On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0385.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
Defendant Toy-Ling Washington was charged with second degree theft by unlawful taking of the property of Beverly W. Knight (Knight) in an amount of more than $75,000. Defendant was tried before a jury and found guilty. She was sentenced to seven years of incarceration and ordered to pay restitution in the amount of $118,000. Defendant appeals from the judgment of conviction entered on November 16, 2007. For the reasons that follow, we affirm defendant's conviction and the sentence imposed but vacate the order of restitution and remand the matter to the trial court for a hearing on the amount of restitution and defendant's ability to pay it.
We briefly summarize the relevant facts. Knight met defendant on December 14, 2004. Knight was eighty-four years old at the time. Defendant testified that Knight's landlord had called her and told her that Knight needed to find a new residence. Defendant took Knight home for the evening. Knight continued to reside with defendant and her family until November 3, 2005, when defendant was arrested and charged with the theft of Knight's monies.
The State presented evidence that, during the time Knight resided in defendant's home, defendant had unlawfully taken $166,381 of Knight's funds, including monies in an account at PNC Bank ("PNC"). The account was opened on September 28, 2004, with a deposit of $8,449.29. As of the end of 2004, the balance in the account was $15,956.38. Beginning in January 2005, numerous withdrawals were made from the account, consisting of cash withdrawals made with an ATM card, the electronic transfer of funds and purchases made with a debit card.
Knight's PNC bank statements indicated that the debit card payments were made to "Premium Skin Care," "Piercing Pagoda," "Taste of Portugal," "CVS drugstore," "Continental Airlines," "Peking Restaurant" in North Carolina, "Mayflower Seafood" in North Carolina," "Rockaway Bedding," "Radio Shack," "Iberia Peninsula Restaurant," "Brasilia Grill," and "Forces of Nature." All of the money in Knight's PNC account was eventually withdrawn and, in September 2005, the account was closed.
Evidence also was presented which established that defendant had taken monies from Knight's account at Wachovia Bank ("Wachovia"). The account was opened on January 10, 2005, with $8,339.64. The records pertaining to the account revealed that, in the period from January 10, 2005 through November 2, 2005, various deposits were made into the account, including deposits of $10,000 from Knight's account at American Express and deposits of $15,000 and $20,000 from Knight's Ameriprise Financial accounts.
The records pertaining to the account also indicated that checks made payable to defendant were drawn on the account in the amounts of $1,400; $5,000; $5,000; $2,000; $28,000; $5,000; and $800. Checks in the amount of $10,000 and $1,300 were made payable to cash and endorsed by defendant. A "counter withdrawal" of $15,000 was made and the funds were deposited in defendant's account in the Ironbound Bank ("Ironbound").
In addition, withdrawals from Knight's Wachovia account totaling approximately $21,000 were made using the ATM machine. Funds were also drawn from the account for debit card purchases at "Peoplefinders.com," "Resorts International Hotel, Atlantic City," "Walgreens," "Sears Roebuck," "Macy's," "Shop Rite," "Brasilia Restaurant," and "Empire Home Service."
The State additionally presented evidence concerning an account that defendant maintained at Wachovia. Wachovia's records indicated that, in the period from December 2004 through April 15, 2005, defendant made deposits to the account totaling $38,479. These deposits included checks that were drawn upon Knight's account. Defendant eventually withdrew all of the monies from this account and it was closed on May 25, 2005.
In addition, the State presented evidence regarding defendant's account at the Hudson City Savings Bank ("HCSB"). As of December 10, 2004, the balance in the account was $499.55. From December 2004 to November 2005, deposits totaling $83,012.87 were made to the account. The deposits to the defendant's HCSB account included checks made payable to Knight and endorsed by Knight, including a check in the amount of $18,393.21 from Met Life.
The deposits to the HCSB account also included checks drawn on Knight's accounts that were made payable to defendant. Withdrawals from the account were made for purchases at "Expertlink," "Devon Self Storage," "Sin City," "Q-Plus Beauty Supplies," "Brazilia Grill" and "Iberia Peninsula Restaurant."
Furthermore, the State presented evidence regarding defendant's account at Ironbound. The account was opened on May 25, 2005, with the deposit of a $17,001.36 bank check from Wachovia. Deposits to this account included a check from Prudential Financial in the amount of $15,865.26 payable to Knight and the aforementioned $15,000 withdrawn from Knight's Wachovia account. Beginning on June 5, 2005, defendant withdrew cash from the account in various amounts, leaving a balance of $357.74 as of November 7, 2005.
Knight testified at trial. She was living in a nursing home at the time. Knight stated that she had never seen defendant before she met her on December 14, 2004. Knight said that, when she moved in with defendant, she only brought her pills. Knight said that defendant would purchase items that she needed, such as food, medicine and supplies.
Knight also testified that defendant had hired Talitha Bomar ("Bomar") to assist her but she did not know how much defendant paid Bomar for her services. Knight also did not know the amount of rent that she paid defendant. Knight was shown copies of certain checks and she said that she was not certain if she had signed them. Knight additionally stated that she did not know the amount of monies she had in her accounts.
Knight was shown a check dated August 30, 2005 in the amount of $10,000, with a notation that the check was for taxies and doctors. Knight said that she did not recall paying $10,000 for taxies. She was questioned about a check in the amount of $1,300 for buses for "L.A." Knight replied that she could not "imagine where 'L.A.' is." She stated that the handwriting on the check was not hers.
Knight was also questioned about a check dated April 6, 2005, from Met Life in the amount of $18,393.21. She said she did not recall whether she had given the money to defendant.
Knight was asked whether she had purchased a computer for anyone at Radio Shack. She said that she did not remember buying a computer.
Knight further testified that she did not authorize anyone to use her money for "Expert Link" or for the purchase of $400 worth of perfume at the Livingston Mall. She said that she never went to "Brazilia Grill," "Q Beauty Supplies," "Sin City" or "Piercing Pagoda." She stated that she never gave anyone permission to use her ATM card at a hotel in Atlantic City, and never took a flight on Continental Airlines while she was living with defendant.
Defendant testified on her own behalf. She denied that she stole any money from Knight. Defendant stated that she and Knight agreed that Knight would pay her $700 per month for services and expenses. Defendant said that Knight came to her home with only a nightgown. She had to purchase bedroom furniture and clothes for Knight and get Knight's medical care "lined up." Defendant stated that Knight was "family, and it took money to take care of this elderly individual that was my family, and it wasn't a service."
Defendant further testified that Knight kept her ATM card in her possession and knew every occasion when it was used. Defendant maintained that the card had been used for Knight's care. Defendant stated that she purchased food for Knight at "Brazilia." She asserted that she purchased perfumes for Knight because Knight "had a smell." Defendant said that she bought Knight lotions and creams "all the time."
Defendant also said that she had to make modifications to the bathroom for Knight, for which she paid $800. She asserted that it cost $2,500 to fix the toilet because Knight had caused it to back up. Defendant had a deck installed at her home at a cost of $9,000 so that Knight could go outside. Defendant also purchased flowers for Knight and said that Knight had agreed to pay for them. In addition, defendant had an exterminator come in to deal with a roach problem that arose because Knight kept food in her room.
Defendant additionally testified that she paid Bomar to do Knight's hair. She denied that she "duped" Knight into surrendering her Met Life annuity to her. She stated that some of the money in her accounts was from a "settlement for [her] teeth." She also stated that Knight agreed to purchase her son a laptop computer and Knight went with her to Radio Shack to buy it.
Defendant stated that she traveled to North Carolina to attend the funeral of her ex-husband's father. She said that Knight offered her the ATM card and told defendant to "[t]ake what you need and go." Defendant also explained that the $1,300 check was for "buses for LA[.]" She said that she had raised money for buses to travel to Louisiana after Hurricane Katrina. According to defendant, the check was Knight's contribution to that cause. Defendant stated that she paid Knight's taxes and the mortgage payments for property Knight owned in South Carolina. She also said that she purchased Knight's medications.
On cross-examination, defendant denied that she had stolen Knight's money. She acknowledged that she had deposited Knight's money into her account. She said that she did so because there was "a lot of identity theft going on" and it was easier for her. She was asked about the amount spent to purchase perfumes for Knight and said that she did not "know how to buy cheap stuff."
Defendant also was asked how much money she spent for Knight and she said that she "never tallied it, but [she knew that] Knight's money went to take care of [Knight], and [it] was okay with her to spend [the money] in any other places like Katrina or something like that." Defendant stated that she did not "have any use for . . . Knight's money."
The jury found defendant guilty of theft by unlawfully taking or exercising unlawful control of Knight's movable property with a value of at least $500 but less than $75,000.
The jury also found that defendant was guilty of theft by deception of property with a value of at least $500 but less than $75,000. The jury found defendant not guilty of theft by failure to make a required disposition. The jury further determined that the thefts were part of a common scheme or course of conduct and found that the aggregate amount of theft was $75,000 or more.
Defendant appeals and raises the following issues for our consideration.
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING HOW TO CALCULATE THE ...