STATE OF NEW JERSEY v. MAGDI MOSAID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5081-08-T45081-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAGDI MOSAID,

Defendant-Appellant.

 

 

Submitted June 9, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4801.

Fusco & Macaluso, L.L.C., attorneys for appellant (Paulette L. Pitt, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Magdi Mosaid appeals from his conviction for issuing or passing a check knowing that it will not be honored, N.J.S.A. 2C:21-5. Defendant was initially found guilty in the Passaic Municipal Court and was sentenced to one year probation, a $750 fine, restitution of $288.90, along with other costs and monetary penalties. An additional sanction of $250 was imposed by the municipal court judge for defendant's lack of readiness to try the case on a specific date. Defendant then appealed to the Law Division.

After a trial de novo, defendant was again convicted, and was sentenced just as he was in municipal court, except the Law Division judge vacated the $250 sanction.

Now on appeal to this court, defendant presents the following arguments:

POINT I

THE STATE FAILED TO PROVE MR. MOSAID GUILTY OF ALL OF THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT. THE JUDGMENT OF CONVICTION SHOULD BE VACATED AND THE MATTER REMANDED TO MUNICIPAL COURT FOR THE ENTRY OF A JUDGMENT OF ACQUITTAL.

POINT II

DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE COURT WHICH SANCTIONED MR. MOSAID FOR NOT APPEARING WITH COUNSEL, THREATENED HIM BEFORE TRIAL FOR ASSERTING HIS RIGHT TO TRIAL AND PUNISHED HIM AT SENTENCING FOR HAVING PROCEEDED TO TRIAL.

POINT III

IN THE EVENT THIS COURT DOES NOT GRANT THE ABOVE RELIEF, DEFENDANT SEEKS A REMAND OF THIS MATTER FOR RESENTENCING ON THE BASIS THAT THE PENALTIES IMPOSED WERE EXCESSIVE.

Based upon our review of the record and applicable law, we are unpersuaded by defendant's arguments and affirm the conviction and penalties imposed by the Law Division.

I.

In April 2008, defendant's 1997 Mercedes C-230 was in need of repairs. After receiving automotive repair services from Arvind Auto Services, Inc. (Arvind), defendant wrote out a check to Arvind in the amount of $288.90, in order to pay the ensuing invoice. Defendant's drawee bank refused payment of the check on the ground that an active account corresponding to the check's account number could not be located. After making several attempts to collect the indebtedness, including mailing a demand for payment to an address in Rutherford, Arvind finally reported the incident to the Passaic police department. An investigation followed, which resulted in the issuance of a complaint against defendant for a violation of N.J.S.A. 2C:21-5.

At trial, the State presented the testimony of two witnesses: Michael Nemeh, an employee and supervisor at Arvind, and Detective Herwing Morales of the Passaic police department. They both testified regarding their individual unsuccessful efforts to obtain payment for the dishonored check that defendant allegedly presented to Arvind for payment in connection with the repairs to defendant's car.

Defendant testified that he wrote out the date, payee, and amount of the check in question, but did not sign it. Defendant claimed that although he was prepared to complete and present the check to Arvind for payment, he withheld his signature until he was confident that the repair work was done to his satisfaction. He left the supposedly incomplete check in the vehicle during the time Arvind's mechanic was working to repair it, which was the last time he saw it. He claimed that he did not know how the check ultimately came into the possession of Arvind. Defendant also denied that he had signed the invoice that contained the address in Rutherford, but acknowledged that much but not all of the repair invoice's contents were otherwise accurate.

Because Arvind allegedly did not complete all of the work, defendant took the vehicle to another mechanic to finish up certain repairs. Defendant claimed that he did not intend to provide the check in question as payment to Arvind for work that he considered incomplete and incorrectly done. Nevertheless, in October 2008, after he was charged with the instant offense, defendant paid sufficient funds to his attorney in trust, who forwarded to Arvind the balance that was due.

After considering all of the testimony and evidence, the municipal court judge found the State's witnesses to be credible, but stated, "I don't find Mr. Mosaid's testimony to be credible. I have a lot of problems with the testimony that was provided by Mr. Mosaid here." The judge went on to recount his incredulity concerning defendant's acknowledgement of the existence of the check, but at the same time disavowing both the signing and the presenting of the check to Arvind. His ultimate determination was that "services were performed, [defendant] presented a check, there was no account with the drawee." The municipal court judge further declared, "why would Mr. Mosaid walk around [and] carry a check with an account that did not exist other than the fact that he was trying to defraud and get services for free." Lastly, he noted:

I think he tripped himself up on his testimony when he says that he took the car and that the check was inside the car at the time. I don't believe that.

This check was presented. He would have me believe that someone from Arvind went into his vehicle and took that check that he never presented it, that he never finished and signed their name. I don't find that to be the case.

Based upon these findings, the court found defendant guilty, relying upon N.J.S.A. 2C:21-5(a), which provides for a rebuttable presumption of knowledge if "[t]he issuer had no account with the drawee at the time the check or order was issued."

In the Law Division, a trial de novo ensued. At its completion, the trial judge ultimately "agree[d] with the municipal court judge that the testimony given by the defendant in the municipal court was . . . rather incredible." More importantly, the Law Division judge implicitly determined that the State had proven the elements of the offense beyond a reasonable doubt when he stated, "I do think the record more than amply supports the finding of guilty by the municipal court judge."

II.

A conviction pursuant to N.J.S.A. 2C:21-5 requires the State to demonstrate beyond a reasonable doubt that the defendant issued or passed a check, knowing that it would not be honored. State v. Kelm, 289 N.J. Super. 55, 59 (App. Div.), certif. denied, 146 N.J. 68 (1996). Unlike its predecessor statute (N.J.S.A. 2A:111-15), State v. Riccardo, 32 N.J. Super. 89 (App. Div. 1954), N.J.S.A. 2C:21-5 does not require proof of fraudulent intent. Kelm, supra, 289 N.J. Super. at 59.

Although contested, there was ample evidence, along with the reasonable inferences therefrom, to support the State's theory that defendant had issued or passed the check. Notwithstanding that defendant denied having ever signed the check or the related invoice, and further claimed that he never presented the check to Arvind because he was dissatisfied with the work, the circumstantial evidence strongly suggested otherwise. We find substantial credible evidence to support the trial judge's conclusion on this element. State v. Locurto, 157 N.J. 463, 471 (1999).

The final element of N.J.S.A. 2C:21-5 is knowledge on the part of the defendant that when issued or passed, the check would not be honored by the drawee bank. In this regard, the only competent evidence presented showed that the drawee bank had no record of the account. This was sufficient to trigger the presumption of defendant's knowledge pursuant to N.J.S.A. 2C:21-5(a). Nevertheless, there was abundant evidence aside from this presumption that defendant knew the $288.90 check he presented to Arvind would not be paid at the time of issuance. Plainly stated, the facts sufficiently establish the offense of passing a bad check.

Our review of the balance of defendant's arguments convinces us that they do not warrant discussion in a written opinion. R. 2:11-3(e)(2)(E). We find no abuse of discretion or other error in the sentence imposed. State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

The address of the notice was the same as the address that appeared on Arvind's invoice to defendant, 35 Main Street, Rutherford. Defendant testified that he never lived at that address, but resided instead in Hasbrouck Heights for five years. The address that appeared on the check was a post office box in Woodridge.

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A-5081-08T4

July 6, 2010