July 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RENE BRADLEY-WILLIAMS, A/K/A RENE ROBINSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-06-00096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2009
Before Judges Axelrad, Parrillo and Lihotz.
Following a jury trial, defendant Rene Bradley-Williams was convicted of third-degree theft of services, N.J.S.A. 2C:20-8(a) and N.J.S.A. 2C:2-6 (count one); seven counts of third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) and N.J.S.A. 2C:2-6 (counts two, four, five, seven, nine, twelve, and thirteen); and four counts of second-degree theft by deception, N.J.S.A. 2C:20-4 and N.J.S.A. 2C:2-6 (counts three, six, eight, and eleven).*fn1
Defendant presents the following issues for review on appeal:
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY AN ALLEGED ACCOMPLICE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
DEFENDANT'S CONVICTIONS FOR FORGERY MUST BE MERGED INTO THE CONVICTIONS FOR THE RELATED THEFT OFFENSES.
We affirm defendant's conviction. However, remand is required to adequately resolve the relevant merger of certain convictions, necessitating resentencing.
Due to the pointed focus of defendant's argument in Point I, we provide a general recitation of the facts supporting defendant's criminal convictions taken from the trial testimony. Defendant offered co-defendant Donald Fisher $50,000 to create a template on her computer to print checks. Fisher described how defendant gave him the account number, check number, payee, issuer, and name of the drawee bank, which he used to create the computer template and print the checks. Generally, the checks purported to be drawn on the account of a New York law firm, which allegedly issued the checks to defendant as settlement of her claims.
Once Fisher created the checks, between September 24, 2002 and October 22, 2002, defendant, Bradley and Fisher used the counterfeit checks to purchase five new automobiles from several area dealerships, including a Mercedes Benz CLK 500, a Mercedes Benz SL 55 convertible, a Jaguar S-Type R, and two Lincoln Navigators. In each instance, defendant was the purchaser and executed all necessary documentation, while Fisher handed the dealer the checks for payment and placed a telephone call to confirm sufficient funds were in the purported account on which the checks were drawn. The checks used to purchase the two Mercedes were drawn on the account of the New York law firm Napoli, Kaiser and Bern, LLP, and the memo line of the check referenced a "Fen-Phen settlement."*fn2 The other three vehicles were purchased using checks drawn on the account of the New York law firm Wilson, Hannah, & Martin, and the memo line of the check stated, "Estate Settlement."
Defendant also issued counterfeit checks to Enterprise Rent-A-Car and the Department of Veterans Affairs Credit Union (DVACU) to satisfy her obligations for a car rental and a car loan. On October 25, 2002, defendant contracted with the owner of Car Toyz to obtain modifications to the Jaguar, Mercedes and Lincolns. While the work was being completed, the owner learned the checks used to purchase the Lincolns were fraudulent and he contacted the police.
That same day, Fisher and Crystal Mooring attempted to purchase a Lexus ES-300 by presenting a check allegedly issued by Napoli, Kaiser, & Bern, LLP. The dealer became suspicious when he attempted to verify the check and learned Mooring had purchased a vehicle from another dealer using a similar check that bounced. He too contacted the police.
The five vehicles defendant purchased were reported stolen. On October 25, 2002, Rowan University police located the Mercedes Benz CLK 500 parked in a dormitory parking lot. A Rowan parking decal on the car showed the vehicle was registered to Bradley, a Rowan student. The keys for the vehicle were recovered and the vehicle was turned over to the Egg Harbor Township Police. On the same day, Officer John McCann of the Vineland Police Department observed a vehicle matching the description of the 2003 Jaguar in the Cumberland Mall parking lot. Officer McCann, along with Officer Eric DelFava, found defendant sitting in the Jaguar. Defendant was arrested, taken to the police station and advised of her Miranda*fn3 rights. Police also recovered the other Mercedes.
The State's witnesses included salesmen from three dealerships where defendant purchased the five vehicles; the branch manager of the DVACU; the area manager for Enterprise Rent-A-Car; Paul Napoli, Esq. of Napoli & Bern, successor to the firm, which allegedly issued the counterfeit checks; the owner of Car Toyz; police or investigators from Atlantic County, Rowan University, the City of Vineland, and Egg Harbor Township; and Investigator David Bynoe of the Division of Criminal Justice Forensic Computer Lab, the State's computer forensic expert who examined defendant's home computer, which was seized from her basement. Additionally, Fisher testified admitting his involvement in defendant's scheme, and Elaine Watson-Watts, a former housemate who had lived in defendant's basement, related her observations of defendant and Fisher creating and printing checks to pay defendant's bills.
At trial, defendant testified on her own behalf. She denied entering into an agreement with Fisher to obtain vehicles using counterfeit checks. She acknowledged she signed paperwork for the purchase of several vehicles, including a Mercedes Benz CLK 500, Mercedes Benz SL 55, Jaguar and two Lincoln Navigators, but she denied knowledge of the fraudulent transactions used to finance the purchases.
Following the jury verdict, defendant moved for a new trial. The court denied the motion and sentenced defendant to an aggregate term of twelve years.*fn4
On appeal, defendant argues her convictions must be reversed because the trial judge failed to properly instruct the jury regarding the use of Fisher's guilty plea. Defendant maintains the omission in the charge allowed the jury to use the plea evidence substantively to prove her guilt.
When considering assertions of error in a jury charge, we must review the charge as a whole. State v. Marshall, 123 N.J. 1, 135-36 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993); State v. Thompson, 59 N.J. 396, 411 (1971). "[S]sections of a jury charge cannot be read in isolation." Mohr v. B.F. Goodrich Rubber Co., 147 N.J. Super. 279, 283 (App. Div.), certif. denied, 74 N.J. 281 (1977). If the charge adequately covers the matter requested, there is no error, Thompson, supra, 59 N.J. at 411, and the verdict must be upheld. State v. Ramseur, 106 N.J. 123, 280 (1987).
Introduction of a co-defendant's guilty plea is admissible for purposes of affecting his or her credibility. State v. Adams, 194 N.J. 186, 208 (2008); State v. Stefanelli, 78 N.J. 418, 433 (1979). It is not substantive evidence of the guilt of the defendant. Adams, supra, 194 N.J. at 208. "[A] defendant is entitled to have his guilt or innocence determined by the evidence presented against him, and not by what has happened with regard to a criminal prosecution against someone else." Ibid. (internal quotations and citations omitted). "Moreover, when a guilty plea of a co-defendant is brought to a jury's attention without any guiding instructions as to its use in their deliberations, the potential for misuse is manifest." Stefanelli, supra, 78 N.J. at 435. The trial court must provide the requisite cautionary instructions, even in the face of silence by the State or the defendant. Id. at 434.
It is clear that correct jury instructions are fundamental to a fair trial and erroneous jury instructions on material issues are often presumed to be reversible error. Adams, supra, 194 N.J. at 207; State v. P.H., 178 N.J. 378, 400 (2004); State v. Crisantos, 102 N.J. 265, 273 (1986). Such errors can be excused only if they are "harmless beyond a reasonable doubt." Crisantos, supra, 102 N.J. at 273. However, if a party fails to object to the jury charge, it is reviewable only as plain error under Rule 2:10-2. State v. Macon, 57 N.J. 325, 337-38 (1971). Plain error is a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970); Adams, supra, 194 N.J. at 207. Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
In this matter, defendant does not allege the jury charge was erroneous as given, or that the court declined to provide an instruction she requested. Rather, her argument is the court failed to include a specific cautionary instruction limiting consideration of Fisher's guilty plea to the assessment of his credibility.
The trial judge provided the following instruction to the jury regarding Fisher's testimony and guilty plea:
Also on credibility, you've heard evidence that Donald Fisher has previously been convicted of a crime. This evidence may be only used in determining the credibility or that is the believability of his testimony.
First of all I want to discuss with you the testimony of Donald Fisher, a witness who testified to facts which show some involvement on his part in the criminal situation out of which the indictment and the trial of the defendants arose. The law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or award, or by any feelings of revenge or reprisal. In that regard you may consider the evidence that Donald Fisher entered into a plea agreement with the State whereby he agreed to testify for the State in this case, and that the State has agreed to recommend a specific sentence for Donald Fisher, and that Mr. Fisher has not yet been sentenced.
Now if you believe this witness to be credible and worthy of belief, you have a right to convict the defendant or a defendant on his testimony alone provided of course that upon a consideration of the whole case you are satisfied beyond a reasonable doubt of a defendant's guilt.
We agree the charge should have included an instruction to the jury not to consider Fisher's plea as substantive evidence of defendant's guilt. However, the judge's failure to include the instruction sua sponte does not require reversal. Adams, supra, 194 N.J. at 208.
Defendant did not request such a specific limiting instruction, nor did she object to the instruction as given by the trial court. Applying the plain error standard, the lack of a more specific cautionary instruction was not clearly capable of producing an unjust result. R. 2:10-2. Its omission had a minimal effect on the outcome of defendant's trial. Adams, supra, 194 N.J. at 209.
The State's evidence against defendant was overwhelming. In addition to Fisher's testimony, the State produced the recipients of the counterfeit checks who testified regarding defendant's role in obtaining the vehicles or services using the fraudulent instruments. Police officers testified they arrested defendant while she was sitting in the fraudulently obtained Jaguar. Defendant admitted she participated in each vehicle's purchase. The jury evidently found her explanation that she was unaware Fisher used fraudulent means to finance the purchases incredible. Paul Napoli, a partner at the firm that represented defendant in her "Fen-Phen" settlement, confirmed the checks used to purchase the vehicles were not issued by his firm. Watson-Watts testified how she witnessed defendant and Fisher preparing checks. Finally, the police computer forensics expert detailed how he examined defendant's home computer and located the image of the counterfeit checks on the unit.
Additionally, defendant was given ample opportunity at trial to test Fisher's credibility. The defense asserted Fisher was untruthful and wrongfully implicated defendant. At trial, Fisher was subjected to rigorous cross-examination regarding his direct testimony and guilty plea. Considering this, the tremendous volume of evidence of defendant's guilt, and the fact that the charge that was given properly instructed the use of Fisher's plea to assess his credibility and carefully scrutinize his testimony, we are satisfied the omission in the jury charge did not alter the trial's outcome.
Lastly, defendant identifies, and the State concedes, the trial court failed to merge four convictions for uttering a forged instrument with the related convictions for theft by deception. See State v. Streater, 233 N.J. Super. 537, 544 (App. Div.), certif. denied, 117 N.J. 667 (1989) ("only a single crime is committed when a theft by deception is accomplished by uttering a forged instrument and  the two offenses merge."). Specifically, there is no dispute that counts four, seven, nine and twelve merge with counts three, six, eight and eleven.
Defendant also suggests the convictions for uttering a forged instrument (counts two and five) also merge with the theft by deception charges. We disagree. These were separate offenses and the evidence relied upon by the State to support these convictions differs from the evidence relied upon to prove the thefts. Therefore, the offenses are not subject to merger.
Defendant's conviction is affirmed, and the matter is remanded for resentencing to address the merged offenses.