Opinion
DOCKET NO. A-1555-14T2
06-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY WHITE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-12-3098. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals his September 29, 2014 judgment of conviction for stealing $233,672 through deception and extortion, and for making terroristic threats. We affirm.
I.
The following facts were elicited at defendant's trial. In November 2012, the victim Linda B. met a man named Hyman Freedman. In December 2012, Freedman introduced Linda to his friend, Dwight Fleurant. On January 18, 2013, Linda, Freedman, and Fleurant traveled together to Atlantic City. There, they met defendant, a friend of Fleurant.
We do not use the last name of the victim to protect her privacy. We will refer to her by her first name only.
On January 21, 2013, Freedman left Atlantic City, and Linda and Fleurant checked into a hotel suite that defendant had gotten them. Linda lent defendant $800 he requested for gambling.
Later that day, defendant told Linda that while in the casino he just met two "ivy league" "whales" named Mel and John. He said they had propositioned him with a business venture to invest in a new "production company." Defendant told Linda it would be "the opportunity of a lifetime" for Linda and himself, which also would give her a 25% return on her investment. Later, defendant gave Linda a business plan for the production company, and a contract between defendant and Linda guaranteeing her 25% return on her investment. Linda signed the documents and received copies, which defendant subsequently took from her room.
The term "whales" is used to describe "high rollers," that is, high-stakes gamblers.
Defendant also told Linda that Mel and John would pay for her accommodations while she stayed in Atlantic City, and that they paid for some of her meals. In fact, defendant received the accommodations complementarily because of the large amounts defendant spent gambling after he met Linda.
Defendant convinced Linda this was a good investment. On January 22, 2013, Linda withdrew $15,000 from her Citibank account via a Global Cash Access (GCA) machine, and gave the money to defendant. On January 23, 2013, defendant and Linda traveled to the nearest Citibank branch, in Cherry Hill, for Linda to withdraw $20,000, which she gave to defendant. After Fleurant left Atlantic City, Linda stayed at the Revel Hotel in Atlantic City for approximately one month. She continued to withdraw money from Revel GCAs and directly from her bank, and gave the money to defendant.
A GCA machine is a casino ATM that has higher withdrawal limits than a traditional ATM.
Revel security personnel asked Linda why she was giving large sums of cash to defendant. Linda told security that the cash was an investment, and gave them defendant's name, but refused to cooperate further. When Linda told defendant about the incident, he became upset and would no longer take money from Linda when on the casino floor.
In early February 2013, Linda and defendant were in front of a casino and defendant started screaming at the casino valet, accusing him of stealing from Linda's car a folded piece of toilet paper that contained drugs. When Linda questioned defendant about why he had drugs, he screamed: "[W]hat the fuck. Don't tell anyone. If I go down, you're going down with me." Defendant told Linda that Mel and John do drugs, and that he had to get drugs for them.
About one week after the incident with the valet, defendant told Linda there had been a big drug bust involving a lot of people. He said he was able to walk away, but that the police had confiscated $40,000 Linda had given him. He told Linda that she would need to get him another $40,000. He warned her that she did not "want to fuck with these people," and that if she "fuck[ed] with these drug lords" they would have her killed. This convinced Linda to give defendant the money so she wouldn't "go down."
On February 11, 2013, when most of the money in Linda's Citibank account had been depleted, she and defendant drove to People's Bank in New York, where Linda withdrew $20,000 and gave it to defendant. Linda then drove to her parents' home in Connecticut to get another $20,000. On February 20, 2013, Linda asked her parents for more money, and her mother wired about $31,000 to her.
On February 21, 2013, while Linda was still staying at the Revel Hotel, she was approached by two State Police agents. They asked Linda about an incoming wire from her mother for $20,000. Linda told them that the money was hers, and that she was giving the money to defendant for an investment with Mel and John. Linda immediately called defendant, who took her to Caesars Hotel. Linda was too afraid to collect the wired funds from her mother for four or five days. Defendant eventually convinced Linda to go back to the Revel Hotel to collect the money, which she gave to defendant.
Defendant told Linda that, because Mel and John "were involved in drugs, they left [Atlantic City] and wanted nothing to do with this" now that she had been questioned by the police. Defendant told Linda that Mel and John went to Las Vegas, and that if she wanted her money back, she and defendant would have to go to Las Vegas. However, by that time, Linda did not have the money to make the trip.
Linda eventually left Atlantic City and went back to her parents' home in Connecticut. By that time she had given defendant $233,672. She had drained over $100,000 from her bank accounts, borrowed $49,000 against her credit line, and had also given defendant $73,000 she had been given by her parents.
In March 2013, defendant contacted Linda, telling her he had a Rolex watch, and that if Linda purchased it from him, she could pawn it and use the profit to travel to Las Vegas. Linda went to Western Union and wired defendant about $200 for a deposit on the watch. Around March 23, 2013, Linda traveled back to Atlantic City and gave defendant her tax return money, as well as additional monies that had been wired to her by her mother. After she gave the money to defendant, he "started touching [her] legs" and when she told him not to, he just "punched and punched" and bruised her legs. He told her that there was no watch, and that if she "talk[ed] to anyone he'[d] fucking kill" her.
Linda then returned to her parents' home, where she realized she had been "bamboozled," and that there were no "drug lords, John, Mel. There's nothing." Linda contacted the two State Police agents who had approached her at the Revel Hotel, and told them what had happened.
Defendant was charged with second-degree theft by deception, N.J.S.A. 2C:20-4 and 2C:20-2 (Count One); second-degree theft by extortion, N.J.S.A. 2C:20-5 and 2C:20-2 (Count Two); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Three). After a three-day trial, the jury convicted defendant on all counts. The trial court granted the State's motion for a discretionary extended term, and sentenced defendant to twelve years in prison, with 85% to be served before parole, on Count Two; a concurrent seven-year term on Count One; and a concurrent four-year term on Count Three. Defendant was also ordered to pay $233,672 in restitution.
Defendant now appeals, arguing:
POINT ONE: THE ADMISSION OF EVIDENCE OF MR. WHITE'S DRUG POSSESSION VIOLATED N.J.R.E. 404(B), DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION WAS ERROR. (Not Raised Below).
POINT TWO: THE ADMISSION INTO EVIDENCE OF BUSINESS RECORDS VIOLATED MR. WHITE'S RIGHT TO A FAIR TRIAL BECAUSE THEY WERE NEVER AUTHENTICATED. (Not Raised Below).
POINT THREE: THE ADMISSION INTO EVIDENCE OF OFFENSES NOT CHARGED IN THE INDICTMENT VIOLATED MR. WHITE'S CONSTITUTIONAL RIGHTS. (Not Raised Below).
POINT FOUR: MR. WHITE'S SENTENCE VIOLATED THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006). (Not Raised Below).
POINT FIVE: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE AND FAILING TO HOLD A PROPER RESTITUTION HEARING. (Partially Raised Below).
II.
Defendant concedes he failed to raise many of these claims in the trial court. Thus, he must show plain error. State v. Maloney, 216 N.J. 91, 104 (2013). Defendant has the "'burden of proving that the error was clear and obvious,'" and that it had "'the clear capacity to bring about an unjust result.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citations omitted); see R. 2:10-2. Moreover, defendant's first three claims challenge the admission of evidence at trial. "'[C]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). We must hew to that standard of review.
III.
Defendant argues Linda's testimony that the incident with the valet violated N.J.R.E. 404(b) because it suggested defendant possessed drugs. He also argues that even if the testimony was properly admitted, the court erred in failing to provide a limiting instruction to the jury. Defendant fails to show plain error.
"N.J.R.E. 404(b) generally precludes the admission of evidence pertaining to other crimes or wrongs[.]" State v. Goodman, 415 N.J. Super. 210, 229 (App. Div. 2010), certif. denied, 206 N.J. 78 (2011). "The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403." State v. Rose, 206 N.J. 141, 179 (2011). "[E]vidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not 'evidence of other crimes, wrongs, or acts.'" Id. at 177 (emphasis added).
There are two types of intrinsic evidence. "'First, evidence is intrinsic if it "directly proves" the charged offense.'" Id. at 180 (citation omitted). "'Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime."'" Ibid. (citation omitted).
Here, Linda's testimony about the valet incident was intrinsic. First, it directly proved two charged offenses. Defendant was charged with theft by deception under N.J.S.A. 2C:20-4. "A person is guilty of theft if he purposely obtains property of another by deception." N.J.S.A. 2C:20-4. "A person deceives if he purposely: (a) Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind[.]" Ibid. Defendant's deceptive statements to Linda, that Mel and John did drugs and that the missing drugs were for them, helped create a false impression defendant later used to deceive Linda. Specifically, defendant later claimed that Mel and John were involved in a drug bust, that Linda's $40,000 was confiscated by police, and that she needed to give defendant another $40,000.
Defendant was also charged with theft by extortion which can be committed by threatening to "[i]nflict bodily injury" or to "[a]ccuse anyone of an offense." N.J.S.A. 2C:20-5(a), (b). During the valet incident, defendant threatened Linda not to tell anyone about the drugs because "[i]f I go down, you're going down with me." Also, defendant later built on his claim that Mel and John were involved in drugs by threatening that the "drug lords" would kill her if she did not pay him the $40,000.
Second, defendant's lies about the drugs being for Mel and John, and his threat that Linda would "go down," occurred contemporaneously with the charged offenses, and facilitated those offenses as set forth above.
Therefore, we conclude Linda's testimony was intrinsic. Accordingly, we need not determine whether it was admissible as extrinsic evidence under N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992). Because the evidence was intrinsic, no N.J.R.E. 404(b) limiting instruction was required. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404 (2015).
In any event, Linda testified and the prosecutor reiterated in closing argument that Linda trusted defendant because she "never saw" him "doing drugs or anything like that." The prosecutor did not argue that defendant actually possessed or used drugs.
Moreover, this evidence was relevant under N.J.R.E. 402, and its probative value was not substantially outweighed by its prejudicial effect under N.J.R.E. 403. Therefore, its admission was proper. In any event, defendant cannot show plain error.
Defendant also notes that Freedman testified there were drugs in the shared hotel room, and that Freedman used some of those drugs. However, Freedman did not testify that defendant possessed or used drugs, and thus did not introduce evidence falling within the scope of N.J.R.E. 404(b). Freedman's tentative testimony that "[t]here could have been some conversation" that defendant and Fleurant could obtain drugs if Freedman needed drugs was too vague to be "clearly capable of producing an unjust result." R. 2:10-2.
IV.
Next, defendant argues that the trial court erred in admitting into evidence various business records of monetary transactions. Defendant argues that the records were never authenticated, and were inadmissible hearsay.
Defendant's appellate brief cites the following exhibits: bank statements from Citibank and People's Bank (State's Exhibits 21, 30); Western Union wire transfer receipts (State's Exhibits 19, 20); another record of a wire transfer (State's Exhibit 34); ATM and GCA receipts (State's Exhibits 22, 23, 31); and defendant's "player trip report" from the Revel casino, indicating how much he gambled (State's Exhibit 35).
However, when asked if there was any objection to the admissibility of any of these exhibits, defense counsel said: "No, I don't have any objection[.]" Thus, defendant's appellate argument is barred by the doctrine of invited error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010). "Under that settled principle of law, trial errors that '"were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."'" State v. A.R., 213 N.J. 542, 561 (2013) (citations omitted).
"Even if a party has 'invited' an error, though, courts will not bar defendants from raising an issue on appeal if 'the particular error . . . cut mortally into the substantive rights of the defendant,'" and "would '"cause a fundamental miscarriage of justice."'" Id. at 562 (citations omitted). Defendant has not made such a showing.
Defendant did not provide us with copies of the exhibits whose admission he now challenges. Moreover, defendant makes no showing that these documents were not authentic, or that they could not have been admitted under the hearsay exception for business records, N.J.R.E. 803(c)(6), had he objected to their admission. Additionally, the accuracy of these documents is unchallenged, and the amounts in the documents are largely corroborated by trial testimony. Thus, defendant fails to show that their admission was "clearly capable of producing an unjust result," R. 2:10-2, let alone a fundamental injustice.
V.
Defendant argues that his due process rights were violated when the trial court permitted the admission of evidence that Linda's parents had sent Linda some of the money that she gave defendant, when Linda was the only victim named in the indictment.
Count Two did state that defendant threatened Linda "and her family" to obtain her property by extortion.
Both N.J.S.A. 2C:20-4 and -5 require that the defendant take "property of another." "'Property of another' includes property in which any person other than the actor has an interest[.]" N.J.S.A. 2C:20-1(h). "The word 'interest' standing alone is not expressly described, but the Code defines '[i]nterest in property which has been stolen' as 'title or right of possession to such property.'" State v. Kosch, 444 N.J. Super. 368, 380 (App. Div. 2016) (quoting N.J.S.A. 2C:20-1(o)).
Linda plainly had the right of possession to the funds given her by her parents. Moreover, defendant has not shown that Linda did not own the funds once they were given to her by her parents. Further, defendant cites no law requiring Linda's parents to be named as additional victims in the indictment. Thus, defendant has not carried his "'burden of proving that the error was clear and obvious,'" or that it had "'the clear capacity to bring about an unjust result.'" Koskovich, supra, 168 N.J. at 529 (citations omitted).
In any event, the evidence showed defendant stole $233,672 of which only about $71,000 was given to Linda by her parents. The remaining amount was more than sufficient to support his convictions of second-degree theft by deception of $75,000 or more, N.J.S.A. 2C:20-2(b)(1)(a), and second-degree theft of any amount by extortion, N.J.S.A. 2C:20-2(b)(1)(b).
VI.
Defendant claims the trial court abused its discretion in finding him eligible for an extended term under the persistent offender statute, because it cited the protection of the public.
"The persistent offender statute, N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to impose an extended sentence when the statutory prerequisites for an extended-term sentence are present." State v. Pierce, 188 N.J. 155, 161 (2006).
The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds . . . [that t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender.A "persistent offender" is defined as:
[N.J.S.A. 2C:44-3(a).]
a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
[Ibid.]
Here, the trial court correctly held that defendant satisfied the minimum statutory predicates for an extended term, because "he has the two predicate offenses that make him discretionary extended term eligible in New Jersey," namely his previous convictions for theft in 2012 and impersonation in 2006.
In addition, in determining the appropriateness of an extended term, the trial court cited State v. Dunbar, 108 N.J. 80, 90-91 (1987), and "consider[ed] whether an extended term is necessary for the protection of the public from future offenses by the defendant." However, in Pierce, our Supreme Court ruled that "Dunbar's reference to a finding of 'need to protect the public' is not a precondition to a defendant's eligibility for sentencing up to the top of the discretionary extended-term range." Pierce, supra, 188 N.J. at 170. Nonetheless, Pierce made clear that a sentencing "court may consider the protection of the public when assessing the appropriate length of a defendant's base term as part of the court's finding and weighing of aggravating factors and mitigating factors." Ibid.
Here, defendant admittedly met the statutory criteria, which made him eligible for an extended term regardless of the need to protect the public. Further, the court could consider the need to protect the public in determining how long his sentence should be. Thus, the court's consideration of the need to protect the public was not "clearly capable of producing an unjust result." R. 2:10-2.
Defendant complains that the court considered that defendant "inflicted emotional and psychological pain and suffering not only to this victim, but to this victim's elderly mother." Defendant does not claim that this was factually erroneous, nor does he show a legal reason why the court could not consider it as part of protection of the public.
In Pierce, the Court remanded for resentencing only to ensure that the sentencing court was aware it could sentence the defendant "within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range." Pierce, supra, 188 N.J. at 171. That is unnecessary here, because the trial court applied Pierce and recognized that "once the court determines defendant's eligible for an extended term, the court should consider a sentence between the bottom of the original term and the top of the enhanced term in view of aggravating and mitigating factors and fashion a sentence within that range."
VII.
Defendant also argues that his sentence was excessive, because the trial court erred in finding and weighing the aggravating and mitigating factors. The trial court found as aggravating factors: "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9).
Defendant argues that the court afforded too much weight to the risk of re-offense and the need for deterrence. To the contrary, the court properly gave strong weight to these factors. The record supports the court's findings that defendant was "a con man extraordinaire," that he performs scams like this for a living, that he preys upon victims to feed his gambling addiction, and that he "will commit another crime if given the opportunity to do so."
The trial court also found that "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as a part of the cost of doing business," N.J.S.A. 2C:44-1(a)(11). Defendant argues, and the State concedes, that it was error to apply this factor. "By its very terms," this factor is "inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). It is inapplicable here because defendant was convicted of a second-degree offense which carries a presumption of imprisonment, and "no effort to overcome that presumption was made." Id. at 502.
However, the error was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The trial court gave this factor no particular weight. Instead, the court gave strong weight to other aggravating factors, and found that they "clearly and substantially" outweighed the only mitigating factor, namely that defendant will compensate the victim, N.J.S.A. 2C:44-1(b)(6).
Defendant contends the trial court should have found that his imprisonment would entail excessive hardship to himself and his dependents, N.J.S.A. 2C:44-1(b)(11), because defendant has fathered three children. However, those children live with their mothers in Colorado and Florida. There is no indication that they rely on defendant for support. The trial court found no other mitigating circumstances applied.
Defendant also asserts the trial court should have found there were substantial grounds tending to excuse or justify the defendant's conduct, N.J.S.A. 2C:44-1(b)(4), because he suffered from a gambling addiction. The trial court recognized that defendant used Linda's money to feed that addiction, but was not required to find it excused his conduct. Generally, addictions do not excuse unlawfully acquiring the funds of another. See, e.g., State v. Ghertler, 114 N.J. 383, 390 (1989) (drug dependency is not a mitigating factor under N.J.S.A. 2C:44-1(b)(4)); see also In re Nitti, 110 N.J. 321, 321-22 (1988) (compulsive gambling is not a mitigating factor sufficient to excuse an attorney from disbarment).
VIII.
Finally, defendant argues that the trial court erred in requiring defendant to pay $2 33,672 in restitution. Defendant complains the court did not first hold a restitution hearing, and it is unlikely that defendant will be able to pay the restitution awarded.
"At sentencing a trial court may order restitution to cover the victim's loss." State v. Orji, 277 N.J. Super. 582, 589 (App. Div. 1994). "Restitution exists to deny defendant pecuniary gain from the offense." Ibid. "A court in determining the amount of restitution is required to consider defendant's financial resources, including likely future earnings and ability to pay." Ibid. (citing N.J.S.A. 2C:44-2(c)(2)).
"While . . . due process normally requires a hearing on both the ability to pay and the time period for making restitution," a hearing is not necessary when neither the amount to be paid nor the ability to pay was in dispute. Id. at 589- 90. At sentencing, defendant repeatedly indicated that he owed Linda money, that he was "hell bent on paying" her back, and that "I will get it without a doubt." Defendant, who owned a Mercedes, insisted that paying the money back was "within [his] capabilities" given his talents, connections, and career prospects. The trial court credited defendant sufficiently to find that defendant "will compensate the victim of his conduct for the damage or injury that [she] has sustained," N.J.S.A. 2C:44-1(b)(6). The trial court was not required to hold a hearing where the amount and ability to pay were undisputed.
Defendant added that after seeing Linda's mother and learning that some of "that money came from somebody that can't even basically . . . fend for themselves as an elderly woman," he "will get" the money to pay restitution because "who would want to go to their grave with that on their conscience." On appeal, defendant now claims he should not have to pay back money Linda got from her mother. However, as set forth above, all the money defendant stole he obtained from Linda. Thus, "[t]he restitution ordered paid to the victim [does] not exceed the victim's loss." N.J.S.A. 2C:43-3.
In any event, because defendant insisted that he would pay the restitution and thus convinced the court to find as a mitigating factor that he would pay the restitution, we will not entertain his claims on appeal that he could not pay the restitution and that the trial court should have granted a hearing he never requested. See State v. Witt, 223 N.J. 409, 419 (2015). "The invited-error doctrine is intended to 'prevent defendants from manipulating the system' and will apply 'when a defendant in some way has led the court into error' while pursuing a tactical advantage that does not work as planned." State v. Williams, 219 N.J. 89, 100 (2014) (quoting A.R., supra, 213 N.J. at 561-62), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).
We need not now address whether an ability to pay hearing would be necessary before sanctioning defendant for failure to pay in the future. See State in Interest of R.V., 280 N.J. Super. 118, 123 & n.3 (App. Div. 1995). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION