April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT TEBBENHOFF, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BMA 009-06-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 10, 2008
Before Judges Parrillo and S.L. Reisner.
Defendant Robert Tebbenhoff appeals from his conviction in the Waldwick Municipal Court, and again on appeal in the Law Division after a trial de novo, of the downgraded disorderly persons offense of issuing or passing a check in an amount of less than $500, knowing that it would not be honored by the drawee, N.J.S.A. 2C:21-5(b). Fines, assessments and $1,700 in restitution were imposed. We affirm.
In January 2005, defendant hired Albert Kreis, an electrical contractor and owner of Apex Electrical Services, Inc., to do some electrical work at his Waldwick business, A & R Automotive and Timeless Motor Cars, LLC, on Franklin Turnpike. Defendant was the general manager of the company and his wife was the sole proprietor. Over the course of about three weeks, Kreis replaced lighting fixtures on both the ceiling and the wall, installed track lighting, replaced fluorescent light bulbs, and installed a magnetic contactor on a compressor. Upon completing the work, Kreis billed defendant's business for $2,700. His invoice provided that a 2% interest would be charged on all overdue accounts.
Because Kreis had previously done work for defendant at his home and was paid, Kreis did not immediately press defendant for payment of the bill. However, when the bill remained unpaid five months later, Kreis tried unsuccessfully to contact defendant in May. After thirty days, Kreis sent defendant a new invoice, which included a 2% finance charge. After further attempts to contact defendant via telephone and voicemail, Kreis finally spoke with defendant, who promised to pay the bill. The bill, however, remained unpaid.
On Tuesday, August 30, 2005, when Kreis once again confronted defendant and requested payment, defendant filled out and signed a check, in Kreis' presence, to Apex Electrical Services in the amount of $2,700. This check was drawn on a Commerce Bank account in the name of Timeless Motor Cars, LLC. Defendant told Kreis to wait until Friday to deposit the check because he was waiting for another deposit.
On Friday, the check was deposited, but subsequently "bounced" because of insufficient funds in the account. Kreis was charged a fee for depositing defendant's check due to insufficient funds. The check remained dishonored, despite ten days elapsing since defendant was informed there were insufficient funds. After yet another confrontation, defendant told Kreis' wife to resubmit the check and assured her that there would be sufficient funds to cover the check. However, when Kreis resubmitted the check for payment, it was once again dishonored.
Despite further promises to pay, defendant failed to do so. Finally, in April 2006, well over one year after the electrical services were rendered, defendant sent Kreis a cashier's check for $1,000, and later assured him the balance would be paid by the end of the month. When defendant failed to pay as promised, Kreis again spoke to defendant, who agreed to pay $500 the following Tuesday. Defendant breached that agreement as well, paying Kreis only $300 on Tuesday. As an ultimatum, Kreis left word with an employee for defendant to contact him within ten days or he would take legal action. Defendant did not contact Kreis and Kreis filed a complaint with the Waldwick Police Department.*fn1
Defendant testified on his own behalf, admitting that he issued a check to Apex Electrical Services, knowing at the time there were insufficient funds. Defendant maintained, however, that Kreis was hired to perform work for Timeless, a limited liability company, and that he never told Kreis that he would be personally responsible for the debt. According to defendant, the check was a corporate check, for which he is not held personally liable under N.J.S.A. 2C:21-5.
At the conclusion of the trial, the municipal court judge found defendant guilty of passing a bad check, rejecting his legal argument and reasoning:
[S]o I'm finding . . . Mr. Tebbenhoff is still a person within the definition of the statute and that there is no exclusion because the check was drawn on a corporation account.
The . . . State has shown, . . . through the testimony and evidence, that the check was issued, and I find from . . . the testimony of the State's witness that the check was issued on August the 30th, whatever day of the week that was. It's --in my opinion, it's irrelevant because the -- I accept the testimony of Mr. Kreis that it was -- the check was drawn in his presence, signed by Mr. Tebbenhoff in his presence, and delivered to him at the same time.
I do not find that it is a postdated check.
Nonetheless, the -- it appears from looking at the case law that's under the statute, that a postdated check doesn't necessarily defeat the prosecution as long as the prosecution can show that the defendant knew at the time that the check was issued that there were insufficient funds in the bank. . . . [I]t's clear from the defendant's testimony that at the time the check was issued, he knew that there were insufficient funds in the account.
I'm also impressed by the fact that the check, looking at the endorsements on the back of the check, it appears that the check was deposited for the first time on September the 8th of 2005, which was even after the date that Mr. Tebbenhoff orally told Mr. Kreis to hold the check until.
Then shortly thereafter, when confronted, Mr. Tebbenhoff told . . . Mr. Kreis to redeposit the check which, in effect, in my opinion, is saying I'm reissuing the check that day and I'm representing to you when I tell you to redeposit it that it's still a good check.
The check bounced a second time. . . . And on the front of the check, September the 13th, the bank upon which it was drawn, Commerce Bank, stamped it, "Refer to maker," meaning they were not going to negotiate the check anymore. It had been --it had been dishonored two times already. I find that very relevant in . . . going to the issue of knowledge that the check -- that the defendant knew that the check had insufficient funds at the time it was drawn. Following a trial de novo, the Law Division judge found defendant guilty of passing a bad check and imposed the same sentence as the municipal court. Specifically, the judge concluded:
[N.J.S.A.] 2C:21-5 . . . provides that a person who issues or passes a bad check, and I note person, whether it's a corporation or person, the testimony is clear that the defendant wrote out the check. A person who issues or passes a bad check or similar sight [sic] order for the payment of money knowing it will not be honored by the drawee commits an offense as provided for in section C.
So, for this offense the State has to show the person issued or passed a check and that he knew it would be dishonored. I think it's very clear here, it's really uncontroverted that the check was issued by the defendant, it was dishonored, defendant had reason to know it would be dishonored and he did not make good on the entire balance of the check. At some point he paid a thousand dollars toward it, but there was an outstanding balance.
On appeal, defendant contends the evidence was insufficient to support his conviction because the check: (1) was not issued by him, but rather his company; (2) was for past consideration, i.e. services previously rendered, and therefore there was no intent to defraud; and (3) was accepted by Kreis knowing there were insufficient funds to support it. We reject these arguments and find substantial credible evidence to support defendant's contention. State v. Locurto, 157 N.J. 463, 471 (1999).
For a conviction of N.J.S.A. 2C:21-5, it must be shown that the defendant issued or passed a check and that when he did, he knew that it would not be honored. State v. Kelm, 289 N.J. Super. 55, 59 (App. Div.), certif. denied, 146 N.J. 68 (1996). Clearly, defendant is a "person" for purposes of N.J.S.A. 2C:21-5. It is also undisputed that as general manager of Timeless, defendant had check-signing authority and the ability to bind the company by agreements for the procurement of services. In this capacity, defendant contracted with Apex for the performance of electrical work and, in consideration of which, individually issued the check to Apex for $2,700. The fact that the entity on whose behalf he acted was a limited liability company for which debts defendant would not be personally liable, N.J.S.A. 42:2B-34, does not negate defendant's criminal culpability for his issuance of a check that was dishonored multiple times.
Nor does it matter that the check was issued for past consideration. Unlike its predecessor statute (N.J.S.A. 2A:111-15), State v. Riccardo, 32 N.J. Super. 89 (App. Div. 1954), N.J.S.A. 2C:21-5 does not require proof of fraudulent intent. Kelm, supra, 289 N.J. Super. at 59. Consequently, the timing of consideration and payment is immaterial. Indeed, a leading commentator on Title 2C has noted "[t]he practical abandonment of the distinction between situations where current consideration is given for the check, and those where it is not . . . ." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:21-5 (2007).*fn2
The final element of N.J.S.A. 2C:21-5 is knowledge on the part of the defendant that when issued or passed, the check would not be honored. In this regard, defendant argues that because Kreis agreed to accept the check and not cash it for two days, the check was in effect "postdated," which somehow negates the element of knowledge. We disagree.
In the first instance, the check was received on August 30, 2005 and bore that date. It was, therefore, not postdated. But even if considered otherwise, the only consequence of a postdated check is to render the statutory presumption of N.J.S.A. 2C:21-5(b)*fn3 inapplicable. Kelm, supra, 289 N.J. Super. at 59-60. Yet here there was ample evidence -- aside from any presumption -- that defendant knew the $2,700 check he issued would not be paid, both at the time of issuance, two days later, and then when the check was resubmitted. Simply stated, the facts sufficiently establish the crime of passing a bad check.