On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Approved for Publication November 18, 1996.
Before Judges Dreier, D'Annunzio and Wefing. The opinion of the court was delivered by Wefing, J.A.D.
The opinion of the court was delivered by: Wefing
The opinion of the court was delivered by
Defendant was indicted for two counts of theft by failure to make the required Disposition of property, one in the second degree and one in the third degree (N.J.S.A. 2C:20-9); two counts of misapplication of entrusted property, one in the second degree and one in the third degree (N.J.S.A. 2C:21-15); two counts of failure to file reports, a crime of the third degree (N.J.S.A. 54:52-8); and two counts of failure to pay or turn over taxes, a crime of the third degree (N.J.S.A. 54:52-9).
Tried to a jury, he was convicted on both counts of misapplication of entrusted property, one count of failure to pay or turn over taxes and acquitted of the remaining charges. He was sentenced to seven years in prison for the conviction for second degree misapplication of entrusted property and concurrent four-year terms for the remaining two convictions. Restitution and penalties were ordered as well. Defendant's sentence was stayed by order of this court pending appeal.
Defendant was a principal in several business entities, including Bernardsville Depot, Inc., Bernardsville Group and A M Home News. The charges in this matter relate to the operation of the Bernardsville Depot, Inc. and, specifically, its failure to remit sales and withholding taxes to New Jersey and to file the appropriate accompanying tax returns.
In the early 1980's, defendant, Richard Manthey, and his wife, Annette, purchased A M Home News, a newspaper distribution business. Included within that business was a small newsstand at the Bernardsville train station that was operated primarily for the convenience of commuters. Several years later, New Jersey Transit began a program seeking fuller utilization of their stations. This led to the Bernardsville Depot, Inc. which, following a significant renovation of the building, operated a convenience store and deli in the station.
Neither Manthey nor his wife had experience in this field and they hired Jeffrey Heise as its general manager. The business was incorporated and the original shareholders were defendant and his wife and her parents, who invested a significant sum in the business.
In approximately 1984, Manthey formed a partnership, Bernardsville Group, with Andrew Erchak. The business of the Group was real estate development. Certain funds of the Bernardsville Group were used in connection with the renovation of the station by Bernardsville Depot, Inc. and Erchak ultimately became a shareholder in the Depot as well.
From the time the Depot first commenced operations until its closure in 1991, it routinely collected appropriate sales tax on the items it sold. For that time frame, however, only one check to remit those sales taxes was ever sent to the State. That occurred in September 1989, the one month when Annette Manthey was managing the business's financial affairs. She forwarded a check for $2,301.89 in payment of sales tax collected in August 1989.
It is inferable that receipt of this check triggered an investigation by the State and defendant's subsequent indictment. The amount alleged to be due for sales taxes was in excess of $80,000. The State also alleged Manthey had improperly retained approximately $3,000 in payroll withholding taxes deducted from employees' wages.
Both Manthey and the corporation Bernardsville Depot, Inc. were indicted together. The corporation, however, was severed as a defendant prior to Manthey's trial. The record does not disclose the subsequent ...