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State v. DeRose

February 26, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-04-0470, Summons Nos. 2009-L-8411; 2009-L-8412; 2009-L-8413; 2009-L-8415; 2009-L-8421; 2009-L-8422; 2009-L-4370.

Per curiam.


Argued: November 8, 2007

Before Judges Cuff, Lihotz and Simonelli.

Following a jury trial, defendant James DeRose was convicted of four counts of third degree theft by deception, N.J.S.A. 2C:20-4 (Counts One to Four); second degree eluding, N.J.S.A. 2C:29-2B (Count Five); and fourth degree resisting arrest, N.J.S.A. 2C:29-2A (Count Eight). The trial judge found him guilty of reckless driving, N.J.S.A. 39:4-96; improper passing, N.J.S.A. 39:4-85; failing to observe a traffic signal, N.J.S.A. 39:4-81; leaving the scene of an accident, N.J.S.A. 39:4-129, and careless driving, N.J.S.A. 39:4-97. Defendant was sentenced to a three-year term of imprisonment on Count One and concurrent five-year terms of imprisonment on Counts Two, Three and Four. The judge merged the conviction on Count Eight and the motor vehicle convictions with Count Five and imposed an eighteen-year term of imprisonment with a six-year period of parole ineligibility, concurrent to Counts Two, Three and Four and consecutive to Count One. Defendant is also required to pay $3204.12 in restitution. The appropriate fees and assessments were also imposed.

The theft by deception charges rose from a scheme by which defendant posed as a representative of an on-site truck repair facility to obtain authorization codes for payment orders used by trucking companies to facilitate repairs to trucks that breakdown on highways. The remaining charges, including resisting arrest, aggravated assault and eluding, occurred when defendant fled from a check cashing site to avoid arrest. We will focus on the theft charges first because these are the charges which are affected by several of the errors asserted by defendant.

At trial, the State produced evidence that outlined the procedure used in the trucking business to facilitate repairs of trucks that break down on the highway and the general terms of the scheme in which defendant was involved. In order to pay for road repairs, a trucking company has an account with a company that issues a T-Chek, a COMCHEK, or an instrument known as an EFS. When contacted by a repair company, a trucking company provides a code to the repair company. The code is based on a formula generated by the company that issues the instrument and is unique to the instrument and the transaction. The repair company fills in the code and other data, such as the name of the payee, calls another organization for an authorization code, places that number on the check and presents the instrument at a bank or check cashing service for payment.*fn1 Once the authorization code is given, the payee can put any name on the instrument and cash it upon presentation of appropriate identification. The bank or check cashing facility then gives cash to the presenter of the instrument. Once an authorization code is issued, the check is the same as cash.

According to the State, defendant used this payment method to obtain over $3204.12. He did so by calling a trucking company and advising it that he had repaired one of their trucks on the New Jersey Turnpike. He used the name of a truck repair facility that approximated the name of an actual truck repair operation. He stated that the State Police had authorized the repairs and that he needed to be paid for the repairs. Defendant provided enough information, such as the truck and trailer numbers, to convince truck operators to issue a check. A trucking company representative provided the appropriate payment codes, defendant filled out the blank checks with the approved codes and presented the checks for payment under his name.

At trial, the State presented evidence of four incidents between September 1 and November 3, 2004. The victims were four trucking companies: Casa Trucking in Elizabeth; Gilster-Mary Lee Corp. (Gilster) in Perryville, Missouri;*fn2 RLN National Lease (RLN) in Fargo, North Dakota; and Distribution Technologies (DistTech) in Allentown, Pennsylvania. We will discuss the details of the transactions involving Gilster and RLN because defendant asserts that the evidence presented by the State in support of the charges involving these trucking companies was based on inadmissible hearsay.

Larry Kerley, a fleet maintenance manager for Gilster, testified that on September 18, 2004, a shop foreman received a call from Pete at Standard Tire and Towing (Standard) that one of its trucks was on the New Jersey Turnpike with two flat tires and that Standard had to replace those tires. The cost was $888.28. The shop foreman authorized the payment for the repair without speaking to the driver of the Gilster truck. Kerley testified that the foreman told him that he did not speak to the driver because the driver was on a tight schedule and the foreman did not want to cause any further delay. When the driver informed Kerley that he had not experienced a flat and new tires were not placed on the truck, Kerley obtained the check and discovered that the payee was James DeRose.

On October 4, 2004, Rick Borgeron was the maintenance director of RLN. His duties included tracking, maintaining, and handling equipment repairs in the shop and on the road. He testified that his boss was in his office when a call was received from a firm called Standard Rapid Service Repair or Standard Recovery Service or a name approximating that name.

His boss initially took the call and then Borgeron spoke to a man calling from the New Jersey Turnpike who reported that he had been called by the State Police. According to the caller, the State Police advised him that an RLN truck had broken down with two flat tires and was blocking the roadway. The caller also gave Borgeron a badge number, precinct number and name of the State Police officer who purportedly had called him to repair the RLN truck.

The caller also said Borgeron could not speak to the driver because the truck was located in a hazardous area and the driver and the trooper were no longer on the scene. Borgeron testified that his boss authorized him to issue a T-Chek and he did so in the amount of $845.88.*fn3 Borgeron testified that he later learned that no repairs were performed on the truck and the payee on the negotiated T-Chek was James DeRose.

Similar calls were received by Casa Trucking on September 1, 2004, and DistTech on November 3, 2004. Casa Trucking issued a COMCHEK to Total Recovery in the amount of $655.08. No repairs were performed on Casa Trucking equipment on that date. The payee on the negotiated COMCHEK was James DeRose. DistTech issued an EFS Check to Standard in the amount of $814.08 following a call from Sal from that organization. No repairs were required or performed on the truck. The payee on the negotiated EFS Check was James DeRose.

Just before noon on November 19, 2004, defendant appeared at Quick Cash on North Wood Avenue in Linden. A State Police detective had requested Harry Patel, the owner of Quick Cash, to contact him if defendant appeared at any of Patel's check cashing operations. Patel requested his employees to inform him if defendant appeared at any store, and an employee did so when defendant appeared at the Linden establishment on November 19. Patel called the detective and advised his employee to keep defendant occupied until the police arrived.

When defendant approached the window staffed by Jazmin Sanker, another employee informed Patel of defendant's presence and also triggered the automatic lock that locked the front door. Defendant presented a check to Sanker, who acted as if she was verifying the check. Defendant inquired why it was taking her so long and eventually asked her to return the check to him, but she refused. Defendant left her window and tried to leave by the front door. When he realized it was locked, defendant frantically tried to open the door.

Meanwhile, Kris Tomko, the first police officer to arrive at the scene, went to the front door. Sanker tried to direct him by motions to go to an unlocked door. Defendant moved to that door, pushed it open and hit the officer who was standing in front of the door. Sanker thought that defendant also kicked the officer. Tomko testified that defendant "just blew the door open with his hands" and "cocked back and caught me in the chest, punched me in the chest." Tomko denied that the door hit him or that defendant kicked him.

Defendant then ran across the street to his vehicle. Although the punch knocked Tomko off balance and caused some bruising, he followed defendant across the street. As defendant tried to start the car, Tomko reached into the car to try to prevent defendant from doing so. As defendant repeatedly punched the officer's arm, Tomko removed his arm, drew his service revolver, and pointed the weapon at the side of defendant's head. A front seat passenger in defendant's car saw the gun, quickly exited the car, and fled from the scene. As Tomko drew his weapon, the car started and defendant moved the car from its parking space. At this time, Tomko's arm was still partly through the open driver's window and the car struck him.

As defendant fled the scene, he crossed into the left lane and then over the double yellow lines into the oncoming lanes of traffic. He proceeded through a red light, drove onto the sidewalk as he made a left turn and hit and felled an aluminum pole. Another officer, Rashon Elias, commenced a chase in a patrol car. Tomko saw and heard the lights and siren of the chase car.

During the chase, Elias observed defendant travel in the wrong lane on one street, execute a right turn by cutting across a lawn, and proceed the wrong way on a one-way street. Elias terminated the chase because defendant was traveling through a residential neighborhood and the situation had become too dangerous. Defendant was arrested on December 7, 2004.

On appeal, defendant raises the following arguments:



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