June 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PATRICIA A. SLATTERY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey Law Division, Bergen County, 03-01-0023.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted May 7, 2007
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Tried to a jury, defendant, Patricia A. Slattery, was convicted on two counts of third-degree theft by deception, N.J.S.A. 2C:20-4, from her employer, Trutone, Inc. She was sentenced to serve 364 days in the Bergen County Jail as a condition of a three-year probationary term and was ordered to pay $14,400 in restitution together with other appropriate monetary penalties. She appeals from the convictions and from that portion of the sentence requiring restitution. We affirm the convictions and remand for a hearing to fix an appropriate restitution component of the sentence.
Defendant, a bookkeeper at Trutone, Inc., and her co-defendant, Mark Bernstein, the corporate comptroller, were charged in connection with funds diverted from their employer. Although defendant was charged in only two counts relating to thefts from Trutone's petty cash (count two) and cash receivable accounts (count four), Bernstein was charged in twenty-five counts, including count four, but not count two. Shortly before trial, Bernstein pled guilty. He admitted to nine instances in which he appropriated for himself cash receipts that were intended for his employer.*fn1 He exonerated defendant with respect to those transactions. Specifically, when asked "[W]ho, if anyone, particularly [defendant] knew what you did with the moneys?" Bernstein responded, "[N]obody knew." However, when asked if he signed off on customer receipts totaling $14,529, Bernstein testified, "I signed off on some of it. Other times someone else could have signed it and I posted it." He clarified that "only one other person would have signed off on it and that was Miss Slattery." Bernstein explained, "Miss Slattery could have taken the cash, counted it" but "it would not have shown up as cash -- she would not have known that it was missing necessarily."
Defendant's motion to dismiss count four, on the grounds that Bernstein had pled guilty to the offense, and to preclude the State from referring to the theft transactions to which Bernstein pled guilty were denied. The State produced evidence of those transactions.
On appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT'S DECISION TO ADMIT INTO EVIDENCE THE 10 TRANSACTIONS FOR WHICH BERNSTEIN SAID THE DEFENDANT HAD NO KNOWLEDGE CONSTITUTED REVERSIBLE ERROR BECAUSE THE STATE DID NOT SHOW ANY CONCERTED ACTION BETWEEN THE DEFENDANT AND BERNSTEIN.
BERNSTEIN'S TESTIMONY DURING THE ENTRY OF HIS GUILTY PLEA WAS RELIABLE AND SHOULD HAVE BEEN ADMITTED TO SHOW THAT THE DEFENDANT DID NOT HAVE ANY KNOWLEDGE OF THE 10 TRANSACTIONS TO WHICH HE PLED.
THE TRIAL COURT DID NOT PROPERLY CHARGE THE JURY REGARDING ACCOMPLICE LIABILITY WHERE IT DID NOT INSTRUCT THAT THE DEFENDANT'S GUILT IS DEPENDENT ON HER OWN ACTIONS, INTENT AND STATE OF MIND. (Not Raised Below).
THE ORDER OF RESTITUTION IS IMPROPER BECAUSE THE TRIAL COURT DID NOT CONDUCT A HEARING TO DETERMINE THE DEFENDANT'S ABILITY TO PAY. (Not Raised Below).
None of the arguments relating to the conviction have sufficient merit to warrant extended discussion.
Defendant was hired in 2000 as a bookkeeper for Trutone, Inc., a company that masters sound for the recording industry. The thefts with which she was charged were alleged to have occurred between September 1, 2000, and February 13, 2002.
Carl Rowatti, co-owner and president of Trutone, Inc., testified for the State. According to Rowatti, defendant's duties included reconciling bank statements every month, posting deposits every day, preparing payables, preparing payroll, making bank deposits, and handling petty cash. Rowatti testified that in early 2002 he learned that the company would have difficulty meeting payroll. After investigating, he discovered that "the accounting office rather than making checks off the computer as they were necessary was preparing huge quantities of checks in advance. What that did, because it's all computerized, it made the reports showing the money that we owed to our vendors look much smaller." Rowatti fired Bernstein on February 1, 2002, and defendant took over the department.
In late February, Rowatti was contacted by Trutone's bank looking for outstanding payments on loans. When Rowatti asked to see Trutone's bank folder, defendant advised him that it was missing. Rowatti eventually requested the documents from the bank and discovered that his signature had been photocopied on documents used to draw moneys from the company's operating accounts. Rowatti confronted defendant, who denied any knowledge of the transactions.
Rowatti and his wife then "undertook a massive audit of everything our company did, all the checks, all the cash payments, everything." He discovered that "a tenant . . . in the building who was renting an office from us . . . was paying, cash, . . . [and] that money never made it to the bank."
Rowatti testified that over $14,000 in cash receipts was missing from the company's accounts. Rowatti explained that these results confirmed for him that defendant was involved in the fraud because "she was in charge of this . . . she did the logs . . . [a] lot of the receipts have her initials on them."
Rowatti detailed eleven instances where clients had paid cash but the money was never deposited. These included: (1) a May 16, 2001, cash payment of $1890, of which $300 was never deposited; (2) a September 10, 2001, cash payment of $2800; (3) a September 10, 2001, cash payment of $706.83; (4) a September 12, 2001, cash payment of $1305; (5) a November 14, 2001, cash payment of $4000, of which $2013 was never deposited; (6) a December 3, 2001, cash payment of $500 recorded on December 4, 2001; (7) a December 10, 2001, cash payment of $1500; (8) a December 14, 2001, cash payment of $2040; (9) a December 20, 2001, cash payment of $1250 recorded on December 21, 2001; (10) a $525 cash payment that was recorded as $585; and (11) a February 13, 2002, cash payment of $484 of which $284 was deposited. Although Rowatti identified many of the records of the transactions as bearing defendant's notations, he testified generally that "[h]er handwriting is on all of these things." When asked if he was alleging that anyone else was involved in these instances of fraud, Rowatti replied "Mark Bernstein." However, the last transaction occurred nearly two weeks after Bernstein had been fired by Rowatti on February 1, 2002.
At his plea, Bernstein admitted to thefts (1), (2), (3), (4),*fn2 (5),*fn3 (6),*fn4 (7), (8)*fn5 and (9). We pause to note that defendant has not identified the ten transactions that she claims should not have been disclosed to the jury and that failure somewhat complicates the discussion because we can find an admission only to the nine transactions just described. In any event, defendant's brief notes that the objection is "to 10 of the 11 cash receipt transactions with which Bernstein specifically acknowledged he acted alone and without [defendant's] knowledge." Accordingly, we have discussed only the facts relating to the nine thefts specifically identified by Bernstein, although Bernstein also admitted numerous, but unspecified, thefts from petty cash. Nevertheless, our analysis applies equally to the petty cash thefts.
The State introduced a folder containing "the backups for the missing cash, copies of the deposit slips, copies of the bank statement[s], backups to show . . . other deposits that were made that day." The State also produced Stuart Farber, a certified public accountant who had completed a forensic accounting of Trutone's records, as an expert witness. He testified that during his review it was discovered that "revenues . . . did not find their way into the bank." He explained that "journal entries in Trutone's books . . . were made in order to create the impression that rents were being collected . . . in order to simultaneously allow the books to balance." Posting deposits, as we have noted, was one of defendant's duties.
Farber testified that "the amounts of money are just incredibly coincidentally almost exactly equal to the rent that comes in." Farber also testified regarding "[eleven] separate occasions cash entries by customers were posted in books as opposed to the individual customer directions," which totaled $14,729.83. Using the eleventh transaction as an example, Farber explained:
If you look at the summary sheet of this particular customer's ledger, you will see the $484 as posted . . . and all that winds up in there is the $284 and then there's a subsequent entry a few lines down for $200.
So effectively the customer has gotten credit for $484 but the company has only gotten $284.
Iliana Espinosa, a customer service representative for Trutone, was also called by the State. She testified regarding the February 2002 incident where a cash payment of $484 was made but only $284 was deposited. She explained that she brought $484 in cash to defendant and that she made a photocopy of the money and voucher she had filled out. After being shown a file copy of the voucher about which she was testifying, Espinosa noted that "[t]he 4 was changed to a number 2."
We begin the analysis with the recognition that "[e]xcept as otherwise provided in these rules or by law, all relevant evidence is admissible." N.J.R.E. 402. "The trial court is granted broad discretion in determining the relevance of evidence." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). When making a relevancy determination, "the inquiry should focus upon the logical connection between the proffered evidence and a fact in issue." State v. Swint, 328 N.J. Super. 236, 252 (App. Div.)(citing State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)), certif. denied, 165 N.J. 492 (2000). Evidence that "renders the desired inference more probable than it would be without the evidence" is relevant. Ibid. (citing State v. Davis, 96 N.J. 611, 619 (1984); State v. Coruzzi, 189 N.J. Super. 273, 302 (App. Div.), certif. denied, 94 N.J. 531 (1983)).
Juries "may draw an inference from a fact whenever it is more probable than not that the inference is true." Ibid. (citing State v. Brown, 80 N.J. 587, 592 (1979); State v. Smith, 210 N.J. Super. 43, 49 (App. Div.), certif. denied, 105 N.J. 582 (1986)). "[E]vidence should be admitted unless otherwise excludable by law," when it "makes the inference to be drawn more logical." Ibid. (citing State v. Covell, 157 N.J. 554, 565 (1999). "The evidence need not by itself support or prove the fact in issue," ibid. (citing Coruzzi, supra, 189 N.J. Super. at 302), nor must "the veracity of each inference . . . be established beyond a reasonable doubt in order for the jury to draw the inference." Ibid. (citing Brown, supra, 80 N.J. at 592; Smith, supra, 210 N.J. Super. at 49). Moreover, "circumstantial evidence need not preclude every other hypothesis in order to establish guilt beyond a reasonable doubt." Ibid. (citing State v. Mayberry, 52 N.J. 413, 436 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969); Smith, supra, 210 N.J. Super. at 49).
The transactions in question were offered to prove the central issue of the case: whether defendant committed theft by pocketing cash payments from Trutone's clients and deceived the company by manipulating its records. Defendant was the company's bookkeeper and had initialed the receipts for almost all of these transactions or otherwise made some notation in their record, indicating either that she had handled the cash itself or was aware that cash had been paid in the transaction. Because these facts make the inference that defendant had manipulated the records and pocketed the cash more likely than not, evidence regarding these transactions was properly admitted at trial. The failure to show a more specific nexus between the facts surrounding the transactions and the offense with which defendant was charged "goes to the weight of the evidence, not its admissibility." Ibid.
We reject defendant's claim that Bernstein's admission of guilt and exoneration of defendant rendered the evidence irrelevant. First, an exculpatory statement need not be believed by the jury.
A case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted. As Chief Justice Vanderbilt observed in Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 494 (1956), "[w]here men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury." Accord Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997). Thus, a trier of fact "is free to weigh the evidence and to reject the testimony of a witness, even though not directly contradicted, when it ... contains inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence excite suspicion as to its truth." In re Perrone's Estate, 5 N.J. 514, 521-22 (1950). [D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997).]
Here there was more than sufficient evidence to allow the jury to conclude that the exculpatory statement was not true. Indeed, while cases dealing with the issue of admissibility of exculpatory statements of co-defendants have admitted the statements, we have found no reported case dismissing the indictment on the basis of an exculpatory statement made by a co-defendant. See, e.g., State v. White, 158 N.J. 230, 244-45 (1999); State v. Gaines 147 N.J. Super. 84, 97-99 (App. Div. 1975), aff'd o.b., 72 N.J. 346 (1977); State v. Bell, 249 N.J. Super. 506, 511-12 (Law Div. 1991).
The evidence of the thefts to which Bernstein pled guilty was sufficiently connected to defendant to justify the judge's discretionary determination that it was relevant and admissible. We reject defendant's contentions to the contrary.
Defendant next argues that Bernstein's admissions during his plea should have been admitted as evidence of defendant's innocence. The difficulty here, however, is that defendant never sought to present that evidence. The only record citation made by defendant is to a discussion of the permissible scope of defendant's opening. Defendant suggested that she might be allowed to tell the jury that "Bernstein is not here. His case has been worked out. [Defendant] is here because she wants her day in court." There was no reference to admitting evidence of Bernstein's plea. We simply cannot fault the judge for failing to admit evidence that was never proffered.
Defendant's final challenge to her conviction relates to the judge's charge on accomplice liability. Because no objection was interposed to the charge at trial, we consider the issue under the plain error standard. R. 2:10-2. Accordingly, we view the charge in its entirety, State v. DiFrisco, 137 N.J. 434, 491 (1994) cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996), to determine if defendant has shown "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). The failure to object at trial suggests no impropriety or prejudice. State v. Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Macon, 57 N.J. 325, 333 (1971); State v. Hale, 45 N.J. 255, 264 (1965), cert. denied, 384 U.S. 884, 86 S.Ct. 1981, 16 L.Ed. 2d 1001 (1966)).
Defendant complains that the jury was not told that defendant "must at least indirectly participate in the crime." The complaint has no merit. The judge, utilizing in all material respects the Model Jury Charge, informed the jury that to be guilty as an accomplice, defendant must "with the purpose of promoting or facilitating the commission of the offense, . . . (a) solicit such other person to commit it and/or (b) aid or agree or attempt to aid such other person in planning or committing it." He also told the jury that it was "not sufficient to prove only that [she] had knowledge that another person was going to commit the crime charged. The State must prove that it was defendant's conscious object that the specific conduct charged be committed." The charge adequately conveyed the nature of accomplice liability.
The State concedes defendant's final argument, that the judge failed to conduct a hearing to resolve evident factual disputes as to the amount of any appropriate restitution as well as terms for payment. See State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). Accordingly, we remand to allow the judge to conduct an appropriate inquiry into defendant's ability to pay restitution.
The convictions are affirmed and the matter is remanded for further proceedings relating to the amount and payment terms of any restitution that may be required.