STATE OF NEW JERSEY v. MICHAEL R. FALCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1745-08T41745-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL R. FALCO,

Defendant-Appellant.

__________________________________________

 

Submitted April 21, 2010 - Decided

Before Judges Graves, J. N. Harris and Newman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-06-00823.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On March 15, 2006, a Middlesex County Grand Jury returned Indictment No. 06-06-00823, charging defendant Michael Falco with three counts of forgery, N.J.S.A. 2C:21-1(a)(2) (counts one, four, and seven); three counts of fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (counts two, five, and eight); one count of fourth-degree theft by deception, N.J.S.A. 2C:20-4 (count three); three counts of third-degree theft by deception, N.J.S.A. 20C:20-4 (counts six, nine, and ten); and one count of third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6(h) (count eleven). Counts 1, 2, and 3 involved check #1894 in the amount of $325. Counts 4, 5, and 6 involved check #758 in the amount of $500. Counts 7, 8, and 9 involved check #760 in the amount of $625. Counts 10 and 11 involved the use of credit cards and receiving goods and/or services by deception. Tried to a jury, defendant was found guilty of all charges.

Prior to sentencing, defendant moved to set aside the jury verdict or, in the alternative, to grant a new trial. Those motions were denied.

The trial court sentenced defendant to a total of five years imprisonment, with two and one-half years of parole ineligibility, running the respective sentences concurrently and merging the counts. Unfortunately, the trial court sentenced defendant on merged counts before effectuating the mergers. Those sentences have to be vacated and the judgment of conviction amended accordingly. Defendant appeals. We now affirm.

I.

Defendant became involved in a volunteer group that provided services to senior citizens. Through this group, organized by Agnes Medican, defendant was put in touch with Clara Fazi, who was an eighty-eight year old single woman having trouble managing her finances. Medican and Fazi knew each other by having their hair done at the same beauty salon.

Fazi had a niece, Santa Matarazzo, who lived one hundred miles away on Long Island and was not in a position to assist Fazi with her day-to-day or week-to-week financial needs. Defendant agreed to help Fazi. He went to her home, usually once a month with Medican, to assist with her finances.

Defendant allegedly uncovered several issues with Fazi's finances. According to defendant, they included: overcharges on Fazi's telephone bill with AT&T for which he obtained a refund; money from the State totaling $8,000 that Fazi left unclaimed before escheat; and an unclaimed $20,000 insurance policy with the U.S. Postal Service with whom Fazi had been formerly employed.

Defendant testified at trial that during this time, he ran errands with Fazi, such as making car repairs, attending doctor's appointments, and picking up prescriptions at the pharmacy. Defendant claims that he set up automatic bill pay for Fazi so she would not have to write so many checks to cover her bills. A State homestead rebate check for over $1,600 was discovered. Defendant had the State issue a new one. Mistakenly, the State cancelled the check after it was deposited and Fazi had written checks relying on those funds. Fearing the checks would bounce, defendant testified that he loaned her $1,000. According to defendant, Fazi paid him back with checks #758 and #760 in the amounts of $500 and $625. He stated that she insisted on paying him a little extra for his assistance, despite his protest.

In December 2005, Fazi first told Matarazzo that she thought there was an issue with her bank records that defendant had been handling. On December 6, 2005, Monroe Township Patrolman Brian Burns was sent to Fazi's home to investigate the possible theft from her bank account. While defendant contends that Fazi was going "senile" at this time, causing her confusion with regard to her finances and where her money was going, Officer Burns found Fazi to be competent at the time of the meeting.

During the meeting, Fazi showed Officer Burns a copy of her bank statement and copies of two checks, #758 and #760 made out to "Cash," which Fazi believed someone had forged. Fazi purportedly did not make out checks to "Cash," and she always filled in the memo line indicating the purpose of the specific check. The memo lines were not filled out on these checks. It was at this time that Fazi informed the officer that defendant had been the one helping with organizing her finances. Defendant admitted that he wrote out the checks, but that Fazi signed them. As mentioned, defendant claimed these checks represented repayment of loans defendant made to cover her account when the deposited rebate check was cancelled.

Defendant also indicated that check #1894 for $325 constituted the repayment of a $300 loan when Fazi was short of cash and was taking an out-of-state trip to Dollywood.

Throughout the investigation, Fazi's nieces, Matarazzo and Arlene Berisi, went through her bank records, and found more documentation of what they believed to be fraud and theft. On December 27, 2005, the nieces provided this additional information to Monroe Police Detective Leann Solomons, who took over the investigation from Officer Burns.

Berisi discovered charges that were made online through a website, along with debit card activity. Both nieces did not think Fazi had a computer or knew how to use a debit card. Defendant countered by testifying that Fazi applied for a debit card with Provident Bank on June 3, 2005, and that one of the bank employees helped her learn how to use the card.

As a result of these new findings, Detective Solomons visited Fazi's Provident Savings bank in Monroe, where she obtained printouts of transactions from the bank manager. Included in this information was a debit card transaction of December 2, 2005; Detective Solomons also obtained a surveillance tape of the transaction, showing defendant depositing $400 after an ATM withdrawal of that amount. It was also learned during this time that check #1894 from Fazi's account was deposited by defendant into his account on June 24, 2005. Additionally, it was discovered that defendant had endorsed the back of checks #758 and #760 at a PNC bank in Twin Rivers on Route 33 and cashed them. Maria Rolo, the bank teller, knew defendant and confirmed the transactions, indicating her initials were on the checks.

Detective Solomons went to the PNC bank to speak with the bank manager, and learned that the debit card issued in Fazi's name had been used at a Shop-Rite in East Windsor on December 5, 2005; at an Old Navy in Freehold on December 2, 2005; and at a Dollar Tree store in East Windsor, along with the Town and Country Diner in Bordentown, both on December 8, 2005. It was also discovered that the same debit card had been used in Hamilton and a restaurant in East Windsor where defendant lived, when Fazi was spending that same Thanksgiving holiday weekend with her family on Long Island.

Detective Solomons investigated other locations at which the debit card in Fazi's name was used, but she could not determine the identity of the individual that used the card to make purchases.

Detective Solomons interviewed Fazi while she was staying at a rehabilitation facility, recovering from a heart attack suffered on December 12, 2005. Fazi, appearing alert and coherent, explained to the investigator her relationship with defendant and how he helped manage her bank account with access to her records. Fazi specifically informed Detective Solomons that she had never once used a bank card, let alone one issued in her name.

More surveillance photographs were obtained during the investigation, and more information was acquired from Berisi, who confirmed that purchases were made on Fazi's bank card at Stan's Sports Bar in the Bronx located by Yankee Stadium on August 29, 2005. Defendant was a Bronx native and a Yankee fan. More information regarding bank transactions in the Bronx was discovered, but no security pictures of any transaction were obtained.

In February 2006, Detective Solomons was unable to locate defendant until defendant's brother informed the investigator that Falco was in Florida. It was further learned that defendant had been in Florida in August 2005 where a number of credit card transactions had taken place on Fazi's account. Three of them occurred in Kissimmee on August 15, 2005, where defendant's father lived and defendant visited. One of the three transactions was made at a Publix Supermarket. There were three transactions on August 18, 2005, August 22, 2005, and August 23, 2005, in St. Petersburg, Pointakenia, and two other Florida locations respectively. According to Matarazzo's testimony, her aunt had not traveled to Florida in seven years, when she last visited her ninety-two year old sister in the Jacksonville area. After being placed by her nieces in a nursing facility on Long Island, Fazi died after ten days on February 24, 2006.

At trial, conducted April 1 through April 3, 2006, the State presented testimony of Officer Burns, Detective Solomons, bank employees, Matarazzo, and Investigator William Davis, a handwriting expert with the State Forensic Unit. Davis testified in his expert capacity. Having examined handwriting specimens of both defendant and Fazi, and the checks at issue, Davis was of the opinion that Fazi did not sign the checks, but that they were probably signed by defendant. However, he was unable to conclude by a standard of reasonable certainty that they were.

In turn, the defense called Medican and Timothy McNally, a friend of defendant who would help in running errands for Fazi. He claimed to be a witness to the check transactions and corroborated much of defendant's version of the events. He was never seen entering any bank with defendant, claiming he stayed behind in the car. He drove defendant because defendant did not have a car at the time.

At trial, defendant admitted he filled out the checks in question, but that Fazi signed them both. He also denied that he forged any of the checks or that he made any unauthorized debit card transactions. He asserted a claim of right defense to which the trial judge instructed the jury.

After deliberating for approximately one hour and forty minutes, the jury found defendant guilty of all charges.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, A NEW TRIAL.

A. The impermissible hearsay evidence introduced at defendant's trial resulted in a miscarriage of justice under the law.

B. The jury verdict was against the weight of the evidence.

C. Defendant was deprived of a fair trial by an impartial jury, resulting in a miscarriage of justice under the law.

POINT II

THE JUDGE ERRED BY FAILING TO MERGE COUNTS ONE AND TWO INTO COUNT THREE, AND BY IMPOSING SENTENCES AND FINES ON CONVICTIONS THAT MERGED.

POINT III

BECAUSE THE COURT ERRED IN THE FINDING AND WEIGHING OF AGGRAVATING AND MITIGATING FACTORS, AND BECAUSE THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, THIS COURT SHOULD REVERSE.

A. The judge erred by finding aggravating factor (3), failing to find mitigating factors, and by concluding that the aggravating outweigh the mitigating.

B. Defendant's sentences are manifestly excessive.

II.

Defendant contends that the trial judge erred in denying the motion to acquit at the close of the State's case and at the end of the entire case. Alternatively, he asserts that the court should have granted the new trial motion. Underlying both of these motions is the contention that inadmissible hearsay testimony was admitted, which led to defendant's conviction and a miscarriage of law.

"Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004). The Confrontation Clause requires that "a witness who bears testimony against the accused be present at trial and subject to cross-examination, and if the witness is unavailable, that the accused have been given the prior opportunity of cross-examination." State in the Interest of J.A., 195 N.J. 324, 351 (2008).

Here, defendant did not have an opportunity to cross-examine Fazi regarding her accusations against him because she died well before trial. Prior to trial, the trial judge addressed the hearsay issue. Instead of ruling in a vacuum, the judge deferred to hearing the objections until the time of trial, preferring instead to make rulings on a question by question basis as they arose during the course of the trial.

Officer Burns, the initial investigating officer, testified to several otherwise impermissible hearsay statements to which no objection was made. He testified that when he interviewed Fazi, she informed the investigator that defendant was the individual who had been helping with her finances, and additionally that defendant had been removed from the authorized access list of the adult residential community where Fazi lived. Officer Burns added that defendant would come over and review bank statements with her.

Similarly, Detective Solomons, who was in charge of the investigation, testified to impermissible hearsay by explaining that Fazi informed the investigating team as to how she and defendant were put in contact for the purposes of reviewing bank records; that defendant had access to her records at the bank by pretending to be Fazi's nephew; and that she had never used a bank card. These comments ultimately elicited an objection from the defense and the objection was sustained.

Matarazzo also testified about conversations she had with her aunt, explaining that Fazi did not make any purchases with her bank card, and that she did not write the checks in dispute. These hearsay statements were not objected to by defense counsel.

While we do not disagree that these statements constituted inadmissible hearsay, the elicited testimony was to facts not in dispute. Defendant admitted to helping Fazi with her finances. He did not deny that he had access to her bank records or to her home in order to provide financial services. The action Fazi took in barring defendant and Medican, as well, entry to the gated community in December 2005 was established by records of the condominium complex.

Moreover, defendant had an explanation for each one of the checks made out to "Cash," which he endorsed and cashed. He testified that they were repayments of loans he made to Fazi. In fact, he admitted filling out checks #758 and #760, but insisted that Fazi, and not him, signed them. Of course, the State's handwriting expert was of the opinion that Fazi did not sign the checks. Defendant's claim of right defense was not tainted by any inadmissible hearsay.

With regard to the charges involving the unauthorized use of the credit card, Fazi had indicated that she did not use credit cards. Both her nieces testified that they never saw their aunt use credit cards. When they cleaned out her condominium prior to its sale, no credit or ATM cards were located. Their thorough search included going through their late aunt's purse. Additionally, the locations where the credit card was used were not places Fazi would be expected to frequent: Stan's Sports Bar outside Yankee Stadium, various locations in Florida when defendant was in Florida and Fazi had not been to that state for seven years, and over Thanksgiving weekend in 2005, while Fazi was on Long Island with her family, in East Windsor where defendant lived and in nearby Hamilton. While direct proof that defendant used the credit card without authorization was absent, the circumstantial proofs were compelling and overwhelming. Any inadmissible hearsay on the credit card transactions did not lead to a miscarriage of justice.

In addressing the denial of defendant's motion for acquittal, or alternatively, for a new trial based on the weight of the evidence, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. In order to determine if there was a miscarriage, we defer to the trial court with respect to "intangibles" not transmitted by the record such as credibility, demeanor, "feel of the case," but we otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

Forgery, N.J.S.A. 2C:21-1(a)(2), requires the State to prove that defendant "[m]akes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act." Uttering a forged instrument similarly requires the State to prove that defendant "[u]tters any writing which he knows to be forged in a manner specified in paragraph (1) or (2)" of N.J.S.A. 2C:21-1(a)(2). N.J.S.A. 2C:21-1(a)(3).

While the evidence against defendant for these charges is circumstantial, there was more than enough for the jury to conclude, beyond a reasonable doubt, that defendant committed the crimes. Defendant testified that he was authorized to write out the checks to himself payable to "Cash," and that Fazi signed them. He claimed they were repayments for loans. The State's proofs showed that Fazi did not authorize the three checks because she did not sign them nor were they filled out by describing the purpose on the memo line as was her habit. She also did not make checks out to "Cash." Direct evidence established defendant cashed those checks at his local bank branch. The jury obviously discredited defendant's version of the events.

Theft by deception, N.J.S.A. 2C:20-4, requires the State to prove, beyond a reasonable doubt, that the defendant "purposely obtains property of another by deception. A person deceives if he purposely . . . [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." N.J.S.A. 2C:20-4(c). Here, the State's proofs showed defendant abused a position of trust in order to steal funds from Fazi's bank accounts. He volunteered to assist the elderly Fazi with her finances, knowing that Fazi was having trouble managing her money, and claimed that she was going "senile," all in order to get direct access to her bank account for his personal benefit.

With respect to count eleven, fraudulent use of credit cards, N.J.S.A. 2C:21-6(h), defendant maintains that the jury verdict was against the weight of the evidence. Pursuant to that statute, the State must prove beyond a reasonable doubt that defendant

knowingly use[d] any counterfeit, fictitious, altered, forged, lost, stolen or fraudulently obtained credit card to obtain money, goods or services, or anything else of value; or . . . with unlawful or fraudulent intent, furnishe[d], acquire[d], or use[d] any actual or fictitious credit card, whether alone or together with names of credit cardholders, or other information pertaining to a credit card account in any form.

There was testimony that Fazi had never used an ATM card before and that she did not know how to use one. Yet, an ATM card was taken out in Fazi's name and was attached to the bank account defendant helped manage. The card was used at various stores where Fazi did not shop.

Moreover, there were debit card transactions made in Florida, East Windsor, Hamilton, and the Bronx during a time that only defendant was present in those locations, not Fazi herself. There were additional bank surveillance tapes showing defendant using Fazi's bank card to withdraw money from an ATM before he deposited that same money in his own account.

The only explanation offered by the defense for these charges and utilizing a debit card in Fazi's name was that it was not established that it was defendant, but could have been someone else. Coincidence could possibly account for one transaction, but the multiple transactions that took place here went well beyond coincidence and ripened into inescapable circumstantial evidence that defendant was using Fazi's money through her ATM card as his own without her permission.

We are convinced that the jury had a reasonable basis on which to convict defendant of all eleven counts. The jury verdict was not against the weight of the evidence but wholly supported by the evidence presented. Nor was there any basis to warrant granting defendant a new trial.

III.

Defendant argues that he was deprived of an impartial jury, because while he submitted substantial documentary evidence for the jury deliberations, the jurors took little more than an hour to convict him. According to the court records, the jury deliberations lasted one hour and forty minutes.

The right to be tried by an impartial jury is guaranteed to a defendant under the United States and New Jersey Constitutions. State v. Bisaccia, 319 N.J. Super. 1, 12 (App. Div. 1999). More specifically,

[a] defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself. As a result, the trial judge must take action to assure that the jurors have not become prejudiced as a result of facts which could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.

[Ibid. (internal quotations omitted).]

There were no impermissible outside influences that tainted this jury. In other cases, impermissible taints have come in the form of inflammatory newspaper articles, State v. Bey, 112 N.J. 45 (1988), improper and potentially influential comments made to jurors by outside sources, see State v. Harris, 156 N.J. 122 (1998), and a juror telling the judge that she knew the State's primary witness and was familiar with the circumstances of the crime and the judge failing to voir dire the rest of the panel, State v. Wormley, 305 N.J. Super. 57 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998).

No such circumstances that could lead to bias or partiality of the jury is present here. Indeed, the jury, as in most cases, had to assess the credibility of the witnesses. Defendant testified and presented a claim of right defense to the three check forgeries and denied using Fazi's ATM or credit card. His friend McNally's testimony corroborated much of defendant's testimony. If the jury found this testimony credible, the trial result would likely have been different. The fact that defendant was found guilty on all counts indicates that the jury did not find defendant or his friend's testimony believable.

On the other hand, the State's proofs were substantial. Detective Solomons's tracing of the check cashing by defendant through the bank employees, the handwriting expert's opinion that Fazi did not sign the checks in question, the niece's testimony of not finding an ATM or credit card in her aunt's condominium and never having seen her use a credit card, coupled with the locations where the credit card was used and Fazi not possibly having been at those locations when the card was used, presented overwhelming evidence of defendant's guilt. It would not have required the jury to spend an extended period of time to come to its conclusion. We do not detect any element of bias or prejudice in the jury's verdict. Defendant received what he was constitutionally entitled to: an impartial jury. The fact that the result was adverse to his interest does not render the jury less than impartial.

IV.

Defendant contends, and the State agrees, that the convictions for counts one, two, and three, relating to the forgery, uttering a forged instrument, and theft by deception charges, should have been merged.

Defendant also contends that the court should have merged the convictions on counts four, five, and six and counts seven, eight, and nine before imposing any sentences, instead of sentencing defendant on all eleven counts. Defendant requests that he, therefore, be resentenced.

We agree that the court failed to merge counts one and two with three, as well as counts four and five with six and counts seven and eight with nine. The trial court mistakenly sentenced on these other counts before merging them, instead of merging them without sentencing. We therefore remand for the purpose of amending the judgment of conviction and vacating the sentences imposed on the merged counts, including any fines imposed. We, however, see no basis to require a resentencing, especially where the sentences on the unmerged counts were to run concurrently.

V.

With respect to his sentence, defendant argues that the court erred in finding aggravating factor (3), which relates to the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3). Defendant further asserts that the court should have found mitigating factors, which might not have led the court to determine that the aggravating factors outweigh the mitigating.

Aggravating factor (3) addresses the risk that defendant will commit another offense. According to the pre-sentence report (PSR), defendant has a criminal history. In November 1986, defendant was arrested for a federal narcotics violation and conspiracy charges upon which he was sentenced to thirty-months imprisonment. In January 1988, defendant was again arrested for conspiracy to distribute cocaine. Defendant pled guilty to a disorderly persons offense in 2005, and was placed on probation for two years. Lastly, in 2006, defendant was charged with criminal sexual contact in Mercer County, and was found guilty on an inconvenient annoyance charge on March 14, 2008. Defendant's history of arrests, convictions, and incarcerations amply support the risk that defendant will reoffend.

Defendant claims that mitigating factors (7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense"; (9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense"; and (11), "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents" should apply. N.J.S.A. 2C:44-1(b)(7), (9), (11). We disagree.

With regard to (7), defendant claims that because he only had one felony conviction back in 1987, he has led a law-abiding life since that conviction. Not so. Defendant has been arrested and charged with a variety of other crimes, as recently as 2008. While those other crimes are not the same as those involved on appeal, defendant cannot be viewed a "law-abiding citizen" for the purposes of mitigating factor (7).

With respect to factor (9), defendant claims his attitude and character make it likely that he will not commit another offense. Defendant refers to his volunteer position at the church, in addition to his protestations of innocence. Neither constitute a basis for the court concluding that this mitigating factor should apply. In fact, as was noted at sentencing, defendant claimed that he was a retired police officer, when he, in fact, never was one. During the preparation of the pre-sentence report, defendant claimed he was a graduate of Louisiana State University, a school that had no records of him ever attending. The fact that defendant took part in church volunteer activities is also not probative of his good character, as he allegedly used his position of trust over the elderly to obtain access to bank accounts.

With regard to mitigating factor (11), that imprisonment would cause serious hardship to defendant, he alleges that he has a blood disorder that requires him to make frequent hospital trips in order to have his platelet levels checked. While defendant makes these claims, there is no evidence to support that he has a blood disorder. Moreover, even if he had, the prison authorities could provide the transport.

Lastly, defendant argues that his sentence is manifestly excessive, as the court imposed the maximum sentence allowable pursuant to N.J.S.A. 2C:43-6, including a two-and-one-half years period of parole ineligibility. Defendant contends that he should have been given a probationary period instead or, at the very most, a three-year term with no parole ineligibility period.

While the trial judge did not go into detail as to the rationale behind the sentence for each merged count, he explained the sentence for each. Furthermore, all the counts were to run concurrently and not consecutively, notwithstanding that the fraudulent events broke down into three distinct checks which were cashed at different times and there was extensive unauthorized use of a credit card.

We are satisfied that the sentence imposed was in accordance with the sentencing guidelines, that the court properly found and weighed the aggravating factors and found no mitigating factors, and the sentence was reasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). The sentence does not shock the judicial conscience nor do we discern any basis to disturb the sentence imposed.

 
Remanded for the entry of a corrected judgment of conviction; otherwise we affirm.

(continued)

(continued)

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A-1745-08T4

May 14, 2010