Opinion
DOCKET NO. A-4504-13T3
02-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL TAGLIENTI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-12-1247. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant Paul Taglienti was tried before the court, sitting without a jury, and found guilty of theft by failure to make required disposition of property received, contrary to N.J.S.A. 2C:20-9. He appeals from the judgment of conviction entered by the trial court on September 13, 2013. We reverse.
I.
We briefly summarize the testimony presented at trial. In 2011, defendant was a full-time employee of a landscaping and nursery business in Mount Laurel. In addition to his full-time job, defendant also performed construction work through his own company.
On May 20, 2011, defendant entered into a contract with S.Z. to expand her driveway, move the steps to her home, and perform other work. S.Z.'s mother and husband are handicapped, and her husband was suffering from a serious illness. S.Z. said she wanted the driveway expanded and a walkway created because her mother and husband had difficulty getting to the driveway in their wheelchairs.
We use initials to protect the identity of this individual, the victim of the alleged theft. --------
The contract required defendant to remove the existing pavers from the driveway, excavate soil, install base materials, re-screen the sand, re-install the existing pavers, lay new pavers for the walkway and steps, and fix or cut the curb. The initial contract price was $5,000. Defendant and S.Z. added other work to the contract and the total contract price, with all add-ons, was $7,232.
S.Z. testified that, although there was no completion date in the contract, defendant said the work would take about three weeks, and he would work on weekends if required. S.Z. understood that because defendant had a full-time job, he could only spend a certain amount of time on her project. S.Z. paid defendant $3,650 on May 31, 2011, and additional amounts from time to time. By July 8, 2011, S.Z. had paid defendant $7,150.
S.Z. further testified that July 8, 2011, was the last day that defendant worked on her property. She stated that defendant had excavated the area. Some pavers and sand had been delivered, but the sand had washed away. A stump was removed, and some pavers laid for the driveway, but they were not laid properly. She said all of the work had not been completed, and defendant left work debris and equipment in her yard.
S.Z. called defendant about forty or fifty times, but he did not answer and his voice-mail box was full. On August 4, 2011, S.Z. signed a criminal complaint against defendant with the local police, who advised her to put defendant's equipment in her garage. Several weeks later, defendant came to S.Z.'s house. He said he had returned to complete the job. S.Z informed him that she had hired someone else to do the work.
Defendant asked if he could retrieve the equipment he had left on site, but S.Z. told defendant he could not recover his equipment unless he repaid the money that she had given him over the past months. Defendant neither paid nor offered to pay S.Z. the money. Later, defendant called S.Z., and asked her to drop her criminal complaint. He said he had not been able to complete the work because he had been incarcerated.
S.Z. hired TLC Landscape (TLC) to complete the job for $7,700. S.Z. testified that the work had to be done because it was "very dangerous" for her mother and husband. TLC took about two weeks to complete the work. S.Z. later sold defendant's tools to her landscaper for about $1,500.
Steven Furgione from TLC testified that TLC had to complete the driveway, widen the concrete apron where the driveway meets the street, put in several retaining walls, install the steps, and place garden curbing in the rear of the house. According to Furgione, defendant had only installed three or four pallets of pavers.
Furgione stated that when he arrived on the job, he observed less than a full pallet of new, uninstalled pavers worth a "couple hundred dollars"; a pallet or two of pavers removed from the driveway; and defendant's tools. He testified that, to complete the driveway, additional pavers costing $4,000 were required. In addition, materials for the retaining wall were needed, as well as brick curbing, base material, and sand.
Defendant testified that he had to order pavers to match those in place, and there was a delay in obtaining them. He said he started the excavation work for the project on June 16, 2011. While doing so, defendant discovered a tree stump that had to be removed. The excavation was completed by the end of June 2011. Thereafter, defendant started to install the pavers for the driveway. In the beginning of July, defendant began to install a border. Defendant started to build a small retaining wall and lay out the steps, but needed more blocks and more pavers, which were still delayed.
Defendant conceded that he had not completed the work. Additional pavers had to be installed. The retaining wall, steps, and driveway apron were not finished. He estimated that three days to a week of work remained to be done. He stated that in the early part of August 2011, he was arrested on an outstanding warrant for failing to pay certain unrelated fines, and spent "a good amount of time" in the county jail. Defendant claimed that, before he was incarcerated, he picked up his phone every time it rang, but the phone was turned off when he was in jail.
Defendant testified that the last time he was at S.Z.'s home was July 29th or 30th. He planned to return in the middle of August to complete the work. After defendant was released from jail, he went to S.Z.'s home and asked if he could finish the job. He estimated that he had completed about sixty to seventy five per cent of the work, which was the hardest part of the job. Defendant stated that he never intended not to provide the services that S.Z. had paid for. He said he "had zero intentions [of] unlawfully stealing her money."
II.
The trial judge placed his decision on the record. The judge noted that, in order to find defendant guilty, the State had to prove beyond a reasonable doubt that: (1) defendant purposely obtained or retained the property of another; (2) did so upon agreement or subject to a legal obligation; (3) that the agreement or obligation required defendant to make a specific payment or other disposition from the property itself; (4) the agreement or obligation was known to defendant; (5) the defendant purposely dealt with the property as if it were his own; and (6) defendant purposely failed to make the required payment or disposition. The judge pointed out that, since defendant had been charged with a third-degree offense, the State had to prove the amount of money or value of property involved exceeded $500.
The judge found that S.Z. was "a very credible witness" and defendant was "not credible at all." The judge noted that S.Z. had entered into the contract with defendant to perform work on her property. Additional work was added to the initial contract. S.Z. paid defendant $7,150 in various amounts between May 31, 2011 and July 8, 2011.
The judge found that defendant never completed any portion of the project, and he did not return after the last payment to perform the work. Defendant also had not ordered all of the materials required for the project. S.Z. repeatedly attempted to reach defendant by phone, but his phone mail was full. Defendant was in jail from August 1 to August 10, 2011.
The judge found that defendant purposely obtained $7,150 from S.Z., pursuant to the agreement entered into in May 2011, and amended thereafter to include additional work. The judge found that the agreement required defendant to make a specified payment or disposition from the money S.Z. paid to defendant. The judge said that defendant was required to purchase the supplies and perform the work.
In addition, the judge found that the legal obligation was known to defendant, since he was a party to the contract. The judge further found that defendant purposely failed to make the required payment or disposition of the money. The judge stated that, based on the evidence and the reasonable inferences that could be drawn from the evidence,
at some point in this job, the defendant decided that he was not going to finish it. After July 8th, he [did not] come back until well after, until after he completed his jail time, which was from August 1 to August 10 [2011], . . . [there was] no excuse for him not being there, and [it is] clear that he had not bought all the materials necessary. [There is] no proof of any purchases, so obviously, the inference is clearly drawn that those monies were used for some other purpose.
[Defendant did not] buy all of the materials. He did not complete the project. He [did not] work on the project from July 8th. He kept coming back to [S.Z.] to get more money, yet he [did not] complete the project and he [did not] keep working on it. He never really work[ed] at the level at which he was supposed to. . . . [H]e took the job knowing he had another, . . . employment. [S.Z.] knew that too, but he also was supposed to be working in a diligent manner toward completion which he did not do.
Based on all that, I do find the State has borne its burden [of proof] beyond a reasonable doubt. I do find the defendant guilty of the crime charged. The amount in question is well above $500. . . . [H]e was paid $7,150. The project was estimated to have been, at best, and I [do not] believe 75 percent complete is correct, but even taking that number, [it is] clearly over $500 that the defendant had appropriated to his own use.
Thereafter, defendant filed a motion to set aside the conviction or for a new trial. The judge denied the motion, finding no basis to reconsider his earlier decision. The judge sentenced defendant to a three-year probationary term. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY GRANTED DEFENDANT'S REQUEST TO WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT FIRST ANALYZING THAT REQUEST IN ACCORDANCE WITH STATE v. DUNNE, 124 N.J. 303 (1992) (Not Raised Below).
POINT II
EVEN WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO THE STATE, THE EVIDENCE DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THAT [DEFENDANT] COMMITTED THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF PROPERTY RECEIVED, AND HIS MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED.
POINT III
THE TRIAL COURT'S FINDING OF GUILTY CANNOT STAND BECAUSE IT WAS BASED ON A MISCONCEPTION OF THE APPLICABLE LAW.
III.
Defendant argues that the trial court should have granted his motion for an acquittal because the evidence did not establish beyond a reasonable doubt that he committed a theft by failing to make a required disposition of the money he received from S.Z. to perform the contract.
Here, defendant was charged under N.J.S.A. 2C:20-9 which provides, in pertinent part, that
a person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payments or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition.
A trial court's factual findings must be upheld, so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 223, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Our deference to the trial court's factual findings is warranted when the findings are "'substantially influenced by [the court's] opportunity to hear and see the witnesses and have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We are convinced that the State failed to present sufficient evidence to find defendant guilty beyond a reasonable doubt of theft by unlawful retention under N.J.S.A. 2C:20-9. As we have explained, on May 20, 2011, defendant entered into a contract with S.Z. to perform certain construction work on her property. The total contract price was $7,275. By July 8, 2011, S.Z. had paid defendant $7,150.
It is undisputed that defendant performed some of the work required. He removed the existing pavers from the driveway, excavated the area to be paved, had a tree stump removed and ground, prepared and installed base material for the driveway, and cut and installed some of the pavers. The evidence also shows that defendant provided some of the materials required for the work, including sand and some new pavers.
Defendant did not complete the required work. According to S.Z., defendant was last on the property on July 8, 2011, and he did not return until sometime after August 10, 2011, when he offered to complete the job. S.Z. would not allow him to do so because she had retained TLC to perform the work. Defendant did not refund any of the monies that S.Z. had paid to him.
The trial judge found that, at some point, defendant decided he was not going to finish the job. We are convinced, however, that the trial evidence, and the inferences that could reasonably be drawn from that evidence, does not support that conclusion. At no point did defendant tell S.Z. he would not complete the contract. Defendant may have been dilatory in performing the work, which he estimated would take three weeks, but there was no specified date for completion of the work in the contract.
Furthermore, defendant was incarcerated from August 1 to August 10. He returned to S.Z.'s home after he was released from jail and offered to complete the job. Defendant indicated that he would have completed the job if S.Z. had permitted him to do so. Thus, the evidence does not support a finding that defendant decided he would not perform the job. Rather, the evidence established that at all relevant times, defendant intended to return and finish the work required by the contract.
Indeed, the most compelling evidence that defendant intended to complete the work is the undisputed fact that defendant left his tools at S.Z.'s property. Defendant testified that the tools were new and had a value of almost $8,000, although S.Z. testified that she sold the tools to her landscaper for $1,500. In any event, it is clear that defendant would not have left tools which he believed to be worth as much as $8,000 at S.Z.'s property if he did not intend to return and complete the job.
The State argues that it proved that the contract required defendant to make a disposition of some of the money that S.Z. had paid to him, specifically, to purchase pavers and other materials needed to complete the work. The State notes that defendant did not purchase all of the required materials and did not refund any portion of the contract price. The State therefore contends it established that defendant unlawfully dealt with some of S.Z.'s monies as his own.
We are convinced, however, that the evidence was insufficient to establish that defendant engaged in the sort of purposeful conduct required for conviction under N.J.S.A. 2C:20-9. Our decision in State v. Damiano, 322 N.J. Super. 22 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000), supports our conclusion. In that case, the defendant was the owner of a car dealership. Id. at 30. The defendant allowed purchasers to trade-in vehicles, but failed to pay off the liens on the trade-in cars. Id. at 32.
In addition, certain customers purchased extended warranties for their vehicles, and the defendant failed to purchase those warranties or remit the funds it had received. Id. at 33. The defendant's dealership also sold some vehicles under floor-plan financing, but did not repay the entity that financed the purchase of the vehicles. Id. at 34. The defendant was charged with, among other offenses, theft under N.J.S.A. 2C:20-9. Id. at 30-34.
We reversed defendant's convictions under N.J.S.A. 2C:20-9 due to deficiencies in the jury instructions. Id. at 38-42. In doing so, we made the following observations:
The heart of the N.J.S.A. 2C:20-9 crime is the actor purposely obtaining or retaining property subject to either an agreement or a known legal obligation to make a specific payment or disposition but then "deal[ing] with the property obtain as his own and fail[ing] to make the required payment or disposition." The State was therefore required to prove that when defendant took the used cars in trade, or when he took the customer's money for the extended warranties, or when he sold new cars under the floor plan financing, he intended to divert the money or property entirely to his own purpose or that thereafter he purposely failed to make the required disposition during the period of his possession. There was certainly evidence from which the jury could have found that defendant obtained the property with every intention of meeting his legal obligations and that this continued to be his intention in retaining the property. The jury could have found that defendant was in no way conferring or intended to confer a personal benefit on himself, that he was attempting to deal with serious cash flow problems . . . , that all available cash went into the meeting of business obligations, and that defendant was paying off these obligations as soon as sufficient cash flowed in — in short that there was an absence of criminal intent. The court should have focused the jury's attention on this key question of intent but failed to do so.
Thus, our decision in Damiano indicates that a defendant may not have the criminal intent required for conviction under N.J.S.A. 2C:20-9 if, due to cash-flow problems, he does not immediately make required a disposition of the property of others, but intends to make those dispositions as soon as he has sufficient funds to do so.
In this case, the evidence was insufficient to support a finding that defendant had the criminal intent necessary for conviction under N.J.S.A. 2C:20-9 because there was no evidence that, when S.Z. paid defendant, he did not intend to fulfill his obligations under the contract. Moreover, as we have explained, the evidence established that, despite his delays in performing the work, defendant intended to complete the contract, but S.Z. refused to permit him to do so.
Defendant may not have purchased all of the materials needed for the work, but the evidence was insufficient to show that he retained those monies with a purpose of converting the monies to his own use. Rather, the evidence established that defendant intended to complete the job and ultimately purchase the materials required.
Furthermore, as defendant points out, N.J.S.A. 2C:20-2c(2) states that, it is an affirmative defense to theft if the actor "[a]cted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did." As we have explained, when S.Z. cancelled the contract, she refused to return defendant's tools, unless he returned the money she had paid him. Since defendant had performed some of the work, he was entitled to retain some of the funds S.Z. had paid to him. Defendant also had a honest claim for the return of his tools or their value.
We conclude that the evidence was insufficient to show that, by retaining S.Z.'s money under these circumstances, defendant acted with the criminal intent necessary to find him guilty of theft under N.J.S.A. 2C:20-9 beyond a reasonable doubt. The evidence may have been sufficient to find defendant liable in a civil action, but it was not sufficient to establish that he committed a theft in violation of N.J.S.A. 2C:20-9.
In view of our decision, we need not address defendant's contention that he did not validly waive his right to a trial by jury, or his contention that the judge's decision represents a misconception of the applicable law.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION