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State v. Varlese

Decided.: December 3, 1979.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED VARLESE, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. ANDREW SIMONSEN, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Monmouth County.

Seidman, Michels and Devine. The opinion of the court was delivered by Seidman, P.J.A.D.

Seidman

The subject matter of these appeals, consolidated on the court's own motion, is defendants' conviction at a jury trial of obtaining money under false pretenses, in violation of N.J.S.A. 2A:111-1, and of misconduct in office, contrary to N.J.S.A. 2A:85-1. Defendant Fred Varlese was sentenced to the payment of a fine of $500 on each count. He was also ordered to "pay back all money involved." A fine of $1000 on each count was imposed in the case of defendant Andrew Simonsen, who was also directed to make restitution in like manner. Neither defendant was placed on probation.

Defendants, who were duly appointed commissioners of the Bayshore Regional Sewerage Authority, which operates a sewerage system for its member municipalities in Monmouth County, were authorized to attend, cost-free, a convention in Denver, Colorado, from October 6 through 11, 1974, held under the sponsorship of the Water Pollution Control Federation. Defendants and another commissioner obtained round-trip airline tickets, paid for directly by the Authority, and flew to Denver, registering at the convention center for the full five-day period. On October 8, the three commissioners decided to leave Denver and fly to Las Vegas for the remainder of the week.

When they returned to New Jersey the three commissioners submitted receipts for expenses incurred in both Denver and Las

Vegas. At their request the Authority's executive director prepared vouchers for their signatures. The vouchers were approved by the Authority's finance committee, of which Simonsen was chairman, and were paid by the Authority.

Subsequently, an investigation by the Monmouth County Prosecutor's office of another matter uncovered the vouchers and led to the indictment of defendants and the third commissioner. The latter entered a plea of guilty at the trial after the jury was impaneled but before the opening statements of counsel and the presentation of evidence. The plea was, of course, taken outside the presence of the jury.

Varlese contends on appeal that (1) the trial judge erred in denying his motion for a mistrial based upon the "entry of the guilty plea by a co-defendant and the press coverage related thereto"; (2) the indictment contained defects which "compel its dismissal"; (3) the trial judge committed reversible error in refusing to charge the jury that reliance is an essential element of the offense of obtaining money under false pretenses; (4) the convictions on the two counts should have been merged, as they were based upon the same facts, and (5) the prosecutor's comments in summation were "unduly inflammatory and prejudicial to defendant."

The appeal of Simonsen is limited to two contentions: that a single sentence should have been imposed since the two counts arose out of a single criminal episode or transaction, and that it was improper to require restitution "of the total amount of the cost of the convention trip, rather than the lesser amount charged in the Indictment and proven at trial."

Prior to oral argument we requested counsel to submit supplementary letter memoranda on the following matters raised by us on our own motion:

1. If the court should conclude, as argued by defendant Varlese, that the trial judge did not properly charge the jury on the issue of reliance with respect to the count for obtaining money under false pretenses; and if the court should further ...


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