On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2011
Before Judges Parrillo, Yannotti and Skillman.
Defendant appeals from the judgment of conviction entered on November 13, 2009, and challenges his conviction of misapplication of entrusted property, in violation of N.J.S.A. 2C:21-15, and the sentence imposed. For the reasons that follow, we affirm defendant's conviction but vacate the sentence and remand for re-sentencing.
Defendant was licensed to practice law in New Jersey. From 2003 to December 2005, defendant managed his own law firm in the Township of Red Bank, and focused primarily on real estate transactions. As part of his practice, defendant was entrusted with certain monies, which were deposited in his attorney trust account.
In 2005, the Office of Attorney Ethics (OAE) conducted a random audit of defendant's practice. On October 28, 2005, defendant was interviewed by the three-member panel of the OAE. In February 2006, the Monmouth County Prosecutor's Office (MCPO) received a copy of a letter from an attorney to the New Jersey Lawyers Client Security Fund, in which the attorney alleged that defendant had obtained but failed to disburse funds derived from a real estate transaction. The letter indicated that a copy also had been sent to the OAE.
In March 2006, Detective Matthew Veprek (Veprek), of the MCPO's Special Prosecutions Bureau, contacted the OAE and was informed that the OAE was conducting an investigation into the matter. The OAE informed Veprek that the MCPO would be notified when its investigation was complete and whether it had found any criminal conduct. In the ensuing months, Veprek documented other complaints concerning defendant.
The OAE investigation was completed in September 2006. On September 22, 2006, defendant signed a consent to his disbarrment, and the Supreme Court thereafter ordered his disbarrment. In re Edelson, 188 N.J. 282 (2006). On September 29, 2006, the OAE contacted Veprek and informed him of defendant's disbarrment. By letter dated October 13, 2006, the OAE informed Veprek that its investigative file was open for his inspection. In May 2007, Veprek met with an OAE compliance auditor and obtained financial records pertaining to defendant's trust account.
On April 21, 2008, a Monmouth County grand jury returned an indictment charging defendant with one count of second-degree misapplication of entrusted property, contrary to N.J.S.A. 2C:21-15. In September 2008, defendant filed motions to: suppress the records that the MCPO obtained from the OAE; suppress the statement that defendant gave to the OAE during its investigation; and dismiss the indictment on the basis of prosecutorial misconduct and a lack of evidence. On November 19, 2008, the court conducted a hearing and denied all three motions.
On May 11, 2009, defendant pled guilty to the charges. The court conducted a restitution hearing and ordered defendant to make restitution in the amount of $45,805.57 to First American Title Insurance Company. Defendant was sentenced on November 13, 2009. The court imposed a seven-year term of incarceration, and imposed appropriate fines and penalties.
Defendant appeals and raises the following issues for our consideration.
POINT 1 THE COURT BELOW ERRED BY ALLOWING INFORMATION OBTAINED FROM THE OFFICE OF ATTORNEY ETHICS IN VIOLATION OF A CONSENT AGREEMENT ...