On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-03-0437.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges A.A. Rodríguez, Collester and C.S. Fisher.
In this appeal, we reject defendant's argument that a 2005 bankruptcy court order, which fixed defendant's debt to the State at $61,000, required the granting of post-conviction relief because defendant's 2003 conviction was dependent on the jury's finding that he failed to remit collected sales taxes of $75,000 or more, N.J.S.A. 54:52-15. We also reject defendant's other arguments and affirm.
We previously recounted the facts underlying this criminal prosecution in our published opinion on defendant's direct appeal. State v. Barasch, 372 N.J. Super. 355 (App. Div. 2004). In 1994, defendant opened Great Feeling Spas, Inc., which engaged in the business of selling and installing spas. Id. at 357-58. As the business grew and expanded, its existing tax problems worsened:
By September 29, 1998, the business had incurred a $235,039.33 sales and use tax liability. This liability expanded by almost $40,000 as the State, in September 1998 and February 1999, noticed the deficiency and demanded payments within ninety days. By July 1999, the State had obtained a judgment against Great Feeling Spas and defendant personally.
In November 1999, defendant entered into an installment payment plan with the State. Defendant agreed to pay $628,226 in one down payment of $50,000 and thirty-six payments of $20,493 beginning December 1999. Defendant, at this time, also promised to pay all future taxes in a timely fashion.
Unfortunately, in October 2000, defendant developed two hernias and underwent surgery in January 2001. Because of the surgery, defendant was unable to return to work until March. During defendant's absence from the business, his wife Ann, who had been the bookkeeper, expanded her functions in an effort to cover defendant's absence.
Great Feeling Spas again fell into tax problems. It filed an untimely return for the fourth quarter of 2000, resulting in the addition of interest and penalties to defendant's twenty-first or twenty-second installment payment made under defendant's 1999 payment plan. The agreed December 2000 monthly payment was not made until January 27, 2001, but when made also included January's monthly payment.
For the first, second and third quarters of 2001, Great Feeling Spas's tax returns were late and deficient in amount. Consequently, the State voided the 1999 payment plan, although defendant was permitted to continue making payments to reduce liability. Defendant failed to pay January, March and April 2001 installments, but paid these arrears by May. Delinquency on his regular filings also triggered a notice and demand for payment in July 2001 and a final warning visit from a Division of Taxation field investigator and his supervisor in August 2001.
A new payment schedule for $222,229 which was then owed by defendant was developed, but the State would only acquiesce to the plan if defendant paid $81,595 for the third quarter of 2001, by November 20, 2001. The amount requested by the State constituted the sales taxes defendant had just collected from the third quarter. Defendant failed to pay by November 20 and instead, on November 21, filed a Chapter 11 bankruptcy petition.
Defendant was arrested in December 2001 and indicted in March 2002. [Id. at 358-59 (footnote deleted).]
The indictment charged defendant with second-degree theft from his customers, N.J.S.A. 2C:20-9, and second-degree failure to remit taxes collected or withheld in the amount of $75,000 or more, N.J.S.A. 54:52-15. At the conclusion of an eleven-day trial, defendant was acquitted of the former but convicted of the latter. Judge Patricia Del Bueno Cleary sentenced ...