July 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARIA L. RODRIGUEZ A/K/A MARIA PESSOA, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2012
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 SUFFICIENTLY CURED BY A CURATIVE INSTRUCTION TO THE JURY.
THE COURT ERRED BY FAILING TO CONDUCT A RESTITUTION HEARING TO DETERMINE THE AMOUNT OF THE VICTIM'S RESTITUTION AND THE ABILITY OF THE DEFENDANT TO PAY (Not Raised Below).
Defendant contends that prosecutorial misconduct entitles her to a new trial. She challenges three parts of the State's closing argument to the jury: (1) the prosecutor's remarks that defendant was in dire financial difficulty and therefore had motivation to steal from her employer, (2) the argument that defendant had the ability to make alterations in the cash ledger when no evidence presented to the jury supported that contention, and (3) the improper shifting of the burden of proof to defendant by commenting that she had not identified the "mysterious person" who had allegedly committed the embezzlement rather than her.
There was no contemporaneous objection to any of these remarks at the time of the prosecutor's closing argument, but defense counsel moved for a mistrial the next morning and raised the same issues. We deem defendant's motion and specific contentions to have preserved the objections for purposes of this appeal. The trial court heard argument from both attorneys and denied the motion for a mistrial, offering to address the concerns of defense counsel in the final charge to the jury by explaining that arguments of counsel are not evidence and that the State always retains the burden of proving defendant's guilt. Defendant did not ask for an immediate curative instruction or a jury charge beyond those the court gave.
"A prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." State v. Williams, 113 N.J. 393, 447-48 (1988). "'It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). But "[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." Id. at 322.
Defendant argues that the prosecutor improperly questioned her during cross-examination about the financial difficulties she and her family were experiencing and then prejudicially argued to the jury that she had a motive to steal because of those financial difficulties. During her cross-examination, defendant testified that she had large medical bills and that she had been contacted by collection lawyers regarding those bills. Defense counsel did not object to the cross-examination on grounds of relevancy or prejudice and, in fact, followed up on re-direct examination of defendant with questions eliciting that defendant had debts as other people do and would not steal to pay those debts.
Generally, it is improper to use poverty or lack of financial means as evidence of the defendant's motive to commit a crime. State v. Mathis, 47 N.J. 455, 469-72 (1966); State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003). In Mathis, supra, 47 N.J. at 459, 469, the defendant, who was charged with murder during an attempted robbery, was cross-examined about his claim of employment with his father. The Supreme Court concluded that the questions were improperly intended to lead the jury to believe that the defendant was in fact not employed, that he was destitute, and, therefore, that he was likely to commit the robbery and murder. Id. at 470-71. The Court held that such questioning was "improper and injurious," noting that "[t]he trouble is that [lack of money] would prove too much against too many" and that "there must be something more than poverty to tie defendant into a criminal milieu." Id. at 471-72 (citing 2 Wigmore, Evidence § 392 at 341 (3d ed. 1940)).
In Terrell, supra, 359 N.J. Super. at 242, defendant was charged with possession of illegal drugs with intent to distribute. He had been arrested in possession of a quantity of heroin and $965 in cash. Id. at 244. The prosecution used testimony from a defense witness that defendant was not employed to imply that the money found in his possession was derived from the sale of illegal drugs. Id. at 244-45. We held that "[t]he introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form." Id. at 247. Because the defendant's unemployment in that case was collateral to the issue of whether he possessed heroin with intent to sell, we reversed his conviction on that charge. Id. at 247-48.
The circumstances of this case are distinguishable from those precedents. Here, to explain why she abruptly left her position as bookkeeper in March 2009, defendant testified on direct examination that she and her son had medical problems and that those conditions and other stress in her life caused her to take offense at being suspected of theft by her employer. The prosecutor's cross-examination was a follow-up to that testimony, which opened the door to defendant's personal circumstances.
Unlike the facts of Mathis and Terrell, the cross-examination did not suggest a general inclination on the part of defendant to commit crime because of financial difficulties but rather a specific motive to have taken cash that was readily accessible to her at her place of employment to pay specified types of pending debts. We do not view Mathis and Terrell as barring any reference whatsoever to a defendant's pecuniary difficulties as evidence of motive to commit a theft, especially an embezzlement such as in this case. Rather, the reasoning of those cases disapproves of a generalized argument from a defendant's impecunious circumstances to raise an inference of motive or inclination to commit crime.
Where motive is proven by evidence of a specific need for cash, and where it is closely tied to the nature of the crime, such as defendant's ready access to cash in an embezzlement case, the jury may take such evidence into consideration in assessing whether defendant had a motive to commit the theft that is charged. In such distinctive circumstances, the evidence of motive in terms of financial need is not conceptually different from other types of motive evidence that may be offered for the jury's consideration. In this case, the motive evidence was not collateral to the embezzlement offense that was charged.
Defendant further contends that the prosecutor improperly argued to the jury that defendant had the ability to alter the bookkeeping records, but there was no evidence presented at the trial to support that argument. A prosecutor may not invite the jury to speculate about facts not in evidence. State v. Frost, 158 N.J. 76, 85 (1999). While a prosecutor may present to the jury the State's theory of the case, the presentation "will constitute prosecutorial misconduct if it draws unreasonable inferences from the evidence adduced at trial." State v. Papasavvas, 163 N.J. 565, 616, corrected by 164 N.J. 553 (2000). Here, we agree with the trial court's ruling that the prosecutor's remarks were within the range of permissible inference and argument that the jury could accept or reject based on its recollection of the evidence and, in particular, based on defendant's position as bookkeeper.
Next, defendant argues that the prosecutor impermissibly shifted the burden of proof to her to prove that she was innocent when the prosecutor argued to the jury that defendant had failed to identify the "mysterious thief" who had stolen the money. In cross-examining defendant, the prosecutor noted defendant's concession that almost $68,000 was missing during the time that she was responsible for keeping the books. Focusing on her testimony on direct examination that other persons had access to the computerized records - such as the prior bookkeeper - the prosecutor asked defendant a series of pointed questions inquiring about the access of those other people to all the necessary information and transactions to have been able to commit the embezzlement, as compared to defendant's access. In his questioning, the prosecutor converted the defense acknowledgment of "mysterious entries" in the books to the phrase "mysterious thief," and he repeatedly used that phrase in asking defendant if such a person had access to needed information or transactions to have been able to commit the thefts. In summation, the prosecutor argued that defendant had not identified while on the witness stand who the "mysterious thief" was who embezzled the money.*fn1
In the context of defendant's testimony and the arguments of defense counsel pointing to other persons potentially responsible for the theft, the prosecutor's questions and argument were not an improper attempt to shift the burden of proof to defendant. Rather, as the trial court stated, the questioning and argument were "saying to the jury, circumstantially, that the only person that is in the position, who could have committed this offense, at least, in the State's mind, is the defendant."
The prosecutor's argument challenged defendant's testimony and defense arguments in order to rule out other suspects that defendant had affirmatively suggested might have committed the embezzlement. The prosecutor was not generally implying that defendant had an obligation to prove her innocence. Furthermore, the court's instruction made it clear to the jury that the prosecution bore the burden of proof at all times. We agree with the trial court that, in the circumstances presented, there was no prosecutorial misconduct depriving defendant of a fair trial. See State v. Koskovich, 168 N.J. 448, 488-89 (2001); State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Finding no reversible error in the conduct of the trial, we affirm defendant's conviction for third-degree theft.
With respect to the sentence imposed, defendant contends that the court erred in ordering restitution of $67,990.67 without first conducting a hearing to determine whether she has the ability to pay that sum. Defendant did not dispute the amount of the loss to Skytop Gardens, and although she did not specifically request a hearing on her ability to pay, she also made no concession that she had the means to make restitution. At the time of sentencing, defendant was unemployed, cared for three children, and had debts of more than $30,000.
When ordering payment of restitution pursuant to N.J.S.A. 2C:44-2b, the sentencing court must find that "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2b(2). "The statute grants to the court considerable discretion in evaluating a defendant's ability to pay[,]" and "[t]he evaluation is necessarily imprecise because it contemplates an examination of the future ability to pay if the defendant currently does not have financial resources." State v. Newman, 132 N.J. 159, 169 (1993). But the sentencing process requires notice and a hearing in which a defendant has the opportunity to present evidence on the amount of loss to the victim and her ability to pay for that loss. See State v. Kennedy, 152 N.J. 413, 425 (1998); State v. Bausch, 83 N.J. 425, 435-36 (1980).
In this case, the court made no finding of defendant's ability to pay. See State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001). Consequently, we must remand to the sentencing court to determine defendant's financial circumstances and whether she can pay the full sum of the restitution ordered, and, if she cannot pay the full amount, to make an appropriate modification in the judgment of conviction. See State v. McLaughlin, 310 N.J. Super. 242, 263-65 (App. Div.), certif. denied, 156 N.J. 381 (1998).
Defendant's conviction and sentence are affirmed, except that the matter is remanded for a hearing on defendant's ability to pay the restitution as ordered. We do not retain jurisdiction.