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State v. Lavitol

November 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEPHEN JOHN LAVITOL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-07-0445.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued October 1, 2007

Before Judges Sabatino and Alvarez.

Following a jury trial, defendant Stephen J. Lavitol was found guilty of seventeen counts of third-degree offenses for issuing bad checks, contrary to N.J.S.A. 2C:21-5, and one count of second-degree theft by deception, N.J.S.A. 2C:20-4. He was sentenced to seven years imprisonment on the second-degree offense, and concurrent four year terms on each third-degree charge. Defendant was ordered to pay restitution of $123,163 and otherwise ordered to pay appropriate fees and penalties. He appeals, raising the following points:

POINT I

THE LOWER COURT ABUSED AND/OR ERRED BY FAILING TO GRANT DEFENDANT'S MOTION TO DISMISS [THE] INDICTMENT BASED UPON MANDATORY JOINDER AND/OR DOUBLE JEOPARDY. (RAISED BELOW)

POINT II

THE LOWER COURT ABUSED ITS DISCRETION BY PERMITTING TESTIMONY THAT SHOULD HAVE BEEN EXCLUDED UNDER [N.J.R.E.] 404[(b)]. (RAISED BELOW)

We affirm.

Defendant, who owned a small painting and siding business, opened a business checking account at Abacus Bank in July 2000. In September 2001, he began to cash checks at Now Check Cashing (NCC), a check cashing service. Defendant testified that between September 1, 2001 and April 30, 2002, he cashed $2,800,000 in checks at NCC. During a weeklong period, beginning April 26, 2002, and ending May 2, 2002, defendant cashed seventeen business account checks at NCC payable either to himself or his business. These seventeen checks, totaling $123,163, were returned for "non-sufficient funds." The convictions from which defendant appeals relate to these transactions.

Defendant claimed at trial that he deposited between $50,000 to $100,000 a day in his business account in April 2002, and therefore anticipated the checks he wrote to NCC would clear. At least some of these deposits were made with checks that did not clear.

Defendant also cashed checks at Money Exchange Center (MEC), another check cashing service. From July 5, 2002, to July 16, 2002, $42,000 in checks payable to MEC were returned for insufficient funds.

Defendant was first indicted for the later MEC checks. He entered a guilty plea on January 17, 2003, and was sentenced to probation on November 7, 2003. On July 31, 2003, between the entry of his guilty plea and sentencing, he was indicted for the issuance of the NCC checks. After the NCC indictment, the State extended a consolidated plea offer of seven years in prison on both indictments. The offer remained open until the arraignment conference, after which it increased to eight years. Defendant rejected both offers, was sentenced on ...


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