On appeal from Superior Court, Law Division, Middlesex County.
Pressler, Brochin and Kleiner. The opinion of the court was delivered by Pressler, P.J.A.D.
[271 NJSuper Page 255] Defendant Anthony Castaldo was charged with the third-degree crime of theft by deception, N.J.S.A. 2C:20-4, based on an alleged welfare fraud by which he obtained direct assistance, food stamps
and Medicaid payments from the Middlesex County Board of Social Services in an amount exceeding $500. Following a trial by jury, defendant was convicted of this offense and sentenced to a four-year probationary term subject to payment of restitution in the amount of $4,630.87. He appeals, and we reverse.
According to this record, defendant, who testified on his own behalf, had been employed as a school psychologist by the Union County Regional High School District for some twelve or thirteen years when his employment was terminated in April 1981. It was his belief that the termination was in retaliation for his "whistle-blowing" to state authorities on behalf of handicapped pupils. Although protracted litigation against the school district ensued, it appears that by the time of trial in 1991, defendant had never resumed any employment. Between the date of his termination and January 25, 1984, when he applied for welfare assistance, defendant suffered a variety of misfortunes in addition to the loss of his job. His marriage disintegrated, resulting in a divorce in 1982. His former wife, whom he had been trying to assist financially, became severely ill, was confined for a time at the Dallas Environmental Health Center with cardiac and kidney problems, and finally, in 1983, moved to Colorado on medical advice. She has, since then, been unable to work by reason of her disabilities. Defendant's three children, ages 9, 12, and 14 when the welfare application was made, had remained with their father, who was solely responsible for their support, although starting in 1984, each had spent some time in Colorado with their mother. By the time the application for welfare assistance was made, defendant had also exhausted his unemployment compensation benefits. He was distraught and dysfunctional. Based on the foregoing facts, defendant was granted welfare assistance in the form of a monthly grant, food stamps and Medicaid assistance from February 1984 to July 1985. The gravamen of the State's case was that defendant was not eligible for assistance at any time during the period he was receiving welfare payments because at all times he was either in receipt of income from his former
employment or had no children as part of his household, or was receiving unemployment compensation.
Prior to trial of this charge, defendant, who had never had any previous contact with the criminal Justice system, applied for admission to the Middlesex County pretrial intervention program (PTI). He was conditionally admitted subject to his payment of restitution in the amount of some $12,000, the total amount of welfare benefits he had received. While he was willing to accept a restitutionary condition, he apparently contended at that time that that amount exceeded any sum he may have improperly obtained. It was thereafter represented to the trial Judge by defendant's trial counsel that prior counsel had requested a hearing on the question of the quantum of restitution, but that such a hearing was denied. We are not told and the record does not indicate from whom the hearing was requested. Consequently, defendant was never enrolled in PTI and the matter proceeded to trial. The first trial resulted in a mistrial by reason of the jury's inability to agree on a verdict. This appeal is taken from the judgment following the second trial.
Although the State continued to assert at trial that defendant had received income from his former employer during four months of the welfare assistance period and that he was ineligible for assistance during those additional periods when his children were in Colorado with their mother, the trial Judge ruled, on defendant's motion for acquittal following the close of all the proofs, that any apparent compensation defendant had received from his employer during that period was not income but rather payment of a back-pay claim which did not affect his eligibility. The court also ruled that there was no proof that the children did not constitute part of defendant's household even while they were in Colorado visiting their mother and attending school there. Accordingly, the trial Judge concluded that the only portion of the State's claim as to which it had proved a prima facie case covered the six-month period of July 1984 to December 1984 during which defendant was allegedly receiving additional unemployment compensation
benefits and was, therefore, ineligible for welfare assistance. It was only that factual basis of the charge which was submitted to the jury, which returned a guilty verdict.
Defendant raises two objections to the judgment of conviction. He contends first that he was denied effective assistance of counsel in respect of his PTI application, and he also contends that the trial Judge committed plain error in failing to charge the jury that it was required to determine the monetary amount involved in the theft.
We address first the issue of the charge. Defendant is quite correct in asserting that the Judge, in explaining the elements of theft by deception, never referred to the amount involved and never instructed the jury that it was its obligation to determine the amount beyond a reasonable doubt. Indeed, the Judge had a second opportunity to do so when he recharged the jury on the elements of theft by deception at its request during deliberations. Again he made no reference to the amount involved as an element of the offense. It is, however, clear that the amount involved in a theft is an element of the offense required to be determined by the jury. N.J.S.A. 2C:20-2b(4) expressly so provides. See also State v. Ball, 219 N.J. Super. 501, 510-511, 530 A.2d 833 (App.Div.1987); State v. Burks, 188 N.J. Super. 55, 60, 455 A.2d 1148 (App.Div.) certif. denied, 93 N.J. 285, 460 A.2d 684 (1983). Failure to instruct the jury as to an element of the crime ordinarily constitutes reversible error. See, e.g., State v. Green, 86 N.J. 281, 430 ...