STATE OF NEW JERSEY v. SUZANNA CSEKALSKI and DENTE BROTHERS TOWING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5358-03T15358-03T1

A-6857-03T46857-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SUZANNA CSEKALSKI and

DENTE BROTHERS TOWING,

Defendants,

and

JOHN SALZANO,

Defendant-Appellant.

___________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SUZANNA CSEKALSKI,

Defendant-Appellant.

____________________________

Argued (A-5358-03T1) October 16, 2006

 
Submitted (A-6857-03T4) October 16, 2006

Decided November 17, 2006-

Before Judges S.L. Reisner, Seltzer and

C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

Indictment No. 02-08-2996I.

Stephen N. Dratch argued the cause for appellant John Salzano (Franzblau Dratch, attorneys; Mr. Dratch, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Suzanna Csekalski (David A. Snyder, Designated Counsel, of counsel and on the brief).

Barbara A. Rosenkrans, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Rosenkrans, of counsel and on the brief).

PER CURIAM

Defendants, Suzanna Csekalski and John Salzano, appeal from their convictions for theft by deception, N.J.S.A. 2C:20-4, conspiracy to commit theft by deception, N.J.S.A. 2C:5-2, and false swearing, N.J.S.A. 2C:28-2(a). Csekalski also appeals from her sentence of five years probation plus restitution. We have consolidated their separate appeals for purposes of this opinion, and we affirm both defendants' convictions and Csekalski's sentence.

I

These are the most pertinent facts. In June 2000, Miguel Cimino, an automobile mechanic, went with his friend Csekalski to Economy Auto, Inc., in Perth Amboy to help her purchase a car. Economy sold vehicles that had been involved in accidents. Csekalski bought a front-end damaged 1998 Dodge Caravan for approximately $4000. The van was towed to Cimino's repair shop where he repaired the vehicle at a cost of $4500. Csekalski insured the van with State Farm. Several months later Csekalski was involved in an accident resulting in a dent spanning the entire left side of the van. Cimino once again repaired the vehicle, at a cost of approximately $2400. He had the key to the van in his possession during that time.

Subsequently, Csekalski told Cimino two or three times a week that she wanted to sell the car. When she told Cimino that someone wanted to purchase the van for $9500, he told her that she could get approximately $15,000 for it.

Salzano, who was Csekalski's boyfriend, owned a gas station located on Raymond Boulevard in Newark. Csekalski parked the van at the gas station quite often on weekends when they went to Salzano's Pennsylvania home.

On October 30, 2000, Csekalski and Salzano went to the East District police station to report that the van had been stolen. Csekalski told the police that on October 29, 2000, after 5 p.m., she parked and secured the van on the side of the station almost on the sidewalk. According to both Csekalski and Salzano, when they returned at about 6 a.m. on October 30, 2000, the van was missing. In a May 9, 2001, statement to police, Csekalski denied seeing broken glass on the ground where she left the vehicle.

Newark police officer Angel Garcia, who was assigned to the East District on October 30, 2000, took the report of the missing van including license, registration and insurance information. Garcia did not recall if the National Crimes Information System was contacted to ascertain if the vehicle had been towed rather than stolen. According to police department policy, when a vehicle was reported stolen, one copy of the police report remained in the precinct and another would be forwarded to the Newark Police Department's Auto Crimes Unit. In this case, the East District did not supply a copy of the report to the Auto Crimes Unit. Consequently, the Unit did not begin investigating the alleged theft when it was reported.

Susan Adamo, a State Farm Claims Representative, testified that in late October or early November 2000, Csekalski filed a theft claim with respect to the van. Adamo mailed Csekalski an affidavit that needed to be filled out. The affidavit was returned in approximately three weeks.

Adamo then received a telephone call from a man claiming to be Salzano, who asked to act on behalf of Csekalski. Adamo told Salzano that additional documents, as well as a key to the vehicle, were needed. When defendants appeared at State Farm's office, they presented the title and an odometer statement. After establishing the value of the vehicle, Adamo issued a $13,068 draft to Csekalski. The title was turned over to State Farm's salvage clerk. And, according to Csekalski, she also gave State Farm her only set of keys to the van.

In May 2001, Csekalski's van was discovered on the lot at Dente Brothers Towing, Inc. (Dente). Dente's towing yard was located approximately one-quarter of a mile from Salzano's gas station. Dente had contracts with the Newark police and the State police to perform towing. Several vehicles located on Dente's lot in May 2001 or sometime thereafter had the name "Salzano" on their windshields. At least one such vehicle was towed in by the Newark Police Department.

The discovery of Csekalski's van occurred as follows. Donna Petrone, who had been a State Farm Claims Representative in 2000-2001, testified that on May 2, 2001, she received a telephone call from someone claiming to be from Dente who demanded $7100 in accumulated storage fees for a vehicle on the lot. The individual offered to reduce the amount of the claim in exchange for the title to the vehicle. After getting approval from her supervisor, Petrone issued a $3000 draft and a certificate of title for the van to Dente. The vehicle in question proved to be the 1998 van that Csekalski had reported stolen.

When Anthony Dente attempted to title the van in Dente's name, the Division of Motor Vehicles reported that the vehicle had been stolen in Newark. Anthony called Newark Sergeant Joseph Senica at the Auto Crimes Unit in an attempt to remove the "stolen car alarm" from the vehicle. This phone call triggered a series of events that led to an investigation of the alleged theft.

Newark Police Detective Armando DeSilva, who was assigned to the Auto Crimes Unit, was responsible for two towing facilities, Dente's Towing and B and C Towing. He was responsible for conducting investigations on vehicles "coming in either towed [to these yards] or reported stolen . . . ." To that end, he checked on the length of time that a vehicle had been at a particular facility and inspected vehicles for evidence of forced entry, including broken glass and tampered door lock and ignition lock cylinders.

After being approached by Sergeant Senica on May 8, 2001, with what DeSilva believed was an improper request to remove the "stolen car alarm" from the vehicle, DeSilva began an investigation into the 1998 Dodge van located at Dente's yard.

DeSilva recalled that he had seen the van on the lot as far back as December 2000 or January 2001. The van was not brought in at the behest of the Newark Police Department because, according to DeSilva, certain identifying information including a Central Complaint Number, a lot number or the reason why it was towed in, was missing from the windshield. In fact, DeSilva did not recall any information written on the van's windshield. When DeSilva initially asked a Dente employee about the van, he was told not to concern himself with the van because it was a State Police tow. DeSilva's later review of Newark police computer records revealed that the van was not recovered by the Newark police or any other agency, including the State Police.

After checking the records, DeSilva went to Dente and briefly conducted an examination of the van, which revealed that "the vehicle was in good condition. There was no forced entry to the windows, doors, locks . . . [and the] ignition cylinder was [not] defeated." According to DeSilva, the vehicle was not stolen by a "common thief." To facilitate this examination, either Carmine or Anthony Dente gave DeSilva a set of keys to the van.

DeSilva was assisted by Newark Police Detective Dino D'Elia of the Auto Crimes Unit, who also examined the van at Dente. Using a key obtained from DeSilva, D'Elia confirmed that the door and ignition locks were intact, as was the window glass. D'Elia similarly concluded that the van had not been stolen.

DeSilva obtained a copy of a tow receipt from Dente which "revealed that the vehicle was towed . . . [on October 26, 2000], four days prior to the vehicle being reported stolen." The copy of the tow receipt indicated that on October 26, 2002, a green 1998 Dodge van, New Jersey license number KGM41T, was towed from Route 78, mileage marker 52, to Dente. The tow truck number and driver were identified on the receipt as "#44" and "CAL" respectively. The initials referred to employee Calvin Neal.

Neal had been employed as a part-time tow truck driver by Dente from 1990 through 1998, and once again beginning "about the end of 1999" and continuing "about six or seven months, somewhere around there." At trial Neal was shown the tow receipt by the prosecution and testified that while his initials (CAL) appeared on the document, "I know this ain't my bill because of the way I write my bill out. All information [is] in different places." Neal was regularly assigned to tow truck #37 and not #44.

Neal testified that he had not seen the receipt until the Newark police showed it to him on May 21, 2001, at which time he signed the receipt at the bottom. According to Neal, other than his signature, his handwriting did not appear on the receipt.

When Neal worked during 2000, he would tow between seven and nine cars or vans a day. If he was really busy, he would place information pertaining to a towed vehicle on a scrap of paper and give it to someone in the Dente office for that person to fill out a tow sheet. Neal therefore could not definitively say whether or not he towed the 1998 van. Joseph Delikat, formerly employed by Dente as a supervisor, testified as a defense witness that Neal used trucks numbered 44 and 37 and that while Neal was good at towing, he "was [a] little rough on paperwork."

The State also presented evidence designed to show that Dente could not have towed the vehicle from Route 78. State Police Sergeant Dominic Longo had been assigned to the Operational Dispatch North Unit in Totowa, which performed dispatching duties for various Troop B State Police stations including Somerville. If a trooper reported an abandoned car to Operational Dispatch, that unit would call a towing company. While the State Police had numerous towing companies under contract, a particular towing company would be called to service a particular portion of a highway on a particular day. Longo explained that, "based on the highway where the trooper is requesting, and each highway [is] broken down into a particular milepost, and then [there is] a rotational system where each tow company then gets a section of that highway for a particular day." Call record sheets were maintained which recorded which towing companies had "the duty that particular day."

During 2000, the Somerville station covered a portion of Route 78 including milepost 52. A tow assignment sheet for October 26, 2000, generated by the Somerville station, revealed that Segal's towing company was responsible for light towing duties involving automobiles for the section including milepost 52. According to Longo, Dente did not have any assigned towing duties on Route 78 on October 26, 2000. Longo agreed on cross-examination that if Segal's was unavailable, the next towing company on the list would be called and that Dente was licensed by the State Police to perform towing.

State Police Lieutenant Kevin Moore had been the unit head for the Computer-Aided Dispatch for the Records Management Systems Unit (the "CAD" system). The CAD system, which became operational for Troop B in January 1998, "is an electronic means of tracking [State Police] dispatch resources which is essentially the trooper out on the road handling jobs as well as the incidents themselves." All incidents involving the State Police are inputted into the CAD system. Moore's search of the CAD system for any State Police tow request for a green van bearing New Jersey license plate number KGM41T between October 12 and October 31, 2000, proved negative. In fact, an expanded search revealed no contact with a vehicle bearing that license plate number at any time. During the time frame in question there had been no indication that the CAD system had not been working properly.

State Police Sergeant William Bergen had been an Administrative Sergeant at the Somerville Barracks. Bergen explained that as early as November 10, 1998, the State Police had an SOP (Standard Operating Procedure), requiring towing companies to notify the State Police weekly. But he admitted the regulation was never followed or enforced.

Both parties presented expert testimony as to whether the van appeared to have been stolen. In May 2001, Derrick James Lamar, who had been employed by State Farm in its Special Investigation Unit, began to investigate the circumstances surrounding the pay out for the 1998 van. As part of his investigation, in June or July 2001 he asked "Hard Facts," an investigative-engineering company, to conduct a forensic examination of the vehicle to determine if there had been signs of forced entry.

Andrew Nilsen, a mechanical engineering expert employed by Hard Facts, testified that he examined the van at Dente's yard on June 26, 2001. His relevant findings were as follows: 1) "[l]ack of any markings on weather stripping. Glazing was all in tack [sic]"; 2) "nothing to indicate markings of a forced entry, [or] insertion of any type of bypass tool"; 3) "[n]o attempt was made to enter this vehicle with a . . . bypass tool via rod or slim jim, or even a wedge, screwdriver, any foreign object that would have left a mark"; 4) using an otoscope, a device used by a doctor to examine a patient's ears, "[n]othing obvious to indicate [that] tampering had . . . occurred to [the] locks"; and, 5) "no markings indicating at all that somebody tampered or inserted a foreign object in [the ignition] lock." Nilsen concluded that the car could not have been stolen without a key "due to the lack of any type of markings on [the] locks."

In an effort to rebut Nilsen's testimony, Robert Painter testified as an expert on behalf of the defense. Painter read Nilsen's report but did not examine the van. He opined that while an otoscope would be useful for a preliminary examination, the van's door and ignition locks should have been removed, disassembled, and studied under a microscope. Painter also testified that the inner door panels should have been removed. He saw no scientific basis for Nilsen's conclusion that the van had not been forcibly entered. Painter testified that a key he received from the Newark police had been duplicated.

II

Having reviewed the facts, we also briefly address the procedural history as it relates to this appeal. The case was initially assigned to Judge Petrolle. On April 15, 2003, Judge Petrolle rendered an oral opinion denying Csekalski's motion to suppress a May 8, 2002, statement that she made to members of the Essex County Prosecutor's Office. The trial of Csekalski, Salzano and Dente commenced before Judge Petrolle on May 6, 2003, and continued through May 15, 2003.

On May 20, 2003, the State, through the Attorney General's Office, moved ex parte to disqualify Salzano's attorney, Terrance Toner, from representing Salzano at trial and for a continuance of the trial pending an investigation then being conducted by the Attorney General. The State contends that the investigation and application arose after Salzano "made allegations to [Toner] that Dente . . . supposedly bribed the trial judge" and Toner "told the State of this claim."

While the record before us is less than clear, the State's brief represents to us that:

[u]pon receiving notice of the allegations made by Toner, the State immediately advised the Attorney General's Office and started to investigate. Subpoenas were issued to [Salzano] and Toner, who were both fact witnesses in the pending investigation. [Salzano] testified before the grand jury against Toner's advice while trial was being held.

At an in camera hearing held on May 20, 2003, Judge Petrolle recused himself and declared a mistrial but did not discharge the jury pending review by the Appellate Division. An order to that effect was entered on May 20, 2003. Toner, who had sought to be relieved as counsel, was also disqualified from continuing as Salzano's attorney.

Upon Dente's emergent application for leave to appeal, we entered an order on May 22, 2003 that: 1) denied leave to appeal with respect to that portion of Judge Petrolle's May 20, 2003, order "in which the trial judge recused himself" and 2) granted "leave to appeal that portion of the Order granting a mistrial . . ." and, in summarily reversing, "direct[ed] the substituting judge to reconsider the motion for a mistrial in light of double jeopardy considerations."

By order dated May 27, 2003, Judge Casale, who was substituted for Judge Petrolle, entered an order directing: 1) the hearing of argument on Dente's motion for judgment of acquittal on May 27, 2003; 2) immediately thereafter, the continuance of the case "with summations before the jury"; and 3) that there be no mistrial.

By order dated May 27, 2003, we denied the State's motion for leave to appeal from that portion of Judge's Casale's order denying a mistrial.

Trial continued on May 28, 2003, with Louis White substituted as counsel for Salzano.

On May 30, 2003, the jury found Csekalski and Salzano guilty of theft by deception, conspiracy to commit theft by deception, and false swearing. Dente was acquitted on all charges.

Both Csekalski and Salzano moved for judgment of acquittal and, in the alternative, for a new trial. On April 23, 2004, Judge Casale denied these motions in an oral opinion, followed by a written opinion dated May 12, 2004.

Following the denial of the motions, Csekalski was sentenced on April 23, 2004, as follows: 1) concurrent five-year probationary terms; 2) restitution to State Farm Insurance in the sum of $6,534 at $100 per month and 3) a $100 VCCB penalty, a $150 Safe Streets Assessment and a $30 Law Enforcement Officers Training and Equipment Fund Penalty. Salzano received an identical sentence.

III

On this appeal, Csekalski raises the following contentions:

POINT I: THE APPELLANT'S CONVICTIONS SHOULD BE REVERSED ON REVERSIBLE ERROR BECAUSE THE TRIAL COURT FAILED TO FOLLOW THE PROCEDURES SET FORTH IN RULE 1:12-3(b) WHEN THE REPLACEMENT JUDGE DID NOT COMPLETELY REVIEW THE TRIAL TRANSCRIPT BEFORE RECONVENING THE TRIAL AND WAS NOT FULLY FAMILIAR WITH THE FACTS OF THE CASE (NOT RAISED BELOW).

POINT II: THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION TO SUPPRESS HER STATEMENT.

POINT III: THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE APPELLANT'S CONVICTIONS FOR THEFT BY DECEPTION, CONSPIRACY TO COMMIT THEFT BY DECEPTION, AND FALSE SWEARING.

POINT IV: THE COURT'S SENTENCE OF FIVE YEARS PROBATION WAS EXCESSIVE.

POINT V: THE COURT'S IMPOSITION OF RESTITUTION WAS EXCESSIVE.

Salzano relies on Point One of Csekalski's brief, and raises the following additional contentions:

POINT I: DEFENDANT SALZANO, WAS ENTITLED TO A JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18-1.

POINT II: WHEN SALZANO'S DEFENSE COUNSEL BECAME DISQUALIFIED THE COURT SHOULD HAVE GRANTED THE STATE'S APPLICATION FOR A MISTRIAL AND HENCE SALZANO WAS DENIED A FAIR TRIAL.

We begin by addressing both defendants' arguments concerning the sufficiency of the evidence. Rule 3:18-2 governs the making of a motion for a judgment of acquittal after a jury returns a guilty verdict:

The standard to be applied by the trial judge in deciding a motion for an acquittal under R. 3:18-2 is the same as that which applies when a motion for acquittal is made at the close of the State's case or at the end of the entire case. The trial judge must decide whether the evidence is sufficient to warrant a conviction. More specifically, the trial judge must determine whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.

[State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (citation omitted, emphasis added).]

We will not reverse a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Nonetheless, bearing in mind that the trial judge who ruled on the new trial motions did not preside over the testimonial portion of the trial, we have scrutinized the record with particular care. Having thus reviewed the entire record, we are convinced that there was sufficient evidence to sustain the convictions of both defendants, and that there was no miscarriage of justice. See R. 2:10-1.

On May 9, 2001, Csekalski told Det. DeSilva that she had the car in her possession from October 26 through October 29, 2000, and that the car was stolen between the evening of October 29, 2000 and some time on October 30, 2000, when she initially reported it stolen. In May 2001, several months after she reported the alleged theft, the car was located on the Dente's lot, and Dente's produced a tow sheet indicating that the car was towed there on October 26, 2000. According to Det. DeSilva and Det. D'Elia, the car bore no signs of forced entry or other evidence that it had been stolen. The State also produced testimony from an expert witness who examined the van and found no signs of forced entry. While the defense produced an expert whose testimony cast doubt on the opinions of the State's expert, the jury was not compelled to believe the defense expert. Reasonable jurors could conclude that the car had not been stolen.

The trial record reflects additional evidence from which a jury could have concluded that Csekalski's theft report was not truthful. On May 9, 2001, Csekalski told Detective DeSilva that she only had one key to the van, and she gave that key to the insurance company. Yet, Det. DeSilva testified that he obtained a key to the van from Dente Towing. Expert examination of that key revealed that it was a duplicate of the original key. Reasonable jurors could have concluded that Csekalski in fact had two sets of keys. While it was certainly possible for someone else to have made a copy of her key, in order for that person to have used it to steal the van he or she must have known that Csekalski was going to park it at Salzano's garage rather than at her home on the night of October 29, 2000. Reasonable jurors could have concluded that this was unlikely particularly since the only probable suspect would have been Salzano, and according to both defendants they were together in Pennsylvania from the time Csekalski dropped off her car at the garage until they returned to Newark the next morning.

There were also a number of suspicious circumstances surrounding the allegedly towed vehicle. According to Det. DeSilva, who noticed the van sitting in the Dente lot for several months, it did not bear the kind of identification information that Dente's would typically write in crayon on the windshield of a towed vehicle. When he inquired about the van, a Dente's employee told him that it was a "State Police tow" and DeSilva, a Newark police officer, should not worry about it. The tow sheet from Dente indicated that the vehicle was towed on October 26, 2000. Yet further investigation revealed that the State Police had no record of having authorized this vehicle to be towed at any time during October. Morever, Dente's was not assigned to tow vehicles from the towing location listed on the towing sheet (milepost 52 on Route 78) on October 26, 2000. And Calvin Neal, the former Dente's employee who allegedly towed the vehicle, denied having completed the tow sheet and testified that he would not have towed the vehicle without notifying the State Police.

Further, according to DeSilva, one of his superiors directed him to engage in an improper procedure to clear the "stolen car alarm" from the police records so that Dente's could sell the van. DeSilva refused and instead initiated the investigation that led to defendants' arrest. There was also some evidence of an existing connection between Salzano and Dente in the form of testimony that a number of vehicles on the Dente's lot bore the name "Salzano" written on the windshields.

There was also testimony, which the jury might have believed, that Csekalski wanted to sell the car, that she had received an offer of $9,500 for the car, but that the mechanic who originally helped her to buy the car had told her that the van was worth $15,000. And, indeed, after she reported the car stolen, her insurance company paid her over $13,000 for her loss. Thus, she obtained more money as a result of the alleged theft than she could have obtained by selling the car to the available buyer. Finally, Salzano, who at the time was romantically involved with Csekalski, represented her in her claim with the insurance company.

Reasonable jurors could have concluded that each defendant had a motive to participate in the fraud, that the van was not stolen, and that both defendants knew that it was not stolen when they collaborated in obtaining reimbursement from the insurance company and when they made false statements to the police. Hence the trial court properly denied defendants' motions for a new trial.

We likewise find no merit in defendants' contentions that they are entitled to reversal of their convictions because the substituted trial judge did not review the trial transcripts as required by Rule 1:12-3(b). Neither defendant raised this issue at trial, and we cannot conclude that a violation of Rule 1:12-3(b) would constitute plain error in the circumstances of this case. R. 1:7-2; R. 2:10-2. First, it is clear from Judge Casale's comments on the record that the trial transcripts were not available on May 23, 2003, when he initially took over the trial and denied Dente's motion for a mistrial with prejudice. However, none of the defendants objected to his presiding or sought an adjournment of the trial at that time, on the grounds that the transcripts were unavailable. Further, neither Csekalski nor Salzano can claim prejudice as a result of the judge's ruling denying the mistrial, because Csekalski's counsel vehemently opposed Dente's motion and Salzano's counsel supported Csekalski's position. See Vallejo v. Rahway Police Dep't, 292 N.J. Super. 333, 340-41 (App. Div.) ("Plaintiff argued vehemently against a mistrial in the trial court [when the trial judge was substituted in the closing stages of the trial], and he will not be heard in this court to urge a contrary position."), certif. denied, 147 N.J. 262 (1996).

The record also reflects that the judge familiarized himself with the record before conducting further proceedings. At the next hearing on Wednesday, May 28, 2003, before ruling on defendants' motions for a directed verdict of acquittal, Judge Casale stated on the record that he had "review[ed] the matter fully between Friday and today." Finally, on May 30, 2003, after denying defense counsel's request that their new trial motions be heard by Judge Petrolle because he had heard all of the trial testimony, Judge Casale indicated that he was ordering the trial transcripts to enable him to rule on defendants' new trial motions.

By the time Judge Casale ruled on defendants' motions for a new trial nearly a year later, on April 23, 2004, the record reflects that the transcripts were available. While Judge Casale did not specifically indicate that he had read them, it is fairly inferrable from his comments on May 30, 2003, that he did so, and none of the defendants raised this as an issue. Moreover, his written decision dated May 12, 2004, denying the new trial motions, cites to the transcripts. We find no plain error in his failure to state on the record that he had read the transcripts.

State v. Utsch, 184 N.J. Super. 575, 582 (App. Div 1982), on which defendants rely, does not support their contentions. In Utsch, a new judge was assigned to the case after the original judge recused himself but before virtually any testimony had been taken. Id. at 582. The new judge noted on the record that he had listened to the audiotapes of the prior hearing, and we held that was sufficient to satisfy Rule 1:12-3(b). Id. at 581-82. We also noted that because "there was virtually no testimony at all taken at the first hearing . . . there would be no prejudice resultant from the continuation of the trial before another judge . . . ." Id. at 582. In a sense, this case is the reverse of Utsch.

In this case, Judge Casale took over the trial at a point where all of the testimony had been completed. What remained was to address Dente's mistrial motion and motion for a directed verdict of acquittal, preside over summations, deliver a jury charge as to which counsel had already agreed and to which no counsel objected, decide post-trial motions for a new trial, take the verdict and impose sentence. Unlike Vallejo v. Rahway Police Dep't, supra, in which we found that a substituted trial judge erred in framing the jury charge, defendants' briefs do not address any specific error or any prejudice they suffered with respect to Judge Casale's rulings as a result of his alleged failure to read the transcripts. And, having reviewed the entire record, we perceive none. In particular, as set forth above, Judge Casale properly denied defendants' motions for a new trial; in light of the evidence in support of the verdict, it is inconceivable that Judge Petrolle would have ruled differently.

We next address Csekalski's contentions concerning her motion to suppress statements made to the prosecutor at her attorney's office on May 8, 2002, and her challenge to the sentence of five years' probation plus one hundred dollars per week in restitution. Having reviewed the record, we conclude that all of her arguments on these issues are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments. The disposition of Csekalski's motion to suppress the May 8 statement is irrelevant, because the State did not introduce or otherwise make use of the statement at trial. We find no error in the probationary sentence, and we find no record support for Csekalski's argument that she could not afford $100 per week in restitution.

Finally, we turn to Salzano's contention that his substitute counsel, Mr. White, rendered ineffective assistance in his summation, and his related argument that a mistrial should have been granted because his counsel was disqualified at such a late stage of the trial that a new counsel could not have been prepared to properly represent him. Ordinarily a claim of ineffective assistance of counsel should be raised on a petition for post-conviction relief (PCR), rather than on direct appeal, because such claims generally depend upon matters outside the record. See State v. Preciose, 129 N.J. 451, 460 (1992).

Based only on the record before us, it is our preliminary view that Mr. White's brief summation, which was sandwiched between the much longer and quite cogent summations of counsel for Csekalski and Dente, was not ineffective. The record before us also does not suggest that a mistrial was required under State v. Loyal, 164 N.J. 418 (2000). However, because the proceedings surrounding the recusal and mistrial applications were so unusual and involved events not entirely clear to us on this record, we conclude that defendant's contentions are more properly addressed in a PCR petition. In announcing that conclusion we add that the trial record reveals no evidence whatsoever of any bias or misconduct on the part of Judge Petrolle, who presided over the trial in a strict but scrupulously evenhanded manner, anticipating and heading off prosecutorial errors to avoid prejudice to the defendants, and consistently displaying meticulous and correct application of the Rules of Evidence.

 
Affirmed.

The indictment charged as follows: 1) Csekalski, Salzano and Dente Brothers Towing, Inc. with third degree theft by deception; 2) Csekalski, Salzano and Dente with third degree conspiracy to commit theft by deception revolving around the alleged fraudulent insurance scheme involving a Dodge van that was falsely reported stolen; 3) Csekalski with fourth degree false swearing with respect to her May 9, 2001, statement to the Newark police that her van had been stolen and 4) Salzano with two counts of fourth degree false swearing with respect to his May 22, 2001, statement to the Newark police, and his December 18, 2001, statement to investigators from the Essex County Prosecutor's Office that Csekalski's van had been stolen.

An additional false swearing count against Salzano had been previously dismissed.

(continued)

(continued)

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A-5358-03T1

November 17, 2006