June 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT PARRISH, A/K/A ROBERT E. PARRISH, ROBERT PARRISH, JR., AND JAZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 paid on his behalf, with no W-2. Hoffmann indicated that Abbott funding does not include a manager's salary.
On July 16, 2003, based on Hoffmann's report, Dr. Griffin declined to recommend an Abbott contract for the Center for the 2003-04 school year. Additionally, Hoffmann's report prompted the NJDEC to refer the matter to the Division of Criminal Justice.
Detective Sergeant Myles Cappiello of the New Jersey State Police Official Corruption Bureau and State Investigator Wayne Cummings searched the Center's premises for the missing documentation on September 10, 2003, pursuant to a search warrant, but found very little. Cappiello called defendant to set up an interview. He and Sergeant Tom Goletz met with defendant on September 30, 2003, at the State Police Barracks and "made it clear to [defendant] that this is just an interview, he wasn't a target. It was just a non-custodial interview. We did it [at the barracks] for his convenience." At the time of the interview, the State Police were still in the investigation fact-finding stage.
At the interview, Cappiello advised defendant he could leave at any time, but did not advise him of his right to an attorney. At one point, Cappiello asked defendant whether he thought it was illegal to use State funds earmarked for educational purposes on his own personal expenses, to which defendant replied, "No."
During the interview with Cappiello, defendant stated, "he was the manager and handled all of the financial records, and he was also the janitor, and anything else that his mother needed him to do," and he took care of the payroll for the Center. He also told Cappiello that the Center was a publicly funded, nonprofit facility and that his mother Muslimah was the director. Defendant relayed he was paid $550 biweekly through the payroll, as well as payments for his child support. Only he and Muslimah were authorized to issue and sign checks for the Center. Defendant explained that various checks were issued for repairson his car, his son's football, his home cable bill, his personal phone bill, and personal utilities. Defendant explained to Cappiello that he did not have receipts for the educational purchases because he had used them when filing the Center's taxes and then threw them in the trash.
Investigator Cummings of the Division of Criminal Justice Corruption Unit testified that the Center's business status was revoked on February 16, 2004, for failure to make annual reports. The for-profit New Africa had its business status revoked on July 1, 2005 for the same reason. Cummings explained that voucher funds ended up in accounts over which defendant had signatory power. The funds were deposited into two PNC bank accounts ending in 059 and 878, however, neither account was identified by Hoffmann as an operating account for the Center and both were controlled by Mahdi and defendant. Additionally, checks made out to the Center from the Program for Parents in various amounts were deposited into the PNC accounts. Several voucher checks were also deposited into those accounts, which were not Center operating accounts. Several of the checks written from Program for Parents to the Center were deposited into a third PNC account ending in 329, registered to Aziz Network. Cummings determined that the checks written by Program for Parents to the Center that were deposited into the 059, 878 and 329 accounts totaled $70,004.29.
Checks were also written from the Center accounts to Aziz Network and Aziz Learning and signed by defendant. Cummings discussed checks that were deposited into an account known as New Africa Community Development ending in 709. Through his investigation, Cummings determined that the account had no relation to the Center, yet several checks written by Newark Public Schools and Program for Parents to the Center, totaling $89,857.80, were deposited in the 709 account.
On cross-examination, Cummings explained that non-profits in the Abbott program should have a separate account for Abbott funding, distinct from an account for voucher program funding, which the Center did not do. Cummings clarified that the money diverted to Aziz Network, Aziz Learning and Community Development did not end up back in New Africa, since, he recalled, the New Africa accounts showed no receivables from those companies. He testified that over $180,000 of the public funding provided to the Center was diverted by Mahdi, Muslimah and defendant and dealt with as if it was their own money. The Center closed on March 4, 2004.
At trial, defendant admitted that he had prepared the Center's taxes and threw out the receipts after he was done. Heexplained that those receipts only included food receipts from the food bank, payroll and canceled checks. He did not compile or keep the sales receipts because he did not do the shopping for the Center. Defendant testified he had nothing to do with the Abbott program other than to relieve the teachers for lunch or supervise recreation.
Defendant tried to explain that the money given to him by Muslimah came from Aziz Network, her mortgage company. However, he admitted that some of the money at Aziz Network had come from the Center's accounts. He also admitted that some of the Center's public funding went to the Community Development account for the daycare Muslimah had opened across the street. Defendant insisted "any check that [he] did write was after a conversation or permission from [Muslimah] or an agreement with her." He admitted that he did not see anything wrong with how the Center money was spent because he did not know that there were restrictions. Defendant conceded that his personal bills and bills for Aziz Learning were paid with money from the Center at the time the Center was funded by Abbott. He testified he did not know the money went to Community Development or Aziz Network because Muslimah had the State funding sent to her Post Office box, not to the Center. He explained he never questioned Muslimah's business practices because it was hers and there did not appear to be any reason to question her.
Investigator Bruce Stuck with the New Jersey Division of Taxation Office of Criminal Investigation determined defendant did not file a New Jersey State Income Tax return for tax year 2002. He had no independent knowledge of defendant's actual income for that year, but the New Jersey Division of Criminal Justice told him of defendant's income based on the bank records. Stuck testified that his investigation began two years prior to trial, but as of the date of trial, defendant still had not filed a tax return for 2002.
The court found defendant's interview at the State Police Barracks was a non-custodial event and defendant was not under arrest. It held that the interview was not an event that required Miranda warnings, citing State v. Downey, 206 N.J. Super. 382, 397 (App. Div. 1986).
The court evaluated whether to permit testimony about defendant's three prior convictions in 1985, 1992 and 1996 in the context of Sands. It stated that the 1985 conviction alone would have been too remote and recognized that none of the offenses showed lack of veracity such as fraud or dishonesty. It noted that with a series of crimes, the remoteness aspect is lost. The court, therefore, held that defendant's priorconvictions could be admitted "because they are all a series of crimes. . . ."
At the close of the State's case, defense counsel moved for a judgment of acquittal of all charges against defendant pursuant to Rule 3:18-1. The court denied defendant's motion, taking into consideration the testimony of Cappiello, Cummings and Stuck, as well as their reports. As to count one, the court found there was "plenty of evidence in this case" that defendant, Mahdi and Muslimah received public funds for their private use. On count two, the trial court denied defendant's motion because there was evidence that money was diverted from the Center to Aziz Learning, which defendant admitted was his own for-profit daycare center.
Defendant appeals from the above rulings and first argues that he was entitled to a judgment of acquittal as to each count, at the end of the State's case. Rule 3:18-1 governs motions for judgments of acquittal. It states:
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close ofthe State's case without having reserved the right. [R. 3:18-1.]
In State v. Reyes, 50 N.J. 454 (1967), the Court delineated the test to be applied in deciding a motion for judgment of acquittal, stating:
[T]he trial judge must determine . . . 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. [Id. at 458-59.]
In reviewing a trial court's determination of a motion for judgment of acquittal, we "consider the State's proofs in the light of the [Reyes] standard and . . . determine therefrom how the motion should have been decided." State v. Gora, 148 N.J. Super. 582, 596 (App. Div.), certif. denied, 74 N.J. 275 (1977).
In the present case, defendant's liability was to be considered both personally and as an accomplice to Mahdi and/or Muslimah. A person is an accomplice of another person in committing an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(b) Aids or agrees or attempts to aid such other person in planning or committing it; or
(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; . . . [N.J.S.A. 2C:2-6(c).]
We are satisfied that reviewing the evidence in its totality, the State met its burden, and the judge correctly denied the motion as to all three counts. We briefly discuss all three charges below.
First, to find a defendant guilty of theft by failure to make required disposition, the State must prove each of the following elements beyond a reasonable doubt:
(1) That the defendant purposely obtained or retained the property;
(2) That the defendant did so upon agreement, or subject to legal obligation;
(3) That this agreement or legal obligation required the defendant to make specified payment or other disposition from the property itself or its proceeds, or from (his/her) own property to be reserved in equivalent amount;
(4) That this legal obligation was known to the defendant;
(5) That the defendant purposely dealt with the property as if it were (his/her) own; and
(6) That the defendant purposely failed to make the required payment or disposition. [Model Jury Charge (Criminal), Theft by Failure to Make Required Disposition, N.J.S.A. 2C:20-9.]
In considering the State's case, the Harris accounting report, the Hoffmann audit and the Cappiello interview provided sufficient basis for a reasonable jury to find defendant's guilt beyond a reasonable doubt. Reyes, supra, 50 N.J. at 458-59. Defendant told Cappiello he handled all the finances and the payroll for the Center, and that only he and Muslimah were authorized to issue and sign its checks, supporting the second and third prongs of the crime. There was evidence that defendant received a manager's salary of over $30,000, which was not a proper expense under the Abbott program, establishing the first element. Also, defendant admitted to Cappiello that payments were made from the Center accounts for his personal expenses.
As to the third element, Cummings explained that the Abbott and other public funds should have been put into the Center's payroll or business accounts and were to be used for the limited purposes of the programs. A jury could reasonably infer that defendant, as manager and financial director of the Center, knew or should have known the proper uses for the Abbott funds, in support of the fourth element of the crime. However, the funds were transferred into accounts over which defendant had signatory power, both by defendant and by Muslimah. This included checks written from the Center accounts to Aziz Learning issued by defendant. A reasonable jury could also infer that these acts were done intentionally or purposely, and not accidentally, to establish the fifth and sixth elements of the crime.
We next address the conviction of corporate misconduct. A person is guilty of that crime if "[h]e purposely or knowingly uses, controls or operates a corporation for the furtherance or promotion of any criminal object." N.J.S.A. 2C:21-9(c). This provision applies to "all persons, such as owners and majority shareholders in a position to use, control or operate the corporation[.]" State v. Malik, 365 N.J. Super. 267, 278 (App. Div. 2003), certif. denied, 180 N.J. 354 (2004).
Here, Cappiello's report and testimony established that defendant was the manager and financial director of the Center, and therefore in a position to use and control it and its funds. Mahdi also testified that Muslimah was the Center's administrator. Both Muslimah and defendant were listed as officers on the Center's certificate of incorporation, establishing their ability to misuse the corporation. Moreover, the testimony at trial established that there was sufficient evidence to demonstrate that the corporate funds were improperly used by defendant and Muslimah for defendant's personal gain.
Finally, as for failure to file, a person is guilty of a third-degree crime: if he fails to file any return or report required to be filed pursuant to the provisions of any State tax law with the intent to defraud the State or to evade, avoid or otherwise not make timely payment of any tax, fee, penalty, interest or any part thereof which shall be due pursuant to the provisions of the State Tax Uniform Procedure Law . . . or any State tax law. [N.J.S.A. 54:52-8.]
A taxpayer filing as an unmarried individual must file an income tax return when his gross income in the taxable year exceeds $10,000. N.J.S.A. 54A:8-3.1.
Here, although not specifying which year, defendant told Cappiello that he was paid $550 every two weeks, totaling $14,300 in gross income from the Center alone. Additionally, Hoffmann's report listed a manager salary of over $30,000 payable to defendant in 2002. Stuck testified that defendant did not file a tax return for 2002, based on the State's records. Therefore, there was sufficient evidence for a jury to find that defendant did not file a 2002 tax return, and considering the evidence in support of the first two counts, the jury could reasonably infer that the failure to file was shown with the requisite criminal intent.
Defendant next contends that Harris's accounting reports were improperly admitted by the trial court via the testimony of Hoffmann and Cummings since the testimony contained hearsay. Because this issue was not raised by counsel at trial, we review whether the trial court's failure to exclude the testimony was "clearly capable of producing an unjust result." R. 2:10-2.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Certain statements are not excluded by the hearsay rule, including records of regularly conducted activity. N.J.R.E. 803(c)(6).
In order for the court to admit a business record under the hearsay exception, three conditions must be met. "First, the writing must be made in the regular course of business." State v. Matulewicz, 101 N.J. 27, 29 (1985). Next, "it must be prepared within a short time of the act or event being described in the record." Ibid. Finally, "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." Ibid.
Had defense counsel objected to the admission of Harris's reports or the testimony relating thereto, the court could have properly applied these hearsay exceptions. The accounting records prepared by Harris are of the type made in the normal course of business. The records were made in early 2003, and they included financial documents through December 2002. Although the accounting records should have been prepared contemporaneously with the financial transactions they described, the delay of a few months did not change the outcome. Heeding defendant's argument that the records were not made contemporaneously and therefore were not admissible would reward defendant for the Center's failure to maintain its accounting records, which was a condition of the Abbott funding. Finally, the information in the accounting records came from Muslimah, and it was she who asked Harris to prepare them. Although the court did not admit Harris's reports into evidence, they would have been properly admitted under the business record exception to hearsay. Therefore, its use by Hoffmann and Cummings in preparing their reports was not error, nor capable of producing an unjust result.
Defendant contends the court erred in not issuing both (1) a limiting instruction preventing the jury from considering Mahdi's guilty plea as substantive evidence of defendant's guilt and (2) a cautionary instruction regarding Mahdi's status as a testifying participant in the crimes. Since counsel did not raise this issue below, the court must consider whether the failure to give instructions was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
Error in admitting the prosecutor's comments must be sufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached. State v. Daniels, 182 N.J. 80, 95 (2004). A reviewing court should consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Id. at 96-97 (citing State v. Smith, 167 N.J. 158, 182 (2001)).
Defense counsel's failure to object at trial or request a curative instruction suggests that he did not deem the remarks prejudicial. State v. Macon, 57 N.J. 325, 334 (1971). The court should inform the jury that co-defendant's guilty plea is inadmissible as substantive evidence of defendant's guilt. State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005). "Certainly it is not error, let alone plain error, for a trialjudge to fail to give this cautionary comment where it has not been requested." State v. Artis, 57 N.J. 24, 33 (1970).
At trial, the State asked to refer to the fact that Muslimah had fled and defense counsel did not object, but requested it be made clear to the jury that the trial was about defendant's actions and mental state. At that time, the judge advised counsel that a charge on accomplice liability requires consideration of the mental states of Muslimah and Mahdi, not only of defendant. During opening statements, defense counsel referred to the fact that Muslimah was not present to defend herself. On cross-examination, defendant explained that he had spoken with Muslimah, who was a fugitive and that she was sorry she got defendant into this situation. He also swore that Muslimah did not sway or influence his testimony.
With respect to Mahdi, defense counsel never requested a special instruction regarding his guilty plea. At the beginning of his testimony, Mahdi admitted that he was in court to testify truthfully, and that it was a condition of his plea agreement. He also explained that his guilty plea was for soliciting funds from a waste management program for the Center after it had closed, a charge not directly related to the crimes on which defendant had been indicted.
Defendant was not prejudiced by the prosecution's comments about Muslimah's fugitive status or the court's failure to give a limiting instruction on Mahdi's testimony. At the charge conference, defense counsel made no request for specific instructions regarding Mahdi's testimony or about defendant's reference to Muslimah. Regarding defendant's personal culpability, the court gave clear instructions on defendant's liability as a principal and as an accomplice to either Mahdi or Muslimah, and defense counsel did not object.
Defendant argues that his prior convictions, third-degree eluding in January 1996; third-degree possession of a controlled dangerous substance in January 1992; and concealing an escaped prisoner in November 1985, were too remote for admission. He says the most recent incident was more than thirteen years prior to trial and did not give rise to imprisonment, nor did it involve perjury or other deception. We disagree.
Whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. Sands, supra, 76 N.J. at 144. The key to excluding prior convictions is remoteness, which cannot be determined by the passage of time alone. Ibid. The court must consider the nature of the convictions, and "[s]erious crimes,including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving." Ibid. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Id. at 144-45. "When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence." Id. at 145.
Here, the prior convictions were not too remote and showed an ongoing pattern of criminal behavior. Although none of the convictions showed a lack of veracity such as fraud or dishonesty, the judge immediately gave curative instruction to the jury after defendant testified about his prior convictions, as well as a jury charge on their limited purpose. For these reasons, the probative value of the three prior convictions outweighs their prejudicial effect and consequently, the judge's decision to permit their use did not constitute an abuse of his discretion despite the age of the convictions.
Finally, defendant argues that the State failed to identify a victim to whom restitution should be paid and failed to demonstrate an actual loss, and the amount of restitution determined was not supported by the record. He also argues that the court improperly found he had the means to pay the restitution at a rate of $250 per month.
N.J.S.A. 2C:44-2(b) delineates the circumstances under which a court may order a defendant to pay restitution. It states:
b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:
(1) The victim . . . suffered a loss; and
(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.
[c.] (2) In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay. The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board. If restitution to more than one person is set at the sametime, the court shall set priorities of payment. [N.J.S.A. 2C:44-2.]
Before the court orders restitution, however, it must make the findings required by N.J.S.A. 2C:44-2 and state these findings on the record. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994); see also R. 3:21-4(g) (stating that "the judge shall state reasons for imposing such sentence including . . . imprisonment or fines under N.J.S.A. 2C:44-1 to 2C:44-3").
A defendant has a due process right to a restitution hearing to determine his ability to pay restitution, State v. Paladino, 203 N.J. Super. 537, 547 (App. Div. 1985), but such a hearing need not be held when there is no dispute as to how much restitution is necessary or about defendant's ability to pay, State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994). The trial judge's determination on restitution is entitled to deference on appeal. State v. Harris, 70 N.J. 586, 595 (1976).
The testimony at the restitution hearing and the court's explanation demonstrate that the trial court did not abuse its discretion in setting the amount and schedule of restitution for defendant. Hoffmann testified about the specific uses for Abbott funding and that defendant's manager salary in the amount of $36,528.12 - and a total of $38,525.12 paid to defendant - was not a proper expense. Cummings also testified about various checks payable from the Center to Aziz Learning and Aziz Network totaling $11,485.
Defendant explained that he was employed as a taxi driver up until his period of incarceration making $200 to $300 every week and that he was not sure whether the job would be available to him upon his release. Based on that testimony and the parties' written summations, the court ordered restitution of Abbott funds to the NJDEC in the amount of $31,679.16. In determining the payment amount, the court noted defendant's current financial resources and his future ability to pay, based on his employment history, age and health.
To the extent specific assertions of error are not explicitly addressed, we are convinced they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).