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State v. Lavitol


November 13, 2007


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

Per curiam.


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:





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 the MEC charges, and proceeded to trial on the NCC charges. He did not file a motion to withdraw from the guilty plea on the MEC indictment.

The State explains the delay in the issuance of the NCC indictment as the result of the need for grand jury subpoenas to obtain defendant's bank records as well as investigation into defendant's check cashing activities by other law enforcement agencies.

Pre-trial, defendant sought to dismiss the NCC indictment on the grounds of double-jeopardy and mandatory joinder. The application was denied. The State successfully sought to introduce, pursuant to N.J.R.E. 404(b), evidence that defendant passed bad checks to MEC. At trial, the owner of MEC and an investigating police officer each testified that defendant passed $41,986 in bad checks, and that he admitted doing so knowingly.

Double jeopardy does not act as a bar to the NCC prosecution. The prohibition "against double jeopardy protects criminal defendants against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and from multiple punishments for the same offense." State v. Catanoso, 269 N.J. Super. 246, 264 (App. Div.) (citing State v. Biegenwald, 110 N.J. 521, 532 (1988)), certif. denied, 134 N.J. 563 (1993). The State cannot convert a single criminal conspiracy, for example, into multiple charges "for the purpose of multiple prosecutions" and sentences. Ibid. (citing State v. Ferrante, 111 N.J. Super. 299, 303 (App. Div. 1970)).

Defendant claims that the NCC charges are barred by double jeopardy because the MEC charges arose from the "same criminal 'conduct or episode.'" This court has stated that a second prosecution is prohibited by double jeopardy when "'the same evidence used in the first prosecution is the sole evidence in the second.'" Russo v. N.J. Dep't. of Corr., 324 N.J. Super. 576, 586 (App. Div. 1999) (quoting State v. DeLuca, 108 N.J. 98, 107-08 (1987) cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed. 2d 358 (1987)). According to the United States Supreme Court, when one act leads to prosecutions for two separate offenses a court must determine if "each offense contains an element not contained in the other." United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed. 2d 556, 568 (1993). If the two offenses do not each have one element distinct from the other, then double jeopardy bars the prosecution of the second offense. Ibid.

In this case, the facts alleged by the State in support of the MEC and NCC indictments were entirely distinct and required different witnesses. The offenses occurred two months apart. Although defendant engaged in the same prohibited activity as to each victim, the actual checks and amounts involved were different. As the motion judge properly decided, double jeopardy is simply inapplicable.

The mandatory joinder rule is intended to protect a defendant from fractionalized prosecutions when the charges arise from "the same conduct or . . . the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court." R. 3:15-1(b). The motion judge correctly analogized this case to State v. Pillot, 115 N.J. 558 (1989) where the defendant "committed six different armed robberies against six different victims in six different locations at different times over a nine-week period." Id. at 567. The only common element was the manner of execution of the crimes. Ibid. Here, defendant committed different offenses against two victims at two different locations two months apart. Just as in Pillot, "[e]ven applying broad standards of 'flexibility' in determining whether separate criminal incidents can be fused into a single criminal episode, the offenses here are factually distinct in terms of time, place, and victim, if not manner." Ibid. (citations omitted). Joinder of the offenses was not required.

We also discern no error in Judge Coleman's decision to admit, under N.J.R.E. 404(b), the MEC prior conduct to prove intent during the State's case-in-chief in the NCC prosecution. The fact the MEC incident came after the NCC checks is irrelevant. State v. Cofield, 127 N.J. 328, 340 (1992). "Other crime" evidence is admissible when it is "'relevant to a material issue,'" "'similar in kind and reasonably close in time,'" the proofs are "'clear and convincing,'" and "'[t]he probative value must not be outweighed by its apparent prejudice.'" Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989)). Determination of whether the test has been met is left to the sound discretion of the court. State v. Marrero, 148 N.J. 469, 483 (1997) (citing State v. Ramseur, 106 N.J. 123, 266 (1987)). Such decisions are upheld except where there is "'a clear error'" in judgment. State v. DiFrisco, 137 N.J. 434, 496-97 (1994) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989)).

As anticipated, defendant testified that because he made multiple deposits around the time of the NCC checks, he expected the checks would clear. He claimed that since he had multiple sources of cash flow, he anticipated he would be able to pay his debt to NCC. There can be no doubt that defendant put his state of mind at issue, and that by doing so, the State was entitled to put the MEC bad acts before the jury to refute the defense theory of mistake.

Additionally, the State was required to prove a "knowing" state of mind. N.J.S.A. 2C:21-5. Defendant testified he habitually cashed checks in anticipation of deposits. The MEC other crime evidence and the defendant's admissions therefore became crucial in the State's attempt to prove defendant wrote checks to NCC knowing that the checks would not be honored.

The trial judge correctly applied the Cofield four-step analysis. Cofield, supra, 127 N.J. at 338. He found the MEC check information to be relevant, similar in kind and reasonably close in time to the offense charged. Ibid. He found the MEC transactions to be clear and convincing evidence of the absence of mistake. Ibid. He properly balanced the probative value versus the potential prejudice to defendant. Ibid. He concluded that no other evidence could prove defendant's knowing state of mind and thus allowed the evidence. Ibid.

In order to minimize the prejudice to the defendant, the trial judge gave a curative instruction not only at the close of the case, but after opening statements, as well as after the testimony of each victim who testified as to the MEC checks. The judge's decision to admit the MEC transactions was an exercise in sound discretion and implemented in a manner that minimized potential prejudice.

Defense counsel argued that the State, by proceeding in this case after defendant pled guilty plea to the MEC charges, gained an unfair advantage because the State could use defendant's plea to attack his credibility. The judge, in accord with the Model Jury Charge, told the jury that in assessing credibility they could consider defendant's prior conviction. Model Jury Charge (Criminal), "Credibility-Prior Conviction of a Defendant" (2003). Although defendant's credibility may have been weakened by the prior conviction, the proofs in this case were overwhelming. He had the opportunity to withdraw from his guilty plea to the MEC charges before trial, and chose not to do so. Under these circumstances, the use of the prior conviction and the issuance of the instruction did not result in undue prejudice to defendant such as would constitute actual error.

Therefore, we affirm.


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