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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...