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State of New Jersey v. Amanda Wright-Stafford

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AMANDA WRIGHT-STAFFORD, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-01556.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 14, 2010

Before Judges Wefing, Payne and Baxter.

Defendant, Amanda Wright-Stafford, appeals from a judgment against her for third-degree insurance fraud, N.J.S.A. 2C:2 4.6, as a lesser-included offense within second-degree insurance fraud. The conviction arose from the discovery of her 2000 Honda Passport SUV, on fire, in East Orange at 10:00 p.m. on October 3, 2006, and statements made by defendant in connection with the investigation of the fire and defendant's subsequent claim for insurance proceeds. On appeal, defendant raises the following issues for our consideration:

POINT I

THE LESSER INCLUDED OFFENSE OF THIRD DEGREE INSURANCE FRAUD IS UNCONSTITUTIONALLY DUPLICITOUS.

POINT II

MRS. STAFFORD WAS CONVICTED OF A CRIME NOT CHARGED IN THE INDICTMENT.

POINT III

THE VERDICT WAS NOT UNANIMOUS.

POINT IV

COUNT THREE OF THE INDICTMENT IS UNCONSTITUTIONALLY DEFICIENT BECAUSE THE ELEMENTS OF SECOND DEGREE INSURANCE FRAUD ARE NOT ALLEGED THEREIN AND WERE NOT PRESENTED TO THE GRAND JURY.

POINT V

THE CONVICTION MUST BE REVERSED BECAUSE THE INDICTMENT WAS BASED UPON FALSE TESTIMONY PRESENTED BY THE STATE TO THE GRAND JURY.

POINT VI

THE CONVICTION MUST BE REVERSED BECAUSE THE STATE FAILED TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY; FAILED TO CURE NERO'S FALSE TESTIMONY; AND FAILED TO PROPERLY INSTRUCT THE GRAND JURY WITH THE LAW.

POINT VII

THIRD DEGREE INSURANCE FRAUD, N.J.S.A. 2C:21-4.6, IS UNCONSTITUTIONALLY DEFICIENT BECAUSE THE LEGISLATURE DOES NOT STATE IN THE STATUTE THAT THE FALSE STATEMENT MUST BE SUBMITTED IN A FALSE INSURANCE CLAIM.

POINT VIII

THE TRIAL COURT'S JURY INSTRUCTIONS WERE ERRONEOUS.

POINT IX

THE TRIAL COURT WAS REQUIRED TO GIVE A LIMITING INSTRUCTION, SUA SPONTE, FOR THE JURY NOT TO CONSIDER ALLEGATIONS OF THIRD DEGREE INSURANCE FRAUD THAT WERE NOT CHARGED IN THE INDICTMENT.

POINT X

THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE THAT GEORGE NAPOLEON HAD MOTIVE AND OPPORTUNITY TO STEAL THE MOTOR VEHICLE AND BURN THE MOTOR VEHICLE A SHORT DISTANCE FROM HIS HOME.

POINT XI

MRS. STAFFORD WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE OF COUNSEL IN THAT DEFENSE COUNSEL WAS UNFIT TO PRACTICE LAW; THERE WAS A CONFLICT OF INTEREST WITH THE STATE AND DEFENSE COUNSEL; AND DEFENSE COUNSEL'S UNPROFESSIONAL ERRORS MATERIALLY CONTRIBUTED TO MRS. STAFFORD'S CONVICTION.

POINT XII

THE VERDICT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE.

We affirm.

I.

The facts adduced at trial permitted the jury to conclude that, in 2006, defendant, a school principal employed by the East Orange Board of Education, owned a 2000 Honda Passport SUV. At 10:00 p.m. on October 3, 2006, it was reported to be on fire while located in a parking lot at 228 South Harrison Street in East Orange.

Several people testified to what defendant was doing at that time. Rachelle Napoleon, the half-sister of defendant's daughter, testified that defendant parked her car near Napoleon's West Runyon Street home in Newark at 8:00 p.m. Thereafter, Napoleon drove defendant to a laundromat, from there to a Wal-Mart in Kearney, and then to an Applebee's restaurant, paying cash at all establishments. Finally, they traveled to Hallelujah Fellowship Center in Union, where church members, including defendant, were assembling for a 3:30 a.m. bus ride to JFK airport, for a flight to Jamaica. According to Napoleon, the two women arrived at the church at approximately 1:00 or 1:30 a.m., but remained for a period of time in Napoleon's car, talking, while parked on the street. After defendant entered the church, Napoleon drove to her brother's house, where she stayed for the rest of the night. Upon returning home on October 4, she noticed that defendant's car and a spare key that she had surreptitiously obtained for the car were both missing. However, she did not inform defendant or the police that the vehicle appeared to have been stolen. Defendant learned that fact on October 5, while in Jamaica, from a sister who was contacted by the East Orange Fire Department.

Defendant testified in a manner inconsistent with Napoleon's testimony at an examination under oath conducted in connection with her insurance claim for damage to the car, the substance of which was introduced at trial. There, she stated that she drove her car from her home in Hillside to Newark, parking it near Napoleon's residence on West Runyon Street in Newark's South Ward and locking it at approximately 8:00 p.m. on October 3, taking her key with her. According to defendant, directly thereafter, Napoleon took her to the church, where she socialized with other parishioners until it was time to take the bus to the airport at twelve or one o'clock. Defendant could not explain why Napoleon did not pick her up at her home in Hillside, where she had a two-car garage in which her car could have been stored, and then proceeded to Union, rather than having defendant leave her car on the street for four or five days in Newark. Defendant stated that she knew of no one who would have wanted to take the car and set it on fire.

A church employee named Sherry Edwards Lee cast doubt upon defendant's version of events. She testified that she had worked at the church until 11:00 p.m. on October 3 and had returned at 2:30 a.m. She stated that no one else was present at the church when she left at 11:00 p.m. In the interval between 11:00 p.m. and 2:30 a.m., the church was locked, and an alarm was set. No one was present at the church or its parking lot upon Lee's return.

East Orange Fire Department Engine Companies 1 and 5 responded to the car fire. Upon arrival, they determined that the car windows were closed, and that the fire was confined to the passenger compartment of the vehicle. The firemen broke the car's passenger-side windows to extinguish the blaze. The heaviest damage was confined to the front passenger seat, the nearby floor area and the adjoining door. Only the driver's side door was unlocked. After the fire was suppressed, Fire Captain Lance Nero, the department's arson investigator, was notified of the fire, and he ordered that the car be towed to an impound lot.

On October 4, Nero inspected the car. He found no evidence of fire damage to the exterior or engine compartment of the car. Additionally he found no evidence of forced entry. No parts or equipment had been stolen, and the car had not been stripped. Upon examining the engine compartment, Nero found evidence of a cooling system malfunction. Additionally, Nero noticed that the car's inspection sticker had expired in September 2006. He stated that, in his experience, if a vehicle was having repair issues, that might provide a reason for torching it.

Following submission of an insurance claim to New Jersey Manufacturers Insurance Company (NJM), the car was also inspected by NJM's senior fraud investigator, Frank Rogers, and at Rogers' request, by Kenneth Vitty of Sterling Investigative Services. Neither man saw evidence of forced entry. Following his investigation, Vitty concluded that the car fire was deliberately set, using a light, alcohol-based accelerant, and that the car had last been operated with correctly-cut keys that fit the ignition and door locks. Vitty ruled out mechanical, fuel or electrical defects as the cause of the fire. He detected a long-standing oil leak, resulting in oil accumulation in the car's understructure. When started, the engine idled roughly. Vitty's examination of the two keys provided by defendant disclosed that, contrary to her statements, a third key had been made and was not accounted for.

Defendant returned to the United States late on Saturday, October 7, 2006. She was contacted at work on October 10 by Nero, and at that time, she told him that she "last parked her car on October 4th, 2006 between 2:30 and three o'clock in the morning." She stated that she had locked the car and had both keys to the vehicle. Nero requested that defendant come to his office to fill out a theft affidavit. She complied that day, noting on the form that she last saw the vehicle on October 4, 2006. When she left the vehicle, it was locked, and the alarm was activated. Defendant stated that she had two sets of keys, one on her person and one at home. No hidden key was present in the vehicle. At the Captain's request, defendant gave him the car key that she had with her, and produced the second key on the following day. It was later disclosed that the key that defendant carried with her and gave first to Nero was one that showed little wear. The spare, produced on the following day, was found upon examination to have been the one in regular use.

A claim for automobile theft and arson was made by defendant to NJM on October 9, 2006. Testimony was offered by Lauren Giordano, a automobile claims representative for NJM, who mailed a vehicle theft questionnaire to defendant on October 10, 2006 and spoke to her on October 11 to obtain basic information regarding the vehicle and the occurrence. She also had the car appraised, receiving a damage estimate of $6,353. The car was then written off as a total loss. At the time, defendant owed approximately the same amount in payments on the vehicle, having purchased it used.

Because of the circumstances of the theft and fire, Giordano referred the claim to NJM's special investigations unit, where it was assigned, on October 25, to Frank Rogers. Later testimony by Rogers disclosed that a properly completed vehicle theft questionnaire was not received from defendant by NJM until January 24, 2007, which was an unusually long span of time prior to return. Such forms were usually returned promptly by insureds seeking recovery. In the interim period, calls to defendant seeking the completed questionnaire were made on October 17, November 10, and December 11. On December 15, an additional form was faxed to defendant, who denied receipt of the prior form, and on December 29, Rogers sent a certified letter to her. On January 10, 2007, Rogers received a copy of the questionnaire from defendant, but answers to a significant number of questions were substantially incomplete, including the date and time that the vehicle was last seen by her.

Additionally, the questionnaire was neither signed nor notarized, as required. On January 15, Rogers requested that defendant provide full responses. A complete, signed and notarized questionnaire was received on January 24. On that form, defendant reported that she had last seen her vehicle at 10:00 p.m. on October 5, 2006 but, in fact, she was in Jamaica at that time. She stated that, when last seen, the vehicle was locked, that keys were in the vehicle at the time of the theft, and, inconsistently, that the only two keys for the vehicle had been turned over to the police. Defendant stated additionally, contrary to fact, that the vehicle had been most recently inspected in August 2006 in Newark.

On January 30, 2007, after being informed by NJM that her claim could not be processed without receipt of a police report, defendant finally informed the Newark police that her vehicle had been stolen, indicating on a signed theft report that she had last seen her car at 4:00 p.m. on October 3.

As a consequence of the inconsistencies between the vehicle theft questionnaire provided to NJM and the information that defendant provided to Nero and the Newark police, Rogers retained an outside attorney to conduct an examination of defendant under oath, which took place on March 30, 2007. In addition to the information that we have previously set forth regarding defendant's account of her activities on October 3 and 4, 2006, defendant misrepresented the repair history of the car at issue, stating that it had required no repairs in the prior year when evidence demonstrated that the timing belt and water pump had been replaced on December 1, 2005, and that the brakes had been repaired on May 17, 2006. Defendant stated that the car was "running fine" and that the cooling system was not malfunctioning. Additionally, she misrepresented the car's inspection status. Also, and contrary to testimony offered by Napoleon, defendant stated that no one knew that she kept the spare key to the car in her jewelry case, and no one but herself had ever driven the car.

Multiple witnesses were called by defendant to attest to her good character. Defendant did not testify on her own behalf.

In his closing argument, the prosecutor contended that defendant planned with an unidentified other person for the "theft" and destruction of her car, which was to have occurred in the early morning of October 4, at which time defendant would have been en route to Jamaica. Thus, she reported to Nero that she had last seen her car between 2:30 and 3:00 a.m. on October 4. However, for some reason unknown to defendant, the car had been taken and burned at 10:00 the previous night. Thus, defendant was caught, having expressed a factual impossibility to Nero. Further, it was the prosecutor's theory that defendant had given the habitually-used key to the perpetrator to permit access to the vehicle, and that fact explained why she was carrying the less used key when interviewed by Nero and required an additional day to procure the second one. The prosecutor explained defendant's delay in returning a signed and notarized theft questionnaire to NJM and in notifying the police of the theft to her reluctance to further enmesh herself in lies regarding the day and time when she had last seen her vehicle. Napoleon's testimony was viewed by the prosecutor as a recent fabrication that was notably inconsistent with defendant's version of events uttered shortly after those events had occurred.

The prosecutor additionally argued that defendant had made multiple misrepresentations of material fact, consisting of (1) reporting to NJM that the car was stolen; (2) telling Nero that she had last seen her car at 2:30 to 3:00 a.m. on October 4; (3) attesting on the East Orange vehicle theft affidavit that she had last seen the vehicle on October 4; (4) confirming to Giordano that she wished to make a claim on a car that had been stolen and subjected to arson; (5) submitting the incomplete vehicle theft form to NJM; and then (6) replacing that form with one giving a palpably incorrect date upon which defendant last saw her car and other false information. Additionally, the prosecutor cited to the police report signed by defendant on January 30, 2007, which contained yet another date for defendant's last contact with her vehicle, and he cited to her examination under oath, in which she misrepresented that her car had been inspected and that no repairs had occurred within the last twelve months.

As previously stated, at the conclusion of the case, the jury returned a verdict of guilty with respect to third-degree insurance fraud, only.

Throughout trial, defendant was represented by Paul W. Bergrin. That representation ceased shortly after the trial concluded, and defendant retained new counsel to argue post-trial motions for a judgment of acquittal, a judgment notwithstanding the verdict and for a new trial, all of which were denied. Defendant was then sentenced to one year of probation. Additionally, pursuant to N.J.S.A. 2C:51-2a(1), she was required to forfeit her employment with the East Orange Board of Education. This appeal followed.

II.

We address first defendant's arguments, set forth in Points V and VI of her brief, that concern allegedly false testimony presented to the grand jury, failure to present exculpatory testimony, and failure to properly instruct the grand jury, finding the arguments to be barred by Rule 3:10-2(c). That Rule provides:

Defenses and Objections Which Must be Raised Before Trial. The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation, except as otherwise provided by R. 3:10-2(d) (defenses which may be raised only before or after trial) and R. 3:10-2(e) (lack of jurisdiction), must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.

Rule 3:10-2(d) provides that "the defense that the charge is based on a statute or regulation promulgated pursuant to statute which is unconstitutional or invalid in whole or in part may only be raised by motion either before trial or within 10 days after a verdict of guilty or within such further time as the court may fix during such 10-day period, or on appeal."

We will address defendant's arguments that the third-degree insurance fraud statute is invalid or unconstitutional later in this opinion. We decline to address defendant's additional arguments with respect to the indictment process, finding no grounds have been shown for relief from the waiver. State v. Del Fino, 100 N.J. 154, 160-62 (1985) (addressing the good cause standard). We note only that factual mistakes made by Captain Nero in his grand jury testimony were corrected at trial,*fn1 and that his trial testimony corresponded to his contemporaneously-generated reports of what had taken place.

Evidence, consisting of defendant's examination under oath, was not clearly exculpatory, and it did not negate guilt, because it was inconsistent with testimony offered by Napoleon and church employee Lee. Further, testimony regarding the operation of defendant's car, as well as its repair and inspection history, contained numerous misstatements that tended to establish, not negate, guilt. State v. Hogan, 144 N.J. 216, 237 (1996).

As a final matter, we see no error in the failure of the prosecutor to instruct the jury that defendant claimed to have made a mistake in dating her last sight of her car. First of all, we are not aware of evidence of such a defense, although it was argued by defense counsel in summation. Moreover, we have previously held that "only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction that the duty of the prosecution arises." State v. Hogan, 336 N.J. Super. 319, 343 (App. Div.), certif. denied, 167 N.J. 635 (2001). The tangled timing offered by defendant on various occasions and to various persons provides no such clear proof in the present case.

III.

We next address defendant's arguments concerning the charge of second-degree insurance fraud and conviction for third-degree insurance fraud contained in Points II, IV, and IX of her brief.

N.J.S.A. 2C:21-4.6 provides in relevant part:

a. A person is guilty of the crime of insurance fraud if that person knowingly makes . . . a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from . . . any record . . . claim or other document, in writing . . . orally or in any other form, that a person . . . submits . . . as part of, in support of . . . or in connection with: (1) a claim for payment . . . pursuant to an insurance policy . . . .

b. Insurance fraud constitutes a crime of the second degree if the person knowingly commits five or more acts of insurance fraud . . . and if the aggregate value of property, services or other benefit wrongfully obtained or sought to be obtained is at least $1,000. Otherwise, insurance fraud is a crime of the third degree. . . . Defendant argues in Point IV of her brief that Count Three of the indictment, alleging second-degree insurance fraud, is unconstitutionally deficient because all the elements of second-degree insurance fraud were not alleged in the indictment and were not presented to the grand jury. Rather, defendant contends, the State presented evidence to support a claim of third-degree insurance fraud, and it did not offer evidence to satisfy the monetary threshold required for the second-degree crime.*fn2 Since defendant was not found guilty of second-degree insurance fraud, we find that defect to be immaterial to defendant's conviction. Third-degree insurance fraud is clearly a lesser-included offense within second-degree insurance fraud, differing from the second-degree crime only in requiring less than five fraudulent acts and not requiring a $1,000 threshold.

R. 2C:1-8(d) (defining a lesser-included offense as one that "is established by proof of the same or less than all the facts required to establish the commission of the offense charged").

A criminal defendant is assumed to be on notice of any lesser offense included in a greater offense charged in the indictment. State v. Graham, 223 N.J. Super. 571, 577 (App. Div.), certif. denied, 113 N.J. 323 (1988); see also State v. Brent, 137 N.J. 107, 116 (1994) (citing Model Penal code and Commentaries § 1.07 cmt. at 130 n. 111 (Official Draft and Revised Comments 1985)).

In Point II of her brief, defendant argues that her conviction for third-degree insurance fraud cannot stand because evidence of the predicate acts offered by the State at trial differed from the evidence specified in the indictment. In particular, the indictment did not allege fraud in statements made to Nero on October 10, alleging instead that they were made on October 6, and it did not allege fraud in the contents of the incomplete vehicle theft questionnaire received by NJM on January 10, 2007 and in the contents of the complete questionnaire received on January 24. In Point IX of her brief, defendant argues that the judge erred in failing to instruct the jury, sua sponte, not to consider those acts of third-degree insurance fraud that were not charged in the indictment.

We reject these arguments. The specification of fraudulent acts contained in the indictment was prefaced by the statement that they "include[ed], but [were] not limited to" the acts that were described. Moreover, defendant received information regarding these additional acts in discovery, and thus had adequate notice of the State's claims. State v. Mancine, 124 N.J. 232, 258-59 (1991) (permitting conviction on a charge that was not set forth in the indictment when defendant learned of the theory in pretrial discovery, made no claim of surprise or prejudice at trial, did not object as the proofs unfolded, and did not seek dismissal of the indictment before trial).

IV.

In Point I of her brief, defendant argues that the lesser-included offense of third-degree insurance fraud as set forth in the indictment was unconstitutionally duplicitous because it joined more than one offense in a single count. If a general verdict were rendered on that count, there would be no way to tell whether the jury's verdict was unanimous in determining which act constituted the fraud. In Point III of her brief, defendant argues that the verdict was not unanimous. Additionally, in Point VIII of her brief, defendant raises the related argument that because multiple acts of fraud were alleged, to avoid lack of unanimity by the jury in reaching its verdict, the judge was required to describe each potential act of fraud and utilize a specific unanimity charge. Additionally, she argues that each separate act of third-degree insurance fraud should have been charged in a separate count of the indictment. We address these arguments together.

In the indictment, defendant was charged with one count of second-degree insurance fraud that specifically listed six predicate acts as among those charged. Defense attorney Bergrin argued at the charge conference that, because only one second- degree crime was alleged, only one third-degree crime could be found as a lesser-included offense. The judge agreed. Additionally, the judge rejected the prosecutor's suggestion that the various predicate acts be separately listed on the jury verdict form - a suggestion to which Bergrin objected, stating:

Judge, I would vociferously object to any jury sheet that - that depicts a - a delineation of each particular date, each particular - 'cause essentially what you're doing is you're summing up in the verdict sheet for the prosecution. And we could obviously argue that[,] but to delineate each separately I think would be extremely prejudicial to the defendant and have a prejudicial . . . impact also.

Thereafter, the judge circulated his proposed charge on insurance fraud, which referred to defendant's alleged acts of fraud in general terms, to which neither attorney had any objection. Significantly, the judge's charge contained a unanimity instruction. The judge stated toward the end of his charge on insurance fraud:

I've already instructed you again on what constitutes insurance fraud. Those general applications apply here such that each act of insurance fraud must be proved beyond a reasonable doubt. It must be knowingly. Remember that each act of insurance fraud must be proved beyond a reasonable doubt by the State and the jury must unanimously - must be unanimous at to each act of insurance fraud.

No objection to the charge as given was made.

With respect to defendant's argument that each act alleged to constitute third-degree insurance fraud should have been charged in a separate count of the indictment, we find that argument to have been waived pursuant to Rule 3:10-2(d). Further, we find that Count Three of the indictment charged a continuing course of conduct that properly was set forth in a single count. State v. Parker, 124 N.J. 628, 643 (1991), cert. denied, 502 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). The judge's acknowledgment that, if defendant were convicted of third-degree insurance fraud as the result of the commission of several identified acts, the convictions would be merged for sentencing because their commission constituted "one continuous act" demonstrates the validity of this position. As a final matter, because the judge held that the jury could render only one conviction for third-degree insurance fraud and because that conviction had to be based upon a unanimous verdict as to the foundational act or acts, no harm resulted from the course adopted by the court. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

For similar reasons, we reject defendant's argument that the third-degree insurance fraud count was duplicitous. A charge is duplicitous when separate and distinct offenses are charged in the same count of an indictment. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 21 (1984). The vices of duplicitous pleading were set forth in United States v. Starks, 515 F.2d 112 (3d Cir. 1975):

One vice of duplicity is that a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both. Conceivably this could prejudice the defendant in protecting himself against double jeopardy. Another vice of duplicity is that a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. Conceivably, this could prejudice the defendant in sentencing and in obtaining appellate review. A third vice of duplicity is that it may prejudice the defendant with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other. . . . Finally, there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either. [Id. at 116-17 (footnote omitted).]

None of those vices exists in this case.

Moreover, a charge of second-degree insurance fraud required the enumeration in one count of at least five such acts, since together, they constituted one offense. N.J. Trade Waste Assn., supra, 96 N.J. at 22. It would anomalous to require, as a condition of charging the lesser-included, third-degree crime, that the acts then be separated into individual counts. An indictment is not duplicitous merely because each act might, by itself, be criminal. Ibid. Further, charging in the manner that defendant now claims was required clearly would not have been to her advantage.

With respect to defendant's remaining arguments in this connection, we find no evidence to suggest that the jury's verdict was not unanimous or that it failed to follow the unanimity instruction offered to it by the judge. State v. Burns, 192 N.J. 312, 335 (2007) (holding that the jury is presumed to follow a judge's instructions). We further note that any error introduced into the proceedings by failing to individually detail defendant's acts of fraud was invited. State v. Van Syoc, 235 N.J. Super. 463, 465-66 (Law Div. 1988), aff'd, o.b., 235 N.J. Super. 409 (App. Div. 1989).

V.

In Point VII of her brief, defendant argues that the insurance fraud statute, N.J.S.A. 2C:21-4.6, is unconstitutionally deficient because it does not state that the false statement must be submitted in a false insurance claim. However, upon challenging the constitutionality of a statute, a party must give notice to the Office of the Attorney General. See R. 2:5-1(h) and 4:28-4(a)(1). That did not occur here.

Notwithstanding defendant's violation of the rules, we address her argument, finding it to be wanting. What defendant appears to be arguing is that the statute impermissibly permits a conviction for filing a false insurance statement unconnected with a false insurance claim. We find that reading of the statute to be unduly tortured, as it ignores statutory language requiring that the false or omitted fact be "material" to the claim. Thus, immaterial false statements, insufficient to void the claim, are of no consequence. Cf. Merin v. Maglaki, 126 N.J. 430, 436-37 (1992) (discussing the relationship between material false statements and fraudulent claims).

VI.

In Point X of her brief, defendant contends that the judge erred in excluding evidence that George Napoleon had the opportunity and a motive to steal defendant's car and to commit arson on it. A review of the record demonstrates that testimony was permitted as to George Napoleon's opportunity to steal the car, but not to his motive to destroy it.

Testimony was provided by Rachelle Napoleon that, on October 3, 2006, defendant had come to Rachelle's residence at approximately 8:00, complaining about a fight she had had with her daughter, Rachelle's half-sister Amanda. At the time, George Napoleon, Amanda's father, was present in the home. Rachelle and defendant then left for the laundromat and remained together until Rachelle dropped defendant off at the church.

When Rachelle returned to her residence on October 4, the key to defendant's car, which she kept on the top of the refrigerator with her other keys, was missing, as was defendant's car. Defense attorney Bergrin utilized that testimony in his closing argument to argue that George Napoleon had taken defendant's car, utilizing the key on Rachelle's refrigerator, and had subsequently committed arson on it.

In addition to the foregoing evidence, defendant sought to introduce as evidence of third-party guilt, through Rachelle, the fact that on October 3, 2006, George Napoleon had come to her house to borrow money. While there, according to Rachelle, he expressed concern that defendant continued to seek child support payments from him, when she was doing well herself financially, and he was particularly indignant that she was spending money to travel to Jamaica. In doing so, counsel sought to introduce a letter written by Rachelle, dated February 2, 2009, that set forth her conversations on October 3 with George Napoleon and the details of Rachelle's evening with defendant. The trial judge excluded this evidence. Although the side-bar conference following the State's objection to the testimony was not recorded, it is evident that the testimony was excluded on hearsay grounds. We find no error in that regard. Nothing in the letter suggested that Rachelle had personal knowledge with respect to the child support issue. Thus, the document and statements suggesting a motive for arson that were contained in it would clearly have been hearsay as defined by N.J.R.E. 801(c) that was not admissible pursuant to any of the exceptions to the hearsay rule.

VII.

Defendant makes an additional argument in Point XI of her brief that she received ineffective assistance in her defense from attorney Bergrin. At the time of trial, Bergrin was under indictment in the State of New York, and after trial but before sentencing, he was indicted by a federal grand jury for the District of New Jersey for crimes including murder of a federal witness, attempted murder, conspiracy, racketeering, witness tampering, mortgage fraud, wire fraud, and money laundering. These crimes, defendant asserts, rendered Bergrin "unfit to practice law." Additionally, Bergrin was under investigation by the Essex County Prosecutor for various crimes at the time of trial in this matter, although it is not clear that Bergrin was aware of that fact at the time. Defendant claims that fact created a conflict of interest.

In specific support of her claim that Bergrin's legal services were inadequate, defendant primarily alleges the legal errors that we have found earlier in this opinion to be insufficient to warrant reversal. As a consequence, she cannot establish in that connection that counsel's performance was so deficient as to create a reasonable probability that those deficiencies materially contributed to her conviction, as required for a successful ineffective assistance of counsel argument by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). Defendant's remaining claims depend upon facts that are not in the record, and thus must be reserved for consideration in connection with a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-61 (1992).

VIII.

As a final matter, defendant argues in Point XII of her brief that her conviction was against the weight of the evidence. We find that argument to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The evidence that we have set forth provides an ample foundation for the jury's verdict.

Affirmed.


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