On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-01-0067.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
Defendant appeals from his sentence and convictions for third-degree theft by deception, N.J.S.A. 2C:20-4 (count one) and fourth-degree unauthorized practice of law, N.J.S.A. 2C:21-22(b)(1) and (b)(2) (count two). We affirm.
The victim in this case, Shade Lee, was the only witness at the trial. He met defendant through their association with the chapter of the Tuskegee Airmen Organization located at McGuire Air Force base. Lee believed that defendant was an attorney because he was listed in the Tuskegee Airmen directory with "Esq." following his name, other people told him that defendant was an outstanding attorney and because other people referred to defendant as an attorney. Defendant never corrected Lee when he introduced him as "attorney Gillead."
When Lee was sued for $500,000 for defamation by a plaintiff acting pro se, Lee initially believed he could handle the matter himself. He filed an answer pro se and wrote letters to the plaintiff. However, when he appeared in court on that matter, the judge advised him to obtain a lawyer. Lee spoke to some lawyers who charged a fee of $200 per hour. When he told defendant that he was looking for a lawyer, defendant stated that he was an attorney and had practiced in the Superior Court of New Jersey, the United States District Court, the appellate courts in Philadelphia and had argued cases before the United States Supreme Court. Defendant agreed to represent Lee for a discounted rate of thirty dollars per hour, and asked Lee for $3000.
Lee wrote two checks totaling $3000 made payable to LeRoy Gillead, II, Esq. The memo portion of the first check stated "part of retainer fee" and the memo portion of the second check stated "balance of retainer." On each check, defendant wrote his own name, followed by "Esq." in the payee section.
Lee met with defendant to review documents and discuss strategy. Thereafter, defendant drafted documents for Lee, including motions to dismiss the complaint, for summary judgment, to suppress evidence and for leave to file a counterclaim. At defendant's suggestion, the documents were signed, "Shade M. Lee, defendant, pro se." Defendant explained that it would delay matters to go through a substitution of counsel. Defendant never appeared in court for Lee. However, the complaint was dismissed based upon the motion papers that defendant had prepared.
Lee then sought a refund of $2500 of the retainer because defendant had not appeared in court. In a letter to defendant, whom he addressed as "Dear Attorney Gillead," Lee stated that, because of defendant's "limited legal representation," he should only have to pay $500. Defendant wrote a letter in response in which he stated that Lee had "misunderstood the nature of my involvement in your lawsuit" and further stated, "as I informed you I am not an 'attorney at law' and do not maintain a law practice." However, defendant enclosed a bill with the letter that detailed why he was entitled to the $3000 paid.
The jury convicted defendant on both counts of the indictment. The court sentenced defendant on count one to probation for a period of three years and, as conditions of probation, required defendant to serve 364 days in the county jail and pay restitution in the amount of $3000, which amount was reduced to judgment. The court imposed a concurrent probationary term of three years on count two and imposed appropriate fines and penalties.
In this appeal, defendant raises the following issues:
THE IMPOSITION OF A CUSTODIAL SENTENCE FOR THIS THIRD DEGREE CRIME WAS ...