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State v. Lemken

Decided: October 31, 1974.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN J. LEMKEN, DEFENDANT-APPELLANT



Carton, Crane and Kole.

Per Curiam

Defendant appeals from his convictions for conspiring, with co-defendant John Marinan, to obtain money by false pretenses (N.J.S.A. 2A:98-1(e), (f), 2A:98-2) and the substantive charge of obtaining money by false pretenses (N.J.S.A. 2A:111-1). He was given concurrent suspended sentences of 1 to 2 years to State Prison, fined a total of $2,000 and placed on probation for 2 years. His co-defendant, also convicted, has not appealed.

The offenses of which defendant, an attorney-at-law of this State, was convicted arise from his alleged role, between May 1969 and June 1970, in obtaining some $1,560 from William Topken, the administrator of the estate of Emil Klein, as payment for funeral and burial services which were never provided. During this period defendant held the office of First Assistant Counsel to Hudson County, a part-time position, while his co-defendant Marinan held the position of morgue custodian at Meadowview Hospital, Secaucus, a county institution.

Klein died at Meadowview Hospital on May 22, 1969. On June 9, 1969, Marinan, in his official capacity, had Klein buried at Jersey City Cemetery. The burial was by "right of burial" at a fee of $45. Klein's body was transported to the cemetery in a station wagon rather than a hearse and there were no pallbearers present at the burial. The casket, a pine box, was valued at $25 to $30. No religious service was provided.

Marinan received two payments aggregating $755 in May and June 1969 for his services. On May 28 he was paid $500 from Klein's Patient Trust Fund maintained by the hospital. On June 12 he received $255 on his voucher to the Hudson County Board of Freeholders.

In addition to these payments Marinan submitted a bill of $2,060 for Klein's funeral. By letter of November 17,

1969 Lemken sent this bill of Marinan to William Topken, who had been appointed administrator of Klein's estate. Marinan's bill included large sums for a casket; $275 for cemetery fees; $38 for a hearse; $42 for pallbearers and $25 for "pastor offering." Thus, Marinan's bill plainly constituted a false representation.

It is also clear that Marinan, in addition to the moneys from the Patient Trust Fund and the County, received $1,560 -- $255 in lump sum death benefits from Social Security as approved by Topken and $1,305 paid directly by Topken, the balance claimed to be due on the $2,060 bill. The charges here involved center around the payment of this $1,560 to Marinan by or with the approval of Topken pursuant to the alleged conspiracy and false pretenses.

Defendant first contends that the court should have granted his motion for acquittal at the end of the State's case. His claim is that the evidence then adduced, admittedly circumstantial in nature, would not permit a jury reasonably to infer beyond a reasonable doubt (1) that Lemken was involved with Marinan in a conspiracy knowingly and intentionally to defraud or obtain moneys by false pretenses from Topken, the administrator of Klein's estate, or that, when he transmitted Marinan's bill or information relating thereto to Topken, he had any knowledge as to the falsity of the funeral expenses or moneys due thereon; and (2) that, with respect to the false pretenses count, he either knew the bill or information relating thereto to be false or in any wise intentionally and knowingly aided and abetted in making fraudulent representations to Topken, or that Topken relied on any misrepresentation made by defendant.

In deciding whether the trial court was correct in denying the motion, we of course, take into account only the evidence on the State's case, unaided by what defendant later developed at trial. Applying the standard applicable to this type of motion. R. 3:18-1; State v. Allen , 53 N.J. 250 (1969); State v. Reyes , 50 N.J. 454 (1967), we are satisfied that defendant's contention is without merit.

Defendant argues that the circumstantial evidence introduced by the State engendered mere speculation or conjecture as to the foregoing required predicates for guilt. Not so. Where, as here, the proofs at the end of the State's case plainly permitted reasonable inferences by a jury that defendant committed the crimes charged beyond a reasonable doubt, the motion for acquittal was properly denied. See State v. Fiorello , 36 N.J. 80 (1960), cert. den. 363 U.S. 830, 80 S. Ct. 1601, 4 L. Ed. 2d 1524 (1960); State v. Graziani , 60 N.J. Super. 1 (App. Div. 1959), aff'd o.b. 31 N.J. 538 (1960), cert. den. 363 U.S. 830, 80 S. Ct. 1601, 4 L. Ed. 2d 1524 (1960); State v. Yormark , 117 N.J. Super. 315 (App. Div. 1971), certif. den. 60 N.J. 138 (1972), cert. den. 407 U.S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d 812 (1972); State v. Mayberry , 52 N.J. 413, 437 (1968); State v. Allen, supra; State v. Zwillman , 112 N.J. Super. 6 (App. Div. 1970).

Defendant erroneously relies on such cases as State v. La Fera , 42 N.J. 97 (1964); United States v. Bethea , 143 U.S. App. D.C. 68, 442 F.2d 790 (D.C. Cir. 1971); United States v. Herthaus , 391 F.2d 810 (3 Cir. 1968); State v. Madden , 61 N.J. 377 (1972); United States v. Glantzman , 447 F.2d 199 (3 Cir. 1971); and State v. Greco , 29 N.J. 94 (1958). All of these cases involve factual settings substantially different from the evidence before us.

Giving the State the benefit of all favorable evidence and inferences therefrom, its case rests basically on a series of events and letters that defendant wrote, as county counsel and as a private attorney, relating to Klein, his estate and his funeral expenses, as well as on ...


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