On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. 12-01618.
Before Judges Kestin, Lefelt and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Anthony Mahoney, was tried before a jury and convicted of third-degree theft by failure to make required disposition of property, N.J.S.A. 2C:20-9; third-degree misapplication of entrusted property, N.J.S.A. 2C:21-15; and two counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(2). He was sentenced to an aggregate three-year term of probation, conditioned upon performing 500 hours of community service. The court also levied a $5,000 fine and ordered him to pay the mandatory statutory penalties. Defendant now appeals raising the following arguments:
DENIAL OF PTI WAS A PATENT AND GROSS ABUSE OF DISCRETION AND A CLEAR ERROR OF JUDGMENT.
THE VERDICTS BELOW WERE FACTUALLY INCONSISTENT.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS RULINGS ON CHARACTER TESTIMONY.
THE TRIAL COURT ERRED IN REFUSING TO DISMISS COUNTS I AND II OF THE INDICTMENT.
A. Dismissal of 2C:20-9 For Failure to Present a Prima Facie Case
B. Dismissal of 2C:21-15 as Being Factually Duplicative of The Charge Under 2C:20-9 and Therefore a Denial of Due Process
THE TRIAL COURT'S EVIDENTIARY RULINGS, EITHER INDIVIDUALLY OR COLLECTIVELY, SO PREJUDICED THE DEFENSE AS TO CONSTITUTE A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW.
A. Inadmissibility of Rule 1:21-6
B. Alleged Financial Condition As Proof of Motive
C. Admissibility of the Sworn Statements of Clark and Barbara Ferry
D. Medical Evidence - Letter from Dr. Dattoli to Judge Mahon
E. Trial Court's Abuse of Discretion in Rulings on Infidelity and Illegitimacy
F. Evidentiary Rulings Blocking Admissibility of Aggravated Sexual Assault Charge and Documentary Blood Alcohol Readings of C.J. Ferry
THE JUDGMENT ENTERED BELOW SHOULD BE REVERSED DUE TO PROSECUTORIAL MISCONDUCT.
THE FORGERY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
Defendant is an attorney.*fn1 The conviction for theft was based on defendant's delay in disbursing to his clients proceeds from a settlement of a wrongful death case. With respect to the forgery conviction, the State presented evidence that defendant endorsed and deposited the three-party settlement check without his clients' authorization.
The prosecutor denied defendant's application to enter Pre-Trial Intervention (PTI) and, on appeal from the prosecutor's denial, the trial court affirmed. The prosecutor premised his denial on the nature of the conduct allegedly engaged in by defendant. Relying on PTI Guideline 3(i), as codified in Rule 3:28, the prosecutor concluded that, as a licensed attorney, defendant was presumptively ineligible to participate in PTI because he was charged with committing crimes that involved a breach of the public trust. Accordingly, defendant had failed to overcome the presumption against admitting individuals charged with these type offenses.
After reviewing the record and in light of prevailing legal standards, we reverse the convictions. We conclude that the trial court improperly excluded substantial portions of proffered testimony by defendant's character witnesses. The court erroneously prevented these witnesses from testifying about defendant's character traits as an attorney, and improperly barred them from testifying about the specific experiences they had had with defendant that formed the basis for their opinions. We hold that defendant was entitled to present testimonial evidence attesting to his skill and care as an attorney in order to rebut the State's contention that his failure to timely disburse clients' funds constituted the criminal offense of failing to make required disposition of property.
The trial court also improperly submitted to the jury the full text of Rule 1:21-6. This Rule sets forth an attorney's bookkeeping responsibilities related to the practice of law, with respect to both the attorney's business records and to records of client funds entrusted to the lawyer for a particular purpose. The error here involved the court's failure to provide instructions to the jury on how to consider and apply the Rule's directives to the facts of this criminal case. Without judicial guidance, a criminal jury may mistakenly regard the Rule's requirement as an element of the criminal offense of failing to make the required disposition or misapplication of entrusted property.
We further conclude that certain statements made by the prosecutor during summation were so egregious that they deprived defendant of his right to a fair trial. These involved a hypothetical scenario entirely unrelated to the crimes for which defendant was charged, and suggested that it was unnecessary for the State to prove at which point defendant's conduct became criminal.
We affirm, however, the trial court's denial of defendant's PTI application. We hold that defendant failed to show that the prosecutor's rejection amounted to a gross abuse of discretion or was otherwise arbitrary or capricious.
In light of these determinations, we decline to consider the balance of defendant's arguments. Our factual recitation will thus be limited to the facts necessary to address the pertinent legal issues previously identified.
Defendant began practicing law in 1971. His first job as a lawyer was at the office of the Bronx District Attorney. He was admitted to the New Jersey bar in 1972. He and a partner opened a law firm in Cranford in 1974. Thereafter, he formed a partnership with his brother in Westfield, where he continued to work as of the time of trial. Defendant's practice primarily focused on litigation, but he also performed transactional work.
He became a certified civil trial attorney when the program was inaugurated in New Jersey. Barbara and Clark Ferry had been friends with defendant's secretary, Maureen Holohan, since childhood. The Ferrys first contacted defendant in the mid-1980s when they discovered that their six-year-old son, Richard, had been born with an eye problem. No lawsuit was filed in that case. In 1993, the Ferrys contacted defendant after their daughter, Desiree, died of injuries sustained in a one-car accident. After considerable discovery, that case was withdrawn several years later because defendant was unable to find a medical expert to opine that the hospital or any of the treating physicians were civilly liable for the child's death. In 1997, defendant successfully defended the Ferrys' son, Clark (known as"CJ"), when he was arrested on an indictable criminal charge. Defendant never charged the Ferrys for his services on these cases.
In February 1998, twenty-one-year-old CJ was killed by a car as he attempted to cross Route 9 in Monmouth County at 2:00 a.m., after drinking with friends at a nearby club. The following spring, the Ferrys received several telephone messages from the driver's insurance company, Harleysville Insurance. Mrs. Ferry asked defendant to contact the insurance company"and find out what they wanted."
According to the Ferrys, defendant contacted the insurance company and began to negotiate a settlement. The Ferrys discussed the progress of the settlement negotiations with defendant on the telephone on"more than one occasion" during the fall of 1998. Thereafter, defendant informed Mrs. Ferry that the insurance company wanted to settle the claim to avoid any future lawsuit.
In December 1998, defendant sent Mrs. Ferry a contingency fee retainer agreement. Several changes were made to the agreement as a result of telephone discussions she had with defendant. Mrs. Ferry alone signed the agreement as administratrix ad prosequendum of the estate of Clark Ferry. The agreement provided for defendant to receive, by way of compensation, thirty-three percent of any monetary settlement.
At defendant's request, the Ferrys met him on January 4, 1999, at the surrogate's office located at the Ocean County Courthouse. Both Mr. and Mrs. Ferry signed an application for administration ad prosequendum. Mrs. Ferry testified that she did not understand the purpose of the application. She also testified that she signed"a lot of papers" that day without knowing what she signed.
According to Mrs. Ferry, the first time she saw a document that the prosecutor called"a release" was during defendant's trial. She testified, however, that the signatures on the document belonged to her and her husband. On cross-examination, she was shown a release dated January 1999. She surmised that she must have signed the document during her visit to the surrogate's office on January 4, 1999. She also indicated that the signatures on a document dated January 7, 1999, which the prosecutor referred to as a"general release," were not the signatures of her or her husband. Although she never heard the term"refunding bond" and could not recall signing one, she identified her and her husband's signatures on a partial refunding bond sent to them by defendant on April 15, 1999. Mr. Ferry also identified his signature on the release, but was unable to recall signing the documents. He said defendant explained"some things" about the documents, but that he"didn't really attach any significance to them."
On or about January 12, 1999, the Ferrys received the following letter from claims representative Rachel Brown:
In accordance with N.J.A.C. 11:2-17.11, Unfair Claims Practices, we are required to notify you of settlement of your third party liability claim with your legal representative. We are required by the above act to provide you with the following information.
1. The amount of payment: $75,000
2. The party/parties to whom the check was made payable: Clark Ferry & Barbara Ferry, as Administrators Ad Prosequedum [sic] for Estate of Clark Ferry, ...