On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-02-0028 and 05-08-00134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Lyons and Espinosa.
Defendant was convicted of attempted theft by deception and conspiracy to commit theft by deception, as alleged in counts two and three of one indictment, and of two counts of witness tampering as embodied in a second indictment. He received concurrent five-year terms on the theft indictment and two consecutive terms on the witness tampering indictment, to be served consecutively to the sentence on the theft indictment. The aggregate sentence was eleven years.
On this appeal, defendant argues that "because the prosecution failed to offer any evidence as to the fair market value of the property involved in counts two and three of the theft indictment," his motion for judgment of acquittal on those counts should have been granted; a new trial is required because defendant's trial attorney or his firm "represented three important adverse trial witnesses" and because "the trial court erred by allowing the prosecution to introduce negative character and reputation evidence as to appellant"; and that the sentences were excessive both in terms of their lengths and their consecutive features.
Defendant was acquitted of the theft count involving the First Trenton Insurance Company (count one of the theft indictment relating to a claim for coverage of his commercial building), but convicted of count two involving an attempted theft by deception from Farmers Mutual Insurance Company (his homeowner's carrier which covered personal items) and a conspiracy to commit theft (counts two and three of the theft indictment). On each count the jury found that "the amount of money or value of property involved" was "$75,000 or more."
Defendant was also found to have attempted "to induce or otherwise cause Gary Dixon, Sr., to testify falsely," but that he did not "employ the threat of force" when doing so, thus resulting in a conviction of a lesser-included third-degree crime. Finally, the jury found that defendant attempted "to induce or otherwise cause William Dixon to testify or inform falsely" or "to withhold testimony in a grand jury investigation." The dates involved in these witness tampering counts were different. Defendant was acquitted on two counts of witness tampering and another was dismissed. Significantly, the tampering convictions dealt with Gary Dixon, Sr. and William (Willy) Dixon, clients, or former clients, of defense counsel; the acquittals did not. We remand for further proceedings.
The charges arose from defendant's attempt to collect insurance proceeds on a commercial building he had owned for many years that burned in a fire in 1998. Defendant submitted claims to the building's insurer, First Trenton, for the structure and some of the building's contents, and to the insurer for his homeowner's policy, Farmers Mutual, for items that he claimed were personal property, which included vending machines, pool tables, and restaurant equipment. The building's insurer paid him the limits of its policy, but defendant rejected the settlement offer for the contents made under his homeowner's policy.
The State charged him with theft, attempted theft and conspiracy, alleging that defendant was entitled to none of the proceeds because he had burned down the building, and because his homeowner's claim included many items that were not in the building at the time of the fire. Shortly after trial commenced on those charges, a mistrial was declared, and the State obtained additional indictments against defendant for tampering with witnesses who testified in pretrial hearings.*fn1
At the second trial, as already noted, defendant was acquitted of theft by deception for his claim against the building's insurer, but he was convicted of attempted theft based on the claim he asserted for the building's contents against his homeowner's policy. He was acquitted of three counts of witness tampering, but convicted on two.
On September 29, 1998, at approximately 8 p.m., a commercial building at 801 White Horse Pike in Winslow Township, Camden County, became engulfed in flames. Defendant had owned the building since 1983. At one time it had housed a liquor store and a deli, and it had two offices and three apartments. At the time of the fire, the building was vacant and its utilities turned off, although one apartment was still being emptied by defendant's son who had moved out a couple of months earlier. In light of our disposition, we need not detail the evidence concerning the suspicion of arson, the investigation or the claims submitted. We develop only the facts necessary to understand our disposition.
On October 7, 1998, defendant retained Marc Rossi to represent him as a public adjuster. On October 13, 1998, Rossi submitted to First Trenton an invoice from ARMD Construction Company in the amount of $42,000 for demolition services. Rossi also submitted to First Trenton an estimate of $775,000 for the value of the building, and an itemized invoice for contents totaling $160,600.
First Trenton's adjuster for the building structure estimated that the total cost of the demolition should have been $20,000 to $25,000. He concluded that the replacement cost for the building was $359,600, based on his review of the debris, drawings, and the square footage.
On January 16, 1999, Rossi offered on defendant's behalf to settle the claim for the First Trenton policy's maximum limits for the building and its contents, and two claims for loss of rent at $8100 and $6750 each.
On February 23 and 24, 1999, First Trenton paid defendant the limits of the policy for the building and its contents. Although unable to verify defendant's contents list, First Trenton's adjuster said that First Trenton decided it "would take the insured at his word for customer relations and pay the $15,000" contents limit, "as a building normally has contents within it." It also paid the $165,000 policy limit for the building. It refused to pay the claims for loss of use because defendant had provided no documentation that the premises were rented at the time of the fire.
In addition to the First Trenton policy, defendant also had a policy with Farmers Mutual for his dwelling and personal property located in Hammonton. The Farmers Mutual policy had a replacement cost provision for personal property at a limit of $271,600, with a limit of ten percent of that amount, or $27,160, for personal property located away from the Hammonton premises.
The Farmers Mutual policy also had a separate liability limit of $3000 for "business personal property," which was "property used or procured for use in business." The business personal property provision had a limit of fifteen percent of $3000, or $450, for business personal property located away from the residence. Farmers Mutual adjuster Paul Kosherzenko testified that "the total possible limit" for property at 801 White Horse Pike under the Farmers Mutual policy "would be either $27,160 of his personal property or $450 if it was business property outside the home."
On October 6, 1998, defendant filed a claim under the Farmers Mutual policy listing over $206,000 worth of property at 801 White Horse Pike. In support thereof, on November 6, 1998, Rossi submitted to the adjuster a "contents claim form." Using the claim form provided by Rossi, Kosherzenko determined which items on the list constituted business personal property and which items were personal property. He then prepared a statement of loss based on his calculations of the replacement cost, depreciation amount and actual cash value for the personal property. Kosherzenko explained that defendant's policy was "a replacement cost policy," but that at the time of loss the policy paid only the actual cash value of the item after depreciation. However, Farmers Mutual would pay the policyholder difference between the withheld depreciation and the actual replacement cost, if and when the person actually spent the money to replace the item.
Kosherzenko concluded that the replacement cost for the personal property located at 801 White Horse Pike was $9050, less depreciation of $1387, which yielded an "actual cash value loss" of $7663. He did the same for the business personal property and added the amount of the $450 limit (fifteen percent of $3000) to the total after applying the policy's limits. Kosherzenko waived the deductible. He calculated that the liability under the Farmers Mutual policy was $8113 for the actual cash value of the claimed items after the policy limits were applied.
On March 18, 1999, Kosherzenko sent Rossi a proposed offer to settle the claim for $8113. By fax the same day, Rossi rejected the offer, including a letter to that effect sent to him by defendant. Through letters and telephone conversations over the next couple of months, Kosherzenko related the insurer's position and defendant repeatedly rejected the offer. Rossi said defendant was "[h]ighly upset" at the offer from Farmers Mutual.
In a letter dated June 17, 1999, Louis Barbone, who became defendant's trial attorney after the first indictment was returned, requested that Kosherzenko provide the calculations that resulted in the offer. On July 7, 1999, Kosherzenko sent defendant's attorney copies of the policy and he explained his calculations in a telephone conversation.
On September 29, 1999, Farmers Mutual sent defendant a check for $8113, but defendant returned the check and initiated a lawsuit for the claim. Ultimately, defendant recovered $11,600 in the lawsuit, and we affirmed the verdict in that amount. Siligato v. Farmers Mut. Fire Ins. Co., No. A-2343-02T3 (App. Div. Feb. 17, 2004).
Through Rossi as his adjuster, defendant's son, David Siligato, also submitted a claim for loss of personal property at 801 White Horse Pike to his insurance company, Selective Insurance Company of America. On June 30, 1999, Selective paid $17,362.22 on David's policy. The check was issued to defendant. No issue is before us based on this claim or the civil verdict.
In August 1999, the State Office of the Insurance Fraud Prosecutor began to investigate Rossi for arson and insurance fraud in the Mercer County area. On January 28, 2000, the State seized Rossi's claim files. As a result of that investigation and information from one of Rossi's co-defendants, who alerted investigators to claims "he believed were suspicious," investigators examined Rossi's file regarding defendant's claims and requested defendant's claim files from his insurance carriers.
Rossi was eventually indicted, and was offered a plea agreement in exchange for a recommended custodial sentence and his cooperation. As a result, on September 24, 2003, he provided a signed statement regarding his activities. No part of the indictment against Rossi was based on any conduct with defendant or the property at 801 White Horse Pike. However, Rossi told prosecutors that defendant's claim "was a fraudulent claim" and that defendant admitted to Rossi that he "set the fire." Rossi testified, "[H]e felt comfortable with me because he said he had me checked out." When asked if he knew "what [defendant] meant by that," Rossi testified, "I believe he meant... that he knew that I didn't question fraud. I was involved in it myself and I didn't care what he submitted." After he was indicted, Rossi was unsuccessful in enticing defendant to repeat his admission on tape.
Gary Dixon, Sr. (Gary) knew defendant, having seen him "on and off" in the Hammonton area where they both lived for many years, but they had never socialized with each other prior to May 2005. Gary also knew defendant's children and stepchildren.
In October 1998, shortly after the fire at defendant's building, a group of kids had bragged to Gary that they were setting fires in abandoned houses. Gary relayed this information to Jimmy Davis, then a detective in the Mullica Police Department, and arrests were made.
In May 2005, seven years after the fire at defendant's building and over a year after defendant was indicted, defendant asked Gary to go out to dinner. Defendant had never invited Gary to dinner before, and Gary "was a little worr[ied]." Gary said he was too busy.
On May 10, 2005, defendant came to Gary's gas station. Gary said he "was a little nervous" when he saw defendant pull up. Defendant asked Gary if he would contact Davis, who was now the police chief in Mullica Township, to permit Davis to reveal to a private investigator that Gary had been the informant in the 1998 fires. Gary had no idea why defendant wanted him to do this. He testified:
[Defendant] told me if I would do this for him, that he would take care of my family and he would take care of me and that I wouldn't have anything to worry about, that my kids would be fine. He knew I was trying to put my kids through school and trying to pay Mr. Barbone's office for legal fees and he told me he would take care of that and make sure my kids were all right. Everybody would be safe and this is why I said yeah. I figured, okay, if you can do this, sure, you know, and I told him no problem. I figure it would help out Mr. McCusker and it wouldn't be any problem with it.
Louis Barbone was defendant's attorney for the criminal charges, and had also acted as defendant's attorney in his lawsuit for the insurance claim against Farmers Mutual. Jim McCusker was a private investigator who worked for Barbone.
Gary further testified that "five minutes" after he agreed to defendant's request, Davis called him "and said you're authorizing me to give the okay to let your name be known to ...