On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0873.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges A. A. Rodriguez, Sabatino, and Fasciale.
These back-to-back appeals by co-defendants, which we consolidate solely for purposes of this opinion, stem from a criminal trial arising out of a scheme to defraud the City of East Orange ("the City" or "East Orange") with respect to the City's upgrade of its police communications and dispatch center. In particular, defendant Norman Price, a former East Orange police officer, and his wife and co-defendant, Natasha McRae, were each found guilty by the jury of multiple crimes, including second-degree money laundering and third-degree theft by deception.
Both defendants contend on appeal that they were denied a fair trial because of prosecutorial misconduct; that the trial court erroneously denied their motions for judgment of acquittal; and that the sentences imposed were excessive. Price separately argues that the trial court erred in denying his pre- trial motion to dismiss the indictment and also that he is individually entitled to a new trial based upon alleged newly-discovered evidence. He also has submitted a pro se supplemental brief raising additional points, including a claim that his right against self-incrimination was violated at trial.
For the reasons stated in this opinion, we affirm defendants' convictions and their corresponding sentences in all respects.
The indictment charged Price with numerous offenses. Specifically, the indictment contained: (1) two counts of second-degree money laundering, N.J.S.A. 2C:21-25(b)(2)(a), N.J.S.A. 2C:21-25(c), and N.J.S.A. 2C:2-6 (counts one and two); (2) three counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (counts three, five, and seven); (3) four counts of second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2 (counts four, six, eight, and nine); (4) three counts of second-degree compensation for past official behavior, N.J.S.A. 2C:27-4(a)(3) (counts ten, twelve, and fourteen); (5) three counts of second-degree conspiracy to receive compensation for past official behavior, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:27-4(a)(3) (counts eleven, thirteen, and fifteen); (6) four counts of second-degree fraudulent contracting, N.J.S.A. 2C:21-34(a) and (b) (counts sixteen, twenty, twenty-two, and twenty-six); (7) two counts of third-degree conspiracy to commit fraudulent contracting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-34(a) and (b) (counts nineteen and twenty-five); (8) four counts of second-degree conspiracy to commit fraudulent contracting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-34(a) and (b) (counts seventeen, twenty-one, twenty-three, and twenty-seven); (9) two counts of third-degree fraudulent contracting, N.J.S.A. 2C:21-34(a) and (b) (counts eighteen and twenty-four); (10) three counts of third-degree theft by deception, N.J.S.A. 2C:20-4 (counts twenty-eight, thirty, and thirty-two); (11) four counts of third-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (counts twenty-nine, thirty-one, thirty-three, and thirty-four); and (12) four counts of fourth-degree unlawful business transaction, N.J.S.A. 2C:27-9 (counts thirty-five, thirty-six, thirty-seven, and thirty-eight).
McRae was also charged in nineteen of the counts (counts one, three through six, ten through thirteen, sixteen through nineteen, twenty-four, twenty-five, twenty-eight through thirty-one, thirty-five, and thirty-six).*fn1
The State's proofs at the lengthy trial in April and May 2006 adduced the following chronology of relevant events relating to defendants' criminal venture.
The Motorola Contract and the Opportunities for Subcontracting
In late 2001, the East Orange Police Department ("the Department") was under a State deadline to upgrade its communications/dispatch center. The City awarded a $2,000,000 contract to Motorola to perform the upgrade work, which Motorola could complete itself or subcontract out to other companies.
In an effort to save the City money on the contract, Charles Grimes, who was then the Police Chief, assigned three of the Department's detectives -- Price, William Garvin, and Matthew Gariski -- to perform some of the renovations themselves. Price, Garvin, and Gariski were instructed to perform those tasks under the supervision of Sergeant Troy Boone.
Consultants advised Grimes and the Department's budget analyst, Keith Rollins, that the Department was paying large mark-ups to Motorola under the contract. Upon learning of those mark-ups, Grimes authorized Price to look for more reasonably-priced subcontractors and vendors.
Price's Efforts to Arrange Subcontracts for Gem, RC, and Starrpoint
Price thereafter told Grimes that Gem Furniture Technology ("Gem"), a company purportedly located in Jersey City, could supply all the furniture for the communications center for $76,590, a lower price than Motorola intended to charge. Price provided Grimes with a quote from Gem, which was approved first by Grimes and Rollins and then by the Department's purchasing and finance units. Thereafter, Rollins faxed a Gem quote dated February 1, 2002, to Dominick Fowler, the project coordinator at Motorola. Grimes then forwarded to Motorola a permission letter dated March 1, 2002, and Motorola approved the use of Gem as a substitute subcontractor.
Fowler subsequently reached out directly to Gem for some needed tax information. Fowler testified that he spoke to someone named "Carmen Ferrara" at Gem. Fowler later received a W-9 form prepared by a "Waynne Barrett," who was identified as an owner of Gem.
Gem encountered difficulties getting paid under the subcontract. Rollins spoke to Fowler about the problem and also tried to call Gem directly, but he only reached an answering machine. Price ultimately called Fowler directly, and, according to Fowler, Price was "arrogant" and demanded that Motorola "pay him his money." Motorola subsequently mailed Gem a check dated June 7, 2002. However, after the bank refused to honor the check due to an endorsement issue, Motorola ultimately made a wire transfer directly to Gem.
When additional furniture was needed six months later, Grimes again consulted Price, who turned to Gem. Gem submitted a $15,240 invoice directly to the Department on October 21, 2001, for that additional furniture.
Meanwhile, several months earlier, Price had approached Grimes and recommended that the Department purchase needed photo identification equipment from Starrpoint, Inc. ("Starrpoint"). Price did not mention that his then-fiancee, defendant McRae, was the owner of that company. Starrpoint's quote was ultimately approved, and in August 2002, the Department paid $16,025 to Starrpoint for a printer, a video camera, and a tripod. A few months later, in December 2002, the Department purchased "Nortel 600VPN box service" from Starrpoint for an additional $7740. The Department also purchased a Dell computer from Starrpoint for $2600.
In early 2003, the Department received a grant to install Global Positioning System ("GPS") units in its police vehicles. Grimes consulted Price, who recommended purchasing a system from a company identified as RC Technology ("RC") for $63,825. Price served as the Department's contact person in connection with this purchase, which ultimately received all necessary approvals. The Department paid for the system in March 2003.
In late April 2003, Gariski approached Lieutenant Paul Davis in the Department's Internal Affairs unit and expressed concerns regarding the legitimacy of RC and the compatibility of the new GPS system with the Department's police cars. Davis subsequently determined that the GPS modems provided by RC had actually been manufactured by Data Link Systems, Inc. ("Data Link"). He contacted a Data Link representative, who forwarded a invoice indicating that Data Link had charged RC $33,455 for the system.
On April 24, 2003, Davis and Garvin drove to the alleged business address of RC in Sewaren, which turned out to be a townhouse. They spoke to the residents of the home, Raymond Mims and Colleen Murphy. Mims denied any personal relationship with Price. Later that day, Davis spoke to Gariski and Price and asked them to submit reports concerning the RC invoice and any relationship they had with Mims. Price thereafter submitted a report dated April 25, 2003, in which he stated that the only business relationship he had with Mims was in connection with the purchase of the GPS devices and that he and Mims had no personal relationship.
The Internal Investigation By Davis
Davis undertook an investigation into other recent departmental purchases involving Price. Davis learned that the actual manufacturer of the furniture for the communications room was Matovski Co., Inc., and not Gem. He spoke to Miroslav Matovski, the owner of that company. Matovski testified that, in early 2002, Price and an officer with a "Polish" name approached him about a custom furniture order for the Department. They negotiated a price of $35,700, and Price directed Matovski to prepare an invoice made out to Gem, with a company address on Warren Street in Jersey City.*fn2 Price explained that Motorola was paying for "all of it" and that the invoice had to go to Gem. Matovski denied that anyone from Gem worked on the order as a consultant.
According to Matovski, he received a check dated July 14, 2002 from Gem, but it bounced; consequently Matovski attempted to contact Gem and left messages on Gem's answering machine. McRae, who Price said worked for Gem, called Matovski back and ultimately wired him the money due. Later in 2002, Price contacted Matovski about some additional furniture and they negotiated a price of $12,700, again billable to Gem. Matovski received a check from Gem in full payment for the additional furniture in December 2002.
Davis next looked into the Department's purchase of the Dell computer and photo identification equipment from Starrpoint. He learned that McRae had purchased the computer directly from Dell for $674.84, using an American Express card she had taken out in the name of "MC Micro Solutions." Detective Richard Gould, a police computer forensics analyst, found no indication that the computer had been enhanced with upgrades by Starrpoint before it was delivered to the Department.
Davis also discovered that the photo identification equipment supplied by Starrpoint had actually been manufactured by Alpha Card Systems ("Alpha"). Davis contacted David Leivick, a sales director at Alpha, for information. Leivick related that, on July 19, 2002, he was contacted by Price, who identified himself as an East Orange police detective and inquired whether Alpha could supply the Department with a photo identification card system for under $16,000. Leivick quoted a price of $6443. Price expressed interest, but he stated that the transaction had to go through Starrpoint. Leivick said that Alpha was not comfortable extending credit to a company it did not know and that it would require a purchase order directly from the Department.
Price subsequently gave Leivick Starrpoint's phone number and asked him to reconsider. Leivick dialed the number several times and left multiple messages on what seemed to be a private answering machine. He did eventually speak to two people, "Natasha" and "Sahara," who sounded alike and whom he believed to be the same person. Leivick grew suspicious of Price and made inquiries to confirm that Price did, in fact, work for the Department.
When Leivick ultimately insisted that Alpha could only accept a purchase order from the Department, Price became upset and hung up on Leivick. He later called back, however, and advised Leivick that a Department purchase order would be forthcoming. When Leivick failed to receive the purchase order, he called the Department directly but was unable to speak to anyone familiar with the situation. Price then called Leivick and berated him for calling the Department. Ultimately, Natasha called and said that Alpha could bill her credit card for the equipment. Leivick then shipped the equipment directly to the Department.
Davis also investigated the various bank accounts associated with Gem, Starrpoint, and RC. He learned that Mims opened three business accounts for Gem with PNC Bank, Fleet National Bank ("Fleet"), and Trust Company Bank of New Jersey ("Trust"). The PNC Bank account was opened on July 3, 2002, and a $76,000 check from Motorola endorsed by a "Carmen" was deposited in the account on July 8, 2002. Mims wrote three checks on the account: one to himself for $700; one to Matovski for $35,700; and one to McRae for $38,000 "for consulting." PNC subsequently closed this account because of the check endorsement issue noted previously, and the three checks were not honored.
Mims opened the second Gem account with Fleet on July 29, 2002, with an initial deposit of $100. On August 1, 2002, $76,000 was deposited into the account through a wire transfer from Motorola. The next day there was a $35,700 debit wire transfer. Mims subsequently wrote three checks on the account: one to cash for $10,000; one to McRae for $10,000 for "blueprint consulting"; and one for $20,350 to Gem Furniture Technology written August 8, 2002, which removed all remaining funds and closed the account.
Mims opened the third and final Gem account with Trust on August 8, 2002, and deposited $20,350. There were subsequent deposits into the account, including $15,240 from the City and $590 from Motorola. Mims wrote several checks on the account: two to McRae for $2475 and $11,000, respectively, "for consulting"; one to Matovski for $12,700; one to Antonovich Furs for $1495; and one to Price for $1500 "for consulting."
Davis further learned that Mims opened an RC account with Wachovia in March 2003 and closed it two months later. The sole deposit into that account was a check for $63,825 from the City. Additionally, McRae opened a business account in Starrpoint's name at PNC on June 25, 2002. Between that date and May 9, 2003, when the account was closed, there were only two deposits, both of which were from the City. On August 23, 2002, a check was written on this account to McRae for $9900, and, thereafter, McRae made a $7000 cash withdrawal.
As part of his internal investigation, Davis also looked into an aborted purchase of surveillance cameras from New Vision Technologies ("New Vision") for $94,018.52 in 2002, when Garvin was the contact person for the Department. At this point, Davis realized that he had a significant problem within the Department, and he decided to contact the Essex County Prosecutor's Office.
The Prosecutor's Investigation
In May 2003, Garvin, who had been granted use immunity, gave a statement to the Prosecutor's Office. Garvin related in his statement that, in 2002, Price advised him that the Department was in the market for surveillance equipment and showed him how to set up New Vision so that he could pose as a legitimate vendor and submit bids for approval. According to Garvin, Price cautioned him that he had to conceal his identity as the actual owner of the business. Garvin admitted that he was aware of the illegality of the scheme. Price suggested websites where Garvin could purchase the surveillance equipment at discounted prices.
According to Garvin, Price said that he and McRae had created Gem for the sole purpose of submitting a bid to supply the furniture the Department needed for the communications room. Price further told Garvin that he had made a $40,000 profit selling furniture and other equipment to the Department.
Garvin admitted that he warned Price about Davis's investigation. Garvin shut down New Vision on April 14, 2003, because of that investigation. Garvin testified that he retired from the Department in December 2004 apparently so that he would not be fired.
In July 2003, Mims, who had also been granted use immunity, gave a statement to the Prosecutor's Office. Mims stated that he had been friends with Price for over twenty-five years. In 2001, Price approached Mims about setting up some companies to sell computer equipment to the police departments in East Orange, Newark, and Irvington. Thereafter, accompanied by Price, Mims opened two business accounts in Gem's name -- one at Fleet on July 29, 2002 and one at Trust on August 8, 2002. Mims also opened a business account in RC's name at Wachovia on March 8, 2003.
Mims recounted that, after opening the Gem accounts, he simply provided Price with a number of signed starter checks for Price to later fill out. Mims denied opening an account in Gem's name at PNC Bank or signing any checks on that account. He also denied ever meeting Matovski and claimed that he did not remember if he derived any income from Gem. Mims insisted that Price filed Mims's 2002 tax return without providing it for review. Mims did not remember if he received a tax refund.
Mims admitted that he was actively involved in RC's transactions with the Department. In particular, Mims located Data Link and purchased the GPS system, listing his fiancee as the customer. He deposited the Department's check for $63,825 and paid Data Link. Mims also stated that he withdrew $17,220 from RC's account on May 2, 2003, gave $16,000 in cash to Price, and kept the remainder for himself. He made an additional withdrawal of $8,447.83 from RC's account on May 5, 2003, which he kept for himself. Mims admitted that Price warned him prior to Davis's visit on April 24, 2003.
In September 2003, Gariski, who also had been granted use immunity, gave a statement to the Prosecutor's Office. He related that, in 2001, he and Price saw a list of all the furniture and equipment that was to be purchased for the communications room and realized that Motorola was grossly overcharging the Department. Thereafter, he and Price visited Matovski and arranged for Matovski to provide furniture to the Department through Gem. Gariski admitted that Price gave him a check for $5000 in September 2002 that was signed by McRae. The check was intended to be a bribe so that Gariski would keep quiet about Price's and McRae's involvement with Gem.
Corroborating Testimony from Other Witnesses for the State A regional loss prevention and security manager with Sovereign Bank, Joseph DeCagna, identified bank statements for a checking account maintained by McRae in 2002. DeCagna testified that, on September 3, 2002, there was an $11,000 deposit into that account. On September 12, 2002, McRae wrote out a check from that account for $5000 payable to Price, and the next day she wrote out another check for the same amount payable to Gariski.
Several other witnesses for the State provided corroborating testimony. Waynne Barrett testified that she met Price through her son-in-law and that Price had prepared her taxes in 2002. Barrett denied that she ever worked for Gem or that she gave Gem permission to use her name. Frank Hermann, an investigator with the Essex County Prosecutor's Office, ...