On appeal from Superior Court of New Jersey, Law Division, Camden County.
J. H. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The critical issue in this appeal is whether obtaining loans based on falsification of documents and misrepresentation as to the status of liens on real estate pledged as collateral constitutes theft by deception. We answer in the affirmative.
Defendant Thomas A. Rodgers, formerly a practicing attorney in the State of New Jersey, was indicted by a State Grand Jury. Under Indictment No. SGJ171-86-8 defendant was charged with second degree conspiracy, contrary to N.J.S.A. 2C:5-2 (Count One) and 21 counts of second degree theft by deception, contrary to N.J.S.A. 2C:20-4 (Counts Two to Twenty-two). At the end of an eleven-day jury trial, defendant was found guilty on the conspiracy count as well as 15 counts of theft by deception. Six counts (Counts Three through Eight)
were dismissed during trial. After merging the conspiracy count with the thefts, the judge sentenced defendant on Counts Two, Nine and Ten to consecutive custodial terms of 10 years with five years of parole ineligibility on each. Defendant was sentenced to concurrent terms on the remaining 12 counts. The aggregate custodial sentence is 30 years with 15 years of parole ineligibility. Violent Crimes Compensation penalties totalling $450 were assessed. Defendant has been denied bail pending this appeal.
In this appeal, defendant contends:
I DISREGARDING (a) N.J.S.A. 2C-20-1f, (b) MODEL JURY CHARGE 2.296, AND (c) DEFENSE COUNSEL'S REPEATED OBJECTIONS AND REQUESTS FOR A PROPER CHARGE, JUDGE FLUHARTY ERRONEOUSLY CHARGED THE JURY ON THE WORD "OBTAINS". THIS PREJUDICIAL ERROR REMOVED AN ELEMENT OF THE OFFENSE FROM THE JURY'S CONSIDERATION AND REQUIRES A REVERSAL ON ALL COUNTS.
II THIS COURT SHOULD DISMISS COUNTS TWO, AND NINE THROUGH TWENTY, BECAUSE THEY FAIL TO CHARGE AN OFFENSE.
III JUDGE FLUHARTY ERRED BY DENYING DEFENSE COUNSEL'S MOTION FOR JUDGEMENT OF ACQUITTAL. THIS ERROR WAS BASED UPON JUDGE FLUHARTY'S MISUNDERSTANDING OF THE OFFENSES CHARGED.
IV JUDGE FLUHARTY ERRED BY DENYING DEFENSE COUNSEL'S MOTION TO CHARGE LESSER INCLUDED OFFENSES OF N.J.S.A. 2C:20-4.
V JUDGE FLUHARTY DIRECTED A VERDICT BY PRECLUDING MR. RODGERS FROM PRESENTING EVIDENCE IN HIS DEFENSE.
VI THE ERROR SET FORTH IN POINT V WAS EXACERBATED BY THE VERDICT SHEET IMPROPERLY SETTING FORTH THE AMOUNT OF THE ORIGINAL LOANS.
VII JUDGE FLUHARTY PREJUDICED THE JURY BY CHARGING IT THAT HE WAS DISMISSING SEVERAL COUNTS BECAUSE THE WITNESS WAS NOT PRESENT TO PRESENT THE EVIDENCE THAT WOULD ESTABLISH GUILT.
VIII THE NUMEROUS ERRORS OF THE TRIAL COURT CUMULATIVELY REQUIRE A REVERSAL OF MR. RODGERS' CONVICTIONS.
IX ASSUMING ARGUENDO THAT THE CONVICTIONS ARE NOT REVERSED, THIS COURT SHOULD VACATE THE SENTENCE BECAUSE THE IMPOSITION OF THREE CONSECUTIVE MAXIMUM SENTENCES VIOLATES YARBOUGH AND ROTH AND IS CLEARLY EXCESSIVE.
A. The Sentence Imposed Violates Yarbough.
B. The Sentence Imposed Violates Roth.
Based on the evidence presented during the trial, the jury could have determined that defendant was guilty based on the following facts. Generally, the victims of the thefts can be broken down into six categories: six were banks (Counts Nine, Eleven, Twelve, Thirteen, Fourteen and Fifteen), four were Savings and Loans (Counts Ten, Sixteen, Seventeen and Nineteen), one was a finance company (Count Twenty), one was a mortgage service company ...