March 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY V. IANNUZZIO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-12-1251.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Reisner and Simonelli.
Defendant Anthony V. Iannuzzio appeals from a September 9, 2009 judgment of conviction for fourth-degree failure to register as a contractor, N.J.S.A. 56:8-136 and -151, and third- degree theft by failure to make a required disposition of property, N.J.S.A. 2C:20-9, for which he was sentenced to an extended term of ten years in prison with a five-year parole bar.
On this appeal, defendant raises these points for our consideration:
POINT I: THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT IN THAT THE GUILTY VERDICT FOR THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF PROPERTY RECEIVED WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
POINT II: THE IMPOSITION OF A MANDATORY EXTENDED TERM SENTENCE OF TEN YEARS WITH FIVE YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF THE AGGRAVATING AND MITIGATING FACTORS.
For the reasons set forth in this opinion, we find no merit in these arguments and, accordingly, we affirm the conviction and the sentence.
Darren Maglione, a homeowner, testified that he entered into a series of home improvement contracts with defendant. Initially, he hired defendant to dig a basement for an addition to his house. Defendant also offered to dig a backyard swimming pool at the same time for an additional price. The original contract was for about $13,650, and Maglione gave defendant a $3650 deposit.
Thereafter, according to Maglione, defendant convinced him to pay for ever-increasing amounts of work, for which Maglione paid in advance, but which never got done. Defendant also convinced Maglione that he could obtain discounted building materials for the construction of the addition to the house. Maglione therefore agreed to buy the materials through defendant, who accepted payment for the materials, but did not deliver most of them. Maglione testified that when a truckload of cement block was finally delivered, he had to pay the supplier for it himself, although he had already paid defendant for the materials. In all, Maglione paid defendant approximately $22,700.
Maglione testified that, although he obtained municipal permits for the work by February 20, 2007, defendant did not begin the work. After months of delay, defendant finally sent an employee named Shane McCaslin to start digging the basement. However, instead of completing the job, McCaslin dug a large hole in Maglione's back yard and left huge piles of dirt lying in the yard. Further, because the hole was dug close to the existing foundation, and was left open, rain washed away the sides of the excavation and the foundation of Maglione's house began to collapse. His neighbors complained to the Department of Environmental Protection (DEP) about run-off of mud into their yards, and DEP required Maglione to install a fence around the excavation. Additionally, on May 16, 2007, the township inspected the footings for the basement, discovered that the work was done improperly, and "red tagged" the project.
After many unsuccessful attempts to reach defendant, Maglione was finally able to reach him on June 5, 2007. At that point defendant "asked for more money" to pour the footings and get the concrete blocks delivered. Defendant promised that if Maglione paid him another $4500 "he would have it all done" and would charge nothing more until the project was finished. Maglione paid the money and on June 12 defendant sent workmen to pour the footings. However, the work was not finished, and on June 14, defendant called and demanded "another $1,000" to have "15 tons of stone" delivered. Maglione refused, and instead paid someone else to do the work. He testified that defendant never delivered the materials for which Maglione had paid him, and defendant never refunded the payments.
McCaslin testified that the work was delayed due to rain, and that whatever work he did was performed in a professional manner. He also testified that most of the dirt that was left in piles in Maglione's yard would be needed as backfill later on in completing the job. However, he admitted that by the time Maglione fired defendant from the job, most of the work remained unfinished. He also testified that defendant had a warehouse, but McCaslin had never seen any building materials stored there.
Defendant stipulated that neither he nor any of his companies was registered with the Division of Consumer Affairs as a home improvement contactor during the relevant time period.
At sentencing, the judge granted the State's motion to sentence defendant to an extended term as a persistent offender, based on his nineteen prior Superior Court convictions for similar types of crimes, over a period of more than forty years. As the judge put it, defendant "led a lifetime of deception" and had "an inability to lead a law-abiding life." He found that there was a clear risk that defendant would re-offend if not incarcerated; that his offense was serious and did significant harm to his victims; that a lengthy sentence was required for deterrence; and that imposing only a fine and restitution, as defense counsel requested, would be seen by defendant as merely "part of the cost of doing business." The judge found mitigating factor eleven, that imprisonment would be a hardship due to defendant's physical ailments. However, the judge found that the aggravating factors outweighed the mitigating factors. He imposed a ten-year sentence, half to be served without parole, for the theft conviction, and imposed a concurrent eighteen-month sentence on the failure to register conviction. The judge ordered defendant to pay $7100 in restitution to Maglione.
On this appeal, defendant argues that his conviction for theft was against the weight of the evidence. He contends that the State failed to prove that he intentionally kept Maglione's money and did not finish the job. Instead, he argues that the project was delayed by bad weather, he did as much work as he could accomplish, and he delivered the materials for which the customer paid. He contends that he did not complete the work because Maglione fired him before he could finish the job. We cannot agree with defendant's arguments.
The statute defining theft by failure to make required disposition of property received, provides in pertinent part:
A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. [N.J.S.A. 2C:20-9.]
Giving the State the benefit of all of the favorable inferences which reasonably could be drawn from the trial evidence, there was more than sufficient proof on which a reasonable jury could have convicted defendant. See State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 458-59 (1967). If the jury believed Maglione's testimony, they could have found that defendant talked Maglione into advancing him increasing amounts of money for work defendant had no intention of performing and that he induced Maglione to advance at least $7100 for building materials that defendant did not deliver and for which he did not provide a refund.
Defendant also argues that his sentence was excessive, because he was sixty-nine years old and in poor health, and his wife was ill. However, our standard of review is deferential, and we cannot conclude that the sentence was excessive. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 365-66 (1984). Defendant has a very extensive criminal record for similar offenses, and he inflicted significant harm on Mr. Maglione and his wife. We cannot disagree with the trial judge's view that defendant is a career criminal who will certainly reoffend if not incarcerated.
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