On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
Defendant Larry Kushner appeals from his conviction and sentence for second-degree theft by deception, N.J.S.A. 2C:20-4, and third-degree failure to file a tax return, N.J.S.A. 54:52-8. For the reasons that follow, we affirm.
The record reveals that defendant and his wife were arrested on February 8, 2007, on charges alleging credit card fraud and identity theft. On May 12, 2008, a grand jury charged defendant with five counts of second-degree theft by deception (counts one-five), N.J.S.A. 2C:20-4; two counts of third-degree theft by deception (counts six-seven), N.J.S.A. 2C:20-4; second-degree theft of identity (count eight), N.J.S.A. 2C:21-17a(1); fourth-degree false statements made in procuring a credit card (count nine), N.J.S.A. 2C:21-6b; third-degree fraudulent use of a credit card (count ten), N.J.S.A. 2C:21-6h; four counts of third-degree failure to file returns or reports (counts eleven, thirteen, fifteen, and seventeen), N.J.S.A. 54:52-8; and four counts of third-degree failure to pay or turn over taxes (counts twelve, fourteen, sixteen, and eighteen), N.J.S.A. 54:52-9. The charges stemmed from allegations that defendant and his wife failed to return over one million dollars obtained from seven members of their religious community.
On September 14, 2010, defendant pled guilty to counts four and fifteen of the indictment. The plea agreement contained the following provision: "Restitution has been determined by the Prosecutor's Office to be $1,122,200. Defendant reserves right to present evidence contesting the amount of restitution prior to sentence." Defendant agreed that the restitution amount was to become a civil judgment against him. Under the agreement, all charges against defendant's wife and all remaining charges against defendant were to be dismissed.
During the September 14, 2010 plea hearing, the judge engaged in extensive questioning to ascertain whether defendant understood the terms of the agreement. Defendant, who had both an accounting degree and a law degree, admitted that restitution was set at $1,122,200, subject to defendant submitting evidence before sentencing that the amount should be lowered. The judge pointed out that defendant would have enough time to produce the evidence since the sentencing was not scheduled for four months. After defendant provided a factual basis for both counts, the court accepted his guilty plea.
As part of the plea agreement, defendant reserved the right to bring a speedy trial motion. On October 8, 2010, defendant filed a motion to dismiss the indictment for lack of a speedy trial. The trial judge heard and denied defendant's motion on November 18, 2010.
At the sentencing hearing on January 28, 2011, defendant requested a two or three day adjournment, in part to afford him time to present evidence supporting a lower amount of restitution. The judge denied defendant's request on the basis that he had already granted a three week adjournment once in January for defendant to get ready for the hearing and that defendant had nearly five months to provide the court with his evidence concerning the amount of restitution. Further, the judge provided, if defendant produced documentation after his sentencing to demonstrate that the restitution amount should be reduced because he had made payments to the victims, that the judge would enter an amended judgment of conviction reflecting the lesser amount.
Despite his agreement at the plea hearing, defendant refused to have the restitution amount become a civil judgment against him until the amount was settled. Defense counsel assured the judge that defendant "will compensate the victims . . . I don't want it to be misconstrued when he's questioning the amount of restitution, that he's not going to pay the restitution back."
The defendant also asked the judge to sentence him to probation to allow him to earn money in order to rapidly repay the victims. Again defense counsel stated, "[i]t is his intent to pay these people back ." Defendant made repeated reference to a pending employment opportunity that would enable him to repay most of the restitution amount in a matter of weeks. In stating again that he would pay back all his victims, defendant noted: "It's an opportunity for me to restore my name, be with my family. . . . I pled guilty to one person, the restitution deals with many more than that." The judge responded, "I understand you're not denying as to the others." Later, defendant added, "I would get the ability to pay people back, make restitution, and do right by everybody . . . ." At least eight times during the hearing defendant directly or through counsel assured the judge that he fully intended to pay restitution to all the victims.
After balancing the aggravating and mitigating factors, the court sentenced defendant to an aggregate term of seven years imprisonment with an order of restitution amounting to $1,122,200 for all seven victims. The judge dismissed all charges against defendant's wife as ...