On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-06-0069-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Axelrad, R. B. Coleman andJ. N. Harris.
In this appeal, defendant Robert Parrish challenges his November 14, 2008 judgment of conviction and January 30, 2009 order of restitution asserting (1) error in the admission of certain documents and testimony at trial; (2) improper juryinstructions; and (3) lack of support for the restitution order. We reject these contentions and affirm.
On June 14, 2006, a State Grand Jury returned Indictment No. 06-06-0069-S, charging defendant with second-degree theft by failure to make required disposition, N.J.S.A. 2C:20-9 (count one); second-degree misconduct by corporate officials, N.J.S.A. 2C:20-9 (count two); and two counts of third-degree failure to file a New Jersey State Income Tax Return for the 2002 and 2003 calendar years, N.J.S.A. 54:52-8 and N.J.S.A. 54A:8-3.1 (counts seven and eight). Various counts also named as co-defendants New Africa Day Care Center, defendant's mother Muslimah Suluki, and step-father, Mahdi Suluki.
Prior to the start of the trial, defendant moved to suppress
statements he made to the police during an in-person interview. The
court conducted a Miranda*fn1 hearing and declined to
suppress the statements. The court also held a Sands*fn2
hearing and ruled that defendant's prior convictions could be
used to attack his credibility should he choose to testify. The court
granted the State's motion to dismiss count eight, alleging the
evasion of State income taxes for the calendar year 2003.
After a four-day jury trial, defendant was found guilty of second-degree theft as an accomplice, by failure to make required disposition, second-degree misconduct by corporate officials as an accomplice, and third-degree failure to file a New Jersey State Income Tax return. The court sentenced defendant to five-year concurrent terms of probation on each count, conditioned upon 200 days confinement. The court imposed various fines and penalties, with restitution to be determined. Following a restitution hearing, the court ordered defendant to pay restitution to the State of New Jersey Department of Education (NJDEC) in the amount of $31,679.16 at the rate of $250 per month, beginning ninety days after his release from custody. Defendant filed the present appeal raising the following issues:
POINT I: DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS AGAINST HIM.
POINT II: HEARSAY WAS ADMITTED CONTRARY TO OUR STATE'S HEARSAY RULE AND THE FEDERAL AND STATE CONSTITUTIONAL PRECLUSION OF TESTIMONIAL HEARSAY IN WHICH THE DECLARANT WAS NOT PREVIOUSLY CROSS EXAMINED. (Not raised below).
POINT III: THE COURT IMPROPERLY INFORMED THE JURY THAT MUSLIMAH WAS A FUGITIVE; ALSO, IT ERRONEOUSLY FAILED TO ISSUE INSTRUCTIONS REGARDING MAHDI'S STATUS AS A TESTIFYING PARTICIPANT IN THE CRIMES WITH WHICH DEFENDANT WAS CHARGED AND PRECLUDING THE JURY FROM CONSIDERING MAHDI'S GUILTY PLEA ASSUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT. (Not raised below).
POINT IV: THE COURT ERRED IN NOT INSTRUCTING THE JURY THAT THEY SHOULD DETERMINE THE TRUTHFULNESS OF DEFENDANT'S STATEMENT TO THE POLICE AND SHOULD CONSIDER IT CAREFULLY IN LIGHT OF THE FACT THAT IT WAS VERBAL AND NOT RECORDED. (Not raised below).
POINT V: THE COURT ADMITTED EVIDENCE WHICH WAS NOT RELEVANT OR WHICH POSED A POTENTIAL FOR PREJUDICE WHICH SUBSTANTIALLY OUTWEIGHED ITS PROBATIVE VALUE. (Partially raised below).
POINT VI: DEFENDANT'S PRIOR CONVICTIONS WERE INCORRECTLY RULED ADMISSIBLE.
POINT VII: THE COURT'S RESTITUTION ORDER WAS NOT SUPPORTED BY THE RECORD.
These are the facts developed at trial. Muslimah and Mahdi Suluki incorporated and opened New Africa Day Care, Inc. (New Africa) in 1997 as a for-profit corporation. The following year, in July 1998, they created a non-profit corporation, New Africa Day Care Center, Inc. (the Center) to solicit charitable donations from private companies for New Africa. The Center received funds from the Program for Parents, a program by the Department of Human Services (DHS), in which parents received State aid in the form of vouchers to send their children to approved daycare centers. The Program for Parents disseminates funds on behalf of two voucher programs, Work First New Jerseyand New Jersey Cares for Kids. Beginning in 2000, the Center also received funding from the Abbott*fn3 program.
The Center's bylaws state that the net earnings of the Center shall not inure to the benefit of any private shareholder or individual, but will be returned back to the Center. Defendant, Muslimah's son, was listed as vice-president of the non-profit Center and an officer of the for-profit New Africa. The certificate of incorporation listed defendant as a member of the Center's board of trustees. From 1997 until his incarceration in 1999, Mahdi was the President or owner of the Center and Muslimah was the administrator. Mahdi said that defendant was "like a supervisor . . . a troubleshooter" at the daycare facility working under Muslimah.
Defendant began working at New Africa in 1999 doing janitorial tasks and watching the children when necessary. Before Mahdi went to jail in 1999 on unrelated federal charges, he gave defendant Power of Attorney to handle the Center's finances. Defendant testified he would pay the bills per Mahdi's instructions. Defendant only made payments at Mahdi's direction and never gave out money otherwise. However, a month or two after Mahdi went to jail, Muslimah changed the business accounts to her name and made defendant a signor on the Center's accounts. Defendant believed Muslimah had opened two accounts for the Center with Bank of America, a checking account and a savings account.
Defendant testified he only took money out of these accounts "with the permission of [his] mother or direction of her." He stated he had no responsibility over the Center's money other than as Muslimah directed and that he was not involved in deciding how the business was run. Defendant testified he was not paid regularly at the Center and sometimes Muslimah would "just pay whatever bill that [defendant] had that had to be paid right away," including rent, child support, cable, and cell phone. Employees of the Center were paid for their overtime hours with cash. Defendant declined to describe himself as the Center's bookkeeper, but explained he would gather and organize documents for the taxes to be done.
Muslimah opened a daycare center across the street from New Africa and incorporated it under the name New Africa Community Development Corporation (Community Development) with a separate checking account, but defendant still considered it part of the Center. Defendant opened Aziz Learning Center, Inc. (Aziz Learning), a for-profit daycare facility in Neptune. Defendant was the director, and his daycare facility was considered independent of New Africa. Muslimah helped defendant with thefunding, using money from the Center, her own business called Aziz Network, and some settlement money defendant's brothers had received. Aziz Learning received funding from both cash payments from parents and Program for Parents vouchers.
Dr. Gayle Griffin, Superintendent of the Department of Teaching and Learning for Newark Public Schools, explained the Abbott program provided resources to thirty-one school districts in low income areas throughout the State to close the achievement gap. The early childhood program specifically funded preschools for students aged three and four. The Abbott program provided for portions of certain costs, including janitorial services, food service staff, and a family worker to interact with the families. It also provided partial funding for the director, rent, and utilities at the Center.
The funding provided $5,500 to $9,000 per student, and was to be used only "for those items that are on the budget." New Africa was required to retain all receipts and submit them to the district and any money not spent on the children must be returned to the district. The Center never provided Griffin with necessary budget paperwork on how the money was being spent, so Griffin requested an audit.
Steven Hoffmann, State Auditor with the NJDEC, was granted access to conduct an audit on February 13, 2003. His job was tocompare the Center's actual expenses to those set in the budget submitted by the Center to Newark Public Schools "to determine that the Abbott money that is provided by the school district for the benefit of the Abbott program for the three- and four-year-olds is actually used for that program, and in accordance with the budgeted lines and the agreed-to categories for expenditures." When he arrived at the Center, Hoffmann was not provided accounting or personnel records nor anything documenting how the Abbott funding was used. Instead, Muslimah had her accountant, Luther Harris, gather the requested information for Hoffmann. Hoffmann received some documentation on April 29, 2003, but invoices and records of expenditures were still missing.
The audit was supposed to cover the Center's records from July 1, 2002 to June 30, 2003, however Hoffmann was only provided financial information through December 31, 2002. He was, therefore, unable to complete the audit, but he prepared a report in June 2003 based on the information he did have. His report summarized the "numerous errors, irregularities, and deficiencies in the center's financial records."
Hoffmann's report included the following: (1) the Center's check registers were incomplete and no reconciliations were prepared; (2) there were two Center bank accounts sharing thesame tax ID number and a third under the Community Development name with a unique tax ID number; (3) financial statements were only provided through December 31, 2002 and "showed approximately $8,900 more than what the Newark Public Schools sent [in Abbott funding]"; (4) there were over 1,600 ATM withdrawals and debit card purchases totaling $160,677.99 "arbitrarily spread as evenly as possible over 4 accounts," but without documentation to demonstrate their business purpose; (5) director's salary totaling $101,166.31 and paid in various cash payments and debits was not reported on a W-2, however, a 1099 was subsequently created and showed the director's income of $53,996.82; (6) manager salary in the amount of $38,525.12 included $36,528.12 in checks payable to defendant and payments to Freehold POP Warner and Freehold YMCA for defendant's recreational activities. Defendant's W-2 reflected $3,552 for payment as a janitor, which was expensed to Abbott; (7) materials and supplies totaling $53,035.05 comprised mostly of cash and debit transactions and only $2,813.31 itemized expenses; (8) $2,315 listed as license, taxes, and fees with $961 as payments for traffic violations; (9) non-payroll compensation including $700 to Aziz Learning and payments to Sylvia Gary for child support, a deposit on an apartment and rent, which Muslimah explained "should have been as part of Managers [sic] salary"; (10) $53,787.45 in transportation expenses although New Africa owned no vehicles; (11) $42,862.20 in food expenses with documentation showing one invoice for $300 from the Food Bank; (12) payments for utilities which Muslimah admitted included personal expenses; (13) insurance expenses unsupported by invoices and including automobile expenses although New Africa did not own vehicles; (14) maintenance and repairs including $4,120 in cash payments and over $5,000 paid to two individuals who did not receive 1099s; and (15) telephone expenses totaling $8,688.09 which appeared to be personal in nature and lacked supporting documentation.
Mahdi received a 1099 for $40,169.49 but was not included on the company's employee list, and only five out of the Center's ten employees had personnel files and each of those five were missing various documents. Hoffmann concluded that the Center's documentation was incomplete and "[v]irtually none of the non-payroll expenditures charged to the Abbott program could be documented." He found the Center did not comply with federal and state tax regulations nor with the terms of the contract with the Newark Public Schools.
At trial, Hoffmann reviewed his report and made note of debit card purchases from the Center's accounts including "Burlington Coat Factory, Macy's, Red Lobster, Outback Steak House, Chicago Hilton." Hoffmann noted that some of the expenses, such as "a bill from Macy's could be for blankets for children which would be allowable, but without any receipts or any documentation," he had no way of knowing what was purchased.
Hoffmann also discussed the administrative costs of $212,916, of which twenty-three percent was charged to the Abbott program. He pointed out that $101,000 in administrative costs were charged to the director's salary, including cash payments and credit card or loan payments, but no compensation through payroll with payroll taxes withheld. The manager's salary included checks paid to defendant as well as expenses ...