STATE OF NEW JERSEY v. BATISTA RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5011-04T45011-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BATISTA RODRIGUEZ,

Defendant-Appellant.

________________________________________________

 

Submitted March 27, 2006 - Decided April 12, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-09-2170.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Leo Hernandez, Assistant Prosecutor, on the brief).

PER CURIAM

During the trial of this matter, the evidence which the jury was entitled to credit revealed that defendant retained an attorney, Leonard Cupo, for the ostensible purpose of advising and representing defendant and his wife, Barbara Maldonado, regarding their purchase of real property. On May 1, 2002, defendant provided Cupo with a copy of the contract, advised Cupo that it was to be a "cash deal," and informed Cupo that he had numerous bank accounts in at least four separate banks totaling more than $800,000. Defendant told Cupo that he had made the money in the stock market in the 1980's. Cupo agreed to represent defendant and a retainer agreement was signed. Cupo also agreed to prepare a new contract of sale that would be more favorable to defendant than the existing contract.

On May 7, 2002, defendant returned to Cupo's office and indicated he was eager to wire $100,000 from his Commerce Bank account into Cupo's attorney trust account. Cupo provided wiring instructions for his trust account at Hudson City Savings Bank. The following day, defendant called Cupo to determine whether the wire transfer had been received. Cupo called Hudson City, and a bank employee advised that the $100,000 wire transfer had been accomplished.

Over the next few days, defendant requested checks from Cupo for various amounts, ranging from $1,400 to $5,500, which Cupo wrote against his attorney trust account on the assumption that the $100,000 deposit had been made. Soon thereafter, having not received written confirmation of the wire transfer, Cupo spoke to someone at Hudson City, learning for the first time on Friday, May 10, 2002, that the funds had never been wired into his account.

After learning of this, Cupo immediately informed defendant, who promised to resolve the problem. Defendant agreed to come to Cupo's office on Saturday, May 11, 2002. At the same time, Cupo attempted to stop payment on the checks that had been previously provided to defendant. The efforts to avoid negotiation of the trust account checks met with mixed success. Ultimately, $8,800 in funds was received by defendant from Cupo's trust account.

Defendant appeared, as promised, in Cupo's office on Saturday, May 11, and made several telephone calls to different banks in Cupo's presence without any satisfactory result. Cupo testified that defendant explained "there was a problem with his ex-wife," that she had stolen money from his bank accounts in the past. Defendant told Cupo that he would return on Monday, since that was a normal business day, and "that he would take care of this first thing Monday morning at 9:30."

Cupo testified that defendant did not appear in his office at the appointed time on Monday, May 13, 2002. He telephoned defendant, who stated that he had to take his mother to the airport and would arrive at 2:00 p.m. When defendant failed to arrive at 2:00 p.m., Cupo called and left a voice message, warning defendant that if he did not receive the missing $8,800 by 4:00 p.m. that he would go the authorities. Defendant did not appear at 4:00 p.m., and Cupo again telephoned. At 4:30 p.m. he spoke with defendant, who told him that "he would be unable to get the funds" and that Cupo would "have to do what [he] would have to do."

Defendant was charged with third-degree theft by deception, N.J.S.A. 2C:20-4, and third-degree conspiracy with Maldonado to commit theft by deception, N.J.S.A. 2C:5-2. Following a trial, defendant was found guilty of theft by deception, but acquitted of conspiracy. He was sentenced to an extended ten-year term of imprisonment, with a five-year period of parole ineligibility.

On appeal, defendant makes the following arguments:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.

II. THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT.

III. THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.

IV. THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE V. NATALE.

V. THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

We reject these contentions and affirm.

Although it is not entirely clear that defendant ever moved for a judgment of acquittal on the theft by deception charge during the trial, we are satisfied that defendant was not entitled to such a ruling. There was ample evidence presented to the jury to demonstrate that defendant's words and conduct, and his failure to speak or act, amounted to a theft by deception as defined by statute. N.J.S.A. 2C:20-4 provides that a person is guilty of theft "if he purposely obtains property of another by deception," and states that a person deceives if he purposely:

a. [c]reates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind;

. . . .

or c. [f]ails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

In essence, 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).

Here, the evidence, which the jury was entitled to credit, revealed that defendant had falsely advised Cupo that he held approximately $800,000 in funds in various bank accounts, that he desired to wire $100,000 of those funds into Cupo's trust account, and that he had actually caused that to be done. Knowing that no such funds had been or would ever be wired into Cupo's account, defendant took advantage of Hudson City's mistaken report to Cupo that the funds had been wired and benefited to Cupo's detriment by requesting checks from Cupo's account, which Cupo would not have written but for his belief, which defendant failed to correct, that the $100,000 had not been wired. This false fa ade was further buttressed by defendant's contract to purchase real estate in a "cash deal" that had been the reason for his retention of Cupo. As the seller of that property testified, defendant never paid a "single penny" toward the property, either by way of deposit or otherwise. The charade regarding the availability of $100,000 in Cupo's trust account was also enhanced by defendant's request of a check from that account in the amount of $3,800 to purchase a new car for his wife. Other evidence additionally created the false impressions that led Cupo to provide defendant with checks written against his trust account. In short, the evidence overwhelmingly demonstrated that defendant deceived Cupo when he requested, obtained and negotiated Cupo's trust account checks, knowing that those checks did not represent his own funds, but those of others.

In viewing the evidence presented by the State, there is no doubt that the trial judge was required to deny a motion for judgment of acquittal of the theft by deception count. R. 3:18-1 requires that a trial judge must deny such a motion if viewing the State's evidence, both direct and circumstantial, in its entirety, and in giving the State the benefit of all favorable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Palacio, 111 N.J. 543, 550 (1988). In applying this standard to the evidence in the record, it is abundantly clear that defendant was not entitled to a judgment of acquittal.

In Point II, defendant argues that the jury instructions were erroneous. Defendant, however, did not object to these instructions at trial and our review is limited, in this case, to a search for plain error. R. 2:10-2. We find no error in the judge's instructions. Moreover, we view defendant's argument in this regard as essentially reiterating the argument in Point I that the evidence was insufficient to support the charge. For example, defendant contends that the judge's instructions were, in part, misleading because there was insufficient evidence of a confidential relationship between defendant and Cupo. We find that factual contention to be without merit and, thus, we conclude that this particular argument about the sufficiency of the jury instructions is baseless. We find that defendant's other arguments regarding the jury instructions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We conclude that the argument contained in defendant's Point III is also without sufficient merit to warrant discussion in a written opinion. Ibid.

Defendant lastly contends that we should vacate the sentence imposed and remand for further sentencing proceedings based upon his argument in Point IV that State v. Natale, 184 N.J. 458 (2005) requires new sentencing proceedings and upon his argument in Point V that the sentence imposed was excessive. We reject these arguments. No new sentencing proceedings are required because the trial judge found and applied only aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1(a), in light of defendant's prior criminal history. See State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). The sentence imposed also fails to shock the judicial conscience, State v. Megargel, 143 N.J. 484, 493 (1996); State v. Roth, 95 N.J. 334, 364-65 (1984), and, thus, does not warrant the substitution of our judgment for that of the sentencing court.

Affirmed.

 

Defendant did move for a judgment of acquittal on the conspiracy charge and, in that context, the trial judge did discuss the evidence that supported the theft by deception charge.

Defendant also argued that the trial judge should have granted his motion for acquittal on the conspiracy charge. Since the jury acquitted defendant of this charge, the contention is largely irrelevant. Defendant, however, asserts that by permitting the jury to consider the conspiracy charge, when he should have instead entered a judgment of acquittal, the judge "permitted the jury to consider this additional offense despite the lack of evidence supporting it, and [it] may have resulted in a possible compromise verdict against defendant." Defendant offers no legal authority to support this purely speculative contention, which we reject.

(continued)

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A-5011-04T4

April 12, 2006