On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 10-04-0263.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
Defendant Joyce A. Cappello appeals her conviction for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1), as well as the resulting aggregate sentence of three years of probation and restitution in the amount of $13,331.90. We reverse the conviction for receiving stolen property, and vacate the related sentence. We affirm the conviction and sentence for resisting arrest.
We discern the following facts and procedural history from the record on appeal.
In 2007, Cappello posted her resume on a career website. In response, she received an email from someone calling himself George Hilbert. He represented himself as affiliated with MCM Group (MCM), a company located in Washington, D.C. Hilbert told her about a job as a penny shares manager. Hilbert told her that the job would require her to open a bank account, which need not be a business account. MCM would then transfer funds to her account and instruct her how to transfer the funds to others. Cappello would receive a percentage for each transaction she facilitated. She understood she would earn about $3,000 per month.
Cappello received and signed a confidentiality agreement. In contrast to the duties described during email exchanges, the terms of the confidentiality agreement outlined duties that included "consulting potential investors about our investment program" and "processing orders."
Cappello opened a personal account in her own name at a local bank. However, rather than using her own address, she used the business and residential addresses of a friend.
Cappello completed four transactions for MCM. Between November 18, and December 7, 2007, someone made three electronic transfers into Cappello's account: (1) $2,870.30 on November 14, (2) $3,820.60 on November 20, and (3) $8,000 on November 28. At the direction of MCM, Cappello issued four checks drawn on her account to payees located in Moldova. Those checks, signed by Cappello, were issued as follows: (1) $2,726.30 on November 17, (2) $3,514.16 on November 24, (3) $3,492 on December 3, and (4) $3,600 on December 1. Cappello's bank subsequently became suspicious of the transfers and froze her account.
In November 2007, East Greenwich Township Police Department Sergeant Charles Barone received a telephone call from Wachovia Bank (Wachovia) concerning unauthorized transactions in which funds had been transferred from the account of one of its customers without authorization. Wachovia had determined that those funds wound up in Cappello's account.
Barone went to the business address Cappello had given her bank when she opened the account. It belonged to a commercial business with which Cappello had no affiliation. He next went to the residential address Cappello provided to the bank, which was her friend's residence.
Barone eventually ascertained Cappello's address in Gibbstown. In the early morning of June 12, 2008, he went to Cappello's home accompanied by other members of the East Greenwich Police. After Barone knocked on the door and she opened it, Barone informed her "that [he] had a warrant for her arrest" and that she was under arrest.
According to Barone, Cappello reacted angrily, mentioning something "about another case that she was involved in that she thought [he] was there for." Barone testified that she yelled at the officers, saying they did not have the authority to be there. Cappello demanded to see the arrest warrant. Barone sent another officer to retrieve it.
Barone told Cappello to put on her shoes. She did not comply. She picked up a large bag and "attempted to push past" Barone toward the front door. In the process, she bumped into the right side of Barone's body with the left side of her body. Barone responded by attempting to handcuff her, but Cappello pulled away. While she continued to ...