On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-06-00823.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris and Newman.
On March 15, 2006, a Middlesex County Grand Jury returned Indictment No. 06-06-00823, charging defendant Michael Falco with three counts of forgery, N.J.S.A. 2C:21-1(a)(2) (counts one, four, and seven); three counts of fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (counts two, five, and eight); one count of fourth-degree theft by deception, N.J.S.A. 2C:20-4 (count three); three counts of third-degree theft by deception, N.J.S.A. 20C:20-4 (counts six, nine, and ten); and one count of third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6(h) (count eleven). Counts 1, 2, and 3 involved check #1894 in the amount of $325. Counts 4, 5, and 6 involved check #758 in the amount of $500. Counts 7, 8, and 9 involved check #760 in the amount of $625. Counts 10 and 11 involved the use of credit cards and receiving goods and/or services by deception. Tried to a jury, defendant was found guilty of all charges.
Prior to sentencing, defendant moved to set aside the jury verdict or, in the alternative, to grant a new trial. Those motions were denied.
The trial court sentenced defendant to a total of five years imprisonment, with two and one-half years of parole ineligibility, running the respective sentences concurrently and merging the counts. Unfortunately, the trial court sentenced defendant on merged counts before effectuating the mergers. Those sentences have to be vacated and the judgment of conviction amended accordingly. Defendant appeals. We now affirm.
Defendant became involved in a volunteer group that provided services to senior citizens. Through this group, organized by Agnes Medican, defendant was put in touch with Clara Fazi, who was an eighty-eight year old single woman having trouble managing her finances. Medican and Fazi knew each other by having their hair done at the same beauty salon.
Fazi had a niece, Santa Matarazzo, who lived one hundred miles away on Long Island and was not in a position to assist Fazi with her day-to-day or week-to-week financial needs. Defendant agreed to help Fazi. He went to her home, usually once a month with Medican, to assist with her finances.
Defendant allegedly uncovered several issues with Fazi's finances. According to defendant, they included: overcharges on Fazi's telephone bill with AT&T for which he obtained a refund; money from the State totaling $8,000 that Fazi left unclaimed before escheat; and an unclaimed $20,000 insurance policy with the U.S. Postal Service with whom Fazi had been formerly employed.
Defendant testified at trial that during this time, he ran errands with Fazi, such as making car repairs, attending doctor's appointments, and picking up prescriptions at the pharmacy. Defendant claims that he set up automatic bill pay for Fazi so she would not have to write so many checks to cover her bills. A State homestead rebate check for over $1,600 was discovered. Defendant had the State issue a new one. Mistakenly, the State cancelled the check after it was deposited and Fazi had written checks relying on those funds. Fearing the checks would bounce, defendant testified that he loaned her $1,000. According to defendant, Fazi paid him back with checks #758 and #760 in the amounts of $500 and $625. He stated that she insisted on paying him a little extra for his assistance, despite his protest.
In December 2005, Fazi first told Matarazzo that she thought there was an issue with her bank records that defendant had been handling. On December 6, 2005, Monroe Township Patrolman Brian Burns was sent to Fazi's home to investigate the possible theft from her bank account. While defendant contends that Fazi was going "senile" at this time, causing her confusion with regard to her finances and where her money was going, Officer Burns found Fazi to be competent at the time of the meeting.
During the meeting, Fazi showed Officer Burns a copy of her bank statement and copies of two checks, #758 and #760 made out to "Cash," which Fazi believed someone had forged. Fazi purportedly did not make out checks to "Cash," and she always filled in the memo line indicating the purpose of the specific check. The memo lines were not filled out on these checks. It was at this time that Fazi informed the officer that defendant had been the one helping with organizing her finances. Defendant admitted that he wrote out the checks, but that Fazi signed them. As mentioned, defendant claimed these checks represented repayment of loans defendant made to cover her account when the deposited rebate check was cancelled.
Defendant also indicated that check #1894 for $325 constituted the repayment of a $300 loan when Fazi was short of cash and was taking an out-of-state trip to Dollywood.
Throughout the investigation, Fazi's nieces, Matarazzo and Arlene Berisi, went through her bank records, and found more documentation of what they believed to be fraud and theft. On December 27, 2005, the nieces provided this additional information to Monroe Police Detective Leann Solomons, who took over the investigation from Officer Burns.
Berisi discovered charges that were made online through a website, along with debit card activity. Both nieces did not think Fazi had a computer or knew how to use a debit card. Defendant countered by testifying that Fazi applied for a debit card with Provident Bank on June 3, 2005, and that one of the bank employees helped her learn how to use the card.
As a result of these new findings, Detective Solomons visited Fazi's Provident Savings bank in Monroe, where she obtained printouts of transactions from the bank manager. Included in this information was a debit card transaction of December 2, 2005; Detective Solomons also obtained a surveillance tape of the transaction, showing defendant depositing $400 after an ATM withdrawal of that amount. It was also learned during this time that check #1894 from Fazi's account was deposited by defendant into his account on June 24, 2005. Additionally, it was discovered that defendant had endorsed the back of checks #758 and #760 at a PNC bank in Twin Rivers on Route 33 and cashed them. Maria Rolo, the bank teller, knew defendant and confirmed the transactions, indicating her initials were on the checks.
Detective Solomons went to the PNC bank to speak with the bank manager, and learned that the debit card issued in Fazi's name had been used at a Shop-Rite in East Windsor on December 5, 2005; at an Old Navy in Freehold on December 2, 2005; and at a Dollar Tree store in East Windsor, along with the Town and Country Diner in Bordentown, both on December 8, 2005. It was also discovered that the same debit card had been used in Hamilton and a restaurant in East Windsor where defendant lived, when Fazi was spending that same Thanksgiving holiday weekend with her family on Long Island.
Detective Solomons investigated other locations at which the debit card in Fazi's name was used, but she could not determine the identity of the individual that used the card to make purchases.
Detective Solomons interviewed Fazi while she was staying at a rehabilitation facility, recovering from a heart attack suffered on December 12, 2005. Fazi, appearing alert and coherent, explained to the investigator her relationship with defendant and how he helped manage her bank account with access to her records. Fazi specifically informed Detective Solomons that she had never once used a bank card, let alone one issued in her name.
More surveillance photographs were obtained during the investigation, and more information was acquired from Berisi, who confirmed that purchases were made on Fazi's bank card at Stan's Sports Bar in the Bronx located by Yankee Stadium on August 29, 2005. Defendant was a Bronx native and a Yankee fan. More information regarding bank transactions in the Bronx was discovered, but no security pictures of any transaction were obtained.
In February 2006, Detective Solomons was unable to locate defendant until defendant's brother informed the investigator that Falco was in Florida. It was further learned that defendant had been in Florida in August 2005 where a number of credit card transactions had taken place on Fazi's account. Three of them occurred in Kissimmee on August 15, 2005, where defendant's father lived and defendant visited. One of the three transactions was made at a Publix Supermarket. There were three transactions on August 18, 2005, August 22, 2005, and August 23, 2005, in St. Petersburg, Pointakenia, and two other Florida locations respectively. According to Matarazzo's testimony, her aunt had not traveled to Florida in seven years, when she last visited her ninety-two year old sister in the Jacksonville area. After being placed by her nieces in a nursing facility on Long Island, Fazi died after ten days on February 24, 2006.
At trial, conducted April 1 through April 3, 2006, the State presented testimony of Officer Burns, Detective Solomons, bank employees, Matarazzo, and Investigator William Davis, a handwriting expert with the State Forensic Unit. Davis testified in his expert capacity. Having examined handwriting specimens of both defendant and Fazi, and the checks at issue, Davis was of the opinion that Fazi did not sign the checks, but that they were ...