State v. Wieler

645 A.2d 1032, 35 Conn. App. 566, 1994 Conn. App. LEXIS 317
CourtConnecticut Appellate Court
DecidedJuly 26, 1994
Docket11428; 11429
StatusPublished
Cited by11 cases

This text of 645 A.2d 1032 (State v. Wieler) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wieler, 645 A.2d 1032, 35 Conn. App. 566, 1994 Conn. App. LEXIS 317 (Colo. Ct. App. 1994).

Opinion

Heiman, J.

The defendant appeals, in appeal number 11428, from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the first degree by embezzlement in violation of General Statutes § 53a-122 (a) (2)1 and, in appeal number 11429, [568]*568from the judgment of conviction rendered after a jury trial of twenty counts of larceny in the first degree by embezzlement in violation of General Statutes § 53a-122 (a) (2)2 and two counts of larceny in the second degree by embezzlement in violation of General Statutes § 53a-123.3 On appeal, the defendant claims that the trial court improperly (1) precluded the defendant, from offering evidence that he lacked the criminal intent necessary to commit the crime of larceny by embezzlement and (2) instructed the jury as to the criminal intent necessary to commit the crime of larceny by embezzlement. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In 1989, the defendant, Philip F. Wieler II, was the president and sole stockholder of NW Group, Inc., a New Haven based company that provided property management services for various condominium associations throughout Connecticut. The services of NW Group, Inc., included snow removal and repairs, collecting rent, and resolving tenant and owner complaints for the individual client associations. From 1986 to 1989, NW Group, Inc., managed the properties of approximately fifty condominium associations, approximately fifteen of which were owned in whole or in part by the defendant. NW Group, Inc., consisted of four divisions: commercial sales, residential sales, rental, and property management. In addition, NW Group, Inc., maintained both an accounting and a legal department. The accounting department was headed by the [569]*569comptroller, Thaddeus Kubow, who had been hired in 1986 by the defendant and the defendant’s business partner at the time, Salvatore Nicotra.4 Kubow worked closely with the defendant who was involved in the day-to-day operations of NW Group, Inc., and who directed Kubow in his activities.

In his position as comptroller of the accounting department, Kubow oversaw the work of various NW Group, Inc., employees. These included a corporate bookkeeper, Lisa Nardello, who worked closely with both Kubow and the defendant. In addition, the accounting department included a payroll clerk, a part-time employee in charge of reconciliation of bank statements, two employees who handled accounts receivable, one employee who handled accounts payable for the properties in which the defendant had an interest, and one employee who handled accounts payable for the remaining properties managed by NW Group, Inc.

The procedure for the management of various condominium associations was in place when Kubow was hired and was not changed. Each property managed by NW Group, Inc., had its own individual checking account. Rents and fees paid on behalf of each individual condominium association were mailed to NW Group, Inc., and deposited into the individual accounts by the employees handling accounts receivable. The checkbooks for each of these accounts were kept by NW Group, Inc., and the bank statements for the accounts were mailed to NW Group, Inc., rather than to the individual condominium associations. Many of the properties also purchased certificates of deposit as reserve funds to meet any large or unusual expenses. These certificates were also held by NW Group, Inc., in a fireproof safe in the accounting department.

[570]*570Bills for expenses incurred by the individual condominium associations were also mailed directly to NW Group, Inc., for payment. Each bill was coded with a three digit identification code and sent to the property manager in the property management division of NW Group, Inc., who handled that individual association. The property manager would review the bill for accuracy and then submit it to the accounting department for payment. At this time, the employees handling accounts payable would enter the amount of the bill into NW Group’s computers as an open payable.

Two to three times a month, the accounting department would generate a list of open payables for review by the property managers. The property managers would mark the lists as to which bills were “okay to pay” at that time. Usually, mortgages were paid at the beginning or first “check run” of the month, utilities on the second check run, and miscellaneous invoices on the third check run at the end of the month. The defendant personally reviewed the invoices for the properties in which he had an interest. Once an invoice was marked okay to pay, the accounts payable employees of the accounting department would print out checks from NW Group’s central disbursement account. Checks were printed by computer and contained a three digit code that indicated for which of the managed properties the payment was made. The actual invoice being paid was attached to the back of the check for review before signing. The checks were signed by Kubow, William Charbonneau, who was vice-president of NW Group, Inc., or by the defendant. Before the checks were actually paid, the accounting department would also print out a total of the expenses that each property had incurred. That exact amount was withdrawn from the property’s individual checking account and placed in NW Group’s central disbursement account to reimburse the central account for disburse[571]*571ments made on behalf of each property. Only the funds necessary to cover the expenses of each individual property were withdrawn from that property’s account. This central account was also used to pay corporate bills incurred by NW Group, Inc.

During the period between June, 1986, and the end of 1989, properties in which the defendant had an interest began to experience financial difficulties. These properties did not generate sufficient income to pay their bills in full. Despite this, the bills for the defendant’s properties were paid. When the individual accounts of the defendant’s properties could not reimburse the central account for moneys expended on their behalf, an overdraft would result on the central account. The bank would call Nardello to inform her of the overdraft and give NW Group, Inc., a specified period of time in which to deposit sufficient funds in the account. Nardello would then inform Kubow who was directed by the defendant to withdraw funds from the accounts of properties not owned by the defendant that had large balances. Checks drawn on the accounts of these associations to pay the bills of the defendant’s properties were marked “PRE” for “prereimbursement” and were treated as loans. By 1989, the overdrafts were occurring as frequently as four times per week.

The properties managed by NW Group, Inc., but not owned by the defendant, never authorized the defendant to withdraw moneys from their accounts other than to pay bills on their behalf. Nor had any of the properties ever authorized a loan to the defendant. In fact, the properties had no way of knowing about this prereimbursement procedure. Although the individual properties received monthly statements of the activities involving their accounts, these monthly statements were prepared by NW Group, Inc., and did not reflect prereimbursements withdrawn from the accounts. Monthly statements received by the individual condo[572]

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Cite This Page — Counsel Stack

Bluebook (online)
645 A.2d 1032, 35 Conn. App. 566, 1994 Conn. App. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wieler-connappct-1994.