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State v. Bossone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRISTINE BOSSONE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0893.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2010

Before Judges Wefing, Messano and LeWinn.

Defendant's neighbor, Clifford, had two adult mentally handicapped children, Karen and Joey. Clifford died in October 2002, leaving a substantial estate to his children in two trusts. Defendant offered to care for Karen and Joey. She arranged for Joey to live in an assisted living facility, and had Karen move in with her. The executor of Clifford's estate, Robert Giunco, used money from the trusts to pay for the expenses of Karen and Joey, including compensation to defendant for "home . . . [and] companion expenses," as well as a monthly stipend to Karen.

In or about May 2003, concerned about the manner in which Giunco was disbursing trust funds, defendant met with an attorney, Celeste Miller; as a result of that meeting, Karen and Joey executed powers-of-attorney in favor of defendant. Giunco became concerned when he learned of the powers-of-attorney because he maintained that Karen and Joey should have been psychologically examined as to their mental status before executing those documents.

In or about May 2004, Giunco arranged for an attorney, Lynn Staufenberg, to be appointed guardian ad litem for Karen and Joey, to investigate defendant's expenditures. Psychiatric evaluations of Karen and Joey were conducted in September 2004, and resulted in findings that they were both "incapacitated and in need of a guardian." On October 15, 2004, Staufenberg was appointed guardian of the person and property for Karen and Joey.

Staufenberg investigated defendant's use of the trust funds. As a result of that investigation, Staufenberg contacted the Monmouth County Prosecutor's Office. Detective Maria Larangeira of that office conducted an investigation and concluded that defendant had improperly taken over $100,000 of Karen's and Joey's trust funds. Larangeira's investigation further revealed a loan application, purportedly signed by Karen for $21,564 for the purchase of a truck in North Carolina through the Coastal Federal Credit Union (Coastal Federal). The loan documents listed a Wilmington, North Carolina home address for Karen and her employment status as "an assistant manager" at Capital Cellular. The investigation also revealed that defendant had obtained a Capital One credit card in Karen's name by applying for that card on-line.

Defendant was indicted on ten counts: second-degree theft by deception, N.J.S.A. 2C:20-4; two counts of third-degree theft by deception, N.J.S.A. 2C:20-4; two counts of fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a); fourth-degree making false statements to procure a credit card, N.J.S.A. 2C:21-6(b); third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h); two counts of fourth-degree forgery, N.J.S.A. 2C:21-1(a)(2); and third-degree criminal impersonation, N.J.S.A. 2C:21-17(a)(1).

Tried to a jury in March 2008, defendant was acquitted on six counts; the jury did not reach a verdict on two other counts and they were subsequently dismissed by the State. Defendant was convicted on counts four and five, which read as follows:

FOURTH COUNT

FORGERY

FOURTH DEGREE CRIME

The Grand Jurors of the State of New Jersey, for the County of Monmouth, upon their oaths present that CHRISTINE BOSSONE, on or about and between April, 2004 and June, 2004, in or about the Borough of Spring Lake, County of Monmouth, and within the jurisdiction of this Court, did commit the crime of Forgery, by making and/or completing a writing, namely, an automobile loan application and/or a credit card application, so that it purported to be the act of K.T., who did not authorize that act, with the purpose to defraud Capital One Bank and/or Coastal Federal Credit Union, contrary to the provisions of N.J.S.A. 2C:21-1a(2), and against the peace of this State, the Government and dignity of the same.

FIFTH COUNT

UTTERING A FORGED INSTRUMENT

FOURTH DEGREE CRIME

The Grand Jurors of the State of New Jersey, for the County of Monmouth, upon their oaths present that CHRISTINE BOSSONE, on or about and between April, 2004 and June, 2004, in or about the Borough of Spring Lake, County of Monmouth, and within the jurisdiction of this Court, did commit the crime of Uttering a Forged Instrument, to wit: an automobile loan application and a credit card application, with purpose to defraud or injure another or with knowledge that a fraud or injury was being facilitated, the perpetration of, altering, making or completing, a writing, which she knew to be forged, to wit: various retail merchants and/or Coastal Federal Credit Union, contrary to the provisions of N.J.S.A. 2C:21-1a, and against the peace of this State, the Government and dignity of the same.

On May 2, 2008, defendant was sentenced to an aggregate term of two years of probation.

On appeal, defendant raises the following contentions:

POINT ONE

THE TRIAL COURT'S ERRONEOUS CHARGE TO THE JURY REGARDING JURISDICTION

VIOLATED MS. BOSSONE'S RIGHT TO A FAIR TRIAL (Partially raised below.)

POINT TWO

COUNTS FOUR AND FIVE ALLOWED FOR A NON-UNANIMOUS PATCHWORK VERDICT AND MS. BOSSONE'S CONVICTIONS MUST BE REVERSED (Partially raised below.)

POINT THREE

COUNTS FOUR AND FIVE MUST BE DISMISSED FOR LACK OF JURISDICTION.

POINT FOUR

THE TRIAL COURT ALLOWED FOR MS. BOSSONE'S CONVICTIONS ON OFFENSES NOT CHARGED IN THE INDICTMENT IN VIOLATION OF HER CONSTITUTIONAL RIGHTS. (Partially raised below.)

POINT FIVE

THE TRIAL COURT VIOLATED MS. BOSSONE'S CONSTITUTIONAL RIGHT TO REMAIN SILENT BY ALLOWING THE STATE TO TELL THE JURY THAT PRE-TRIAL QUESTIONING CEASED WHEN MS. BOSSONE ASKED FOR AN ATTORNEY.

Having reviewed these contentions in light of the record, we are satisfied that several trial errors require reversal and a remand for a new trial.

We first address defendant's argument that the wording in counts four and five of the indictment and the trial judge's confusing instructions to the jury on those two counts prevented the jury from reaching a unanimous verdict. We concur.

The State presented evidence that defendant had (1) applied for a credit card in Karen's name in New Jersey and (2) signed a car loan application in Karen's name in North Carolina. The "victims" of these offenses were the financial institutions involved, namely Capital One Bank in New Jersey, and Coastal Federal in North Carolina; count five listed "various retail merchants" as additional victims. As written, each of these counts included two separate instances (and in count four, two alternative instances) of the criminal conduct charged.

The trial judge compounded the confusion by reciting the language "and/or" in his charge to the jury when instructing them that they could find the defendant guilty of forgery in count four by finding that she made "an automobile loan application and/or credit card application so that it purported to be the act of Karen . . . with the purpose to defraud Capital One Bank and/or Coastal Federal . . . ." (Emphasis added.) Similarly on count five, the judge told the jury that, to find defendant guilty of uttering a forged instrument, it would have to find that she created "an automobile loan application 'and/or a credit card application.'"

In fact, the jury's verdict sheet reiterates the "and/or" language for count four as well as the conjunction "and" for count five, and lists both offenses on each count. The jury was not polled after its verdict; therefore, the record is completely unclear as to which facts the jury found that the State had proved beyond a reasonable doubt in convicting defendant on these two counts.

We concur with defendant's contention that these counts "accuse [her] of crimes against two different victims based on two factually different courses of criminal conduct occurring in two different states. As such, the verdict on these counts was not definitely unanimous . . . ."

Unanimity in the jury verdict is an "indispensable element in all criminal trials . . . ." State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed. 2d 625 (1992). See R. 1:8-9. ("The verdict shall be unanimous in all criminal actions . . . ."). Unanimity "requires jurors to be in substantial agreement as to just what a defendant did before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quotations omitted).

Defendant did not object to the form of the indictment or to the jury charge. Nonetheless we are confident that the substantial likelihood of jury confusion regarding these two counts was "clearly capable of producing an unjust result . . . ." R. 2:10-2. Neither the verdict sheet nor the judge's instructions clarified to the jury its obligation to weigh the evidence separately as to the credit card charge and the truck loan application charge. Therefore, we are constrained to reverse and remand for a new trial with adequate safeguards to ensure that the jury's verdict is clearly unanimous.

Another error in the judge's charge with respect to these two counts must also be addressed. In response to a question from the jury regarding jurisdiction (which will be discussed below), the judge told the jury that "the indictment charges not only Coastal Federal but also charges Capital One Bank and includes Karen . . . ." (Emphasis added). This was improper. The forgeries alleged in counts four and five were intended to obtain some benefit from the financial institutions involved; therefore, those financial institutions were the "victims" and not Karen. Nowhere in either count is defendant charged with any forgery or related offense against Karen. In fact, with respect to the credit card, Karen testified at trial that she knew about the card and actually used it, at one time incurring a $300 balance.

Under the circumstances, we are satisfied that the judge's instruction to the jury that they could include Karen as a victim of the charges in counts four and five of the indictment was erroneous. In the event of a retrial, such language should be eliminated from the jury instructions.

We now turn to the issue of jurisdiction with respect to the auto loan application in North Carolina. Just prior to summations, defendant moved to dismiss the charge relating to the loan application in count five, arguing that it was "clear that it took place in North Carolina and involved in a substantial way [defendant's] husband . . . ." The prosecutor stated that he agreed "with regard to the automobile loan."

Nonetheless, the judge denied the motion, citing State v. Streater, 233 N.J. Super. 537 (App. Div.), certif. denied, 117 N.J. 667 (1989) as a case in which "[t]he court found that the defendant planned and prepared for the crime in New Jersey . . . ." The judge did not refer to any evidence in the record to support this finding. The judge also relied upon N.J.S.A. 2C:1-3(a)(4) which provides that a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which [s]he is legally accountable if . . .

[c]onduct occurring within the State establishes complicity in the commission of, or an attempt, or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this State . . . .

Finally, the judge cited N.J.S.A. 2C:1-3(g) which provides:

When the result which is an element of an offense consists of inflicting a harm upon a resident of this State or depriving a resident of this State of a benefit, the result occurs within this State, even if the conduct occurs wholly outside this State and any property that was affected by the offense was located outside this State.

Regarding the truck purchase, defendant testified that she and her husband, Kurt, owned a home in North Carolina, and along with Karen and Joey, traveled there a "[c]ouple [of] times a year at least." She stated that their "ultimate goal was to all move there when [her] son graduated eighth grade." Defendant testified that she, Kurt, Karen and Joey were in North Carolina in June 2004 because Kurt was taking care of some business matters. Defendant and Kurt "sat down with Karen," to discuss purchasing a truck for Kurt's landscaping business and putting title in Karen's name because "[s]he was going to get a better rate . . . ." Kurt filled out the application; defendant signed Karen's name on the application by power of attorney and also co-signed the application. Kurt committed suicide in September 2004. Defendant testified that she offered to take full responsibility for the outstanding balance, but Coastal Federal repossessed the truck.

The trial record is devoid of evidence from which the jury could find beyond a reasonable doubt that defendant engaged in any conduct in New Jersey in furtherance of the North Carolina loan application. Both defendant and her adult son, Jason, who was present when the truck was purchased, testified that all loan application documents were signed at the auto dealership in Wilmington, North Carolina.

Therefore, we conclude that the trial judge's reliance upon Streater, supra, and the cited statutes was misplaced in the absence of any evidence-based finding that defendant "plann[ed] and prepar[ed] in this State for the commission of a crime in" North Carolina. Streater, supra, 233 N.J. Super. at 542. Moreover, as noted above, Karen was not the "victim" of the forgery and uttering charges presented to the jury. Only the bank and the credit union named therein were the victims of those offenses. Therefore, N.J.S.A. 2C:1-3(g) is inapposite and furnishes no jurisdiction in New Jersey over the truck loan application in North Carolina.

The State contends that defendant "solicit[ed] . . . a New Jersey attorney to execute an invalid power-of-attorney to facilitate defendant's forgery and utterance in the vehicle loan application in North Carolina," thereby "provid[ing] a sufficient nexus to confer jurisdiction in New Jersey courts." Karen and Joey executed powers-of-attorney to defendant in May 2003. The truck purchase in North Carolina occurred more than a year later, in July 2004. In the interim, defendant executed numerous financial transactions on behalf of Karen and Joey which did not form the basis of any charges in the indictment. Therefore, we are not convinced that this argument supports a finding that New Jersey has jurisdiction over the truck loan application charge.

Territorial jurisdiction is defined in N.J.S.A. 2C:1-3 as follows:

(a) Except as otherwise provided in this section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:

(1) Either the conduct which is an element of the offense or the result which is such an element occurs within this State;

(2) Conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit a crime within the State;

(3) Conduct occurring outside the State is sufficient under the law of this State to constitute a conspiracy to commit an offense within the State and an overt act in furtherance of such conspiracy occurs within the State;

(4) Conduct occurring within the State establishes complicity in the commission of, or an attempt, or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this State;

(b) Subsection a.(1) does not apply when either causing a specified result or a purpose to cause or danger of causing such a result is an element of an offense and the result occurs or is designed or likely to occur only in another jurisdiction where the conduct charged would not constitute an offense, unless a legislative purpose plainly appears to declare the conduct criminal regardless of the place of the result.

Here, defendant did not request a territorial jurisdiction charge. However, as noted, defendant moved for a judgment of acquittal on count five based on that argument. Moreover, "the territorial jurisdiction of this State's courts to convict a person of an alleged criminal offense cannot be waived and may be raised at any time." Streater, supra, 233 N.J. Super. at 541.

We are satisfied that the trial judge erred in denying defendant's motion for a judgment of acquittal on the truck loan offense.

[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

"In reviewing the denial of [a] motion for acquittal based on insufficient evidence, the analysis focuses on the adequacy of the State's proofs at trial." State v. Wilder, 193 N.J. 398, 410 2.1 (2008).

Defendant clearly met the Reyes standard. As noted, in denying defendant's motion, the judge did not point to any evidence of record that satisfied the Reyes criteria. We therefore instruct the trial judge, on remand, to enter a judgment of acquittal on the North Carolina charges in counts four and five of the indictment. R. 3:18-2.

Finally, we briefly address one other point raised by defendant which may arise on retrial. In testifying about her questioning of defendant, Detective Larangeira stated that at one point, she called defendant a liar, at which point defendant "disagreed . . . and stated that she thought it was best if she spoke to her attorney." Defendant strenuously objected to this testimony and the judge provided no limiting instruction to the jury.

This testimony was "clearly improper." State v. Olivera, 344 N.J. Super. 583, 595 (App. Div. 2001). See State v. Moore, 304 N.J. Super. 135, 143-44 (App. Div. 1997) ("The State ha[s] an obligation to 'carefully frame[] questions' to avoid 'any mention of the defendant's exercise of [her] constitutional rights to remain silent and to consult with counsel'") (citations omitted). Such testimony should not be admitted on retrial.

Reversed and remanded.

20100826

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