On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-06-1109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Ashrafi.
Defendant Maria Rodriguez appeals from her conviction at trial for theft from her employer. We affirm the jury's verdict but remand to the trial court to determine whether defendant has or will have the financial ability to pay the restitution that was ordered as part of her sentence.
Defendant began working in April 2007 as the bookkeeper for Skytop Gardens, a complex of 840 apartments in Sayreville. Besides defendant, a property manager and a rental agent worked at the business office for the apartments. Defendant was trained by a former bookkeeper, who continued to have some remote access by computer to the company's books. Also, an accountant periodically visited the office to examine the books and financial records.
Defendant left the job under suspicion of theft in March 2009. An examination of the books indicated discrepancies beginning in October 2007, about six months after defendant started in the position. From the evidence presented at the trial, the jury could conclude that defendant did not deposit all the cash payments that were received from tenants for rent and other charges. According to testimony of the State's witnesses, defendant would pair cash payments from tenants with check payments. She would keep some of the cash as she made bank deposits. She would then make incorrect entries in the books as to the amounts of the checks being deposited to cover her theft of the cash.
The embezzlement was discovered when a tenant against whom an eviction action was brought complained to the property manager that he had paid his rent in cash. An initial review of the books in March 2009 indicated that $4,400 in cash payments were missing. The next day, when the property manager began reviewing the books with defendant, she left the office stating that she had to take her son to the doctor. She never returned to work. Further investigation determined that almost $68,000 was missing from the business accounts over an eighteen-month period.
A Middlesex County grand jury indicted defendant for third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. At her trial, defendant testified that she did not steal the money. She stated that other persons also had access to the computerized books and made bank deposits. The defense argued to the jury that someone else was responsible for altering the books and taking the missing funds.
The jury found defendant guilty. The trial court sentenced her to five years probation with 364 days to be served in the county jail as a condition of probation. Defendant was also ordered to pay $67,990.67 in restitution as well as mandatory money penalties and fees.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS THE PROSECUTOR'S SUMMATION CONTAINED ERRORS WHICH WERE HIGHLY PREJUDICIAL TO THE DEFENDANT AND COULD NOT BE ...