June 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANIL AGARWAL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-02-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 26, 2010
Before Judges Axelrad and Sapp-Peterson.
Defendant Anil Agarwal appeals from his conviction for passing a bad check, N.J.S.A. 2C:21-5(c)(2)*fn1 , after a trial de novo in the Law Division. See R. 3:23-8(a). Following the signing of a complaint against defendant by Sandy DeLorenzo, the bank manager of Hudson City Savings Bank ("bank") in Lodi, venue was transferred from the Lodi Municipal Court to the South Hackensack Municipal Court. At the conclusion of trial, the municipal court judge found defendant guilty of the charge and directed he pay a $250 fine and court costs, mandatory assessments, and $4,256.60 restitution to the bank. Defendant appealed to the Law Division.
On de novo review, the Law Division again found defendant guilty of passing a bad check and imposed the same sentence as had been imposed in the municipal court. The judge issued a written opinion dated February 20, 2009, and an order of the same date. This appeal ensued.
On appeal, defendant contends the decision of the Law Division was not supported by sufficient credible evidence in the record nor proof beyond a reasonable doubt. He also contends the testimony of Gerald Michota, the bank's security investigator, was an inadmissible net opinion and it was reversible error for the Law Division judge to rely upon any aspect of it. Based upon our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm substantially for the reasons set forth by Judge Roma in his comprehensive written opinion. We add the following comments.
We briefly summarize the testimony and evidence presented at trial. DeLorenzo and Michota testified for the State and defendant testified on his own behalf. On August 8, 2006, defendant, who resides in Kelayres, Pennsylvania, drove about two hours to the bank branch in Lodi, New Jersey, and deposited a $4,903.12 check into his business account. Defendant testified he did not have a bank account in Pennsylvania. The check, which was issued from a business in Quebec, Canada and drawn on a Canadian bank, was sent to defendant from a "Mr. Andrew of Canada," whom he had never met but who contacted him by phone and purportedly was referred to defendant by a friend who died two years before. According to defendant, he was instructed that when the "goods [were] loaded," he was to transfer the funds to another stranger in two locations and was permitted to retain $500 for his services. Accordingly, on August l8, 2006, defendant withdrew the funds, less his fee, and wired them in approximately equal amounts to an "Anthony Bash" in Canada and a "Tony Bash" in Atlanta.
Defendant was thereafter informed by the bank's representatives that the check was returned for insufficient funds as it had been drawn upon a closed account. Defendant and Michota eventually reached an agreement whereby defendant would repay the bank. Defendant sent the bank a check for $1,500, drawn on a Montana bank, which he claimed had been sent from the people who sent him the original check. The check was counterfeit; it had both false routing and account numbers. Defendant then told Michota that the matter would be resolved when he received a significant inheritance, a fact which the record does not reflect and which presumably did not occur. When the bank did not receive repayment from defendant, its representative filed a criminal complaint. Michota testified that the type of overall activity fits the mold of fraudulent check scams. Based on his conversations with defendant and the factual pattern, Michota expressed the opinion that defendant knew the Canadian check was fake when he deposited it and defendant was part of the scam, not a victim.
N.J.S.A. 2C:21-5 states, "[a] person who issues or passes a bad check . . . knowing that it will not be honored by the drawee, commits an offense as provided for in subsection c. [gradation] of this section." For conviction of this offense, the State must show the person issued or passed a bad check and he or she knew it would not be honored by the drawee, but proof of fraudulent intent is not required. State v. Kelm, 289 N.J. Super. 55, 59 (App. Div.), certif. denied, 146 N.J. 68 (1996).
N.J.S.A. 2C:2-2b(2) defines "knowingly" as follows:
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.
The municipal court judge found the State's witnesses to be credible and had "difficulty with the credibility" of defendant for several reasons, including "the whole situation on how this check came about and the fact that an unknown party passed a check to [defendant] and he deposits it and draws off the funds without any regard as to where this check came from or where it's going." The judge was satisfied beyond a reasonable doubt that defendant was guilty of the charged offense.
Judge Roma, on de novo review, gave due, though not controlling, deference to the municipal court judge's credibility assessments and made independent factual findings. He rejected defendant's argument, renewed on appeal, that the law is aimed at an issuer of a bad check, noting its express reference to a "person who . . . passes" same. Judge Roma was convinced that even without Michota's direct opinion as to defendant's mens rea, the State had satisfied its burden of proof beyond a reasonable doubt as to the requisite knowledge by defendant and guilt of the offense through the remaining circumstantial evidence presented at trial. As the Law Division judge explained: the record shows that defendant agreed to a suspicious business deal and embarked upon a subsequent pattern of questionable behavior, that expert testimony opined that such a pattern is typically an indicator of a fraudulent business arrangement, and that the trial judge found the defendant to be an incredible witness.
In its de novo review of municipal court convictions, the Law Division must make independent findings of fact and conclusions of law, although it is bound by the evidentiary record in the municipal court. State v. Thomas, 372 N.J. Super. 29, 31 (Law Div. 2002), aff'd, 372 N.J. Super. 1 (App. Div. 2004). The Law Division must also give due regard to the municipal court judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964).
On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. l995). However, as with the Law Division, we are not in a position to judge credibility and do not make credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then,  should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).
We are satisfied the credible evidence in the record amply supports Judge Roma's findings and he performed the appropriate legal analysis. Accordingly, we have no reason to interfere. As he recognized, "[i]t has often been said that circumstantial evidence is not only sufficient but may also be more certain, satisfying and persuasive than direct evidence." State v. Dancyger, 29 N.J. 76, 84, (internal citation and quotation marks omitted), cert. denied, 360 U.S. 903, 79 S.Ct. l286, 3 L.Ed. 2d l255 (l959).