STATE OF NEW JERSEY v. CHRISTINE BOSSONE

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1698-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

CHRISTINE BOSSONE,

Defendant-Appellant.

____________________________

Submitted February 3, 2010 - Decided August 26, 2010

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 06-05-0893.

Yvonne Smith Segars, Public Defender,
attorney for appellant (Monique Moyse,
Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Courtney L. Fallon,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant's neighbor, Clifford, had two adult mentally

handicapped children, Karen and Joey. Clifford died in October

2002, leaving a substantial estate to his children in two

trusts. Defendant offered to care for Karen and Joey. She

arranged for Joey to live in an assisted living facility, and

had Karen move in with her. The executor of Clifford's estate,

Robert Giunco, used money from the trusts to pay for the

expenses of Karen and Joey, including compensation to defendant

for "home . . . [and] companion expenses," as well as a monthly

stipend to Karen.

In or about May 2003, concerned about the manner in which

Giunco was disbursing trust funds, defendant met with an

attorney, Celeste Miller; as a result of that meeting, Karen and

Joey executed powers-of-attorney in favor of defendant. Giunco

became concerned when he learned of the powers-of-attorney

because he maintained that Karen and Joey should have been

psychologically examined as to their mental status before

executing those documents.

In or about May 2004, Giunco arranged for an attorney, Lynn

Staufenberg, to be appointed guardian ad litem for Karen and

Joey, to investigate defendant's expenditures. Psychiatric

evaluations of Karen and Joey were conducted in September 2004,

and resulted in findings that they were both "incapacitated and

in need of a guardian." On October 15, 2004, Staufenberg was

appointed guardian of the person and property for Karen and

Joey.

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Staufenberg investigated defendant's use of the trust

funds. As a result of that investigation, Staufenberg contacted

the Monmouth County Prosecutor's Office. Detective Maria

Larangeira of that office conducted an investigation and

concluded that defendant had improperly taken over $100,000 of

Karen's and Joey's trust funds. Larangeira's investigation

further revealed a loan application, purportedly signed by Karen

for $21,564 for the purchase of a truck in North Carolina

through the Coastal Federal Credit Union (Coastal Federal). The

loan documents listed a Wilmington, North Carolina home address

for Karen and her employment status as "an assistant manager" at

Capital Cellular. The investigation also revealed that defendant

had obtained a Capital One credit card in Karen's name by

applying for that card on-line.

Defendant was indicted on ten counts: second-degree theft

by deception, N.J.S.A. 2C:20-4; two counts of third-degree theft

by deception, N.J.S.A. 2C:20-4; two counts of fourth-degree

uttering a forged instrument, N.J.S.A. 2C:21-1(a); fourth-degree

making false statements to procure a credit card, N.J.S.A.

2C:21-6(b); third-degree fraudulent use of a credit card,

N.J.S.A. 2C:21-6(h); two counts of fourth-degree forgery,

N.J.S.A. 2C:21-1(a)(2); and third-degree criminal impersonation,

N.J.S.A. 2C:21-17(a)(1).

A-1698-08T4
3

Tried to a jury in March 2008, defendant was acquitted on

six counts; the jury did not reach a verdict on two other counts

and they were subsequently dismissed by the State. Defendant

was convicted on counts four and five, which read as follows:

FOURTH COUNT

FORGERY

FOURTH DEGREE CRIME

The Grand Jurors of the State of New
Jersey, for the County of Monmouth, upon
their oaths present that CHRISTINE BOSSONE,
on or about and between April, 2004 and
June, 2004, in or about the Borough of
Spring Lake, County of Monmouth, and within
the jurisdiction of this Court, did commit
the crime of Forgery, by making and/or
completing a writing, namely, an automobile
loan application and/or a credit card
application, so that it purported to be the
act of K.T., who did not authorize that act,
with the purpose to defraud Capital One Bank
and/or Coastal Federal Credit Union,
contrary to the provisions of N.J.S.A.
2C:21-1a(2), and against the peace of this
State, the Government and dignity of the
same.

FIFTH COUNT

UTTERING A FORGED INSTRUMENT

FOURTH DEGREE CRIME

A-1698-08T4
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the crime of Uttering a Forged Instrument,
to wit: an automobile loan application and a
credit card application, with purpose to
defraud or injure another or with knowledge
that a fraud or injury was being
facilitated, the perpetration of, altering,
making or completing, a writing, which she
knew to be forged, to wit: various retail
merchants and/or Coastal Federal Credit
Union, contrary to the provisions of
N.J.S.A. 2C:21-1a, and against the peace of
this State, the Government and dignity of
the same.

On May 2, 2008, defendant was sentenced to an aggregate

term of two years of probation.

On appeal, defendant raises the following contentions:

POINT ONE

THE TRIAL COURT'S ERRONEOUS CHARGE TO THE
JURY REGARDING JURISDICTION VIOLATED MS.
BOSSONE'S RIGHT TO A FAIR TRIAL (Partially
raised below.)

POINT TWO

COUNTS FOUR AND FIVE ALLOWED FOR A NON-
UNANIMOUS PATCHWORK VERDICT AND MS.
BOSSONE'S CONVICTIONS MUST BE REVERSED
(Partially raised below.)

POINT THREE

COUNTS FOUR AND FIVE MUST BE DISMISSED FOR
LACK OF JURISDICTION.

POINT FOUR

THE TRIAL COURT ALLOWED FOR MS. BOSSONE'S
CONVICTIONS ON OFFENSES NOT CHARGED IN THE
INDICTMENT IN VIOLATION OF HER
CONSTITUTIONAL RIGHTS. (Partially raised
below.)

A-1698-08T4
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POINT FIVE

THE TRIAL COURT VIOLATED MS. BOSSONE'S
CONSTITUTIONAL RIGHT TO REMAIN SILENT BY
ALLOWING THE STATE TO TELL THE JURY THAT
PRE-TRIAL QUESTIONING CEASED WHEN MS.
BOSSONE ASKED FOR AN ATTORNEY.

Having reviewed these contentions in light of the record, we are

satisfied that several trial errors require reversal and a

remand for a new trial.

We first address defendant's argument that the wording in

counts four and five of the indictment and the trial judge's

confusing instructions to the jury on those two counts prevented

the jury from reaching a unanimous verdict. We concur.

The State presented evidence that defendant had (1) applied

for a credit card in Karen's name in New Jersey and (2) signed a

car loan application in Karen's name in North Carolina. The

"victims" of these offenses were the financial institutions

involved, namely Capital One Bank in New Jersey, and Coastal

Federal in North Carolina; count five listed "various retail

merchants" as additional victims. As written, each of these

counts included two separate instances (and in count four, two

alternative instances) of the criminal conduct charged.

The trial judge compounded the confusion by reciting the

language "and/or" in his charge to the jury when instructing

them that they could find the defendant guilty of forgery in

A-1698-08T4
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count four by finding that she made "an automobile loan

application and/or credit card application so that it purported

to be the act of Karen . . . with the purpose to defraud Capital

One Bank and/or Coastal Federal . . . ." (Emphasis added.)

Similarly on count five, the judge told the jury that, to find

defendant guilty of uttering a forged instrument, it would have

to find that she created "an automobile loan application 'and/or

a credit card application.'"

In fact, the jury's verdict sheet reiterates the "and/or"

language for count four as well as the conjunction "and" for

count five, and lists both offenses on each count. The jury was

not polled after its verdict; therefore, the record is

completely unclear as to which facts the jury found that the

State had proved beyond a reasonable doubt in convicting

defendant on these two counts.

We concur with defendant's contention that these counts

"accuse [her] of crimes against two different victims based on

two factually different courses of criminal conduct occurring in

two different states. As such, the verdict on these counts was

not definitely unanimous . . . ."

Unanimity in the jury verdict is an "indispensable element

State v. Parker,
124 N.J. 628,
in all criminal trials . . . ."

633 (1991), cert. denied,
503 U.S. 939,
112 S. Ct. 1483, 117 L.

A-1698-08T4

7 Ed. 2d 625 (1992). See R. 1:8-9. ("The verdict shall be

unanimous in all criminal actions . . . ."). Unanimity

"requires jurors to be in substantial agreement as to just what

a defendant did before determining his or her guilt or

174 N.J. 583, 596 (2002)
innocence." State v. Frisby,

(quotations omitted).

Defendant did not object to the form of the indictment or

to the jury charge. Nonetheless we are confident that the

substantial likelihood of jury confusion regarding these two

counts was "clearly capable of producing an unjust result

. . . ." R. 2:10-2. Neither the verdict sheet nor the judge's

instructions clarified to the jury its obligation to weigh the

evidence separately as to the credit card charge and the truck

loan application charge. Therefore, we are constrained to

reverse and remand for a new trial with adequate safeguards to

ensure that the jury's verdict is clearly unanimous.

Another error in the judge's charge with respect to these

two counts must also be addressed. In response to a question

from the jury regarding jurisdiction (which will be discussed

below), the judge told the jury that "the indictment charges not

only Coastal Federal but also charges Capital One Bank and

includes Karen . . . ." (Emphasis added). This was improper.

The forgeries alleged in counts four and five were intended to

A-1698-08T4
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obtain some benefit from the financial institutions involved;

therefore, those financial institutions were the "victims" and

not Karen. Nowhere in either count is defendant charged with

any forgery or related offense against Karen. In fact, with

respect to the credit card, Karen testified at trial that she

knew about the card and actually used it, at one time incurring

a $300 balance.

Under the circumstances, we are satisfied that the judge's

instruction to the jury that they could include Karen as a

victim of the charges in counts four and five of the indictment

was erroneous. In the event of a retrial, such language should

be eliminated from the jury instructions.

We now turn to the issue of jurisdiction with respect to

the auto loan application in North Carolina. Just prior to

summations, defendant moved to dismiss the charge relating to

the loan application in count five, arguing that it was "clear

that it took place in North Carolina and involved in a

substantial way [defendant's] husband . . . ." The prosecutor

stated that he agreed "with regard to the automobile loan."

Nonetheless, the judge denied the motion, citing State v.

Streater,
233 N.J. Super. 537 (App. Div.), certif. denied,
117 N.J. 667 (1989) as a case in which "[t]he court found that the

defendant planned and prepared for the crime in New Jersey

A-1698-08T4
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. . . ." The judge did not refer to any evidence in the record

to support this finding. The judge also relied upon N.J.S.A.

2C:1-3(a)(4) which provides that

a person may be convicted under the law of
this State of an offense committed by his
own conduct or the conduct of another for
which [s]he is legally accountable if . . .
[c]onduct occurring within the State
establishes complicity in the commission of,
or an attempt, or conspiracy to commit, an
offense in another jurisdiction which also
is an offense under the law of this State
....

Finally, the judge cited N.J.S.A. 2C:1-3(g) which provides:

When the result which is an element of
an offense consists of inflicting a harm
upon a resident of this State or depriving a
resident of this State of a benefit, the
result occurs within this State, even if the
conduct occurs wholly outside this State and
any property that was affected by the
offense was located outside this State.

Regarding the truck purchase, defendant testified that she

and her husband, Kurt, owned a home in North Carolina, and along

with Karen and Joey, traveled there a "[c]ouple [of] times a

year at least." She stated that their "ultimate goal was to all

move there when [her] son graduated eighth grade." Defendant

testified that she, Kurt, Karen and Joey were in North Carolina

in June 2004 because Kurt was taking care of some business

matters. Defendant and Kurt "sat down with Karen," to discuss

purchasing a truck for Kurt's landscaping business and putting

A-1698-08T4
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title in Karen's name because "[s]he was going to get a better

rate . . . ." Kurt filled out the application; defendant signed

Karen's name on the application by power of attorney and also

co-signed the application. Kurt committed suicide in September

2004. Defendant testified that she offered to take full

responsibility for the outstanding balance, but Coastal Federal

repossessed the truck.

The trial record is devoid of evidence from which the jury

could find beyond a reasonable doubt that defendant engaged in

any conduct in New Jersey in furtherance of the North Carolina

loan application. Both defendant and her adult son, Jason, who

was present when the truck was purchased, testified that all

loan application documents were signed at the auto dealership in

Wilmington, North Carolina.

Therefore, we conclude that the trial judge's reliance upon

Streater, supra, and the cited statutes was misplaced in the

absence of any evidence-based finding that defendant "plann[ed]

and prepar[ed] in this State for the commission of a crime in"

North Carolina. Streater, supra, 233 N.J. Super. at 542.

Moreover, as noted above, Karen was not the "victim" of the

forgery and uttering charges presented to the jury. Only the

bank and the credit union named therein were the victims of

Therefore, N.J.S.A. 2C:1-3(g) is inapposite and
those offenses.

A-1698-08T4
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furnishes no jurisdiction in New Jersey over the truck loan

application in North Carolina.

The State contends that defendant "solicit[ed] . . . a New

Jersey attorney to execute an invalid power-of-attorney to

facilitate defendant's forgery and utterance in the vehicle loan

application in North Carolina," thereby "provid[ing] a

sufficient nexus to confer jurisdiction in New Jersey courts."

Karen and Joey executed powers-of-attorney to defendant in May

2003. The truck purchase in North Carolina occurred more than a

year later, in July 2004. In the interim, defendant executed

numerous financial transactions on behalf of Karen and Joey

which did not form the basis of any charges in the indictment.

Therefore, we are not convinced that this argument supports a

finding that New Jersey has jurisdiction over the truck loan

application charge.

Territorial jurisdiction is defined in N.J.S.A. 2C:1-3 as

follows:

(a) Except as otherwise provided in
this section, a person may be convicted
under the law of this State of an offense
committed by his own conduct or the conduct
of another for which he is legally
accountable if:

(1) Either the conduct which is an
element of the offense or the
result which is such an element
occurs within this State;

A-1698-08T4
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(2) Conduct occurring outside the
State is sufficient under the law
of this State to constitute an
attempt to commit a crime within
the State;

(3) Conduct occurring outside the
State is sufficient under the law
of this State to constitute a
conspiracy to commit an offense
within the State and an overt act
in furtherance of such conspiracy
occurs within the State;

(4) Conduct occurring within the
State establishes complicity in
the commission of, or an attempt,
or conspiracy to commit, an
offense in another jurisdiction
which also is an offense under the
law of this State;

....

(b) Subsection a.(1) does not apply
when either causing a specified result or a
purpose to cause or danger of causing such a
result is an element of an offense and the
result occurs or is designed or likely to
occur only in another jurisdiction where the
conduct charged would not constitute an
offense, unless a legislative purpose
plainly appears to declare the conduct
criminal regardless of the place of the
result.

Here, defendant did not request a territorial jurisdiction

charge. However, as noted, defendant moved for a judgment of

acquittal on count five based on that argument. Moreover, "the

territorial jurisdiction of this State's courts to convict a

A-1698-08T4
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person of an alleged criminal offense cannot be waived and may

be raised at any time." Streater, supra,
233 N.J. Super. at 541.

We are satisfied that the trial judge erred in denying

defendant's motion for a judgment of acquittal on the truck loan

offense.

[T]he broad test for determination of such
an application is whether the evidence at
that point is sufficient to warrant a
conviction of the charge involved. More
specifically, the question the trial judge
must determine is whether, viewing the
State's evidence in its entirety, be that
evidence direct or circumstantial, and
giving the State the benefit of all its
favorable testimony as well as all of the
favorable inferences which reasonably could
be drawn therefrom, a reasonable jury could
find guilt of the charge beyond a reasonable
doubt.

50 N.J. 454, 458-59
[State v. Reyes,
(1967).]

"In reviewing the denial of [a] motion for acquittal based on

insufficient evidence, the analysis focuses on the adequacy of

State v. Wilder,
193 N.J. 398,
the State's proofs at trial."

410 2.1 (2008).

Defendant clearly met the Reyes standard. As noted, in

denying defendant's motion, the judge did not point to any

evidence of record that satisfied the Reyes criteria. We

therefore instruct the trial judge, on remand, to enter a

A-1698-08T4
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judgment of acquittal on the North Carolina charges in counts

four and five of the indictment. R. 3:18-2.

Finally, we briefly address one other point raised by

defendant which may arise on retrial. In testifying about her

questioning of defendant, Detective Larangeira stated that at

one point, she called defendant a liar, at which point defendant

"disagreed . . . and stated that she thought it was best if she

spoke to her attorney." Defendant strenuously objected to this

testimony and the judge provided no limiting instruction to the

jury.

This testimony was "clearly improper." State v. Olivera,

344 N.J. Super. 583, 595 (App. Div. 2001). See State v. Moore,

304 N.J. Super. 135, 143-44 (App. Div. 1997) ("The State ha[s]

an obligation to 'carefully frame[] questions' to avoid 'any

mention of the defendant's exercise of [her] constitutional

rights to remain silent and to consult with counsel'")

(citations omitted). Such testimony should not be admitted on

retrial.

Reversed and remanded.

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