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State v. Wright

Decided: December 9, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELAINE WRIGHT, DEFENDANT-APPELLANT



Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.

Ard

Following a jury trial defendant was found guilty of four counts of obtaining money under false pretenses, one count of attempting to obtain money under false pretenses and five counts of uttering forged instruments. Subsequently she was sentenced to a six-month term in the Essex County Correction Center on Count 1 (false pretenses) and a six-month concurrent term to the same institution on Count 2 (uttering a forged instrument). The trial judge suspended imposition of sentences on the remaining counts and recommended that defendant be permitted either "work release" or "family release" if so requested.

A review of the pertinent facts indicates that defendant entered a bank and attempted in one transaction to cash five checks.*fn1 Each check was a company check made out to a different payee. The drawer of each check purported to be Robert Farkas, the executive vice-president of the company. The signature was a forgery. On the back of each check was an endorsement in the name of the respective payee as well as in the name of Jacquelyn Wilson. Farkas testified that there was no one in his employ with the name Jacquelyn Wilson. He also testified that the checks were company checks missing from the voucher check box in his firm. Defendant, a former employee, was identified by two bank employees through a group photograph of an office party. They identified defendant as the person who had cashed the company checks. Defendant testified in her own behalf and confirmed that she had occasionally gone to the bank while employed by the company to make deposits for the company but denied being at the bank on the date in question and denied taking or attempting to cash any company checks. The bank teller testified that upon being presented with five checks to cash he

began cashing them and just prior to cashing the last check attempted to get proper identification from defendant. After an unsuccessful attempt to obtain proper identification through the services of another teller, he phoned the drawer company. While he was on the phone, the woman, identified as defendant, left the bank with the money from the four cashed checks, leaving the remaining uncashed check on the counter. This latter circumstance accounted for the one charge of attempting to obtain money under false pretenses.

In addition to the allegation that the six-month custodial sentence was manifestly excessive and an abuse of judicial discretion, defendant claims that the five counts of uttering a forged instrument cannot properly result in five separate convictions in the circumstances of this case. A similar claim is made regarding the five counts, including the count alleging an attempt, of obtaining money by false pretenses. Finally, defendant contends that not only is there a merger of all charges of obtaining money by false pretenses and a merger of all charges of uttering a forged instrument but also a merger of the merged charge of obtaining money by false pretenses and the merged charge of uttering a forged instrument into one conviction of uttering a forged instrument. In other words, the entire transaction constituted one crime.

We are satisfied that the uttering of the five checks to the bank teller at one time constitutes a single transaction which should not be fractionalized into separate crimes in accordance with the number of checks uttered.

Although dealing with drug-related offenses and separate statutory crimes, the recent trilogy of cases concerning a single multiple-count indictment of related violations assists us in making this analytical determination. State v. Jester , 68 N.J. 87 (1975); State v. Davis , 68 N.J. 69 (1975); State v. Ruiz , 68 N.J. 54 (1975).

In State v. Davis the court stated:

As a practical matter, however, it may be helpful to employ a certain flexibility of approach to the inquiry of whether separate offenses have been established under the proofs, attended by considerations

of "fairness and fulfillment of reasonable expectations in the light of constitutional and common law goals." State v. Currie , 41 N.J. 531, 539 (1964). Such an approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme ...


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