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State v. McCarthy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HOPE R. MCCARTHY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 04-10-0720.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2009

Before Judges Collester and Grall.

Defendant Hope R. McCarthy was tried on an indictment charging two counts of theft by failure to make required disposition, N.J.S.A. 2C:20-9. A jury found defendant guilty of committing that crime on June 18, 2004 and not guilty of committing that crime on July 8, 2004. At the time of sentencing, the judge suspended imposition of sentence for a term of one year and imposed the appropriate fines, penalties and assessments. N.J.S.A. 2C:43-2; N.J.S.A. 2C:45-1a-b. Defendant appeals from the judgment of conviction.

On June 18, 2004, defendant was employed by Frank Theatres as the general manager of the Beach 4 Theatre in Cape May, one of eleven theaters operated by defendant's employer. Her responsibilities included accounting for, securing and depositing cash received when the theater closed. On June 18, defendant worked from 3:30 p.m. until 12:30 a.m. the following day. The theater closed at 11:00 p.m. on June 18. Defendant signed a ledger entry indicating cash receipts in the amount of $1400.75 for June 18. That cash was never deposited in the theater's account.

When questioned by William Kinney, the person responsible for all eleven of the theaters, defendant told him that she had made the deposit. When questioned by the police, defendant said she would need more time to repay the money. At trial, defendant denied taking the money. She explained that after she put the cash in the deposit bag she received a phone call informing her that someone very close to her had died and left in a hurry without paying attention to what she was doing.

Although the friend in question had died in a car accident two days earlier, defendant explained that she was under the impression that the accident had occurred that night.

The cash receipts for July 8, 2004 were not deposited. Defendant worked that day, but it was her last day of work. She testified that she left work before closing time.

According to Kinney, during his employment with Frank Theatres more than nine thousand deposits had been prepared. On all occasions other than those involving the Beach 4 Theatre deposits for June 18 and July 8, the cash receipts reported were deposited in the appropriate account.

Defendant raises the following issues on appeal:

I. THE COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL.

II. THE TRIAL COURT ERRED IN DENYING A MOTION FOR A JUDGMENT OF ACQUITTAL.

III. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS, AND BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL, DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED.

IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR A NEW TRIAL; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

V. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO CONTINUOUSLY ASK OBJECTIONABLE QUESTIONS WHICH VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.

VI. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

The State's evidence is adequate to support a verdict of guilt in a criminal case when, given the benefit of all favorable and reasonable inferences, it is sufficient to permit a jury to find that defendant committed the crime charged. State v. Reyes, 50 N.J. 454, 458-59 (1967); see State v. Samuels, 189 N.J. 236, 244-45 (2007). The evidence was adequate to support the conviction for theft by failure to make required disposition on June 18, 2004.

To secure the conviction, the State was obligated to prove that defendant "purposely obtain[ed] or retain[ed] property upon agreement or subject to a known legal obligation to make specified payment or other disposition" and "deal[t] with the property obtained as [her] own and fail[ed] to make the required payment or disposition." N.J.S.A. 2C:20-9. Defendant's responsibility for and obligation to deposit cash receipts were established by Kinney's testimony. Her signature in the ledger permitted the inference that she assumed control of the cash received on June 18, 2004. The absence of a record of a deposit in the theater's bank account in the amount defendant recorded in the ledger, especially when viewed in light of Kinney's testimony that defendant initially told him she had made the deposit, was sufficient to permit the jurors to infer that defendant dealt with the cash she had obtained on June 18, 2004 as her own. Accordingly, the trial court did not err in denying defendant's motion for judgment of acquittal.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20090724

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