STATE OF NEW JERSEY v. GLEN CHIAPETTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5008-04T45008-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GLEN CHIAPETTA,

Defendant-Appellant.

_____________________________________________

 

Submitted March 27, 2006 - Decided April 13, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-04-0772.

Yvonne Smith Segars, Public Defender, attor-ney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This matter has as its genesis a contract defendant entered into with Alemia and Khaled Alaeddin, which required that he purchase materials and perform renovation work on the Alaeddin residence. Pursuant to the contract and additional requests by defendant, the Alaeddins made certain payments during the course of defendant's performance. Some of these funds were for materials that were purportedly needed to complete the work, yet some materials were never delivered to the job site. The evidence also demonstrated that defendant abandoned the job after his acceptance of funds that were never properly disposed of, and there appears to be no question that defendant's performance of the contract was never entirely completed, although defendant claimed that he had "substantially" performed. Once defendant stopped performing and after defendant failed to respond to the Alaeddins' numerous communications, they contacted the authorities.

Defendant was charged with third-degree theft by failing to make a required disposition of property received, N.J.S.A. 2C:20-9.

During the trial, defendant moved for a judgment of acquittal. The arguments generated by this motion help place into context defendant's arguments on appeal. In seeking a judgment of acquittal, defendant argued that the State failed to provide evidence that defendant "never intended to finish the work that he contracted to do," claiming

there was substantial compliance . . . and we went through in detail with respect to the retaining wall, with respect to the foundation being laid, with respect to materials being ordered, with respect to the fact that the largest lump sum payment was due to be paid, which was roughly $22,000 once the permits were approved, and that was, that was specified in the contract.

. . . .

There's a danger when we are here in a criminal proceeding to give this type of case to the jury, especially with the stigma involved or circumstances involved with respect to a contract. . . . I would submit that it's a civil case. I don't think that there's criminal culpability here.

In denying the motion, the trial judge found there was ample evidence for the case to go to the jury, stating in pertinent part:

It is the taking, or right to take, or failure to account for or return that is the essence of the offense which is commonly known as embezzlement.

As I recall the testimony of Ms. Alaeddin, one of the payments, I think one-third, was in order for him to buy material. No material [showed] up on the job. The only things that showed up on the job [were] some cement and cinder blocks, plus the equipment that they had to rent, I realize, in order to dig the foundation.

But certainly that would be a small part of the materials that would be required for him to complete the contract.

And there was no framing done. There was no shell. There [were] no windows. There was no roofing.

These were all things, if I understand the evidence, which were required under the contract.

During the charge conference that later followed, defendant argued there could be no criminal intent if he entered into the contract in good faith, then had a dispute with the owner, refused to work and retained the funds paid. Stated differently, defendant asserted that the jury had to be charged that to convict it must find that he had a criminal intent at the inception of the contract.

The prosecutor argued that the charge must reflect that the State was required to prove that "defendant intended to never make the disposition," and emphasized that "[i]t doesn't have to be from the beginning," expressing that concern in the following way:

I think we are going down the same road that was traveled in State v. Damiano, [ 322 N.J. Super. 22 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000)], and that road is the road between civil liability and criminal liability, and without charging the jury with respect to his criminal intent in entering into the agreement, . . . we have so blurred the distinction between the civil and criminal that, Judge, I'm not going to be surprised if they come back in five minutes with a guilty verdict.

Judge, Damiano . . . makes clear that it doesn't have to be his intent from the beginning. The State just has to show that it became his intent at some point to never complete the work and/or make the proper disposition.

The trial judge summarized his view of this dispute, stating that when defendant "said to himself . . . I am not going to do anything more . . . [t]hat's when the criminal purpose attached."

At the conclusion of the closing arguments, the trial judge provided the jury with, among others, the following instruction:

In order to find the defendant guilty of . . . theft . . . the State must prove each of the following elements beyond a reasonable doubt:

(1) That the defendant purposely ob-tained or retained the property;

(2) That the defendant did so upon agreement, or subject to legal obligation;

(3) That this agreement or legal obligation required the defendant to make specified payment or other disposition from the property itself or its proceeds, or from his own property to be reserved in equivalent amount;

(4) That this legal obligation was known to the defendant;

(5) That the defendant purposely dealt with the property as if it were his own;

(6) That the defendant purposely failed to make the required payment or disposition of money paid that the Alaeddins were entitled to have returned and that the value was an amount which has been proven beyond a reasonable doubt.

. . . .

This is a criminal case, and before the defendant can be convicted you must be satisfied beyond a reasonable doubt that the defendant violated the statute as charged in the Indictment by conduct which is criminal in nature.

Ineptitude, shoddy workmanship, devia-tion from a contract and the like, although in violation of the terms of a contract or agreement may be redressed by a civil suit seeking damages, but such failures would not constitute a criminal charge.

What is required is that, having obtained or retained property or money, defendant purposely did not fulfill the legal obligation that he was aware of and retained property or money that was paid to him for performance of work under the legal obligation, which was purposely not com-pleted by the defendant without reasonable grounds.

What is required is that the defendant obtained money from the Alaeddins for a legal obligation which he was aware of, and he purposely did not fulfill that legal obligation, and purposely retained monies which, because of his failure to fulfill the legal obligation under the contract, he was not legally entitled to.

The jury found defendant guilty of theft by failing to make required disposition, N.J.S.A. 2C:20-9, of an amount that exceeds $500, but less than $75,000, a third-degree conviction. The State filed a motion seeking imposition of an extended term and for defendant to be sentenced as a persistent offender, noting that defendant had been convicted in the past of multiple indictable offenses. In imposing sentence, the judge found the presence of a risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record and the seriousness of the offenses of which he had previously been convicted, N.J.S.A. 2C:44-1(a)(6); the need for deterring him and others, N.J.S.A. 2C:44-1(a)(9); and that the imposition of a non-custodial sentence would be perceived by defendant or others merely as part of the cost of doing business, N.J.S.A. 2C:44-1(a)(11). The judge found no mitigating factors.

In denying the State's application for imposition of an extended term, the judge found that "[a]lthough the defendant's record clearly makes him eligible for an extended term, I find that the term of imprisonment provided by the statute relating to the term of imprisonment for third degree is appropriate and adequate." The judge also noted that this was a non-violent crime and that defendant had last been released from prison on his most recent prior conviction in 1995. The judge then determined to impose the maximum available term of five-years' imprisonment because of the aggravating factors and the absence of mitigating factors. Defendant appealed.

On appeal, defendant poses the following arguments:

I. THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY INSTRUCT THE JURY REGARDING COUNT I WITH RESPECT TO THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF PROPERTY RECEIVED (Partially Raised Below).

II. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUIT-TAL.

III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

IV. ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FAC-TORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT OT STATE V. NATALE.

After carefully analyzing the record in light of the written arguments advanced, we conclude that the contention presented in Point II is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), we reject the argument contained in Point I for the reasons that follow, and affirm the conviction. However, after considering the arguments contained in Points III and IV, we vacate the sentence imposed based upon the trial judge's utilization of the aggravating factor contained in N.J.S.A. 2C:44-1(a)(11) in the sentencing calculus and for the failure of the judge to articulate reasons for imposing a period of parole ineligibility.

I

The first issue concerns whether the judge's instructions violated the principles expressed in State v. Damiano by intermingling civil and criminal concepts of culpability. Defendant argues that the proofs reflect that he had every intent of fulfilling the contract, and, thus, that he did not have the requisite criminal intent at the contract's inception. In short, defendant contends that his abandonment of the job was the result of disputes regarding his performance and was not for the purpose of depriving the Aladdeins of their property, arguing that

the trial court should have instructed the jury that it was necessary for the defendant to have possessed the requisite criminal intent at the time he entered into the contracts, to avoid the possibility that the jury would equate the defendant's non-performance with criminal liability rather than civil liability arising out of a contractual dispute between the parties.

More specifically, defendant argues that the charge given by the judge blurred the distinction between civil and criminal liability because he used terminology regarding defendant's "failure to fulfill the legal obligations under the contract," and, in describing the sixth element of the crime, the judge modified the model charge by adding the words "of money paid that the Alaeddeins were entitled to have returned." We reject these contentions.

N.J.S.A. 2C:20-9 provides in relevant part:

A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor's failure to make the required payment or disposition. . . .

[Emphasis added.]

In State v. Damiano, the defendant was charged with multiple theft-related offenses, including N.J.S.A. 2C:20-9, arising from his operation of an automobile dealership. 322 N.J. Super. at 28-29. Specifically, he was charged with accepting trade-in vehicles from customers that had outstanding liens by giving the customer the value of the trade-in vehicle, deducting the amount of the lien, and then failing to pay-off the balance of the lien amount, thus allegedly failing to make the required disposition of property received, as prohibited by N.J.S.A. 2C:20-9. Damiano, supra, 322 N.J. Super. at 32. Additionally, the N.J.S.A. 2C:20-9 charges in Damiano involved the defendant's acceptance of funds for the payment of an extended warranty followed by the failure to pay those funds to the vehicle manufacturer for the purchase of that warranty, and the failure to pay-off the floor-plan financing liens on vehicles sold to customers. 322 N.J. Super. at 38.

In reviewing the jury instructions in Damiano, we first noted that "criminal liability cannot attach simply because civil liability attaches." Id. at 36. We determined that the judge's instructions failed "to apprise the jury of these distinctions," concluding that the judge failed to mold the model charge "to include the facts of the case or to adapt them when necessary to those facts." Ibid. Our criticism of the trial judge's failure to tailor the model charge related to the three different scenarios upon which the N.J.S.A. 2C:20-9 charges were founded, and that the charge given did not "undertake to explain to the jury how these recited elements of the statutory offense related to any of these disparate sets of facts," and that "[w]hat reference was made to the facts of this case was, on the other hand, confusing and misleading." Id. at 39.

We were concerned in Damiano that the judge's charge spoke about civil or legal obligations having nothing to do with criminal culpability under N.J.S.A. 2C:20-9. Id. at 39-40. Specifically, we noted that the defendant's failure to give good and marketable title was not necessarily a criminal act, and that each victim did in fact receive marketable title. Ibid.

In discussing the essence of a violation of N.J.S.A. 2C:20-9, in relation to the acts charged against the defendant in Damiano, we stated that "[t]he State was therefore required to prove that when defendant took the used cars in trade, or when he took the customer's money for extended warranties, or when he sold new cars under floor plan financing, he intended to divert the money or property entirely to his own purposes or that thereafter he purposely failed to make the required disposition during the period of his possession." 322 N.J. Super. at 41 (emphasis added).

Applying these principles here, we are satisfied that the trial judge carefully distinguished between civil liability and criminal responsibility and conformed his instructions to the particular facts of this case. Our holding in Damiano, insofar as it spoke of that defendant's purpose "when" he took the used cars in trade, or "when" he took the customer's money for extended warranties, or "when" he sold new cars, demonstrates that such occurrences could form the basis for a violation of the statute. But, at the same time, we indicated that Damiano's failure to make the required disposition of the funds he received "thereafter" also amounted to a violation of the statute. 322 N.J. Super. at 41. Consistent with Damiano, the judge in this case properly charged the jury that it was not necessary for the State to prove that defendant entered into the contract with the purpose of not making proper disposition of the funds received; instead, it was only necessary that the State prove that at some point during the performance of the contract defendant had the purpose of failing to make a proper disposition of the funds. In reviewing the charge on its whole, we are satisfied that the judge crafted an intelligible road map that accurately guided the jury's consideration of the charges asserted. State v. Savage, 172 N.J. 374, 387 (2002).

II

As to defendant's argument that the sentence imposed was illegal and excessive, we observe that the judge did not articulate his reasons for imposing the period of parole ineligibility, thus frustrating our review of the issues raised.

In addition, the judge applied aggravating factor 11, i.e., that "the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense association with the initial decision to resort to unlawful practices." N.J.S.A. 2C:44-1(a)(11). This factor is applicable when a sentencing judge is determining whether to impose a custodial term. See State v. Rivera, 351 N.J. Super. 92, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). Since aggravating factor 11 appears to have played a larger role than the determination of whether or not to impose a custodial sentence, its invocation during the sentencing proceeding requires that defendant be re-sentenced without resort to this factor.

Since we conclude that the judge failed to adequately explain the rationale behind imposing a period of parole ineligibility, or the reasons for its particular length, and because we conclude that the application of aggravating factor 11 was not warranted here, we need not presently address the other arguments raised regarding the sentence. Instead, we vacate the sentence and remand for further proceedings.

In summary, we affirm the judgment of conviction in all respects except that we vacate the sentence imposed and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

(continued)

(continued)

14

A-5008-04T4

April 13, 2006