On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-12-0044-S.
Before Judges Stern, A. A. Rodríguez and Fall.
The opinion of the court was delivered by: Stern, P.J.A.D.
As amended September 4, 2001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Tried to a jury, defendant was found not guilty of misconduct by a corporate official, N.J.S.A. 2C:21-9c and 2C:2-6 (count one), but convicted on two counts of theft by failure to make required disposition of property received, N.J.S.A. 2C:20-9, 2C:2-6 and 2C:2-7 (counts two and three);*fn1 misapplication of entrusted property and property of government, N.J.S.A. 2C:21-15, 2C:2-6 and 2C:2-7 (counts four and five); failure to turn over employer withholding taxes, N.J.S.A. 54:52-15, 2C:2-6, and 2C:2-7 (count six); failure to file two personal gross income tax returns, N.J.S.A. 54:52-8 (counts seven and eight); and failure to file a corporation business tax return, N.J.S.A. 54:52-8 and N.J.S.A. 2C:2-7 (count nine).
The conviction on counts two and four related to the retention and non-payment of New Jersey unemployment and disability insurance contributions of General Machine and Instrument Co. employees in an amount greater than $75,000 in 1991 and 1992. The convictions on count three, five and six related to the non-payment of gross income withholding tax in 1990, 1991 and 1992. Counts seven and eight dealt with defendant's failure to file his New Jersey Gross Income Tax resident returns for 1991 and 1992 respectively, and count nine concerned defendant's failure to file a New Jersey State Corporation Business Tax return on behalf of N.C. Fabritech, Inc., for the year ending December 31, 1991.
Count two was merged into count four, and defendant was sentenced thereon to a term of eight years in the custody of the Commissioner of Corrections. Counts three and six were merged into count five, and defendant was given a five-year concurrent sentence on that conviction. $5,000 fines were imposed on counts seven, eight and nine, and defendant was ordered to pay $140,268.89 in restitution, "minus any amount paid by co- defendant, Warren Kaye."
On this appeal, defendant argues:
POINT ONE: THE TRIAL COURT'S ENTIRELY GENERAL INSTRUCTIONS COULD NOT HAVE ADEQUATELY GUIDED THE JURY. ADDITIONALLY, THE COURT COMPLETELY FAILED TO INSTRUCT THE JURY AS TO THE STANDARDS UNDER WHICH PERSONAL RESPONSIBILITY CAN BE IMPOSED FOR CORPORATE ACTIONS, AND AS TO THE DEFENSE OF GOOD FAITH, NECESSITATING REVERSAL. (Not Raised Below)
A. The Trial Court Failed To Tailor the Jury Charges to the Complex Commercial Setting Of This Case.
B. The Trial Court Also Failed To Instruct The Jury That It Must Consider The Specific Liability Of The Defendant, And Failed To Provide Any Standards For Determining Whether the Defendant Was Appropriately Held Liable.
C. The Trial Court Also Failed to Instruct the Jury As To the "Good Faith Defense."
D. Reversal Is Required Despite The Failure To Request The Noted Charges.
POINT TWO: THE DEFENDANT'S SECOND-DEGREE CONVICTIONS ARISING FROM FAILURE TO REMIT UNEMPLOYMENT INSURANCE CONTRIBUTIONS ARE WITHOUT BASIS IN LAW AND MUST BE VACATED. (Not Raised Below)
POINT THREE: THE STATE FAILED TO PROVE SECOND-DEGREE FAILURE TO MAKE REQUIRED DISPOSITION OF PROPERTY RECEIVED OR MISAPPLICATION OF ENTRUSTED PROPERTY AND PROPERTY OF GOVERNMENT ARISING FROM FAILURE TO REMIT UNEMPLOYMENT INSURANCE CONTRIBUTIONS, BECAUSE THE MAJORITY OF THE REMITTANCES AT ISSUE WERE NEITHER OBTAINED NOR ENTRUSTED FUNDS. (Not Raised Below)
POINT FOUR: THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTION TO PROCEED PRO SE WAS ERRONEOUS AND HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. U.S. Const. , Amends. ...