July 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
COREY R. MOORE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2013.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-08-0437.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, of counsel and on the brief).
Before Judges Koblitz and Accurso.
A jury found defendant Corey R. Moore guilty of forgery, N.J.S.A. 2C:21-1a(2), a crime of the third degree, and the judge sentenced him to a four-year term of imprisonment to be served consecutive to a sentence defendant was then already serving.
Defendant raises the following arguments.
THE TRIAL JUDGE ERRED IN ALLOWING INTO EVIDENCE  OTHER CHECKS DRAWN ON THE SAME BANK OF AMERICA ACCOUNT PURPORTED TO BE FROM THE SAME HOME HEALTH CARE COMPANY AS THAT GIVEN BY THE DEFENDANT (Not Raised Below).
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Having considered these arguments in light of the record and existing law, we conclude that the alleged trial error was not clearly capable of producing an unjust result, and that defendant's argument as to his sentence is meritless.
On June 19, 2010, defendant presented a check made payable to his order to a sales clerk at Parker Jewelers in Salem and received $751.22. The check, signed by Carolyn Stevenson on behalf of Care Source and drawn on Bank of America, was fraudulent. The Director of Operations of Care Source testified that his company does not have an account with Bank of America, and no one by the name of Carolyn Stevenson has ever worked for the company. He also testified that defendant had never worked for the company and that he could think of no reason why Care Source would issue a check to him.
The owner of the jewelry store testified that the store regularly cashed checks for customers having an account at the store. She identified defendant in court and on a surveillance video played for the jury which showed defendant cashing the check at the store. She testified that defendant had cashed the check on a Saturday. As an employee readied checks for deposit on Monday morning, the owner testified that she was opening the mail. In the mail were several returned checks, all drawn on Bank of America. When she asked her employee whether any of the checks to be deposited were drawn on Bank of America, the employee identified defendant's check. Hoping to avoid any further charges for returned checks, the owner called the bank and Care Source to verify whether the check was valid. After learning that the check was invalid, the owner attempted to contact defendant to make good on the check. When that was unsuccessful, she turned the check over to the police.
Defendant was well-known at the jewelry store, he and his family having done business there for several years. In addition to being identified by the owner, defendant was also identified by the sales clerk who accepted the check from defendant, as well as by another clerk who had gone to high school with him.
Defendant did not testify. The defense conceded that the check was fraudulent but contended that the State had failed to prove that defendant knew it was bogus when he presented it to be cashed by the jewelry store. The defense contended that no one would attempt to pass a bad check at a place where he was well known by almost everyone in the store and do so on videotape. Defendant claims that the admission of evidence that other similar bad checks had been recently presented to the jewelry store amounted to evidence that would permit the jury to find him guilty because he is a bad person, contrary to N.J.R.E. 404(b). Because defendant did not raise any objection to this evidence in the trial court, he must establish plain error — error clearly capable of producing an unjust result. R. 2:10-2.
As evidence of defendant's bad conduct on another occasion "has a 'unique tendency' to prejudice a jury against the defendant, it must be admitted cautiously." State v. Gillispie, 208 N.J. 59, 85 (2011) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). Rule 404(b) is designed to avoid that consequence by prohibiting use of evidence of defendant's bad conduct to "prove the disposition of a person in order to show that such person acted in conformity" with that disposition. N.J.R.E. 404(b). Although the rule refers to "evidence of other crimes, wrongs or acts, " evidence and arguments to the jury suggestive of a defendant's prior criminal activity — such as gang membership, mugshots, references to defendant being in jail or prison, and aliases suggesting membership in a criminal class — have all been held to implicate Rule 404(b). See State v. Harris, 156 N.J. 122, 172-73 (1998); State v. Goodman, 415 N.J.Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); State v. Salaam, 225 N.J.Super. 66, 72-76 (App. Div.), certif. denied, 111 N.J. 609 (1988); State v. Childs, 204 N.J.Super. 639, 651-52 (App. Div. 1985).
Here, however, the evidence defendant contends suggested his prior involvement in criminal activity did not relate to him at all. The owner of the jewelry store testified that she inquired about defendant's check because it was drawn on Bank of America, the bank on which several recently returned checks had been drawn. There was no testimony that defendant had been somehow involved with those other checks, or that they were drawn on the same account or signed by the same person. The brief reference by the owner to other bad checks could not have been reasonably understood by the jury to suggest that defendant had passed bad checks to the jewelry store before. As defendant pointed out, he was well known to the jewelry store owner and most of her employees. Had there been any connection between defendant and those checks, it would have been obvious to her. As no such connection was testified to, the only reasonable conclusion was that no connection existed. Accordingly, we do not agree that this evidence implicated Rule 404(b), or that its admission was otherwise capable of producing an unjust result.
We have considered the arguments defendant has offered to establish that his sentence is excessive and determined that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant had two prior indictable convictions. The court acknowledged defendant's willingness to make restitution and his amenability to probation. The judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).