On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0144.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Parrillo, Lihotz and Ashrafi.
Tried by a jury, defendant, Terry Murray, was convicted of third-degree theft by failure to make the required disposition of property received, N.J.S.A. 2C:20-9.*fn1 He was sentenced to an eighteen-month term of probation and ordered to pay restitution of $5,594. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
Defendant was a wrestling coach and guidance associate at Elizabeth High School. As head coach, a position to which he was promoted in 2000, defendant ran an annual wrestling tournament each January, known as the Minuteman Classic Wrestling Tournament (Minuteman Tournament or Tournament), in which area high schools participated upon payment of a fee collected by defendant. The Tournament was a fundraiser for the high school's wrestling program, whose season ran from the Friday after Thanksgiving to sometime in mid-March, ending with the State championships in Atlantic City. Monies were raised from participation fees and refreshments sold at the Tournament and were used to fund summer wrestling camps, t-shirts, trophies, team dinners, and for other team purposes. In November 2004, shortly after the school administration declined to renew defendant's coaching contract for other reasons, an investigation commenced into defendant's handling of Tournament funds. On April 14, 2005, the Elizabeth Board of Education (Board) passed a resolution terminating defendant's employment as a guidance associate. On February 17, 2006, defendant was indicted for third-degree theft by failure to make required disposition and third-degree theft by unlawful taking. The State charged that defendant did not properly dispose of some of the fees he obtained for the Tournament but instead deposited checks he received from other high schools into an unauthorized bank account, rather than a school-approved account and then utilized some of these funds for personal, non-school uses.
According to the State's proofs at trial, coaches at Elizabeth High School are appointed for one-year terms and receive an annual stipend. Their contracts are renewable annually. Raymond Korn, a teacher in charge of athletics for the Board, is responsible for, among other things, hiring coaches. In addition, with the aid of two assistants, he supervises approximately 120 coaches and trainers. In 2000, Korn was part of a committee that promoted defendant from an assistant wrestling coach to head wrestling coach after determining that he was the best candidate for the position.
According to Korn, Michael Scarpato was hired as principal of Elizabeth High School during the 1999-2000 school year, brought in James Occhipinti as the school accountant in charge of the Student Activities Fund (Fund), and instituted changes as to the collection of fees and handling of money by the various student clubs and teams. Under the new policy, coaches were no longer permitted to deposit fundraiser monies into private, personal bank accounts, as they apparently did in the past. According to Occhipinti, by the time he began working at the high school in 2000, athletic coaches were no longer maintaining their own accounts with respect to athletic funding. He had "heard that somewhere along the line that they were and it had ceased but that was long before I got there[.]"
Under the new policy, anyone organizing a fundraiser was required to go to the Student Affairs Office to fill out a form indicating what the fundraiser was for and how much money was anticipated. The form was then sent to the Board for approval. Upon approval, a sub-account within the Fund was opened under Occhipinti's supervision. The Fund included sub-accounts for about eighty different clubs and athletic organizations, including the high school's wrestling team.
Each organization had its own unique, identifying sub-account number; the wrestling team's number was 101. In order to obtain money from the wrestling sub-account, the coach would fill out a request form and after the request was approved by the principal, Occhipinti would issue a check from the appropriate sub-account in the Fund. Also, a coach could pay for an item first and be reimbursed for the cost. Additionally, "any fund-raiser or any monies that were going to be raised by any coach during the course of the year would have to be deposited . . . with Mr. Occhipinti. . . ."
Scarpato sent written notice of the new policy to the athletic department, specifically Korn, who then conducted meetings to instruct and notify all head coaches of the new policy. Korn believed he met with defendant to inform him of the policy but that he didn't "recall telling him exactly" and said that there were "mentoring" meetings where he "would just inform [defendant] of regulations that he should be following[.]" Moreover, the meeting at which the policy was discussed was attended by all head coaches, which would include defendant. When pressed further by the defense, Korn said that the "only thing I can tell you, counselor, to help you is that he did open up [a sub-]account and there was money being put into the [sub-account called Elizabeth Wrestling] up until the last year. So he knew about the policy because he was following procedure."
Occhipinti also assumed defendant was aware of the new policy since he was complying with it on occasion. Occhipinti dealt with defendant on the wrestling sub-account, when defendant would turn over funds for deposit and submit signed payment request forms seeking reimbursement for wrestling program expenditures. According to Occhipinti, he received from defendant entry fees from local schools participating in the Minuteman Tournament in 2000 and 2001, and again from July 2002 through June 2003. However, he received no funds for deposit in the wrestling account during the 2001-2002 school year, and only one deposit from July 2003 through December 2004.
Defendant's non-compliance with school policy came to light only after his termination as head wrestling coach in November 2004, for other reasons. Those other reasons are catalogued in a series of semiannual evaluations beginning in defendant's March 24, 2003 end-of-year review. At that time, defendant received a "satisfactory" score in care of equipment, record keeping, safety, dress, discipline of the team, knowledge of the sport, supervision of assistant coaches, coach-player relationship, and cooperation with the supervisor. The evaluation also noted defendant's weaknesses, which included failing to inform the athletic department of what was happening in the wrestling program and failing to detail with documentation the funds coming in and out for the Minuteman Tournament.
Sometime thereafter, in January 2004, a committee consisting of Korn, Korn's supervisor, the Division Director, and others from Korn's athletics office met to discuss concerns over defendant's practices regarding athlete eligibility and physicals. As a result of that meeting, it was decided that Korn would mentor defendant on a weekly or biweekly basis to help him go "in the right direction." However, defendant only attended a couple of mentoring sessions.
At defendant's mid-year evaluation on January 21, 2004, Korn expressed concern over why defendant charged differing amounts to schools participating in the Minuteman Tournament, instead of a uniform fee. Other complaints were voiced about defendant's performance, including failing to take the team to a hydro test in advance of a match and to show up for a "quad match," canceling games, failing to provide proper physicals for students, and permitting a student with Crohn's disease on the freshman football team, which defendant also coached.
At his end-of-year evaluation on April 22, 2004, defendant received a satisfactory score for equipment, proper dress, discipline of the team, knowledge of the sport, supervision of assistant coaches, and his coach-player relationship. However, he rated unsatisfactory in organizational skills, record keeping, attention to safety, cooperation with supervisors, and attention to athletic department procedures. Korn listed defendant's weaknesses: "he [didn't] always follow district policies, fail[ed] to provide accurate information to the athletic department, schedul[ed] matches without conferring with the athletic department, [and] allow[ed] athletes to participate without receiving a final approval from the district medical examiner . . . ."
Despite his concerns over defendant's administrative abilities, Korn nevertheless recommended, with reservations, defendant for reappointment as head coach. However, because of continuing problems with failing to turn in rosters and sports physicals, and canceling games, Korn informed defendant in November 2004 that his coaching contract would not be renewed. Thereafter, assistant coach Adam Acquilina assumed the position of head wrestling coach.
When Acquilina later requested funds to purchase a mop and pail to clean the wrestling mats, it was discovered that the balance in the wrestling sub-account was only $298.93 through December 2004, instead of the $3,000 to $4,000 amount Korn assumed to be there from the funds raised by the Minuteman Tournament. Korn brought this discrepancy to the attention of the principal, who informed Korn to contact the participating schools and request copies of their cancelled checks.
Upon receipt, Korn discovered that the participating schools' checks never went to Occipinti or the school's bank account with Wachovia Bank. Instead, the checks were endorsed either by defendant or by "Elizabeth Wrestling" and were deposited in a Commerce Bank account in Rahway. However, Elizabeth High School did not have an account with Commerce Bank; rather all Board accounts were maintained only with Wachovia Bank. Korn reported this information to Scarpato, who then went to the Board's Superintendent. Korn subsequently met with Jennifer Barrett, the Assistant Superintendent of Schools, and Aida Garcia, the Director of Human Resources, in January 2005, regarding the missing funds.
On January 26, 2005, Garcia and Barrett met with defendant, who was still employed by the Board as a guidance associate, to ask him about the Commerce account and if he knew who opened the account. Defendant denied any knowledge of the Commerce bank account, claimed he never deposited any checks into that account, and stated he did not know who opened the account or whose name was on the account. Defendant admitted to handling checks for the Minuteman Tournament, but stated that he gave those checks to Occhipinti.
The matter was referred to the Union County Prosecutor's Office. Detective Cassie Kim of that office received account records from the Commerce Bank account from the time the account was opened to present, which included monthly bank statements, deposited checks, and checks issued from the account. Additionally, Kim obtained a printout of the Fund's wrestling sub-account from Occhipinti and monthly financial reports and request for disbursements from the Fund from July 2000 to April 2005. Based on the documentation obtained from Commerce Bank, Detective Kim learned that defendant opened an account on November 9, 2001, in the name of "Minuteman Classic," listing his home address in Rahway, his occupation as a "wrestling coach, self employed," and stating his business type was "sole proprietorship." Checks and cash were deposited into the account from November 2001 through July 2005. According to Kim's review, the amount of checks deposited into the account from various schools, related to wrestling and the Minuteman Tournament, was $7,380.00.*fn2 The total amount deposited, including monies unrelated to wrestling, totaled $47,392.65.
In her review, Kim credited defendant for any checks written by him on behalf of the wrestling team or Elizabeth High School. Furthermore, checks written by defendant from the account unrelated to wrestling totaled $15,855.09. Additionally, there were numerous ATM withdrawals and debit purchases, which Kim did not include in her trial charts since they were notated on the bank statements. A total of thirty-six checks were written from the account and there were 573 debit or cash withdrawals made from the Commerce account. After deducting the total amount of checks written on behalf of the wrestling team from the total amount of checks deposited on behalf of the wrestling team, Kim determined there was $5,594.40 remaining in defendant's account that should have been returned to the Board.*fn3 Based on this evidence, the jury found defendant guilty of theft by failure to make the required disposition of Tournament funds.
On appeal, defendant raises the following issues:
I. THE STATE SHOULD NOT HAVE BEEN PERMITTED TO INTRODUCE EVIDENCE BASED NOT ON PERSONAL KNOWLEDGE, BUT UPON SPECULATION. (Partly Raised Below).
II. DEFENDANT'S JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. THE STATE DID NOT SHOW THAT DEFENDANT WAS AWARE OF THE EXCLUSIVITY OF THE NEW PROCEDURES, DID NOT SHOW THE LEGAL VALIDITY OF THOSE PROCEDURES AND ...