October 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC T. ROWLAND, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-0856.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2011
Before Judges Nugent and Kestin.
On October 25, 2006, a Somerset County grand jury indicted defendant, Eric T. Rowland, with the commission of a fourth-degree crime, N.J.S.A. 56:8-146, for violating N.J.S.A. 56:8-138, which requires any person in the business of making or selling home improvements to register with the Division of Consumer Affairs. See N.J.S.A. 56:8-136 to -152, the Contractors' Registration Act (the Act).
The evidence before the grand jury and in subsequent proceedings disclosed that, in August 2006, defendant was engaged to renovate a bathroom in a home. He gave the homeowner a written contract proposal and a diagram of the work to be done for a total price of $8,540. The homeowner signed the proposal and gave defendant a check for $3,750 as the initial payment. Defendant did not begin the renovation as agreed, prompting the homeowner to call the police; thereafter, he and defendant resolved their differences, agreeing that defendant could begin the work.
Defendant's application for a municipal permit allowing the work was denied, however, because he was not registered with the Division of Consumer Affairs. The homeowner requested a return of the deposit. Defendant refused, insisting that he was entitled, at least, to be compensated for preparing the plans and completing the permit application. The homeowner again called the police, who also determined that neither defendant nor his company, Mercury Woodworks and Carpentry, was a registered contractor. Defendant maintained that he had been unaware of the registration requirement until he applied for the permit. The indictment followed.
On January 31, 2007, defendant filed a motion to dismiss the indictment. The trial court granted that motion on March 20, 2007, ruling that N.J.S.A. 56:8-146 requires knowledge of the provisions of the Act before one can knowingly violate the Act and criminal liability attaches. . . . [I]n order to knowingly violate any of the provisions of N.J.S.A. 56:8-138 defendant had to know that that statute existed and had to be aware of his obligations under it.
In State v. Rowland, 396 N.J. Super. 126 (App. Div. 2007), certif. denied, 193 N.J. 587 (2008), we reversed. We held that, as a general rule, "our criminal code makes ignorance of the law irrelevant." Id. at 128; see N.J.S.A. 2C:2-2d.
[T]he elements of the offense . . . set forth in N.J.S.A. 56:8-138(a) . . . are . . . (1) engaging in the home-improvements business; and (2) not being registered with the Division of Consumer Affairs. N.J.S.A. 56:8-146 makes that conduct a fourth degree crime when it is done knowingly; it does not require proof that the defendant knew the law. [Rowland, supra, 396 N.J. Super. at 130.]
Defendant had relied on Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), as authority for his argument that his lack of knowledge of the law insulated him from prosecution for its violation. In rejecting that contention, we relied on State v. Hatch, 64 N.J. 179 (1973), for the insight that the result in Lambert was limited to offenses "of omission rather than commission" where "inquiry as to the applicable law was unlikely," [and that no insulation existed with respect to] statutes concerned "with acts of commission, in situations where regulations abound and inquiries are likely, and where the purposes are to insure the public safety . . . ." [Rowland, supra, 396 N.J. Super. at 133 (quoting Hatch, supra, 64 N.J. at 184).]
We concluded that the conduct here involved "acts of commission, not omission[,]" and we remanded for trial. Ibid.
The trial court next addressed the matter on March 7, 2008, in a pretrial intervention (PTI) context. The brief proceeding, presided over by a different judge than the one who had entered the ruling dismissing the indictment, reveals the trial court's evident perception that defendant's agreement to the terms of PTI was reluctant. The prosecutor noted that PTI had been offered initially, in 2006, but was precluded by defendant's motion to dismiss the indictment. Following the trial court's ruling on that motion, our reversal, and the Supreme Court's denial of certification, the PTI matter had been revived, with some modification, and was being presented to the court for approval. See R. 3:28. Defendant was sworn and the following colloquy ensued:
THE COURT: . . . . Good afternoon, Mr. Rowland. You've been very fortunate.
THE DEFENDANT: Have I? Yes, I have, I guess.
THE COURT: Well, to be in the [PTI] Program . . . . Not everybody gets into the [PTI] Program. But along with the entry into the [PTI] Program are a number of conditions that you must honor, and one of those is community service. And here it's 50 hours of community service, you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. There's also restitution in the amount of $3,750, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Total financial obligation imposed would be $3,875, and that would be paid at the rate of $120 per month; do you understand that?
THE DEFENDANT: Yes.
THE COURT: The term of your [PTI] . . . will be for 36 months, or three years, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Are you pledging to this Court, under oath, that you will honor the terms and conditions of [PTI]?
THE DEFENDANT: I agree to it. I will follow through with it.
THE COURT: That's not what I asked you.
THE DEFENDANT: Yes, I do.
THE COURT: Why did you answer me in that fashion?
THE DEFENDANT: I agreed to the [PTI] and I will follow through.
THE COURT: Why did you answer me that way?
THE DEFENDANT: I will follow through with what you're asking.
THE COURT: You're swearing. You're under oath.
THE DEFENDANT: Yes, I am. I pled guilty, your Honor. I swear to that.
THE COURT: I haven't gotten fully convinced, but since you're swearing, I will sign the order. I do wish you successful completion of it, Mr. Rowland. Perhaps you attitude might be along in some fashion as well. [sic]
THE DEFENDANT: If I may, your Honor. THE COURT: . . . . You might want to talk to your counsel before you talk to the Court.
THE DEFENDANT: No, I was just going to say, your Honor, I do believe I have a good attitude. It's just unfortunate that the State chose to prosecute for such a trivial matter. But that's okay.
THE COURT: Anything else you want to talk to me about?
THE DEFENDANT: No, that's it.
THE COURT: Fine, thank you for your indulgence.
On June 10, 2008, defendant's probation officer notified him that she would be recommending his termination from PTI because: he had failed to provide documentation from his physician supporting his contention that a diagnosed disability precluded his performance of the community service condition of his PTI; he had refused to submit to an anger management evaluation as directed by his probation officer; and he was $120 in arrears on his restitution obligation, having paid only $240 to date.
Following an evidentiary hearing on August 7, 2008, before the same judge who had entered the PTI order, the court, after analyzing the testimony, accepting the credibility of the two probation officers who testified, and assessing defendant's credibility as wanting, found that 1) defendant had not provided the necessary medical support for his contention that a disability prevented him from performing the assigned community service; 2) he had actually performed thirty-three of the fifty required service hours, but "only when pressed by Probation;"
3) he had "engaged in an evasive course of conduct designed to avoid having to simply be evaluated, let alone undergo an anger management program;" and 4) he had generally "resist[ed] . . . the terms and conditions of PTI . . . ." Accordingly, the court granted the request that defendant be terminated from PTI; and it set down a date, a month-and-a-half later at the end of September 2008, for a status conference.
The record on appeal does not reflect what transpired at that status conference, but the parties agree that, on February 6, 2009, pursuant to a plea agreement, defendant pled guilty to the disorderly persons offense of deceptive business practices, N.J.S.A. 2C:21-7e, with the understanding that he would pay $3,750 in restitution on the day of sentencing. The plea agreement also provided for non-custodial probation with 100 hours of community service subject to a credit of four hours for the community services performed while defendant was in the PTI program. The judge who had entered the initial order dismissing the indictment presided at the plea proceeding and all subsequent in-court events included in the record on appeal.
The scheduled sentencing proceeding, on May 8, 2009, opened with defendant's motion to adjourn the sentencing. The judge referred to a letter from defense counsel noting that defendant's complaint for prosecutorial misconduct had been assigned to the Prosecutors Supervision and Coordination Bureau. The judge inquired whether defendant intended to pursue the request for an adjournment of sentencing. As counsel began to explain that the request had to do with the amount of restitution ordered, defendant, himself, interjected ". . . not that I don't have them, I don't want to pay the funds at this time." The State contended that the plea agreement called for the restitution to be paid at the time of sentencing, that failure to do so "renders the plea agreement null and void[,]" and "that the matter [should] be returned to the trial calendar and we pick a trial date." In response to the judge's inquiry, defense counsel said he was "not prepared to proceed on the sentencing." He stated that defendant wished to see the issue of prosecutorial misconduct resolved "before he moves forward in anything[,]" and that defendant also wished that steps be taken "to reinstate him to a PTI . . . ."
The court referred to the discord between defendant and his former attorney, the second to represent him, and endeavored to summarize the current state of the matter:
THE COURT: . . . . One, the State has advanced the proposition that a condition to its entry into the plea agreement is breached because [defendant] is not prepared to pay the restitution today, and frankly offers that he's not going to pay it at any point in time.
[DEFENSE COUNSEL]: That's my understanding.
THE COURT: So, the State will need to bring an application to vacate the plea agreement to which [defendant and his current attorney] will have notice and the opportunity to be heard thereon[,] and I'll deal with it when presented to me in that form.
Following further colloquy, including references to a complaint defendant had filed against his second attorney, the judge said that he would "carry the matter" for six weeks to permit the parties to make any necessary motions.
According to the record on appeal, the matter next came before the trial court on October 5, 2009, the trial date for the fourth-degree crime charged in the indictment. The proceeding opened with the court noting that, on July 27, 2009, it had granted the State's motion to vacate the guilty plea to a disorderly persons offense that had been entered on February 6, 2009, but which defendant had repudiated with his refusal to pay restitution in accordance with the plea agreement.
After hearing the State's three witnesses and the testimony of defendant, himself, the jury, on October 8, 2009, returned a guilty verdict. On November 20, 2009, the trial court sentenced defendant to a three-year term of probation based on a one-andone-half-year suspended prison sentence. Probation was conditioned upon a psychological evaluation and treatment, a requirement to obtain employment, payment of a probation supervision fee of $25, a requirement to provide a DNA sample, and payment of $3,445 in restitution.
Defendant appeals, raising the following issues for our consideration:
THE TRIAL COURT'S ERRONEOUS INSTRUCTIONS ON THE KNOWLEDGE REQUIREMENT DEPRIVED MR. ROWLAND OF A FAIR TRIAL. (Partially Raised Below).
THE TRIAL COURT DIRECTED A VERDICT FOR THE STATE BY SUA SPONTE REMINDING THE JURORS OF SPECIFIC PARTS OF MR. ROWLAND'S TESTIMONY AND TELLING THEM THAT HIS WORDS WERE NOT A DEFENSE.
THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING MR. ROWLAND FROM PTI.
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR. ROWLAND UNDER N.J.S.A. 56:8-136 BECAUSE HE WAS NOT AWARE THAT HE WAS REQUIRED TO REGISTER WITH THE DIVISION OF CONSUMER AFFAIRS.
THE PROSECUTOR COMMITTED MISCONDUCT BY ELICITING FROM MR. KORAB, AND REITERATING DURING CLOSING, THAT MR. ROWLAND HAD NOT YET RETURNED HIS $3,750 DEPOSIT. (Not Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We reject the arguments in points one and four as efforts to relitigate the issues we decided in the prior appeal. We have been given no good reason to revisit our holding that the elements of the offense are . . . (1) engaging in the home-improvements business; and (2) not being registered with the Division of Consumer Affairs. N.J.S.A. 56:8-146 makes that conduct a fourth degree crime when it is done knowingly; it does not require proof that the defendant knew the law. [Rowland, supra, 396 N.J. Super. at 130.]
The trial court's instructions to the jury, to which defendant interposed no objections at the time, see State v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), reflected a faithful and accurate rendition of the legal standard we had articulated. The jury's verdict was well-supported by the evidence. See generally State v. Marks, 201 N.J. Super. 514, 537 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986).
The trial court's comment to the jury on the evidence, in its response to the jury's request for further explanation of the law on failure to register, also elicited no objection from defendant, see R. 2:10-2, although the prosecutor lodged a criticism. In its comment, the court characterized as "not a defense" the claim by defendant that he did not register because he was unaware of the legal requirement that he do so.
We evaluate that remark as having provided the jury with appropriate guidance on the applicable legal standards. See State v. Brims, 168 N.J. 297, 306 (2001); State v. Concepcion, 111 N.J. 373, 379 (1988); cf. State v. Olivio, 123 N.J. 550, 567-68 (1991). It was well within the bounds of the trial court's discretionary authority to comment on the evidence, see Brims, supra, 168 N.J. at 307; and the comment made did not amount to a directed verdict. The jury was left with "the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it [found] them." State v. Mayberry, 52 N.J. 413, 439 (1968). The circumstances do not support a conclusion that that comment deprived defendant of the fair trial to which he was entitled, or provided any other basis for our intervention. See id. at 440.
We discern no basis for concluding that the trial court's decision to terminate defendant from PTI was a misapplication of the standards governing the program. The factual determinations that informed the ruling were adequately based on the record and reflected a sound exercise of discretion. See State v. Lebbing, 158 N.J. Super. 209, 217-18 (Law Div. 1978) (cited with approval in State v. Devatt, 173 N.J. Super. 188, 195 (App. Div.), certif. denied, 84 N.J. 441 (1980)).
Defendant also argues on appeal that prosecutorial misconduct should engender a reversal of his conviction. The State, in its direct examination of the homeowner with whom defendant had contracted, elicited a statement that the $3,750 deposit paid to defendant had not been returned; and, in summation, the prosecutor commented upon that testimony. Neither the testimonial exchange nor the comment in summation generated an objection from defendant.
Generally, if no objection was made to . . . improper remarks [by a prosecutor], the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. [State v. Frost, 158 N.J. 76, 83-84 (1999) (citations omitted).]
A plain error standard governs in such circumstances. State v. Feal, 194 N.J. 293, 312 (2008). Defendant has made no adequate showing that the testimony and comment, if elicited erroneously, were "clearly capable of producing an unjust result," R. 2:10-2, and we have been given no basis for concluding that a reversal is warranted "in the interests of justice . . . ." Ibid.
Finally, we regard defendant's challenge to the three-year probationary sentence based upon a suspended eighteen-month prison term to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We discern no misapplication of discretion by the trial court in this respect or any other.
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