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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
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, ...