On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-1032.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 16, 2011
Before Judges Cuff and Simonelli.
A jury found defendant Kathleen Rossano guilty of third degree theft of property, N.J.S.A. 2C:20-3 (Count Three); third degree computer theft, N.J.S.A. 2C:20-25a (Count Five); third degree hindering apprehension, N.J.S.A. 2C:29-3b (Count Six); third degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h (Count Eight); and third degree interception of wire or oral communications, N.J.S.A. 2C:156A-3 (Count Nine). Defendant is serving an aggregate term of ten years, including an extended term of ten years on Count Three.*fn1
Defendant served as Vice-President of Group Sales for Cruise Value Center (CVC) from 2002 to 2006. CVC is a travel agency that specializes in pre-booking large blocks of rooms on cruise ships, thereby securing discounted rates, and reselling the rooms to its customers. In addition, the operator of the cruise ship pays CVC a commission on each room it books. CVC pays the cruise line a deposit for each block of rooms it acquires. CVC uses an American Express (AMEX) card to pay these deposits.
Defendant managed the group space acquired and re-sold by her employer. She had access to the company AMEX card and charged between $500,000 and $1,000,000 to the card each year.
On March 15, 2006, her supervisor reviewed the recent AMEX statement and discovered charges for four Continental Airline flights to Fort Lauderdale, Florida, an embarkation point for some cruises. Normally, CVC clients make their own travel arrangements to the departure port. Therefore, it was unusual to see such charges on the AMEX bill. Moreover, no record of this purchase existed in the CVC internal record system. Ross Spalding, a manager of CVC and defendant's supervisor, confronted defendant because she was the agent who booked the airline tickets. Defendant admitted she purchased the tickets for her friends. Spalding asked her to produce proof of payment by her friends. Defendant responded her friends had paid CVC with checks or money orders; however, Spalding found no record of any payments from her friends. Spalding sent defendant home and instructed her to return the following Monday.
That evening, however, Spalding and other employees realized that the computer at defendant's work station was being accessed remotely. Spalding unplugged the computer. He removed the computer from the office and brought it home until he turned it over to a forensic computer investigator for the State in April 2007. Spalding also discovered that the airline tickets were associated with a cruise that was paid in full by CVC, not defendant's friends. Spalding terminated defendant in mid-April 2006.
Further investigation revealed that defendant booked cruises for friends and extended family over a period of four years for which they paid her cash. She accepted the cash, delivered tickets and vouchers to them, but did not remit the money to her employer. For example, in July 2005, defendant booked a cruise for an extended family member that cost approximately $50,000; however, the CVC person in charge of processing cash payments had no record of receiving cash in that amount.
Records from the computer payment systems and the AMEX account were introduced at trial. CVC used the WinCruise program to record and track all clients, bookings, and payments. CVC received payment by cash, money orders, or credit cards. Payments from clients made by check or money order were entered in the Quickbooks system and then payment was made to the cruise ship line by the CVC company credit card. Every employee in the company had access to WinCruise.
The records of the WinCruise and Quickbooks systems were introduced in evidence to establish that defendant had arranged for numerous cruises for clients, and paid for the cruises with the company credit card. However, there was no correlation between the bookings and payments to the cruise operator and the cash received by defendant from some of her clients. In addition, a postal inspector testified certain money orders recorded in the system bore invalid numbers, were never issued by the United States Postal Service, and were for amounts in excess of the $1,000 limit.
On appeal, defendant raises the following arguments:
THE COURT ERRED IN ALLOWING EVIDENCE OF THE DEFENDANT'S PRIOR BAD ACTS TO BE ADMITTED AND PRESENTED TO THE JURY.
A. THE ACTS WERE NOT CLOSE IN TIME.
B. THE EVIDENCE WAS NOT RELEVANT OR MATERIAL TO ANY ISSUE IN THIS CASE.
C. THE EVIDENCE WAS HIGHLY PREJUDICIAL.
THE TRIAL COURT ERRONEOUSLY FAILED TO GRANT A MISTRIAL AFTER IMPROPER COMMENTS WERE MADE BY THE PROSECUTOR DURING OPENING STATEMENTS.
THE COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE AMERICAN EXPRESS STATEMENTS INTO EVIDENCE IN ...