On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-2909.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Wefing and Grall.
Defendant Fermin Galvez appeals from a final judgment of conviction and sentence. Tried to a jury, defendant was convicted of second-degree theft by deception, N.J.S.A. 2C:20-4; third-degree forgery, N.J.S.A. 2C:21-1a(2); fourth-degree forgery, N.J.S.A. 2C:21-1a(2); false swearing, N.J.S.A. 2C:28-2a; and obstructing the administration of the law, N.J.S.A. 2C:29-1. The judge sentenced defendant to concurrent custodial terms on each count: a seven-year term for second-degree theft by deception; a four-year term for third-degree forgery; and one-year terms for the fourth-degree forgery, false swearing and obstructing the administration of the law. In addition the judge imposed fines, penalties and assessments. We affirm defendant's convictions and aggregate sentence but remand with direction for the court to merge the convictions for fourth-degree forgery and theft by deception and amend the judgment of conviction to reflect that merger and correct other errors in the form of judgment.*fn1
Defendant and Alba Morales met in 1995. In April 2004, Morales purchased a two-family residence in Newark. Although defendant was not a party to that transaction, he and Morales made the second-floor apartment their home. In October 2004, Morales was diagnosed with cancer. By December 9, 2004, the disease had advanced to obstruct one of Morales's kidneys. She was hospitalized. On December 30, 2004, Morales had a stroke that left her unable to speak or write. Morales died intestate on January 8, 2005. At the time of her death, she was still married to Salvador Morales, who became the executor of her estate.
While Morales was hospitalized, defendant visited a notary in an effort to have some paperwork notarized that would permit him to remain in Morales's home. He subsequently visited an attorney, presented the deed to the property, which listed Morales as the sole owner, and asked the attorney to prepare a new deed reflecting ownership by defendant and Morales. When defendant returned to the lawyer on January 3, 2005, he was accompanied by a woman who represented herself to be Morales. The woman had a passport, but the attorney did not examine it. She signed the deed, a certification indicating her residence in the property and an affidavit of consideration. The deed was filed on January 14, 2005.
Morales's daughters subsequently decided to sell her property and asked defendant to move out. He professed ownership and refused. Thereafter, he would not allow members of Morales's family to enter. In addition, defendant cashed a rental check issued to Morales by this State's rental assistance program as partial payment of the rent owed by Morales's tenant.
Based upon her familiarity with defendant's handwriting, Morales's daughter identified defendant as the person who signed the cancelled check.
In May 2005, Jose Valdez approached defendant because he had heard that defendant wanted to sell the two-family residence, and Valdez was interested in buying it. Valdez and Migulena Bencosme subsequently executed a contract for sale and purchase with a price of $245,000.
The closing was held on September 14, 2005. Defendant signed the deed and other essential documents as the seller. According to Valdez, defendant refused to vacate the property after the sale. When questioned by an investigator of the Essex County Prosecutor's Office, defendant denied any knowledge of the circumstances under which the deed was executed. From the proceeds of the sale of Morales's property, $200,658.46 was paid to satisfy the mortgage.
Defendant testified at trial. By his account, he lived with Morales and helped her pay the bills. The deed was changed when they applied, together, for a loan to repair and remodel the residence. He and Morales went to the lawyer together, and she signed the deed and other documents necessary to include defendant as an owner. With respect to the sale of the property, defendant testified that he did not understand that he was signing documents to complete a sale of the property. Defendant, however, admitted that he had signed Morales's check and deposited the proceeds in their joint checking account and that he had lied to an investigator of the Essex County Prosecutor's Officer about the deed.
On the foregoing evidence, the jurors found defendant guilty of theft by deception of property with a value of $75,000 or more; fourth-degree forgery by signing or soliciting another to sign the deed; third-degree forgery by signing a check in the amount ...