Opinion
DOCKET NO. A-1031-14T2
07-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVIS J. FAULKNER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John.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, Salem County, Indictment No. 13-05-0303. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Davis J. Faulkner appeals from the judgment of conviction entered by the trial court on June 3, 2014, as a result of his conviction of third-degree theft by deception and fourth-degree falsifying records. We affirm.
I.
Defendant was charged under Salem County Indictment No. 13-05-0303, with third-degree theft by deception, N.J.S.A. 2C:20-4 (count one); fourth-degree falsifying records, N.J.S.A. 2C:21-4a (count two); fourth-degree criminal simulation of certain documents with the purpose to defraud, N.J.S.A. 2C:21-2 (count three and four); and uttering certain writings with forged names, so they purported to be acts of other persons, N.J.S.A. 2C:21-1a(3) (counts five and six). Thereafter, the court granted the State's motion and dismissed counts three through six.
Defendant was tried before a jury on the remaining counts. At the trial, the State presented testimony from Julio Santana, a special agent with the United States Department of Homeland Security (DHS). Santana was assigned to investigate waste and fraud within the Federal Emergency Management Agency (FEMA). According to Santana, a preliminary review indicated that there was fraud associated with defendant's application for FEMA assistance.
Santana explained that on November 19, 2012, defendant called a FEMA hotline, and informed a FEMA representative that his residence on South Broadway in the Township of Pennsville had been damaged during Superstorm Sandy, which struck the area on October 29, 2012. Defendant said he was unable to access the property because there had been a mandatory evacuation of the town, the utilities were out, and he had been displaced by the storm. He also stated that he had property damage, and that his combined family pre-disaster gross income was $10.
According to Santana, a FEMA inspector visited the property the following day. Santana testified that the inspector had noted in his log that there was no washer, range, refrigerator, or telephone service in the residence. Santana indicated this was something the inspector might view as unusual because a house subject to FEMA inspection after a natural disaster usually has appliances and telephone service.
On November 21, 2012, FEMA sent defendant a letter indicating it had awarded him $22 38 in temporary rental assistance. The letter stated that FEMA expected all families who receive such assistance to return to their damaged homes when repaired or to locate and occupy affordable housing without rental assistance "at the earliest possible time."
Santana further testified that on December 21, 2012, defendant faxed an application to FEMA for additional assistance. On the application, defendant listed his new address which was on Soders Road in Carneys Point. Defendant indicated that his pre-disaster rent was $950 per month, and his current rent was $12 00 per month. He stated that his monthly income was $389, and that D.K. was his landlord.
We refer to certain individuals by their initials, in order to protect their privacy. --------
Later, defendant provided FEMA with supporting documentation for his application. These documents included a lease agreement and rental receipts showing that defendant had paid rent on the Soders Road property to D.K. The lease identified defendant and his son as the occupants. The lease had been signed on December 1, 2012, and included defendant's signature, as well D.K.'s signature. The rental receipts were for December 2012 and November 2013. D.K.'s signature appeared on both receipts. In addition, defendant provided FEMA with a letter from the United States Department of Veterans' Affairs, which stated that defendant was receiving $389 in benefits due to a service-related injury.
It appears that A.Z. also had filed a claim with FEMA with regard to the damaged property on South Broadway in Pennsville. Consequently, FEMA's Fraud Unit contacted Detective Sergeant Gregory Acton of the Pennsville Police Department, seeking his assistance in obtaining information regarding the claims. Acton later reported that A.Z. did not reside at the South Broadway address. FEMA's Fraud Unit then contacted DHS, and Santana was assigned to investigate the matter. He met with Acton and they reviewed certain documents.
According to FEMA's records, C.A. and T.A. were the owners of the South Broadway property. Santana and Acton interviewed C.A. They learned that, when Superstorm Sandy hit, the property was in foreclosure and did not have any tenants. It appears that defendant and T.T. had previously been tenants, but they had been evicted for non-payment of rent.
Santana and Acton also interviewed the owner of the Soders Road property and learned that D.K. was not the landlord. D.K. was a tenant. Santana and Acton interviewed D.K. They showed her the lease and the rental receipts that defendant had submitted to FEMA. She said she did not sign the lease.
Santana and Acton conducted a recorded interview of defendant, which was played for the jury. He claimed he had been living on the second floor of the South Broadway property for about four or five years, and the rent there was $900 per month. He said he and T.T. had been paying rent and living in the South Broadway property until Sandy hit. He claimed that they had utilities but six months before the storm, the electricity had been cut off. Defendant also said the basement was flooded in the storm, and the sump pump was not working. The residence was deemed to be uninhabitable. Defendant and T.T. were told they could not remain in the house, and they had to find somewhere else to live. Someone suggested that they seek assistance through FEMA.
Defendant asserted that he was then staying at other locations, but "technically" his address was the Soders Road residence in Carneys Point. He claimed he signed a lease with two individuals who were allegedly leasing the property, and he was their subtenant. According to defendant, he and T.T. were staying there and with a neighbor because they were "in-between places." They were waiting for assistance but had not "gotten any."
Defendant also said that the monies he had received from FEMA had been paid to A.Z. so they could stay with her. He could not pay anything to D.K. because he had not received any additional assistance from FEMA. Defendant admitted he never paid anything to D.K. Defendant denied that he had submitted a fraudulent application to FEMA, but essentially acknowledged that the rent receipts were fraudulent. He admitted he never paid D.K. $2400.
Defendant explained that he had planned to move to the Soders Road residence but did not do so because D.K. would not allow him and T.T. to stay there. They wound up living with T.T.'s sister, A.Z., on Dunn Lane in Pennsville. Defendant was confronted with the rental receipts he had submitted for the Somers Road property and the fact that he had been living on Dunn Lane in Pennsville. He commented, "what difference does it make?"
Defendant said he was paying rent "to somebody" and it did not matter whether it was for the property on Somers Road or on Dunn Lane. He claimed he paid rent to A.Z. Defendant also said that D.K. lied when she denied signing the paperwork for the Soders Road property. According to defendant, D.K. changed her mind about the lease after they had a falling out.
Santana and Acton also investigated the premises on South Broadway. It was a two-family dwelling that had been boarded up. The second floor, where defendant claimed to have been living, appeared to have been abandoned. According to Santana, there were no appliances in the home. Santana and Acton learned that, at some point, the utilities in the house had been turned off.
Acton also attempted to confirm whether defendant had paid D.K. or A.Z. any rent money. According to information provided by TD Bank, defendant opened an account on November 26, 2012, and made an initial deposit of $2,140.02 into the account. The bank's records indicated that defendant had not withdrawn any money from the account.
Defendant presented testimony from David Curry, a housing official for Pennsville. Curry stated that Pennsville's housing office had received an application for a yard sale at the South Broadway property, but the applicant was not listed as a tenant for that residence. The owner was informed a new certificate of occupancy (CO) was required if the property had been re-rented.
In September 2012, the application for the yard sale was granted because the applicant was a guest at defendant's home. Curry said that, as far as the housing office was concerned, there was a CO for the property and defendant was a tenant. He conceded, however, that the housing office would not know if eviction proceedings had been commenced after the CO was issued. The housing office also would not know if a tenant moved out.
Defendant's seventeen-year-old son testified that he lived with defendant at the South Broadway residence in the weeks before Superstorm Sandy struck New Jersey in late October 2012. He claimed there was no running water in the apartment, but the residence had electricity.
The jury found defendant guilty on count one, which charged him with theft of more than $500 from FEMA by creating the false impression that he had suffered a loss in excess of $2300 in Superstorm Sandy. The jury also found defendant guilty on count two, which charged defendant with submitting an application for disaster assistance knowing that it contained a false statement of information.
The judge sentenced defendant to four years of probation on count one, with a concurrent four-year term of probation on count two. The judge ordered defendant to pay FEMA restitution of $2238. In addition, the judge imposed appropriate fees and penalties. The judge entered a judgment of conviction dated June 3, 2014. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
A COMBINATION OF RANK HEARSAY AND ULTIMATE ISSUE OPINION TESTIMONY DENIED DEFENDANT HIS RIGHTS TO CONFRONTATION AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1 AND 10. (Not Raised Below).
[A] . Santana's Hearsay Testimony About the FEMA Inspector's Opinion.
[B] . Acton's Opinion on Defendant's Guilt.
[C] . Santana's Opinion on Defendant's Guilt.
[D] . Additional Inculpatory Hearsay.
II.
As noted, defendant argues that he was denied his rights to due process, a fair trial, and confrontation.
A. Santana's Testimony.
Defendant first argues that the trial court erred by allowing Santana to present inadmissible hearsay and improper opinion testimony. As we stated previously, Santana testified that after defendant submitted his first FEMA application, a FEMA inspector went to the residence on South Broadway in Pennsville and noted in his log that the home had no appliances, utilities or telephone service.
Santana was asked why the log contained such a note. He replied that based on his training and experience, the FEMA inspector would have noted this fact in the report because after a disaster, the lack of appliances and telephone service in a recently evacuated home was unusual.
Defendant's counsel did not object to the testimony. Therefore, we must determine whether admission of this testimony constituted plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2.
We note that Santana did not testify at trial as an expert. Moreover, contrary to defendant's argument, he did not present the opinion of the non-testifying FEMA inspector. Rather, Santana explained why the inspector had noted the absence of appliances and telephone service in the home that defendant claimed he had just vacated due to the storm.
Our rules of evidence allow a lay witness to provide testimony in the form of an opinion or inference if such testimony: "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Lay opinion testimony is admissible if based on the perception of the witness and will assist the jury in its fact-finding function. State v. McLean, 205 N.J. 438, 456 (2011).
Here, Santana testified that he worked for the DHS with responsibility for investigating waste, fraud and abuse of the agency's programs. Santana explained that he has been trained in FEMA policies and procedures, and he is called upon by FEMA to undertake investigations for fraud.
Santana provided an explanation for the FEMA inspector's note based on his training and experience as a DHS investigator. He told the jury that it was unusual for a home that is claimed to have been recently vacated due to a natural disaster not to have appliances or phone service.
We are convinced that Santana's testimony was a permissible lay opinion under N.J.R.E. 702. Santana's testimony was based on his technical knowledge and experience as a DHS investigator. Moreover, the testimony was admissible to assist the jury understand the notations in the FEMA log report and resolve various disputed issues of fact.
Defendant further argues that Santana improperly commented on his guilt. In support of this contention, defendant cites testimony that was elicited on cross-examination by his own attorney.
Defense counsel asked Santana whether the documents defendant submitted to FEMA revealed an actual intention to defraud the United States government. Santana replied that the paperwork submitted to FEMA, and the facts developed in the investigation, including the rent receipts that defendant provided to the agency, indicated that there "was an attempt to defraud FEMA."
Defense counsel then asked Santana to explain why the rent receipts were fraudulent and whether there was anything to indicate deceit by defendant. Santana replied that there was evidence indicating deceit, specifically defendant's admission that he had not paid D.K. rent, despite his earlier claim to the contrary. Santana noted that defendant had asserted that it did not matter to whom he paid the rent, so long as he paid it. However, the rent receipts indicated that defendant had paid rent to D.K, which was not the case.
Trial errors which are "induced, encouraged or acquiesced in or consented to by the defense counsel ordinarily are not a basis for reversal or appeal." State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks omitted); see also State v. Jenkins, 178 N.J. 347, 359 (2004); State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). Moreover, we are convinced the trial court did not err by allowing Santana's testimony.
Santana did not opine on whether defendant was guilty of the charged offenses, specifically, theft by deception and falsification of records. He had been asked to explain whether the rent receipts were fraudulent, and whether there was any deceit on defendant's part. The terms "fraud" and "fraudulent activity" had been used throughout the trial, without any objection by defense counsel.
Furthermore, Santana merely responded to the question of whether there was any evidence showing defendant intended to defraud FEMA. His testimony was based on the evidence admitted at trial which indicated, among other things, that defendant sought FEMA rental assistance based on his purported displacement from a residence. However, defendant had been evicted from that home before the storm hit.
In addition, N.J.R.E. 704 permits the admission of testimony, in the form of an opinion, "which embraces an ultimate issue to be decided by the trier of fact." To the extent that Santana was opining as to whether the evidence showed defendant's intent to defraud FEMA, it was permissible under N.J.R.E. 704.
B. Acton's Testimony.
Next, defendant argues that the trial court improperly permitted Acton to testify that based on the discrepancies between the documents he examined and the interviews he conducted, "there was definitely fraudulent activity." Defendant contends that Acton was permitted to express a direct opinion on his guilt. Again, we disagree.
Acton did not specifically state that defendant was guilty of theft by deception or falsifying records, which were the charges upon which defendant was convicted. Moreover, as noted, the terms "fraud" and "fraudulent activity" had been used numerous times during the trial without objection from defense counsel.
Acton's statement also was admissible lay opinion testimony under N.J.R.E. 701, since it was based on his perception of the evidence acquired in his investigation, and it was helpful to the jury's understanding of the case. In addition, Acton's testimony was admissible under N.J.R.E. 704, even though it may have embraced an ultimate issue to be decided by the jury.
C. Other evidence.
Defendant also contends that the trial court erred by allowing the State to elicit incriminating hearsay testimony in its case-in-chief. He argues that the State was improperly allowed to suggest that it had "extra record knowledge" of his guilt. Defendant contends that this testimony was inadmissible under State v. Bankston, 63 N.J. 263 (1973), and State v. Branch, 182 N.J. 338 (2005). We cannot agree.
In Bankston, the Court stated that "the hearsay rule [was] not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Id. at 268. The Court observed, however, that "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testimonial witness has given the police evidence of the accused guilt, the testimony should be disallowed as hearsay." Id. at 271; see also Branch, supra, 182 N.J. at 349 (noting that it is improper to admit evidence that police had "received information from an unknown source implicating the defendant in the crime.")
Defendant contends that the trial court erred by allowing Santana to testify that some unknown member of FEMA's Fraud Unit had determined he committed fraud. Defendant also contends the trial court erred by permitting Santana to state that, after he was assigned to investigate the matter, he contacted the Pennsville police because there was an "unrelated" case in which some of the "subjects of his case" have been mentioned. Defendant asserts that this testimony came "close to suggesting that defendant was somehow affiliated with other known scammers."
We are convinced, however, that the admission of these statements was not improper. The testimony regarding FEMA's Fraud Unit merely explained why Santana was assigned to investigate the matter. In addition, the statement regarding the "unrelated" case did not suggest that some unknown persons had provided the State or the investigators additional evidence of defendant's guilt. We conclude that Santana's testimony on these subjects did not run afoul of Bankston or Branch.
Defendant also contends the trial court erred by permitting Santana to testify regarding his interview with C.A., in which she said that when Superstorm Sandy struck, the property on South Broadway was in foreclosure and did not have a tenant. However, even if the testimony was hearsay, defendant was not prejudiced by its admission because C.A. testified at trial, and defendant's counsel had the opportunity to question her about her interview.
We note additionally that even if the trial court erred by failing sua sponte to preclude any of the testimony discussed previously, the admission of the testimony does not rise to the level of plain error. At trial, the State presented overwhelming evidence of defendant's guilt of third-degree theft by deception, contrary to N.J.S.A. 2C:20-4a. The evidence established that defendant obtained more than $500 from FEMA by purposely giving the agency the false impression that he suffered a loss of about $2300 because he had been displaced from his residence by the storm.
The evidence showed that although defendant claimed in his initial FEMA application that he had been living in the house on South Broadway in Pennsville, that house had been in foreclosure and had no tenants when Sandy hit. C.A., the owner of the property testified that defendant and T.T. had been evicted from the premises before the storm struck. Defendant also admitted the house did not have electricity or water and had been deemed to be "uninhabitable" well before Sandy hit, thereby indicating he had not been displaced by the storm.
In addition, the evidence established that defendant had uttered a writing knowing that it contained a false statement or information, with the purpose to deceive, contrary to N.J.S.A. 2C:21-4a. Defendant's initial application to FEMA had numerous false statements, including the statements that defendant had been subject to a mandatory evacuation and his residence on South Broadway was without utilities due to Sandy.
Moreover, defendant claimed that he had moved to a residence on Soders Road in Carneys Point. He presented FEMA with a lease and rent receipts indicating he had paid D.K. two months rent. However, defendant admitted in his interview with Santana and Acton that he never resided at Soders Road. He acknowledged that he actually lived at the time with A.Z. on Dunn Lane in Pennsville. Defendant said he paid $2400 to A.Z. but Acton's review of defendant's bank records indicated that he had not withdrawn any money from his bank account to pay A.Z.
In short, even if the trial court erred by admitting the testimony that defendant now claims was objectionable, the error was not "clearly capable of producing an unjust result." R. 2:10-2. We are convinced that the testimony at issue was not clearly capable of leading the jury to a conclusion it would not have otherwise reached based on the other evidence presented.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION