Opinion
DOCKET NO. A-4186-13T1 DOCKET NO. A-5224-13T3
11-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JANICE ALLEN, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JANICE DILLIGARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Janice Allen (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Janice Dilligard (Michael Confusione, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-03-0034. Joseph E. Krakora, Public Defender, attorney for appellant Janice Allen (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Janice Dilligard (Michael Confusione, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendants Janice Allen and Janice Dilligard, mother and daughter, separately appeal from their convictions, after a jury trial, of second-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (count one); second-degree theft by deception, N.J.S.A. 2C:20-4 (count two); and second-degree financial facilitation, possession of property derived from criminal activity, N.J.S.A. 2C:21-25a (count nine). The jury also convicted Allen of third-degree theft by deception, N.J.S.A. 2C:20-4 (count three). After appropriate mergers, both defendants were sentenced to aggregate prison terms of fifteen years with five years of parole ineligibility.
Five additional defendants were charged in the remaining counts of the indictment. Those co-defendants either pled guilty or had their cases resolved prior to trial, and they are not parties to this appeal.
We consider defendants' back-to-back appeals in a single opinion because they were tried together and their appeals involve a common set of facts. Each defendant raises numerous issues in challenging their convictions, but they join in challenging the trial court's decision permitting the State to introduce certain documentary evidence pursuant to the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). Defendants also challenge their respective sentences as excessive.
We recount only the facts essential to our disposition of the issues presented. We discuss the facts in greater detail in our discussion of the legal issues.
The State presented evidence to show that defendants collaborated to file false unemployment claims in the names of approximately seventeen people, including relatives, children, and deceased individuals. As a result, defendants unlawfully collected hundreds of thousands of dollars in unemployment benefits that they placed in various bank accounts. Defendants then used bank-issued debit cards to access the funds, which they used to pay personal expenses. The defense presented no witnesses or evidence.
On appeal, Allen raises the following issues for our consideration:
POINT I
THE TRIAL COURT DENIED MS. ALLEN A FAIR TRIAL, DUE PROCESS, AND HER RIGHT TO CONFRONTATION BY ADMITTING DOCUMENTS INTO EVIDENCE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, DESPITE A LACK OF PROOF THAT THEY WERE
KEPT IN THE REGULAR COURSE OF BUSINESS OR RELIABLE. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST., ART. I, PARAS. 1, 9 AND 10. (Raised Below)
POINT II
THE COURT'S FAILURE TO PROVIDE THE JURY WITH A CHARGE EXPLAINING HOW MS. ALLEN COULD BE FOUND GUILTY OF A LESSER-INCLUDED OFFENSE AS AN ACCOMPLICE TO THE CO-DEFENDANTS IF SHE DID NOT SHARE THEIR INTENT TO COMMIT THE SPECIFIC GREATER OFFENSES DEPRIVED MS. ALLEN OF DUE PROCESS AND A FAIR TRIAL, U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. I, PARAS. 1, 9 AND 10. (NOT RAISED BELOW)
POINT III
THE COURT IMPROPERLY DENIED MS. ALLEN'S DRUG COURT APPLICATION, IMPOSED AN EXCESSIVE SENTENCE, AND IMPOSED RESTITUTION WITHOUT CONSIDERING MS. ALLEN'S ABILITY TO PAY
A. The Court Improperly Denied Ms. Allen The Opportunity To Participate In Drug Court After Failing To Give Full And Fair Consideration To Her Application And Incorrectly Using Her Exercise Of Her Right To A Trial As A Basis For Rejection
B. The Sentence Was Excessive As The Court Ignored A Mitigating Factor And Incorrectly Weighed The Aggravating And Mitigating Factors When Sentencing Ms. Allen To A Term Of Fifteen Years Of Imprisonment With A Five-Year Period Of Parole Ineligibility
C. The Court Improperly Imposed Restitution Without Considering Ms. Allen's Ability To Pay. (Not Raised Below)
Dilligard presents the following additional points in support of her appeal:
POINT [ONE]
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE BUSINESS RECORDS THAT WERE NOT PROPERLY ADMITTED UNDER THE RULES OF EVIDENCE, AND THE ADMISSION VIOLATED DEFENDANT'S CONFRONTATION RIGHTS.
POINT [TWO]
THE PRESENCE OF A JUROR ON THE PANEL WHO WAS SUSPECTED OF SLEEPING AT VARIOUS TIMES THROUGHOUT THE TRIAL, ALONG WITH INTERACTION BETWEEN A JUROR AND CO-DEFENDANT ALLEN, DEPRIVED DEFENDANT OF A FAIR JURY TRIAL (PLAIN ERROR).
POINT [THREE]
TESTIMONY WAS ADMITTED BEFORE THE JURY THAT VIOLATED DEFENDANT'S CONFRONTATION RIGHTS AND THE RULE OF BRUTON V. UNITED STATES; THE TRIAL COURT ERRED IN FAILING TO GRANT A SEVERANCE OF TRIALS WHEN THIS OCCURRED (PLAIN ERROR).
POINT [FOUR]
THE TRIAL COURT INTERFERED WITH AND CHILLED DEFENDANT'S RIGHT TO CALL A WITNESS TO TESTIFY ON HER BEHALF AT TRIAL (PLAIN ERROR).
POINT [FIVE]
THE TRIAL COURT ERRED IN PRECLUDING DEFENDANT FROM IMPEACHING A STATE WITNESS AT TRIAL.
POINT [SIX]
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT [SEVEN]We have considered these arguments in light of the record and applicable legal standards, and we affirm.
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I.
We turn first to defendants' challenge to the trial court's decision to admit various documents into evidence under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). The issue centers on the State's introduction at trial of certain business records produced by various financial institutions and phone, cable, and internet providers. These records were accompanied by affidavits or certifications from representatives of the various companies attesting that they were made at or near the time of the occurrence, that they were kept in the course of regularly scheduled business activity, and that it was a regular practice of the business to make the records.
Defendants objected to the admission of the documents, contending that the foundational requirements necessary to admit them as business records had not been established. They also argued that, in some cases, the accompanying affidavits or certifications did not specifically reference the subpoena that the affiant was responding to, which called into question their trustworthiness. The trial court conducted a hearing pursuant to N.J.R.E. 104(a) and determined that, with the exception of records produced by a check cashing company, the State satisfied the foundational criteria necessary to admit the remaining documents as business records under N.J.R.E. 803(c)(6).
On appeal, defendants argue that there was a lack of proof that the documents were prepared in the regular course of business and that the trial court erred in finding that they were reliable and trustworthy. Defendants further contend that the admission of the documents violated their confrontation rights. We do not find these arguments persuasive.
We begin by noting that "'[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. Nantambu, 221 N.J. 390, 402-03 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). "Under that standard, an appellate court should not substitute its 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.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997) (citation omitted)).
N.J.R.E. 803(c)(6) excepts from the hearsay rule:
A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy."The purpose of the business records exception is to 'broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness.'" Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996) (quoting State v. Hudes, 128 N.J. Super. 589, 599 (Cty. Ct. 1974)).
In a criminal case, a document is admissible as an exception to the hearsay rule only if it is not testimonial. Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177, 195-96 (2004). A party seeking to introduce a hearsay statement under the business records exception "must demonstrate that [1] the writing [was] made in the regular course of business, [2] the writing was prepared within a short time of the act, condition or event being described, and [3] the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 347 (2010) (internal citations omitted).
To lay the foundation for the admission of systematically prepared computer records as business records under N.J.R.E. 803(c)(6), all that is needed is for the witness: "(1) [to] demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007) (citations omitted).
Here, we find no abuse of discretion in the trial court's decision to admit the challenged evidence. Initially, we note that our review is hampered to a degree by the failure to include the affidavits or certifications, the subpoenas, or the documents at issue as part of the appellate record. Nonetheless, nothing in the record before us suggests that the affidavits or certifications were submitted by an attesting witness who lacked the requisite familiarity or authority to author them, or that they otherwise failed to establish the foundational criteria for admissibility under N.J.R.E. 803(c)(6).
See R. 2:6-1(a)(1)(i) (the appendix must contain parts of the record "essential to the proper consideration of the issues").
Further, as the trial court correctly noted, the business records were non-testimonial in nature and were the type of documents that are typically admitted. See Crawford, supra, 541 U.S. at 56, 124 S. Ct. at 1367, 158 L. Ed. 2d at 195-96. See also State v. Chun, 194 N.J. 54, 141-42, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) (admitting as business records foundational documents relied on by the State to establish that Alcotest breath-testing machines were in working order and their operators qualified). The business records at issue here contained information regarding defendants' bank, cable, phone, and email records, were not made in connection with defendants' prosecution, and did not violate their confrontation rights. Accordingly, we find no error in their admission.
II.
Allen separately argues that the trial court erred in providing an incomplete and improper jury charge with respect to accomplice liability. Specifically, she contends that the trial court failed to properly instruct the jury that, under an accomplice liability theory, co-defendants may possess different intentions and purposes and thereby be guilty of different crimes of varying degrees. She maintains that the trial judge erroneously read the jury Model Jury Charge (Criminal), "Liability for Another's Conduct" (N.J.S.A. 2C:2-6), Charge # One (5/22/95), which applies where there are no lesser-included offenses, rather than Charge # Two, where lesser-included offenses are present.
Where, as here, a defendant fails to object to a jury instruction at trial, the plain error standard of review applies on appeal. R. 1:7-2; State v. Singleton, 211 N.J. 157, 182 (2012). Plain error is error that is "clearly capable of producing an unjust result[.]" R. 2:10-2. In the context of erroneous jury charges, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Singleton, supra, 211 N.J. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (citation and internal quotation marks omitted)).
The alleged error must be considered in light of "the totality of the entire charge, not in isolation." Chapland, supra, 187 N.J. at 289 (citation omitted). Though an erroneous jury charge is a "poor candidate[] for rehabilitation under the plain error theory[,]" State v. Jordan, 147 N.J. 409, 422 (1997) (internal quotation marks and citation omitted), any alleged error must be assessed in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
When the State proceeds under a theory of accomplice liability, the "court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). In such a case, a "jury must be instructed that defendant 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998), (quoting Bielkiewicz, supra, 267 N.J. Super. at 528) aff'd, 162 N.J. 580 (2000); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.") (emphasis omitted).
"[J]ury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997). Thus, "when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
In this case, there is no question that the judge meticulously defined and discussed accomplice liability. Notably, the jury was instructed in pertinent part as follows:
In order to convict the defendant as an accomplice to the crime charged, you must find that the defendant had the purpose to participate in that particular crime. She must act with the purpose of promoting or facilitating the commission of her substantive crime with which she is charged. It is not sufficient to prove only that the defendant had knowledge that another person was going to commit the crime charged. The State must prove that it was defendant's conscious object that the specific conduct charged be committed.
Importantly, no lesser-included offenses were requested by the defense, and none were charged to the jury. Moreover, in addition to instructing the jury on the indicted charges, the court instructed it on the gradation of the theft offense:
Since the value of the amount of unemployment insurance benefits determines the degree or severity of the crime, the State must prove its value beyond a reasonable doubt. If you find defendant guilty, then you
must indicate the value of the property. The State must prove the amount or value of the property beyond a reasonable doubt. If you find the defendant guilty of the offense, then you must indicate [what] you find [to be] the amount of money or value of the property involved. And when I go over the verdict sheet . . . if you get to the section [you will] find choices, [n]umber [one], is it $75,000 or more; [two,] exceeds $500 but is less than $75,000[,] or third, is less than $500.
The judge gave the jury a comparable charge on the gradation of the financial facilitation offense. These charges substantially comported with the model jury charges on theft by deception, N.J.S.A. 2C:20-4, and financial facilitation (money laundering), N.J.S.A. 2C:21-25a. A jury charge that tracks the language of the governing statute, and which is consistent with the applicable Model Jury Charge, is not plainly erroneous. State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). Viewed in its totality, we find no reversible error in the charge.
III.
We next address a series of issues raised by Dilligard for the first time on appeal. Because Dilligard did not raise any of these issues at trial, our review is governed by the plain error standard. R. 2:10-2. As noted, pursuant to this standard, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Ibid.; see State v. Galicia, 210 N.J. 364, 386 (2012).
A.
Dilligard argues that juror number four was noted "dozing off" during the prosecution's case in chief, and that the trial judge failed to take appropriate measures to address the problem. We find no merit to this contention. Rather, the record reflects that, once placed on notice of the possibility that the juror might be having difficulty giving her full attention to the testimony, the trial judge took extra care to observe her. On one occasion, the judge specifically asked the juror "are you feeling okay?" The juror explained that the overhead lights bothered her eyes, which caused her to intermittently close them. The judge then asked defense counsel whether they were making any motions with respect to the juror, and both responded in the negative.
At the end of the case, before counsel delivered their closing statements, the following colloquy took place:
THE COURT: All right. We had a concern with [j]uror [n]umber [four] early on in the case. We were concerned her eyes were closed. We went to sidebar, had a discussion among ourselves. I brought in [j]uror [four] by herself, she indicated the lights in the courtroom were bothering her, then she said she needed eyedrops. She has seemed much more alert. Is anyone asking the [c]ourt that there is a concern that she should be one of the alternates? And, obviously, I just throw
this out because we had this discussion or concern about that earlier. And if no one has any thought along that line, then I'm not going to [pursue] it any more.
DEFENSE COUNSEL: Well, Your Honor, on behalf of Ms. Allen, I would note that, at least from our perspective, we don't have any issue with [j]uror [n]umber [four] . . . .
THE COURT: I've been keeping [a] close eye on [j]uror [four] ever since we had a conversation with her a week or two weeks ago and she seems to have been much more alert. And she denied an effect, she said, basically her eyes were closed but she was listening to everything because of the conditions. So if [there is] nothing further in regard to [j]uror [n]umber [four], [we will] move onto another issue.
The record thus indicates that the trial judge did not ignore the situation. He monitored the behavior of the identified juror and took reasonable measures to ensure she remained alert. In the absence of direct evidence that the juror actually slept through critical portions of the trial and the absence of requests by defense counsel to take more affirmative measures to assure that she had not missed critical evidence, we discern no error.
Dilligard further asserts that "[a]dded to this error was contact that occurred between co-defendant Allen and juror number [one]." In this regard, the judge's staff brought to his attention that this contact occurred when the juror was knocking on the door and there was no Sheriff's officer available to let the juror in. The judge characterized the contact as "somewhat accidental and somewhat well-intentioned," and attributed it to Allen "trying to be helpful." When questioned on the record, the judge's court clerk indicated that Allen and juror one did not converse during their brief interaction. The judge also individually questioned the juror, who corroborated the clerk's account and stated that her "slight interaction" with Allen would not affect her ability to remain fair and impartial. Counsel for Allen asked the judge to instruct juror one not to discuss the interaction with other jurors, and the judge agreed to do so. Defense counsel did not ask to excuse the juror or take any other corrective action. Accordingly, on this record, we discern no plain error.
B.
In Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476,479 (1968), the United States Supreme Court held that an inculpatory statement as to the defendant, made by a co-defendant and related through a third party witness at trial, violates the defendant's Sixth Amendment right to confront his accuser. Consequently, pursuant to Bruton, separate trials are required where effective deletions of a co-defendant's statement cannot be made. See State v. Barnett, 53 N.J. 559, 564-65 (1969). For the first time on appeal, defendant contends that the rule in Bruton was violated and that the trial court should have declared a mistrial and ordered separate trials when "at least partially antagonistic defenses developed during trial." We disagree.
Prior to the commencement of trial, the judge recognized that a statement given by Allen implicating Dilligard raised a potential Bruton issue. On several occasions the judge asked counsel for the parties "whether the statement of Janice Allen could be sanitized in such a way as to not create a Bruton issue." Eventually, counsel advised the court that defendants could be tried jointly and that they had reached an agreement pursuant to which the State would only seek to offer four discrete aspects of Allen's statement.
As the State points out, in the end there was no Bruton issue because Allen's statement was not played for the jury and no incriminating evidence was elicited from the witnesses at trial pertaining to the incriminating portions of that statement. Moreover, severance is not warranted even where various defendants present defenses that are mildly antagonistic. See State v. Sanchez, 224 N.J. Super. 231, 247 (App. Div.), certif. denied. 111 N.J. 653 (1988).
C.
We similarly find no plain error in Dilligard's claim that she was deprived of the opportunity to call her twin brother Terry Dilligard to testify on her behalf by virtue of the trial court's interference. We conclude that a close reading of the record fails to support this contention.
When it was brought to the judge's attention that Terry Dilligard was present in the courtroom and might be a potential witness, the judge requested that he leave the courtroom. The judge explained, "I have entered a sequestration order which means any potential witness cannot be in court to hear the testimony of anyone else so I'm going to ask you to wait out in the hallway." Further, because Terry Dilligard was "under indictment" in both Mercer County and Atlantic County and was represented by separate counsel, the judge originally expressed concern were he to testify without first alerting his attorney, Patrick O'Hara. The judge clarified that "I wanted Mr. Dilligard to get advice from counsel." Allen's counsel stated, "Your Honor, I completely concur in the Court's wise decision to contact Mr. O'Hara before his client testifies."
Thereafter, the judge read the following into the record:
The [c]ourt is going to put on the record [that] we discussed at sidebar an e-mail my secretary received from Patrick O'Hara and I want to read that into the record and [it has] been marked as a court exhibit, C-4. Patrick O'Hara said that he just talked to his client . . . Terry Dilligard, and his client said that he is here in court just to observe. He is not going to testify. He wants to come
back into court and you'll let the [j]udge know this. So I share this letter with both defense counsel. They spoke to the clients and we had a continuation of the colloquy at sidebar and they advised the [c]ourt, both defense attorneys, that they discussed this fact that Terry Dilligard was in court but would not testify in their behalf.
I had my [S]heriff[']s officer then take this e-mail out to Mr. Terry Dilligard. Mr. Dilligard read it. He confirmed he would not testify and only was here to observe and, at that point, I told my [S]heriff's officer let Mr. Terry Dilligard in court and all morning he spent in court and was able to observe Detective Allen's testimony.
In the end, it was Terry Dilligard's choice, after conferring with his attorney, not to testify. Neither the trial judge nor the prosecutor coerced or persuaded him not to do so. Allen's attorney recognized the potential prejudice to Terry Dilligard were he to testify, as he was facing similar charges, and counsel for defendant Dilligard posed no objection when it was suggested that Terry Dilligard confer with his attorney. Moreover, no proffer was offered as to the substance of Terry Dilligard's proposed testimony, or how it would have assisted the defense. Accordingly, we are unable to conclude that Dilligard was prejudiced by her brother's failure to testify on her behalf.
IV.
We have carefully considered Points [Five] and [Six] raised in Dilligard's brief in light of the record and applicable legal standards. We conclude these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following limited comments.
Co-defendant George Dononcourt pled guilty and testified against defendants during the trial. Dilligard argues that the trial court erred in not permitting her to impeach Dononcourt with a conditional discharge he received in 2002 for possession of marijuana and drug paraphernalia, which he successfully completed in 2003. While defendants were permitted to question Dononcourt with respect to his plea agreement and the fact that he was awaiting sentencing in this case, the judge declined to allow any reference to the earlier conditional discharge, reasoning:
The applicable rule is [N.J.R.E.] 609[.] [F]or the purpose of effecting [the] credibility of any witness, the witness's conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. So clearly this is not a conviction. And the only other way I thought defendants would be able to get that in is based upon State v. Spano, 69 N.J. 231 [(1976)]. And basically the [Supreme] Court reversed a judgment of conviction and remanded for a new trial finding that defendant was denied a fair trial when defense counsel was not permitted to question a witness regarding a criminal charge, the conditional dismissal of which might have motivated the witness to testify in favor of the State.
However, what's important about the facts of that case that's different . . . [than] this case is the State's witness was still in
the process of achieving a complete dismissal of such charge. Defendant could have attacked her credibility by suggesting a possible motive for her testimony. In this case clearly the . . . condition for a conditional discharge by Mr. Dononcourt was satisfied more than [ten] years ago so it's not as if he is still under some supervision and he may want to curry a favor [from] the State . . . .We adopt the trial judge's reasoning, and find no abuse of discretion in his evidentiary ruling.
In Point [Six], Dilligard argues that the trial court erred in denying her motion for a judgment of acquittal at the close of the State's case. Specifically, Dilligard contended that the State's evidence failed to establish her guilt beyond a reasonable doubt on the second-degree conspiracy, theft by deception, and financial benefit facilitation charges.
In reviewing a motion for acquittal based on insufficient evidence pursuant to Rule 3:18-1, we apply the same standard as the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felson, 383 N.J. Super. 154, 159 (App. Div. 2006). Thus, a motion for judgment of acquittal will not be granted where:
[V]iewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]In this regard, "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)).
In the present case, much of the evidence relied on by the State to establish defendants' guilt consisted of information contained in bank and phone company records. We note again that our independent review of the sufficiency of this evidence, including any reasonable inferences that can be drawn from it, is hampered by the failure to include the documentary evidence in the appellate record.
The State presented testimony that defendants' addresses, telephone numbers, and other personal identifiers were connected to false unemployment claims and bank accounts in other people's names. As the trial judge pointed out, in addition to this testimony from the State's two lead detectives, two co-defendants, Dononcourt and George Ross, implicated defendants in the scheme to cash several unemployment checks made payable to other individuals in return for a share of the illicit proceeds. The judge correctly noted that the credibility of these two co- conspirators was ultimately for the jury to determine. While acknowledging that much of the evidence was circumstantial, the judge found it was sufficient to "connect the dots" and that a reasonable jury could "find these two defendants conspired to defraud the Department of Labor in excess of $75,000" and committed the theft by deception and financial facilitation crimes charged in the indictment. On the record before us, we find no basis to disturb the trial court's denial of the motion for acquittal.
V.
Lastly we turn to defendants' sentencing arguments. Both defendants challenge their sentences as excessive, and contend that the court should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship). Additionally, Allen separately argues that the trial court improperly imposed restitution without considering her ability to pay, and that her post-verdict Drug Court application was improperly denied. We find no merit to any of these contentions.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
Allen was sentenced to an eight-year prison term with a thirty-month period of parole ineligibility for the second-degree theft by deception conviction and a concurrent four-year term on the third-degree theft by deception count. The court also imposed a consecutive seven-year term with thirty months of parole ineligibility for the financial facilitation conviction, thus resulting in an aggregate sentence of fifteen years imprisonment with a five-year period of parole ineligibility. The judge found aggravating factors three, the risk that defendant will commit another offense; nine, the need for deterrence; and ten, that the fraudulent practices were committed against a division of State government. The court concluded that these factors substantially outweighed mitigating factors six, that defendant will compensate the victim for the damage sustained, and seven, that defendant had no prior Superior Court convictions.
We note that although the court indicated at sentencing that he gave "great weight" to aggravating factor ten, it does not appear on either defendant's judgment of conviction. --------
Dilligard was likewise sentenced to an aggregate fifteen-year prison term with a five-year period of parole ineligibility. In her case, the judge found the same aggravating and mitigating factors, and similarly concluded that the aggravating factors substantially outweighed the mitigating factors.
Defendants argue that the severity of their sentences is the result of an improper weighing of the aggravating and mitigating factors and, in particular, the failure to apply mitigating factor eleven. Specifically, Allen contends that "her physical health is somewhat poor. She has a spinal condition resulting in pain she claims she suffered from a stroke and has perhaps some inability to fully use her left arm." Dilligard claims hardship "in light of [her] dependent ([seventeen-]year[-]old) child."
Application of mitigating factor eleven is proper when "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). Here, we conclude the hardships asserted by defendants are not supported by the record and, even if they were, they do not amount to a "serious injustice that overrides the need to deter others." See State v. Jabbour, 118 N.J. 1, 7 (1990). Allen has failed to establish that any of her medical needs cannot be addressed in a prison setting. As to Dilligard, the sentencing transcript indicates that her "[seventeen]-year-old child [] is in the custody of the biological father." See, e.g., State v. Kelly, 97 N.J. 178, 220 (1984) ("Although we appreciate the hardship that would result from defendant's incarceration, she is not the truly extraordinary defendant whose imprisonment would represent the 'serious injustice' envisioned by the Criminal Code.") (citing Roth, supra, 95 N.J. at 358). The court did not err in failing to apply mitigating factor eleven when conducting its sentencing analysis.
We thus find no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentences, while harsh, "shock[] the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions). We also note, and defendants concede, that imposition of a consecutive sentence for the financial facilitation conviction was mandatory. N.J.S.A. 2C:21-27(c).
Allen's remaining sentencing arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). The court is required to order restitution to a victim who has suffered a monetary loss, provided "the defendant is able to pay or, given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2B(1) and (2). In addition, the court must "set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2c(2).
In determining whether a defendant has an ability to pay restitution, the court "should look beyond the defendant's current assets and anticipated income during the period of incarceration." State v. Bolvito, 217 N.J. 221, 234 (2014). The court may consider "a defendant's educational background and employment history[, which] may affect his or her potential to achieve post-incarceration employment and a steady income[.]" Ibid. A defendant's ability to pay must be "assessed over the long term." Ibid.
Although Allen was ordered to pay $15,000 in restitution, this amount represented only a mere fraction of the illegal proceeds garnered from her fraudulent conduct. The judge specifically took into account Allen's age, health, and educational and employment history, and concluded she had the ability to pay the amount ordered because "she [could] be employed in light duty jobs when [she is] released from State Prison." Additionally, the judge allowed Allen to pay at the rate of $500 per month beginning one year after her release so as to give her time "to get on her feet" before beginning to make payments. Allen did not challenge the amount of the restitution or request an ability to pay hearing. She also received the benefit of restitution as a mitigating factor in the sentencing equation. We find no error in the restitution order.
Finally, the trial court did not err in denying Allen's Drug Court application which, we note, was not filed until after the lengthy jury trial concluded. More importantly, while Allen may have been clinically eligible for the Drug Court program based on her substance abuse evaluation, the Drug Court judge properly determined she was legally ineligible "because the primary motivation for the alleged conduct is profit-making, and the [c]ourt cannot conclude that treatment would be likely to reduce the likelihood that [] defendant will commit another offense." See N.J.S.A. 2C:35-14a(4).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION