STATE OF NEW JERSEY VS. ANNA N. TALIAFERRO(10-12-0179, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5494-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANNA N. TALIAFERRO,
Defendant-Appellant.
_____________________________
Argued May 10, 2017 – Decided July 18, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
10-12-0179.
Frank M. Gennaro, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Mr. Gennaro, on the
brief).
Brian Uzdavinis, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Mr.
Uzdavinis, of counsel and on the brief).
PER CURIAM
Defendant Anna Taliaferro appeals from the May 15, 2014
judgment of conviction, after a jury found her guilty of second-
degree official misconduct, N.J.S.A. 2C:30-2; second-degree
pattern of official misconduct, N.J.S.A. 2C:30-7(a); second-degree
theft by deception, N.J.S.A. 2C:20-4; third-degree tampering with
public records or information, N.J.S.A. 2C:28-7; third-degree
forgery, N.J.S.A. 2C:22-1; and second-degree misconduct by a
corporate official, N.J.S.A. 2C:21-9(c). We affirm the
conviction, however, we remand for re-sentencing consistent with
this opinion.
Defendant worked in the Paterson School District (District)
from 1970 until 2007. In 1974, defendant became Paterson's Title
One parent coordinator. Title One is a federal program "to provide
all children significant opportunity to receive a fair, equitable,
and high-quality education and to close educational achievement
gaps," 20 U.S.C.A. § 6301, and provides federal grants to state
educational agencies for this purpose. 20 U.S.C.A. § 6311. Each
school receiving grant money was required, among other things, to
"convene an annual meeting . . . , to which all parents of
participating children shall be invited and encouraged to attend,
to inform parents of their school's participation . . . and to
explain the requirements of [Title One] and the right of the
parents to be involved." 20 U.S.C.A. § 6318(c)(1).
Defendant's implementation of these mandated annual meetings
using Title One grant money through the Parent Resource Center
2 A-5494-13T2
(PRC) is the focus of this case. Defendant was the District-wide
parent coordinator, and eventually Supervisor for the PRC, whose
responsibilities included participating and assisting in all
school-related parenting activities on a District, state, and
national level.
In the 1980s, defendant helped create the New Jersey
Association for Parent Coordinators (NJAPC), a non-profit
corporation with goals mirroring those of the PRC, and eventually
became the president of the entity. The NJAPC started holding
conferences in the 1990s, and defendant used her District office
to plan and organize the conferences for parents and NJAPC during
work hours. The purpose and objectives of the NJAPC and PRC were
similar.
The primary function of the NJAPC was to plan and host the
annual parent conferences with the New Jersey Department of
Education (NJDOE). The NJAPC organized the annual parent
conferences using Title One grant money from school districts,
including the District. The NJAPC operated out of the PRC office
and funded itself through fees collected for the conferences.
Defendant retained decision-making authority for both the
NJAPC and the PRC. As president of the NJAPC, defendant presided
over, organized, and ran the NJAPC during regular business hours
using District offices, employees, equipment, and resources.
3 A-5494-13T2
District employees prepared for the annual parent conferences at
defendant's behest during District work hours. District email
addresses, telephones, and fax numbers appeared on NJAPC
letterheads.
The NJAPC set the parent conference fees and charged the
school districts, including the District, for each parent
participating in the annual conferences. The conferences were
held at a hotel, and attendee costs included registration fees,
lodging fees, and meal fees. In her capacity as parent coordinator
for the PRC, defendant was the liaison between the District and
the NJAPC, and she provided the District's initial funding approval
for money to be disbursed to her in her other role at the NJAPC.
District officials were aware of the arrangement, at least
in part, and offered oversight, which defendant considered
sanctioned her conduct. Defendant's supervisor at the District
was aware of defendant's dual roles for the PRC and NJAPC. Other
witnesses from the District and NJDOE were aware defendant was
associated with the NJAPC. Defendant asserts every District
superintendent, to whom she reported, was aware of her affiliation
with the NJAPC and her role as president of the NJAPC was prominent
on conference programs. Some District and NJDOE officials knew
of and even encouraged NJAPC's use of the District's office and
equipment.
4 A-5494-13T2
However, some District officials involved in approving
funding and overseeing defendant in her capacity as a PRC parent
coordinator were unaware of overcharges by the NJAPC. Some
officials were unaware the NJAPC was using District offices,
employees, equipment, and resources.
Between 2003 and 2007, the NJAPC received over $1.4 million
with approximately $655,000 coming from the District. One of the
allegations leveled against defendant is the NJAPC overcharged the
District by $191,885.21 and defendant personally benefitted
therefrom. According to District officials, any overage or surplus
in charges to the District should have resulted in a credit or
refund to the District. Defendant denied submitting false purchase
orders and insisted the NJAPC purchase orders were accurate.
Of particular concern were payments made to defendant's son,
Thomas Taliaferro (Thomas), for providing information technology
services. He received a monthly salary for those services. He
also provided technology services at each of the annual conferences
for additional stipends of up to $18,000. Testimony elicited at
trial stated Thomas performed minimal work for the PRC or NJAPC
despite using District offices for personal use.
Both defendant and Thomas used debit cards to draw from the
NJAPC corporate account. The majority of Thomas's withdrawals
were for uses in Virginia, where he lived as a musician. Thomas
5 A-5494-13T2
made purchases and cash withdrawals using NJAPC cards for hundreds
of thousands of dollars between 2003 and 2007, and funded the
construction of a recording studio in Virginia Beach. Transactions
were made at electronics stores, car rentals, hotels, and
restaurants. He also used the NJAPC tax identification number to
make purchases free of sales tax. Thomas also received $127,000
in checks and wire transfers from the corporate account.
In addition to using debit cards for personal use, defendant
received four checks from the NJAPC totaling $30,378. In 2007,
defendant directed Shalimar Williams, an NJAPC employee not
authorized to execute checks, to write out a check for $25,000 and
sign it as NJAPC's treasurer, Joann Williams-Harris, the only
other NJAPC official authorized to execute checks.
The School Ethics Act, N.J.S.A. 18A:12-21 to -34, required
defendant to fill out a School Ethics Commission Personal/Relative
and Financial Disclosure Form for District employees each year.
See also N.J.S.A. 18A:12-26. The forms require disclosure of
various financial interests from the previous calendar year,
including any source of personal income received by defendant or
an immediate family member in excess of $2,000, or compensation
for a financial interest held by defendant, relative, or any
business that was party to a contract with the District. The
forms require disclosure of fees, expenses, or reimbursements of
6 A-5494-13T2
aggregate amounts over $250 received by District employees. From
2003 to 2007, defendant made no disclosures on behalf of herself
or Thomas. Defendant reported the $25,000 check as income on her
tax returns but did not list it in the disclosure forms.
Based on the foregoing, a December 13, 2010 indictment charged
defendant with various crimes between February 13, 2003, and July
6, 2007. Count one alleged defendant engaged in official
misconduct: by not disclosing her employment and financial
interest in the NJAPC in her annual ethics disclosures; creating
the false impression the NJAPC was an entity with which she or a
relative had no financial or personal involvement; hiring the
NJAPC as an outside vendor for the annual parent conferences;
utilizing District employees and equipment on behalf of the NJAPC;
overcharging the District through the NJAPC; and directing a
District employee to forge a check in excess of $200. Count two
alleged defendant engaged in a pattern of official misconduct by
committing two or more acts of official misconduct.
Count three alleged defendant committed theft by deception
by obtaining $102,226.811 from the District by overcharging the
District for the parent conferences and tampering with public
records or information by making false entries in government
1
This amount was subsequently amended to $191,885.21 and is not
disputed by defendant.
7 A-5494-13T2
documents or records. Count four charged defendant with forgery
for presenting a check for $25,000 knowing it was not authorized
and the signature was forged. The final count charged defendant
committed misconduct by a corporate official for using the NJAPC
to further defendant's criminal objectives and derive a benefit
in excess of $75,000.
Defendant moved to dismiss the indictment on September 26,
2013. The motion was denied and trial was conducted between
October 2, 2013 and December 26, 2013.
On November 19, 2013, defendant moved for acquittal based on
the State's failure to present sufficient evidence and convict.
The judge issued a preliminary denial of the motion but did not
provide a statement of reasons for his denial until after the jury
verdict. The jury found defendant guilty on all seven counts on
December 26, 2013.
On May 15, 2014, the trial judge sentenced defendant to a
term of five years in state prison on each count, to run
concurrent, with five-year period of parole ineligibility on
counts one through three, two-year parole period of parole
ineligibility on counts four and five, and flat sentences on counts
six and seven. On June 5, 2014, the judge granted defendant's
motion for bail pending appeal.
On appeal, defendant raises the following arguments:
8 A-5494-13T2
POINT I
DEFENDANT WAS ENTITLED TO JUDGMENTS OF
ACQUITTAL ON EACH OF THE COUNTS IN THE
INDICTMENT.
A. THEFT BY DECEPTION.
B. OFFICIAL MISCONDUCT.
C. TAMPERING WITH PUBLIC RECORDS.
D. FORGERY.
E. MISCONDUCT BY A CORPORATE
OFFICIAL.
POINT II
THE JURY CONSIDERED ACTS OUTSIDE THE STATUTE
OF LIMITATIONS ON THE OFFICIAL MISCONDUCT,
PATTERN OF OFFICIAL MISCONDUCT, AND THEFT BY
DECEPTION COUNTS.
POINT III
THE JURY'S VERDICT CANNOT SUPPORT A CONVICTION
FOR A PATTERN OF MISCONDUCT.
POINT IV
THE JURY INSTRUCTIONS AND VERDICT SHEET WERE
INADEQUATE, CONFUSING AND MISLEADING.
POINT V
THE TRIAL COURT ADMITTED IMPROPER LAY OPINION
TESTIMONY ON THE ULTIMATE FACTUAL ISSUE.
POINT VI
THE TRIAL COURT ADMITTED IMPROPER "OTHER
CRIMES" EVIDENCE.
POINT VII
THE TRIAL COURT'S REFUSAL TO DOWNGRADE THE
CONVICTIONS AND WAIVE THE PERIOD OF PAROLE
INELIGIBILITY WERE AN ABUSE OF DISCRETION;
COUNTS THREE THROUGH SIX SHOULD HAVE BEEN
MERGED; AND RESTITUTION WAS IMPROPERLY
IMPOSED.
9 A-5494-13T2
I.
Turning to defendant's first argument, we address the
applicable standard of review. Rule 3:18-1 provides defendants
with a mechanism for seeking a judgment of acquittal at the close
of the State's case. The standard governing such motions is set
forth in State v. D.A., 191 N.J. 158, 163 (2007):
On a motion for judgment of acquittal, the
governing test is: whether the evidence
viewed in its entirety, and giving the State
the benefit of all of its favorable testimony
and all of the favorable inferences which can
reasonably be drawn therefrom, is such that a
jury could properly find beyond a reasonable
doubt that the defendant was guilty of the
crime charged.
[(citing State v. Reyes, 50 N.J. 454, 458-59
(1967)).]
Our review of a trial court's denial of a motion for acquittal
is "limited and deferential[,]" and is governed by the same
standard as the trial court. State v. Reddish, 181 N.J. 553, 620
(2004).
Defendant challenges her conviction based on the judge's
denial of her motion for acquittal. On January 2, 2014, following
defendant's conviction, the judge offered his reasoned denial of
defendant's motion applying the Reyes standard viewing the
evidence in its entirety, and giving the State "the benefit of all
10 A-5494-13T2
its favorable testimony and . . . inferences which reasonably
could be drawn therefrom." See Reyes, supra, 50 N.J. at 458-59.
The heart of defendant's challenge to her conviction for
theft by deception is the lack of evidence of an agreement stating
the District promised to pay only NJAPC's actual costs to conduct
the conferences, and conversely, the lack of evidence of an
obligation to refund overpayments. Relying on the Reyes standard,
the judge found ample evidence to support a conviction for the
offense.
A person may be convicted of theft by deception if he or she
purposely
[c]reates or reinforces a false impression,
including false impressions as to law, value,
intention or other state of mind, and
including, but not limited to, a false
impression that the person is soliciting or
collecting funds for a charitable purpose; but
deception as to a person's intention to
perform a promise shall not be inferred from
the fact alone that he [or she] did not
subsequently perform the promise[.]
[N.J.S.A. 2C:20-4(a).]
Theft by deception "occurs where one obtains the property of
another by purposely creating a false impression." State v.
Krueger, 241 N.J. Super. 244, 249 (App. Div. 1990) (quoting State
v. Talley, 184 N.J. Super. 167, 169 (App. Div. 1982), rev'd on
other grounds, 94 N.J. 385, 388 (1983)).
11 A-5494-13T2
Viewing the State's evidence in a favorable light, the proofs
demonstrated defendant oversaw both the NJAPC and the PRC, and the
NJAPC charged the PRC more than it needed to pay for the
conferences. Defendant and Thomas derived a benefit through
personal receipt of NJAPC monies. Defendant provides no legal
support for the contention an agreement between the parties (or
lack thereof) would nullify the State's ability to satisfy the
elements of theft by deception. Whether defendant purposely
overcharged the District is a question of fact for the jury. The
existence, or non-existence, of a refund agreement or policy is
not a legal bar to conviction. Moreover, testimony from the
various District officials asserted overcharges paid by the
District should have resulted in a credit or refund to the
District, as outlined in the District's policy's and purchasing
procedures and the employee handbook. The District's failure to
prevent defendant from retaining fees not spent on conference
bills does not sanction the conduct.
Defendant's argument with respect to official misconduct2
focuses on her state of mind. She denies taking action she knew
to be unauthorized; the District acquiesced in her conduct and
2
Defendant was acquitted on the allegation in count one that
she committed official misconduct by "[d]irecting a subordinate
[District] employee to forge the signature of another employee on
[a] NJAPC check[.]"
12 A-5494-13T2
should have advised her she was engaging in criminal wrongdoing
subject to charges. We reject defendant's argument.
Four elements must be demonstrated:
(1) defendant was a 'public servant' within
the meaning of the statute, (2) who, with the
purpose to obtain a benefit or deprive another
of a benefit, (3) committed an act relating
to but constituting an unauthorized exercise
of her office, (4) knowing that such act was
unauthorized or that she was committing such
act in an unauthorized manner."
[State v. Saavedra, 222 N.J. 39, 58 (2015)
(citing State v. Thompson, 402 N.J. Super.
177, 191-92 (App. Div. 2008)).]
See also N.J.S.A. 2C:30-2.
Here, the State's theory was two-fold: first, defendant
appropriated District funds to which she was not entitled by
overcharging, using District resources, and second, she ignored
the obligation to refund overcharges. Defendant argues she was
unaware the NJAPC was not entitled to amass a profit from sums the
District paid, and she did not know she had an obligation to refund
overcharges. Hence, there are elements of misfeasance and
nonfeasance.
There was sufficient evidence to demonstrate active
misfeasance because, among other things, defendant made
misrepresentations on her school ethics disclosure forms,
13 A-5494-13T2
overcharged the District on behalf of the NJAPC (and derived a
benefit therefrom), and misused District employees and resources.
In order to convict a person of official misconduct by
nonfeasance, the duty to act must be "so clear that the public
servant is on notice as to the standards that he must meet." Ibid.
(citing State v. Hinds, 143 N.J. 540, 545-46 (1996)). Such notice
must be clear so as to avoid prosecuting public officials for a
"mere breach of good judgment." Hinds, supra, 143 N.J. at 546
(citing Cannel, New Jersey Criminal Code Annotated, cmt. on
N.J.S.A. 2C:3-2).
There was also sufficient evidence to demonstrate defendant's
misconduct by nonfeasance because she did not refund overcharges
to the District. Defendant's argument no one at the District
imposed an affirmative obligation to refund overcharges is belied
by the policies and procedures set out in the employee handbook.
District officials were aware of and encouraged defendant's
participation in the NJAPC, but some District officials were not
aware how defendant's participation in the PRC and NJAPC benefitted
defendant and Thomas, or the extent to which she was using District
resources. Defendant's knowledge of her own wrongdoing is
corroborated by evidence showing she and Thomas used Title One
grant money for personal use.
14 A-5494-13T2
In light of the foregoing considerations and viewed in a
favorable light, the evidence put forth by the State was sufficient
to lead to a conviction. There was at least a scintilla of
evidence in existence which, when viewed in a light favorable to
the State, set forth a prima facie cause for conviction. See
State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000)
(quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div.
1974), certif. denied, 67 N.J. 72 (1975)).
Defendant asserts she is arguably responsible only for
ethical violations not criminal conduct. In State v. Thompson,
we overturned criminal liability for conduct that violated
conflict of interest laws, N.J.S.A. 52:13D-23, because those
ethical violations did not provide sufficient notice such
misconduct would lead to a criminal conviction. 402 N.J. Super.
177, 197-204 (App. Div. 2008). We reasoned while a criminal
prosecution could not arise based on a violation of certain ethical
rules alone, we recognized a person could be convicted for
acceptance of a benefit for violating an official duty defined by
ethical rules. Id. at 201. Here, defendant's conduct exceeded
mere ethical transgression because she personally profited from
misapplication of public funds, among other things. Defendant
offers no authority for the proposition either NJAPC or she were
15 A-5494-13T2
personally entitled to retain public funds collected and not used
to pay for conferences.
Finally, we reject defendant's argument she did not hide her
affiliation with the NJAPC and that the State alleged she "hid"
her affiliation. Her leadership of the NJAPC was not the issue.
The indictment alleges she hid her financial interest in the NJAPC.
With respect to tampering with public records, defendant
contends she did not knowingly include false information on the
financial disclosure statements. She again asserts her
affiliation with the NJAPC was not hidden.
Pursuant to N.J.S.A. 2C:28-7(a)(1), a person tampers with
public records or information if he or she "[k]nowingly makes a
false entry in, or false alteration of, any record, document or
thing belonging to, or received or kept by, the government for
information or record, or required by law to be kept by other for
information of the government." Here, defendant oversaw the
preparation of and presented the District with financial
disclosure forms and purchase orders. Both sets of documents
contained false information. The forms were regularly exchanged
between the District and defendant, either in her capacity as a
PRC Supervisor or as president of the NJAPC.
Defendant argues she should have been acquitted of forgery
because she was entitled to compensation for years of service even
16 A-5494-13T2
though the NJAPC was a non-profit corporation. She further
contends no one was defrauded or injured and the check was a
genuine instrument to pay her $25,000, which was legal for NJAPC
to do.
Defendant misconstrues the alleged offense. A person commits
an act of forgery when he or she, "with purpose to defraud or
injure anyone, or with knowledge that he [or she] is facilitating
a fraud or injury to be perpetrated by anyone, . . . [a]lters or
changes any writing of another without his [or her] authorization."
N.J.S.A. 2C:21-1(a)(1).
When viewed in a light favorable to the State, the evidence
showed defendant instructed an NJAPC official who had no check-
writing authority to execute a check to defendant using the
signature of another individual without that individual's consent
or knowledge. Defendant's argument "no one was defrauded or
injured" fails as testimony revealed she directed payment to
herself and benefitted from sums of grant money otherwise earmarked
for Title One objectives.
Finally, defendant repeats many of the reasons given above
to assert the State failed to prove misconduct by a corporate
official. An individual may be convicted of misconduct by a
corporate official if the individual "purposely or knowingly uses,
controls or operates a corporation for the furtherance or promotion
17 A-5494-13T2
of any criminal object." N.J.S.A. 2C:21-9(c). We disagree with
defendant for the same reasons discussed above. Defendant was
president of the NJAPC who maintained total control over its
operation.
II.
Defendant's next argument concerns the timeframe of the
indictment, which is a question of law. "A trial court's
'interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference.'"
State v. Twiggs, 445 N.J. Super. 23, 28 (App. Div. 2016) (quoting
State v. Pomianek, 221 N.J. 66, 80 (2015)). Where a trial court
"resolve[s] an issue of law in construing a statute, [its]
determinations are reviewed de novo." In re Expungement Petition
of J.S., 223 N.J. 54, 72 (2015) (citing State v. J.D., 211 N.J.
344, 354 (2012)); see also State v. Cagno, 211 N.J. 488, 505-06
(2012) (citing State v. Hupka, 203 N.J. 222, 231 (2010)), cert.
denied, 568 U.S. 1104, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).
Defendant argues we should reverse her conviction on counts
one through three because the jury considered acts outside the
applicable statutes of limitations on those counts. We disagree.
The first three counts of the indictment allege defendant
committed acts constituting official misconduct between February
13, 2003, to July 6, 2007. N.J.S.A. 2C:1-6(b)(3) provides a seven-
18 A-5494-13T2
year limitation period for official misconduct, while the
remaining counts are subject to a five-year limitation, pursuant
to N.J.S.A. 2C:1-6(b)(1). The State presented evidence outside
the seven-year period, and defendant objected during trial. The
judge overruled the objections concluding the statute of
limitations on official misconduct does not toll until the official
leaves public office.
"An offense is committed when every element of the offense
occurs or 'at the time when the course of conduct or the
defendant's complicity therein was terminated [when it] plainly
appears' that the Legislature intended to prohibit a continuing
course of conduct." State v. Diorio, 216 N.J. 598, 613 (2014)
(quoting N.J.S.A. 2C:1-6(c)). A continuing offense "involves
conduct spanning an extended period of time and generates harm
that continues uninterrupted until the course of conduct ceases."
Id. at 614 (citing State v. Ireland, 126 N.J.L. 444, 445 (1941)).
Theft by deception can be a "complex scheme involving many persons
or businesses and play out over the course of many days, weeks,
months, or even years." Id. at 618. Similarly, official
misconduct may be considered a continuing offense for "as long as
[the public official] is in office" and is able to "use his [or
her] influence" to achieve the criminal purpose. Id. at 617.
Thus, when there is a continuing offense, the applicable statute
19 A-5494-13T2
of limitations period only begins to run when the course of conduct
is complete.
Defendant argues State v. Childs, 242 N.J. Super. 121 (App.
Div.), certif. denied, 127 N.J. 321 (1990), stands for the
proposition that the aggregation of thefts is a question for the
jury, and each conference was a separate event. In Childs, we
found "theft by deception is a continuing offense for purposes of
the statute of limitations when the defendant is engaged in a
continuing scheme or course of behavior to obtain funds by
deception." Diorio, supra, 216 N.J. at 616 (citing Childs, supra,
242 N.J. Super. at 131). Additionally, "the finder of fact must
first determine whether the thefts are constituent parts of a
single scheme or course of conduct" before aggregating "the amount
involved in two or more thefts." Childs, supra, 242 N.J. Super.
at 131.
Here, defendant's statute of limitations objections were
questions of law determined by the judge, but the underlying facts
in dispute were questions for the jury. The jury found beyond a
reasonable doubt defendant committed the crimes enumerated in
counts one through three and her actions between 2003 and 2007
"constitute[d] one continuous scheme or course of conduct (as
opposed to separate incidents)." Thus, we agree with the trial
judge defendant's maintenance of public office and continuing
20 A-5494-13T2
course of conduct tolled the applicable repose statutes, because
defendant engaged in a pattern of continuing conduct through the
timeframe in the indictment.
III.
Defendant argues the trial judge erred by instructing the
jury if it found defendant guilty of two or more of the acts
enumerated in count one,3 then the jury must find her guilty on
count two. Relying on State v. Quezada, 403 N.J. Super. 277 (App.
Div. 2008), defendant contends because she was convicted of
official misconduct, only one act was committed, and therefore,
there was no pattern.
Defendant did not object to the jury charge or verdict sheet
at the time of trial. Defendant is therefore barred from raising
jury charge issues, because "no party may urge as error any portion
of the charge to the jury or omissions therefrom unless objections
are made thereto before the jury retires to consider its
3
Count one alleges defendant engaged in official misconduct
through the following acts: failing to list her employment and
financial interest in the NJAPC in her annual ethics disclosures;
creating the false impression that the NJAPC was a separate
business entity with no financial or personal involvement by
defendant or a relative; hiring the NJAPC as an outside vendor for
the annual parent conferences, which were funded with Title One
grant monies; utilizing District employees and equipment on behalf
of the NJAPC; improperly charging the District through the NJAPC;
and directing a District employee to forge a check in excess of
$200.
21 A-5494-13T2
verdict[.]" R. 1:7-2. The failure to object raises the
presumption that these instructions were adequate. State v.
Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citing State v.
Macon, 57 N.J. 325, 333 (1971)), certif. denied, 177 N.J. 572
(2003). Thus, the plain error standards applies. See State v.
Vallejo, 198 N.J. 122, 140 (2009) (quoting State v. Burns, 192
N.J. 312, 341 (2007)).
Here, unlike in Quezada, defendant was not charged with
multiple counts of official misconduct, only one count of official
misconduct with multiple instances of misconduct contained within,
and one count of pattern of misconduct. Because the jury found
defendant committed more than two of the acts from count one,
defendant could also be convicted of count two. We reject the
argument defendant was punished twice for the same offense, and
based on our review of the record, we find no plain error in the
instruction.
IV.
Defendant argues the jury instructions and verdict sheet for
official misconduct were inadequate, confusing, and misleading
because the judge "refus[ed] to instruct the jury as to the defense
of mistake of fact or law," or "that, for purposes of official
misconduct, an act cannot be unauthorized if permitted by policy
or practice." Defendant contends the instructions regarding
22 A-5494-13T2
certain ethical standards was misleading and the verdict sheet was
inadequate because it did not require the jury to find whether an
unauthorized act resulted in a benefit to her or to Thomas.
When a claim of error is made on appeal for an unchallenged
jury charge, it will be considered plain error if it "prejudicially
affect[s] the substantial rights of the defendant." State v.
R.B., 183 N.J. 308, 321-22 (2005) (quoting State v. Hock, 54 N.J.
526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26
L. Ed. 2d 797 (1970)).
Here, the judge charged the jury regarding defendant's state
of mind at the time she committed the crimes in a manner
inconsistent with the model jury charges, see Model Jury Charge
(Criminal), "Ignorance or Mistake" (May 7, 2007). Defendant is
correct the judge erred holding defendant did not provide proper
notice, pursuant to Rule 3:12-1, of the defense of ignorance or
mistake as to a matter of fact or law, N.J.S.A. 2C:2-4(a), because
such notice is only required if a defense asserted to N.J.S.A.
2C:2-4(c) is raised. R. 3:12-1. However, the error is harmless.
The judge declined to include language in the charge that an
act is "not unauthorized" if permitted "by policy or practice."
Considering the totality of the entire charge, the jury was not
"misinformed as to the controlling law." See R.B., supra, 183
N.J. at 324. The jury heard testimony about the District policies,
23 A-5494-13T2
as well as contradicting testimony regarding defendant's and
District's actual practices and the NJAPC's actual practices. The
jury was free to consider such testimony in reaching a verdict.
Finally, we reject defendant's argument the verdict sheet was
misleading because it did not specifically identify who benefitted
from defendant's misconduct. The verdict sheet tracked the
language of the official misconduct statute and only required a
finding the misconduct was carried out "with purpose to obtain a
benefit for [defendant] or another." N.J.S.A. 2C:30-2. Extensive
testimony demonstrated the benefits defendant and Thomas received
from NJAPC's overcharging the District. The verdict sheets are
clear and understandable, and based on the testimony presented,
the jury could reach a verdict without confusion. Moreover,
defendant did not object.
V.
Defendant argues the judge admitted lay testimony in the
absence of expert testimony on a critical factual issue. She
argues the judge improperly allowed multiple witnesses to give
testimony regarding whether defendant had a duty to refund money.
We disagree.
"[A] trial court's evidentiary rulings are 'entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment.'" State v. Brown, 170 N.J.
24 A-5494-13T2
138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). We do not substitute our own judgment for that of the
trial court, unless "the trial court's ruling was so wide of the
mark that a manifest denial of justice resulted." Ibid. (quoting
Marrero, supra, 148 N.J. at 484). We do not accord deference to
the trial judge's legal conclusions. State v. Nantambu, 221 N.J.
390, 402 (2015). "To the extent [a] defendant's argument . . .
raises a question of law, . . . our review is de novo and plenary."
State v. J.D., 211 N.J. 344, 354 (2012).
Pursuant to N.J.R.E. 702, "[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or
otherwise." Expert opinion must be based on facts or data
"perceived by or made known to the expert at or before the
hearing." N.J.R.E. 703. The facts or data "need not be admissible
in evidence" if it is "of a type reasonably relied upon by experts"
in the relevant field. Ibid. Error in the admission of evidence
is not harmful if the defendant's fundamental rights were not
impaired and the cumulative evidence against the defendant enjoys
great weight. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.),
certif. denied, 170 N.J. 209 (2001).
25 A-5494-13T2
The State elicited testimony from District officials about
their knowledge of defendant's role with the NJAPC and the NJAPC's
overcharging of the District, including testimony regarding
policies and procedures within the District's employee handbook
and the impropriety of operating a corporation using District
offices, equipment and resources on District hours. When
questioning a business administrator regarding the District's
policy for recovery of overcharges, the following exchange took
place:
Prosecutor: [A]nd now per the [District's]
policy, if a purchase order is
approved, [the District] will
be the vendor. And then the
[District] later finds out
that the actual cost was less
than what [the District] paid
to the vendor. Per the
[District's] policies, what
does —
Counsel: [I am] going to object.
. . . .
Counsel: Your [h]onor, she asked him to
speculate and asked him to give
— he assumes there is a policy.
That [has not] been testified
to up to this point.
The court: Well, I [do not] know it asked
for speculation; and I [do not]
know that it asked for an
opinion.
26 A-5494-13T2
[There is] really only one of
two answers. I guess there
could be more. But either the
[answer is] going to be
["]well, we let them keep the
money because it was our
mistake and, you know; or [it
is] going to be no, if we paid
someone and they paid less, we
would expect a refund.["]
I [do not] think that [that is]
something that is beyond the
ken of a juror. I [do not]
think it calls for expert
opinion. I [do not] think [it
is] speculating.
I think [it is] pretty basic to
the business world at all
levels that if someone
overpays for something, they
feel they want a refund. I
[cannot] think of many
examples where that [does not]
happen.
The judge held a hearing outside the presence of the jury to
determine whether the answer was admissible, and permitted the
witness to answer:
Prosecutor: Mr. Assara, per the school
district's policy, what if a
purchase order is approved,
[the District] pays the
vendor, and then the school
district later found out that
the actual cost was less than
what [the District] paid to the
vendor? What would the school
district expect the vendor to
do?
27 A-5494-13T2
Witness: Refund the overpayment.
Another District business administrator testified no overt
agreement existed permitting the NJAPC to retain overages, and
proffered what the District's response would have been had it
known there were overcharges. Defendant objected, and the judge
overruled the objection because the District's response to
overcharges was supported by previous testimony about its purchase
manual.
Defendant argues these witnesses offered expert opinions.
The witnesses did not offer opinions as to defendant's innocence
or guilt and both witnesses' testimony related to their normal
business practices or to previous testimony. Their testimony was
therefore within the permissible scope and did not include
technical or speculative testimony outside the ken of the average
juror. Townsend v. Pierre, 221 N.J. 36, 53 (2015); State v. Kelly,
97 N.J. 178, 208 (1984). We discern no abuse of the court's
discretion.
VI.
Defendant argues the judge erred by admitting evidence of
other crimes, contrary to N.J.R.E. 404(b), without applying the
four-part test promulgated in State v. Cofield, 127 N.J. 328
(1992). In particular, defendant argues the judge should not have
28 A-5494-13T2
admitted evidence of Thomas's expenditures or evidence of the
monies paid to the NJAPC by other unnamed school districts.
Defendant did not object at trial, and the issue is therefore
subject to a plain error analysis. See R. 2:10-2. Because we
view the evidence of Thomas's use of NJAPC funds for personal
reasons and the NJAPC's overcharging of other districts as
intrinsic evidence "exempt from the strictures of [N.J.R.E.]
404(b)," we need not reach defendant's Cofield arguments. See
State v. Rose, 206 N.J. 141, 177 (2011).
Generally, "evidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order to show
that such person acted in conformity therewith." N.J.R.E. 404(b).
In order to admit such evidence "for other purposes," such evidence
is limited as "proof of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue in dispute." Ibid.
The admissibility of evidence pursuant to N.J.R.E. 404(b) is
subject to the four-part Cofield test. Cofield, supra, 127 N.J.
at 338.
However, where evidence "is intrinsic to the charged crime
. . . even if it constitutes evidence of uncharged misconduct that
would normally fall under [N.J.R.E.] 404(b)[,]" such evidence is
not subject to the Cofield test "because it is not 'evidence of
29 A-5494-13T2
other crimes, wrongs, or acts.'" Rose, supra, 206 N.J. at 177.
The key distinction between intrinsic evidence and evidence that
is otherwise subject to an N.J.R.E. 404(b) analysis turns on
whether such evidence is of other crimes. Id. at 179. Borrowing
from the Third Circuit, our Supreme Court has identified two types
of intrinsic evidence subject only to a relevancy analysis pursuant
to N.J.R.E. 403 and not 404(b):
we . . . reserve the "intrinsic" label for two
narrow categories of evidence. First,
evidence is intrinsic if it "directly proves"
the charged offense. This gives effect to
[N.J.R.E.] 404(b)'s applicability only to
evidence of "other crimes, wrongs, or acts."
If uncharged misconduct directly proves the
charged offense, it is not evidence of some
"other" crime. Second, "uncharged acts
performed contemporaneously with the charged
crime may be termed intrinsic if they
facilitate the commission of the charged
crime." But all else must be analyzed under
[N.J.R.E.] 404(b).
[Id. at 180 (quoting United States v. Green,
617 F.3d 233, 248-49 (3d Cir.), cert. denied,
562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d
234 (2010)).]
Defendant correctly notes she was not charged for any
impropriety regarding other school districts or for Thomas's
purchases, and no Cofield analysis was used before the subject
evidence was permitted. However, no Cofield analysis was necessary
because the evidence was of "uncharged acts performed
contemporaneously with the charged crime" because those acts
30 A-5494-13T2
"facilitate[d] the commission of the charged crime." Ibid. The
overcharges and Thomas's personal expenditures were inextricably
linked to defendant's overall scheme to defraud the District and
other school districts. The evidence was intrinsic to a continuing
scheme by defendant to accumulate money in an NJAPC account and
convert it for personal use by defendant and her son.4
VII.
Defendant raises three sentencing arguments: (1) the
convictions on counts one and two should have been downgraded, and
the parole disqualifiers on those counts should have been waived;
(2) counts three through six should have been merged with counts
one and two because the offenses in those counts constituted the
basis of the official misconduct; and (3) no restitution should
4
Even under a Cofield analysis, no reversal is warranted because
the proffered "other crimes" evidence was: (1) "admissible as
relevant to a material issue[,]" namely, defendant's actions in
her capacity as NJAPC President and supervisor of the annual parent
conference preparations; (2) "similar in kind and reasonably close
in time to the offense charged[,]" as any overcharges to other
districts were contemporaneous with overcharges to the District,
and Thomas's personal use of the NJAPC accounts included use of
other district's money; (3) "clear and convincing[,]" given the
extensive testimony and financial proofs presented to the jury;
and (4) permissible pursuant to N.J.R.E. 403, specifically, its
"probative value . . . [was] not . . . outweighed by [any] apparent
prejudice." See Cofield, supra, 206 N.J. at 159-60. As noted by
the State, the "uncharged" misconduct "tend[ed] to established the
existence of a larger continuing plan or scheme," and the "vast
extent of defendant's [alleged] deceptive theft over several
years." See N.J.R.E. 404(b).
31 A-5494-13T2
have been ordered. We agree counts three through six should have
merged with counts one and two for sentencing and a restitution
hearing should have been conducted.
"Appellate review of a sentence is restricted to whether the
determination of the sentencing factors was appropriate, whether
the determination was supported by competent evidence in the
record, and whether the sentence is so unreasonable that it shocks
the judicial conscience." State v. Paduani, 307 N.J. Super. 134,
148 (App. Div.) (citing State v. O'Donnell, 117 N.J. 210, 215-16,
(1989)), certif. denied, 153 N.J. 216 (1998); State v. Roth, 95
N.J. 334, 364-65 (1984); State v. Bull, 268 N.J. Super. 504, 508-
09 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).
First, the judge declined to downgrade defendant's
convictions and sentence her in the third-degree range, finding
the aggravating and mitigating factors were in equipoise and
defendant's case was not idiosyncratic. See State v. Jarbath, 114
N.J. 394, 413 (1989) (noting instances where "the character and
condition of the defendant are so idiosyncratic that incarceration
or extended imprisonment for the purposes of general deterrence
is not warranted"); N.J.S.A. 2C:44-1(f)(2) (allowing sentencing
courts to downgrade convictions for sentencing purposes where the
court is clearly convinced the mitigating factors outweigh the
aggravating factors and where the interest of justice so demands).
32 A-5494-13T2
In particular, the judge found aggravating factors four,
nine, ten, and eleven, pursuant to N.J.S.A. 2C:44-1(a). The judge
applied mitigating factors five, seven, ten, and eleven, pursuant
to N.J.S.A. 2C:44-1(b). Applying mitigating factor five, the
judge criticized the District at length for its lack of oversight.
Given the balance of the aggravating and mitigating factors, the
judge sentenced defendant at the lowest possible range for her
convictions on counts one and two. The judge engaged in a
satisfactory analysis of the applicable facts and found the
aggravating and mitigating factors in balance. The judge's
sentences on counts one and two were "grounded in competent,
reasonably credible evidence." Roth, supra, 95 N.J. at 363.
Moreover, he applied the correct legal analysis pursuant to
N.J.S.A. 2C:44-1(f)(2), Jarbath, and State v. Rice, 425 N.J. Super.
375, 389 (App. Div.), certif. denied, 212 N.J. 431 (2012). We
discern no clear error of judgment that would shock the judicial
conscience. Roth, supra, 95 N.J. at 364.
Although the judge did not abuse his discretion in his
sentencing analyses, we agree counts three through six should have
merged with count one. In Quezada, the defendant firefighter was
convicted of official misconduct and setting false fire alarms.
Quezada, supra, 402 N.J. Super. at 287-88. We found merger of the
defendant's false alarm convictions with the conviction for
33 A-5494-13T2
official misconduct was appropriate because the false alarms
constituted official misconduct. Id. at 290.
The merger of offenses requires a double-jeopardy analysis.
Id. at 287-88; see State v. Miles, __ N.J. __ (2017) ("We now join
the majority of jurisdictions in returning to the Blockburger
same-elements test as the sole test for determining what
constitutes the 'same offense' for purposes of double jeopardy.").
This analysis requires two steps, and "[t]he first step requires
the court to consider whether the legislature intended to impose
multiple punishments." Id. at 288.
If, however, the legislative intent to allow
multiple punishment is not clear, the Court
must then apply the test articulated in
Blockburger v. United States, 284 U.S. 299,
52 S. Ct. 180, 76 L. Ed. 306 (1932), to
determine whether the defendant is
unconstitutionally faced with multiple
punishment for the "same" offense.
[Ibid. (citations omitted).]
Here, the offenses in counts three through six constituted the
official misconduct charge. These offenses should have merged.
Finally, defendant contends restitution was improper because
the judge determined defendant was unable to pay a fine, and no
restitution hearing took place. We agree, and remand for a
restitution hearing.
34 A-5494-13T2
N.J.S.A. 2C:44-2 provides a defendant can be required to pay
restitution if "the victim . . . suffered a loss" and "[t]he
defendant is able to pay." A sentencing judge has "considerable
discretion" when determining whether a defendant has the present
or future ability to pay. State v. Scribner, 298 N.J. Super. 366,
371 (App. Div. 1997). The judge must "explain the reasons
underlying the sentence, including the decision to order
restitution, the amount of the restitution, and its payment terms."
Ibid. (citing State v. Newman, 132 N.J. 159, 1164-64 (1993)).
"[T]here must be an explicit consideration of defendant's ability
to pay." Ibid. (citing State v. Corpi, 297 N.J. Super. 86, 93
(App. Div. 1997)).
Here, the judge found defendant did not have the ability to
pay a fine but granted restitution without a hearing based on the
State's proofs at trial. Because the ability to pay is a
prerequisite to imposing restitution under N.J.S.A. 2C:44-2, and
the judge found defendant could not pay a fine, the trial judge's
imposition of over $190,000 in restitution is incongruous. For
this reason, we remand for a restitution hearing.
Affirmed in part, and remanded for re-sentencing and a
restitution hearing.
35 A-5494-13T2