On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 06-06-1154-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Weissbard and Gilroy.
Defendant Anthony J. Brennan, Jr., was named in two counts of a sixteen-count indictment charging a conspiracy to commit theft by deception and a substantive count of theft by deception. N.J.S.A. 2C:5-2 and 2C:20-4. The conspiracy count charged sixteen individuals with participating in a scheme masterminded by defendant's brother, Paul Brennan. The conspiracy involved defrauding Onyx Leasing by creating fraudulent automobile leases for cars that either did not exist or were of lesser value than the values portrayed on the lease. According to the State, the scheme followed this general pattern:
Paul Brennan would find a vintage or classic automobile and notify Onyx Leasing, which would purchase the automobile from him after arranging for the necessary financing. Onyx Leasing would then lease the automobile to the individual provided by Paul Brennan. The ten transactions conducted by Paul Brennan and his co-conspirators were much more involved.
Onyx Leasing received money for the ten leases for approximately one year, but then the payments stopped. Mr. Haller, an employee of Onyx Leasing, noticed all of these leases were brokered by Paul Brennan and that the payments, often in the form of a money order, came from the same location. In September 2002, Mr. Haller sent certified letters to the ten lessees. He personally spoke with Luigi Carulli, John Gebala and Jennifer Gilarmo, who admitted they had signed leases through Onyx Leasing, but had never received the motor vehicles. On September 12 or 13, 2002, Mr. Haller spoke with Frank Dicomo who claimed that he never leased a motor vehicle from Onyx Leasing and that he did not know Paul Brennan. Mr. Haller never received responses from the other five individuals. At this point, Mr. Haller contacted the Marlboro Police department to report the fraudulent leases.
Count Two of the indictment charged Paul Brennan alone while each of the remaining counts (Three through Sixteen) charged Paul Brennan with one of the other co-defendants. Anthony Brennan was charged in Count Four.
Following return of the indictment, Anthony moved to sever his trial from that of his co-defendants and to dismiss counts One and Four. The State did not oppose the motion to sever, but did oppose dismissal. After hearing oral argument on April 5, 2007, the court granted Anthony's motion to dismiss. We granted the State's notice for leave to appeal and now affirm.
Anthony's lease, dated June 5, 2000, was for a 1966 Chevrolet Corvette. It called for an initial payment of $1,590 and fifty-eight payments of $795, beginning July 5, 2000. Anthony insured the vehicle with coverage commencing June 5, 2000. A verification letter from Anthony's insurance agent confirmed that coverage was continuously in force through at least January 23, 2007.
On May 22, 2006, the matter was presented to the grand jury through the testimony of Detective Edward Clayton of the Marlboro Township Police Department. Clayton testified that Mr. Haller of Onyx related that Anthony had told him "that he had never received" the Corvette, and that "he (Anthony) had a lot of credit card debt and that Paul (Brennan) indicated to him that he had a way out." Anthony informed Haller "that the vehicle was supposedly in a shop in Long Island being restored." Clayton testified to the contents of an interview with Anthony conducted on February 25, 2003. Anthony told Clayton that the "deal" in question -- involving the leased Corvette -- "went bad and he regrets getting into it." Anthony stated that "he received some up front cash that paid off some of his credit card debt . . . . He went on to mention that he had an obligation with Onyx and was going to continue to make the monthly payments . . . . And he had continued to make some of those payments."
Clayton related statements made to him by Paul Brennan concerning the car leased to Anthony. Paul told him that in September 2001 "he sold the car to another individual," in New York. The questioning concerning Anthony continued as follows:
Q: Further down the page, he is asked on page 9, "Did Anthony Brennan know that he was not going to receive a '65 or '66 ...