On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-10-0751.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 21, 2011 -
Before Judges Fuentes, Graves and Harris.
On March 31, 2010, a jury convicted defendant Tubal Eduardo of third-degree theft by failure to make required disposition of property, N.J.S.A. 2C:20-9. The trial court sentenced defendant to a three-year period of probation conditioned upon his incarceration in the Somerset County Jail for 364 days. In addition, defendant was ordered to pay restitution in the amount of $33,351.24 to a trust established for the benefit of his three-year-old son. For the reasons that follow, we affirm.
On March 17, 2007, a fire at defendant's residence resulted in the death of defendant's girlfriend, and two of their three children. Defendant and their third child survived.
Following the fire, the president of a local Parent Teacher Association (PTA), initiated a fundraising campaign. Although donations were solicited for the "Eduardo Family Fund," the intended beneficiary was defendant's son. Over the next few months, the PTA collected a total of $38,351.24 in donations which were placed in a special bank account.
Defendant and his son were both hospitalized as a result of injuries sustained in the fire. After the child was released from the hospital, he stayed with his maternal aunt, Nicole Latch. Thereafter, while defendant remained hospitalized, Latch retained counsel and filed an application to obtain temporary custody of the child. According to Latch, she wanted "to make sure [the child] was safe and had a stable home," and that the money collected by the PTA "was put in a safe place."
On March 26, 2007, a family court judge in Somerset County entered an order to show cause (OTSC) that allowed Latch to retain temporary custody of the child pending the return date of the order. The OTSC prohibited defendant from "[t]ransferring or dissipating any funds from any trust set up on behalf of the minor child." Once defendant was released from the hospital, he received a copy of the OTSC, and retained an attorney "[t]o get [his] son back."
Both defendant and Latch were present at the Somerset County Courthouse with their respective attorneys on April 27, 2007, the adjourned return date of the OTSC. With the assistance of their attorneys, the parties were able to reach an agreement regarding custody, parenting time, and the proceeds of the PTA fundraising campaign. The agreement was memorialized in an order dated June 12, 2007. Paragraphs one, two, and nine of the order provided as follows:
1. The parties shall share joint legal and physical custody of the minor child . . . pending further order of the Court.
2. The defendant shall have parenting time every other weekend with pick up at daycare on Friday until Sunday at 4:00 P.M. The defendant shall stay with the child at his mother's residence. On alternative weekends, the defendant shall have parenting time on either Saturday or Sunday from 10:00 A.M. to 7:00 P.M. During the week, defendant shall have parenting time on Tuesday and Thursday. Defendant shall pick up the child from daycare. Plaintiff to pick up the child at defendant's mother's residence. All pick ups and drop offs shall be curbside.
9. Any moneys received for the benefit of [the child] shall be placed in a joint guardian account naming [the child's maternal grandmother] and Tubal Eduardo as co-holders of the account. No moneys shall be removed from the account without agreement of the [parties] and signatures of both of them. The parties agree they shall act reasonably in the best interest of the minor child.
Unfortunately, the PTA was not aware of the order. Approximately three months later, in September 2007, the PTA president gave two checks to defendant's brother based on his representation that he and Latch had agreed they would be "guardians of the [funds] until [the child] was of age." One check in the amount of $5000 was made ...