO PROVIDE ALL NOTES OR WRITINGS OF DETECTIVE MACDONALD.
A-5937-17T4 9 POINT VIII THE TRIAL COURT UNFAIRLY LIMITED THE SCOPE OF CROSS-EXAMINATION REGARDING THE CIVIL COMPLAINT WHICH HAD BEEN FILED AGAINST DEFENDANT BY [the victim].
POINT IX THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL WHEN THE JURY DECLARED IT WAS DEADLOCKED.
POINT X THE INDICTMENT SHOULD HAVE BEEN DISMISSED DUE TO THE PREJUDICIAL EVIDENCE BEFORE THE GRAND JURY THAT DEFENDANT HAD OTHER CHARGES.
POINT XI THE CUMULATIVE EFFECT OF THE ERRORS COMMMITTED AT TRIAL REQUIRE REVERSAL OF THE CONVICTION.
POINT XII THE TRIAL COURT’S DECISION REGARDING RESTITUTUION MUST BE REVERSED.
I.
Defendant contends that the trial judge should have declared a mistrial
when the prosecutor asked him about problems experienced by the principals of
the company that employed him before he went to work for this business. On
appeal, like at trial, defendant theorizes that the question insinuated that the
similar problems were caused by defendant, presenting the jury with prior bad
A-5937-17T4 10 acts. We consider the question, which included no details, and was followed by
a prompt, clear, and strongly worded curative instruction, to have not created
such prejudice as to warrant a mistrial. The point does not require further
discussion in a written decision. R. 2:11-3(e)(2).
II.
Defendant claims that his motion for acquittal should have been granted
because the money laundering statute requires an underlying criminal activity
generating the property at issue and the use of the improperly sourced funds in
some type of legitimate business or criminal activity. Since there was no
underlying predicate offense, defendant asserts the money laundering conviction
should be overturned. Defendant's third point is that the jury should have been
instructed that it could not find defendant guilty of money laundering if it were
to acquit him of theft.
Defendant was found guilty of theft by deception, however. Thus, the
actual premise for the argument is absent. Furthermore, neither the statute nor
the cases following require the money involved in the "laundering" come from
organized crime. The points do not warrant further discussion in a written
opinion. R. 2:11-3(e)(2).
A-5937-17T4 11 III.
In his fourth argument, defendant contends that he should have been
granted a judgment of acquittal because the State failed to prove beyond a
reasonable doubt that a deception had taken place. He bases the weight-of-the-
evidence argument on the notion that the victim did not know fraudulent
transactions had occurred, defendant never misrepresented the business account
balances, and he was not in any event guilty of any theft of any funds that he
transferred from the business to himself, because they were owed as
reimbursements.
The trial court correctly denied defendant's motion for acquittal because
"a reasonable jury could find guilt . . . beyond a reasonable doubt" on the theft
by deception charge. See State v. Sugar, 240 N.J. Super. 148, 152 (App. Div.
1990) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).
The statute for theft by deception states that "[a] person is guilty of theft
if he purposely obtains property of another by deception." N.J.S.A. 2C:20-4.
"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)).
A-5937-17T4 12 Here, the State produced evidence that defendant's conduct met the
elements of the crime through the testimony of the victim, MacDonald, and
Stuck, and the admission of documentary evidence. The victim testified that
from 2008 until 2013, he had no idea of, much less authorized, defendant's
electronic transfers from the business account to his personal accounts—this is
deception. The transfers purported to be legitimate payments made on behalf of
the business.
The victim testified that he completely relied on defendant, never
checking bank balances for himself until 2013. The victim, obviously, did not
give defendant permission to use the funds for himself. The trial court did not
err in refusing to grant defendant's motion for judgment of acquittal as to the
theft by deception charge given the State's overwhelming proofs.
IV.
In his fifth point, defendant argues that the trial court should have
instructed the jury that it could not convict defendant of tax fraud unless it found
that he had committed a theft by deception. The jury did find that defendant
was guilty of theft by deception, however. The point lacks sufficient merit to
warrant further discussion in a written opinion. R. 2:11-3(e)(2).
A-5937-17T4 13 V.
Defendant also claims that the trial judge should have dismissed the
indictment because of the State's failure to preserve access to exculpatory
material on his cell phone. He alleges the State exercised extreme negligence
in failing to do so, and that had the State timely attempted to examine the phone,
he would have been able to obtain copies of the messages.
The cell phone, seized in an unrelated sexual assault case before the victim
knew the thefts had occurred, became locked with the passage of time . His cell
phone provider did not keep text message records after a year. The judge denied
defendant's motion to dismiss the indictment on this ground because any
possible negligence on the State's part by not immediately examining the cell
phone was irrelevant to the theft case.
Ultimately, the prosecutor and defense counsel stipulated as follows:
The State had permission under a communications data warrant signed by a court to download data from [defendant]’s cell phone within ten days of the signing of the order. The State failed to do so. [Defendant] testified that [the victim] would send text messages to [defendant]’s cell phone to ask [defendant] to use [defendant]’s personal credit card to make purchases for both the [victim's] business and for [the victim] and his family with the cost to be repaid from the company bank account.
A-5937-17T4 14 After you have considered all of the evidence in this case you may infer if you choose to do so, that if the State downloaded the data from [defendant]’s cell phone within the time permitted by the Court, and the text messages from [the victim] to [defendant] or vice versa appeared, they -- they would corroborate the testimony of [defendant] and contradict the testimony of [the victim] on this issue.
....
Number one, [defendant]’s phone is currently in the possession of the Passaic County Prosecutor’s Office which seized possession of the phone years ago. Two, the Passaic County Prosecutor’s Office received permission from a court to examine the content of the phone within ten days. They did not do so. Three, subsequently, at the request of the defense attorney a defense retained technician was unable to open the phone and access its contents, and number four, the Passaic County Prosecutor’s Office also attempted to open and access the contents of the phone and were unable -- or was unable to do so. This will go into the jury room with the evidence. Okay?
[(Emphasis added).]
As the judge observed, the parties' stipulation allowed the jury to infer, if
convinced of defendant's credibility, that defendant's inaccessible text messages
would have corroborated his testimony and contradicted that of the victim.
"The trial court's decision denying defendant's motion to dismiss [an]
indictment is reviewed for abuse of discretion." State v. Saavedra, 222 N.J. 39,
55 (2015) (citing State v. Hogan, 144 N.J. 216, 229 (1996)). "On a motion to
A-5937-17T4 15 dismiss a criminal indictment, the facts upon which the indictment is based must
be viewed indulgently in favor of the State." State v. Fleishchman, 383 N.J.
Super. 396, 398 (App. Div. 2006), aff'd, 189 N.J. 539 (2007). Furthermore,
"every reasonable inference is to be given to the State." State v. Graham, 284
N.J. Super. 413, 416-17 (App. Div. 1995) (quoting State v. N.J. Trade Waste
Ass'n, 96 N.J. 8, 27 (1984)).
The judge's view of the State's actions seems eminently reasonable. Even
if negligent, the State's failure to open the phone was too removed from this
indictment, involving a totally unrelated charge, and occurring before these
crimes were even discovered. Additionally, the stipulation would have allowed
the jury to infer that had the messages been preserved, they would have
corroborated his testimony. The judge did not abuse his discretion in denying
the motion to dismiss the indictment.
VI.
Defendant also contends he was deprived of a fair trial because the trial
judge did not instruct the jury it could draw adverse inferences from
MacDonald's failure to preserve her draft reports and notes. But the issue
defendant developed at trial related only to draft reports—the detective said she
had not kept copies of her drafts, only the final version of her report. From that,
A-5937-17T4 16 counsel argues that an adverse inference charge should have been given to the
jury, asserting that every iteration of the report should have been preserved.
The Supreme Court requires trial courts give an adverse inference charge
at a defendant's request where the State violates the requirement that notes be
preserved. State v. W.B., 205 N.J. 588, 608-09 (2011). W.B., however, relates
to witness interview notes in particular, not draft reports. Id. at 608.
On cross-examination, defense counsel asked MacDonald if he could see
her original notes and writings. She first told defense counsel she did not have
any notes of her interview with the victim.
MacDonald explained that detectives "usually write [their] reports as
[they] go along" and that they do not preserve each version of a report. Defense
counsel said "[w]ell, what I want to see is the original report. The original
writing that you made so we can see if the final writing is different." Afterward,
defense counsel asked the court for an adverse inference charge based on the
unavailability of MacDonald's "original report." The trial court declined. Since
the discovery rules, and the case law interpreting those obligations, do not
include draft reports, this argument lacks merit.
The point of W.B. is that the State must preserve interview notes,
including interviews with a defendant, to ensure that a final report reflects what
A-5937-17T4 17 was said by witnesses fully and accurately. Draft reports do not fall in that
category. The State did not violate any discovery obligation and thus no adverse
inference charge was necessary.
VII.
Defendant further argues that the trial judge erred by limiting his cross-
examination of the victim on the details of the civil suit. The prosecutor had
objected that the testimony was not relevant. In the civil suit, the victim sought
to recover $500,000, whereas the indictment alleged only that defendant had
stolen $228,000.
The scope and content of cross-examination is "a matter resting in the
broad discretion of the trial court." State v. Wakefield, 190 N.J. 397, 451 (2007)
(quoting State v. Martini, 131 N.J. 176, 255 (1993)). "[A]n appellate court will
not interfere with such control unless clear error and prejudice are shown ." Id.
at 452 (quoting Martini, 131 N.J. at 263).
The judge pointed out that the two types of cases were entirely different,
one being a civil action with a different standard of proof than a criminal action.
Furthermore, allegations in a complaint are merely that, always subject to proof.
Nonetheless, the court allowed defense counsel to ask the victim whether he
believed defendant had ever forged a check and, when the victim said no,
A-5937-17T4 18 challenge that response by having the victim read aloud his civil complaint
alleging defendant forged checks.
We see no abuse in the judge's exercise of discretion. That the victim may
have claimed a higher figure as damages in a civil case is not surprising. The
record appropriately is devoid of information regarding how the thefts may have
affected the business, an issue in a civil case not relevant to the actual amount
defendant stole from the victim.
VIII.
After four days of deliberation, the jury sent a note to the court asking,
"[w]hat if we cannot come to an agreement?" A few jurors also indicated that
continuing deliberations was difficult because they were no longer being paid.
Defense counsel then moved for a mistrial. The court denied the motion.
On appeal, "[d]efendant submits a mistrial is in order because of the
pressure placed upon the jurors to reach a verdict due to their own personal
financial difficulties." Defendant also notes that "the jury deliberated four days
in a three-day trial, in addition to having eleven days in recesses." 2 Defendant
contends that the judge should have at least informed the jury that they could
2 While defendant claims the trial only took three days, the transcripts indicate it took place over six days. A-5937-17T4 19 have failed to agree on a verdict, and that the lack of such an instruction
prejudiced defendant.
The trial court correctly denied defendant's motion for a mistrial, because
at that stage in deliberations there was no "obvious failure of justice." State v.
Yough, 208 N.J. 385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205
(1997)).
In State v. DiFerdinando, 345 N.J. Super. 382, 390 (App. Div. 2001), for
example, the jury deliberated for eleven days following a four-day trial
involving financial records and a victim who took a hands-off approach to the
operation of his own business. Id. at 391. On day five of deliberations, the jury
sent a note to the trial court, asking what would happen if they could not arrive
at a verdict as to some of the counts. Id. at 391-92. We decided that the note
did not indicate that the jury was deadlocked, and that no instructions therefore
had to be given for a deadlocked jury. Id. at 392-93. No mistrial was appropriate
there—it would not be appropriate here.
In response to the jury's question, "[w]hat if we cannot come to an
agreement?," the judge instructed the jury:
It is your duty as jurors to consult with one another and to deliberate with the view to reaching an agreement if you can do so without violence to individual judgement. Each of you must decide the case for
A-5937-17T4 20 yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the event -- in -- I’m sorry. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges -- judges of the facts.
This language tracks the model charge on further jury deliberations. See Model
Jury Charges (Criminal), "Judge's Instructions on Further Jury Deliberations"
(approved Jan. 2013). There was no "obvious failure of justice" and the trial
court correctly denied defendant's motion for a mistrial. Yough, 208 N.J. at 397.
IX.
During the victim's testimony before the grand jury, he said transfers from
the business account to defendant's personal account stopped when defendant
was incarcerated. As a result, a grand juror asked the assistant prosecutor
presenting the matter as follows:
A Juror: The question was, was [defendant] incarcerated during the time that he was employed with his company?
[Assistant prosecutor]: [Defendant] may or may not have been incarcerated, you know, during the course of this time. But it's -- it's not relevant to the -- these current allegations. I mean does your question have anything to do with whether he was able to -- does it go
A-5937-17T4 21 to these allegations at all or are you just curious about --
A Juror: All right. Bottom line is, basically, what I'm trying to establish in my own mind is if [defendant] if his job description [sic] included the wire transfer and that he went to jail during the time that he was employed with this guy how did it go on so long?
[Assistant prosecutor]: Okay. I understand. I thought maybe that's what you were asking. I'll call him back and we'll ask that question. Okay? But let me instruct you that whether or not he was incarcerated has -- I don't want you to be prejudiced against him –
A Juror: No, the charges, no.
[Assistant prosecutor]: Okay. All right. . . .
The assistant prosecutor brought the victim back. The prosecutor asked the
juror's question:
Q: During the time when you had mentioned in passing that [defendant] was incarcerated --
A: Correct. Q: -- is that correct? The question is these unauthorized transfers did not take place during the time the brief period when he was incarcerated?
A: Correct. For nine or ten days they stopped.
Q: Okay. And then --
A: They started the day after he was released.
Q: Okay.
A-5937-17T4 22 Based on this exchange, defense counsel moved to dismiss the indictment.
The judge denied the motion because the victim's grand jury testimony had
probative value, was not unduly prejudicial, and the assistant prosecutor
provided a curative instruction. The judge also declined to dismiss the
indictment because "there was substantial evidence that was presented to the
[g]rand [j]ury that would support the return of an indictment," and "an even-
handed presentation" of the evidence that would allow the grand jury to
objectively assess the charges.
The State presented the grand jury "with at least some evidence as to each
element of the alleged crime[s]." See Fleishchman, 383 N.J. Super. at 399
(internal quotations omitted). Here, the juror's question regarding the electronic
transfers and defendant's incarceration was of comparatively low prejudicial
effect and high probative value. See N.J.R.E. 403; N.J.R.E. 404(b). Knowledge
of whether the transfers continued through defendant's incarceration , when he
could not make transfers from the account, would help the jurors assess whether
defendant was responsible for them. Neither the prosecutor nor the victim
elaborated on the nature of those charges or the outcome. Moreover, the
assistant prosecutor explained that defendant may or may not have been
incarcerated and that any previous incarceration was irrelevant to the current
A-5937-17T4 23 charges. He told the jurors not to be prejudiced by the information. The
information did not make the grand jury presentation improper. For this reason,
the trial court did not abuse its discretion in denying the motion to dismiss the
indictment. See State v. Del Fino, 100 N.J. 154, 165-66 (1985) (holding that
absent any suggestion of a "fundamental taint of the grand jury process," the
Court would not allow a challenge to the indictment after a defendant has already
been convicted).
X.
Defendant also argues, pursuant to State v. Orecchio, 16 N.J. 125 (1954),
that the cumulative effect of the alleged errors, even if none individually warrant
reversal, together prejudiced defendant's right to a fair trial. We do not agree.
There were no errors. Like in other cases, it was not a perfect trial, but it was a
fair one. See State v. Weaver, 219 N.J. 131, 155 (2014) (quoting State v.
Wakefield, 190 N.J. at 537 (2007)).
XI.
Finally, defendant argues that there was no basis for the trial court's
restitution order, and that the order did not take into account defendant's ability
to pay. "[I]n order for restitution to be imposed, an actual loss from defendant's
actions must be demonstrated." State v. Martinez, 392 N.J. Super. 307, 318
A-5937-17T4 24 (App. Div. 2007). "The amount and manner of payment of reasonable restitution
is a matter for the judgment of the sentencing judge[.]" State v. Harris, 70 N.J.
586, 598 (1976).
"[T]he burden of proof remains on the prosecution, and the fact to be
proved, the amount of the restitution, 'must be proved to the satisfaction of the
court,' [N.J.S.A. 2C:1-13(d)(2)], by a preponderance of the evidence." Martinez,
392 N.J. Super. at 319 (quoting State v. Oliver, 298 N.J. Super. 538, 560 (Law
Div. 1996)). "Due process is satisfied by affording the defendant a hearing on
the amount of restitution, . . . and where there is a factual basis in the record to
support the court's determination of the amount of restitution." Harris, 70 N.J.
at 598-99.
Immediately before sentencing, the judge heard oral argument regarding
restitution. He determined through the trial testimony and documentary
evidence that the State established $211,097.95 had been transferred from the
victim's bank account to defendant's various personal accounts. Because the
jury as factfinder decided that the victim's loss was between $500 and $75,000,
the court deducted the $2500 paid in the civil suit from a maximum of $75,000,
leaving a remainder due of $72,500. Offsetting what he heard during the trial
against the jury's top number, the judge arrived at a lawful restitution amount.
A-5937-17T4 25 The judge also took into account defendant's ability to pay. Having been
informed that defendant had a $300,000 401k plan, it was also reasonable to
make restitution payable in full from defendant's 401k account.
Affirmed.
A-5937-17T4 26