STATE OF NEW JERSEY v. BERNARD J. MCGUIGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5417-06T45417-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARD J. MCGUIGAN,

Defendant-Appellant.

____________________________________________________

 

Submitted January 20, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-05-0580.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Bernard J. McGuigan appeals from the judgment of conviction that followed a jury trial at which he was found guilty of fourth-degree willful non-support, N.J.S.A. 2C:24-5, and fourth-degree contempt, N.J.S.A. 2C:29-9(a). He raises the following points for our consideration:

POINT ONE

BECAUSE THE STATE FAILED TO PROVE THE ELEMENTS OF WILLFUL NON-SUPPORT AND CONTEMPT BEYOND A REASONABLE DOUBT, THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT TWO

PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT THREE

THE TRIAL COURT'S FAILURE TO GIVE A CLAWANS CHARGE DENIED DEFEDANT A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The events set forth in the indictment were alleged to have occurred on various dates beginning in 1999 and culminating in 2001. At trial, it was undisputed that defendant fathered a son, B.M., who was born in July 1989 to Robin Pavlo. Shortly thereafter, defendant and Pavlo separated. Philip Shaner, an investigator with the Burlington County Probation Child Support Enforcement Unit testified as to the various court orders that were entered in the Family Part beginning in December 11, 1989, when defendant was first ordered to pay $50 per week in child support. Because defendant began to accrue arrearages in his support obligations, probation commenced enforcement through "income withholding." To this end, a support obligor is required to provide all information regarding current employment and income sources.

By September 24, 1998, defendant owed $27,411.05 in child support arrearages. An order entered on that date required him to pay $100 per week in support, plus an additional $150 toward arrearages, and garnished his income. Shaner testified that by August 1999, the arrearages amount had increased to $40,911.05. In October 1999, an order was entered finding that defendant was "under-employed," and requiring him to seek additional employment to meet his support obligations. The order further provided that defendant's employer, Diamond Realty, escrow any commissions that defendant earned, pending notice to Pavlo's attorney and the court.

Additional review hearings regarding defendant's support obligations took place in early 2000. At that time, defendant contended that he could only work 21 hours per week because of "medical treatment[s] he receive[d] twice per week." However, the resulting orders required him to "obtain employment at which he work[ed] at least 35 hours per week and receive[d] garnishable wages." By the end of 2000, defendant's arrearages had increased to $42,679.84. Shaner testified that from 1999 to 2001, defendant made sporadic payments, frequently much less than what was required by court order, and sometimes as little as $20 per month. During this time, defendant never advised probation of any change of employment or any other sources of income.

Joseph LaBarbera, Jr., an investigating agent with the Burlington County Prosecutor's Office, testified that defendant had filed no New Jersey income tax returns from 1988 through 2003. LaBerbera also noted that no tax returns were filed for two business entities, Charter Development, Inc. (Charter Development), and Charter Site Development, L.L.C., both of which were operating in the late 1990s and until 2001 and 2003 respectively. Each company listed defendant's home address as its business address. Defendant's federal income tax returns in the years 1999 through 2001 reflected his gross income was never greater than $9054.

Janet Sozio, an attorney who had represented Pavlo since 1991 in her efforts to secure child support, testified regarding statements defendant made during the various enforcement hearings. In September 1999, defendant claimed to be employed by Diamond Homes, "a real estate company . . . in Trenton," and that he earned only "commission income." Defendant never revealed any interest in another company.

In July 2000, Sozio saw an article in the local newspaper that prompted her to believe defendant had other business interests. She obtained development applications from the municipal zoning department in Moorestown that reflected this was the case. Fees associated with the application were paid by a check drawn on the account of Charter Development and signed by defendant. The application "identified [defendant] as president of" the company. Monthly statements of Charter Development's bank account revealed various deposits made in October 1999, including one in the amount of $198,271.51. At least one of the checks drawn on the account was made payable to a travel agent and reflected payment of the costs of a vacation defendant took with his son.

At the September 28, 2000, enforcement hearing, defendant denied having any interest in Charter Development or the Moorestown project. However, at a subsequent plenary hearing held on January 31, 2001, the transcript of which was admitted into evidence, defendant acknowledged that he owned Charter Development and was ordered to provide Sozio with the names and addresses of anyone involved in his real estate dealings within seven days. Defendant responded to Sozio that "he wasn't involved in any business." He also acknowledged that he "took money from Charter Development"; indeed, several checks drawn on its account were made payable directly to defendant. Defendant claimed that he had opened a securities account in his son's name with monies from Charter Development, hoping to shield the money from Pavlo. At the plenary hearing, the judge ordered defendant to pay $25,000 in child support within thirty days through Sozio. She testified that defendant sent her $5000.

Robert Rabinowitz, in-house counsel for First Montauk Securities, a brokerage firm in Red Bank, testified that defendant opened two accounts in late 1999. One, in the name of Charter Development, was "a margin and . . . options account." Defendant provided some financial data in the application to open the account, including that he was the sole proprietor of Charter Development, a real estate development firm; that his estimated net worth was "over $500,000"; and that his annual income was $270,000. Rabinowitz reviewed the account activity during the ensuing fifteen months for the jury; it demonstrated that defendant actively engaged in the purchase of stocks and options during that time. Although the account had a significant balance, more than $50,000 at its inception, by February 2001, its value was only $1.17.

The second account defendant opened was a "custodian" account in his son's name. Rabinowitz explained that although defendant could access the monies in the account, he was required to "use the money only for the benefit" of his son. On the application for this account, defendant made similar representations regarding his income and net worth. Rabinowitz again reviewed the monthly account statements for the jury. They revealed the account was funded with $70,000 from Charter Development's account, much of which was subsequently withdrawn and deposited back into the business account. After the first eleven months of its existence, the custodian account was essentially worthless. The State rested after Rabinowitz' testimony.

Daniel Zonies, a lawyer and neighbor of defendant, testified as a defense witness. He had represented defendant in civil litigation matters and was the registered agent of Charter Development. Zonies loaned money to defendant on occasion during the relevant time period because he was in a difficult financial circumstances.

Defendant testified that he had an acrimonious relationship with Pavlo, and that he contracted cancer, requiring him to undergo radiation treatments that left him debilitated. He attempted to earn money and tried to pay his support obligations as best he could. Defendant claimed that he became involved in a series of real estate developments through his interest in Charter Development, and that any monies deposited in its bank account were for business purposes and did not reflect personal income. Defendant acknowledged that his real estate ventures failed and that Charter Development became insolvent. He admitted that the monies placed with First Montauk Securities were from Charter Development's account, but claimed that he only intended to briefly invest the monies, make a profit, and return them to his company. Instead, defendant claimed the declining stock market depleted his accounts.

Defendant moved for a judgment of acquittal after the State had rested and again at the conclusion of the defense case. Both motions were denied by the trial judge. Before us, defendant renews his argument that there was insufficient evidence to prove beyond a reasonable doubt that he acted willfully, with respect to the non-support charge, or that he acted purposely or knowingly with respect to the contempt charge.

We conduct our review of this issue de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:

[W]hether, 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.

[State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted).]

"A person commits a crime of the fourth degree if he willfully fails to provide support which he can provide and which he knows he is legally obliged to provide to a spouse, child, or other dependent." N.J.S.A. 2C:24-5. The term "willful" "has not, by and large, been used in the [Criminal] Code" to describe a requisite culpable mental state. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:24-5 (2009). "Willful" is not one of the mental states defined in N.J.S.A. 2C:2-2(b), however, "'[w]illfully' is more than 'knowingly,' and may be about equivalent to 'purposely.'" Ibid.

Defendant contends that the State failed to prove beyond a reasonable doubt that he acted willfully because during the relevant time period, he paid some support, even though he was "marginally employed," and because the monies from the Charter Development account were "intended to finance [defendant's] business dealings" and "were not available to . . . pay [for] personal liabilities."

This argument, however, puts a one-sided "spin" on the evidence and ignores the equally powerful inferences that the jury could have drawn to the contrary. For example, it is clear that defendant used the monies from his Charter Development business account to pay for personal expenses including a vacation. Defendant claimed that he intended to essentially return the monies that he diverted to his brokerage accounts, but the jury was entitled to disbelieve that assertion and conclude instead that defendant simply used the money to "play the market" rather than pay his child support. Moreover, the jury could further conclude that defendant was utilizing the monies from Charter Development as a "cash cow" to finance his day-to-day expenses, particularly in light of the fact that he never claimed any more than $9054 in income during the three years from 1999 to 2001.

A person is guilty of contempt "if he purposely or knowingly disobeys a judicial order . . . ." N.J.S.A. 2C:29-9(a). Here, too, the only challenge defendant raises to his conviction is that the State's proofs were insufficient to demonstrate that he acted purposely or knowingly. For the reasons already expressed, we disagree. In short, the argument lacks sufficient merit to warrant any further discussion. See R. 2:11-3(e)(2).

II.

Defendant next contends that the prosecutor's summation comments were so egregious as to amount to misconduct requiring reversal. In particular, defendant references the following remarks made at the end of the summation that comprises more than thirty pages of transcript:

[Defendant] paid just enough . . . to keep everyone at bay for a while. But ten, [twelve] years later . . . it's enough. It's time now . . . to hold you responsible.

. . . .

. . . [Defendant has] had ten plus years to play with the system to play with people's emotions, to play on their better judgment. It is now time to have him be accountable and I'm asking you to do that.

Neither comment provoked an objection from defense counsel. Defendant argues, nonetheless, that they amount to plain error. See R. 2:10-2.

"[P]rosecutors occupy a unique position in the criminal justice system and . . . their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988) (citing State v. Farrell, 61 N.J 99, 104 (1972)), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006) (citing State v. Frost, 158 N.J. 76, 82 (1999)).

"A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83 (citations omitted)). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (citations and quotations omitted).

"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant is a defendant's failure to object at the time the comments were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84 (citing State v. Bauman, 298 N.J. Super 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997)).

In State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000), a case defendant cites, we noted that suggestions that the jury should "send a message" through its verdict, or "hold [defendant] accountable . . . were inappropriate, inflammatory and constitute[d] misconduct . . . ." (Citing State v. Rose, 112 N.J. 454, 523 (1988)). However, in Hawk, the prosecutor's comments were initially made in his opening statement and provoked a mistrial motion. 327 N.J. Super. at 280. Although the judge denied that request, he gave the jury a strong curative charge that rebuked the prosecutor. Ibid. Nonetheless, the prosecutor repeated his offensive comments several more times in summation in a blatant appeal to the jury's passions. Id. at 282. We noted that had the summation comments "been the only instance of prosecutorial misconduct," the judge's subsequent curative instruction might have been sufficient. Id. at 283. We also took note of the additional improper comments made by the prosecutor regarding the effect an acquittal would have upon the testifying police officers. Id. at 285. In short, the offending conduct in Hawk was repetitive, egregious, and raised "the very real likelihood of denying defendant a fair trial." Ibid.

In this case, the prosecutor's comments were improper and should not have been made. However, they occurred very briefly at the end of a lengthy summation to which defendant has lodged no other objection. In his closing charge, the judge focused the jury's attention upon their duty to decide the case on the evidence presented without passion or prejudice. The proof of defendant's guilt was overwhelming, and "[w]hen all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007).

III.

Lastly, defendant argues that he was entitled to a Clawans adverse inference charge because the State failed to call Pavlo as a witness. Defendant made the request at the conclusion of the testimony and during the charge conference. The judge determined that given the nature of the offenses charged in the indictment, Pavlo's testimony would not "produce relevant and critical facts in issue." He also concluded that her testimony would not be "superior to that already utilized . . . ."

Clawans recognized "the 'natural inference' that may arise from an adversary's failure to call a witness . . . ." State v. Hill, 199 N.J. 545, 559 (2009) (quoting Clawans, supra, 38 N.J. at 170). The Court recently provided guidance regarding the trial judge's "critical" role in determining the propriety of such a charge:

[A] court must demonstrate that it has taken into consideration all relevant circumstances by placing, on the record, findings on each of the following:

"(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven."

[Hill, supra, 199 N.J. at 561-62 (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

Defendant argues that Pavlo, who at the time of trial was allegedly residing in Pennsylvania, was unavailable as a witness. He further contends that as defendant's adversary in the numerous Family Part hearings, Pavlo would be antagonistic to defendant's interests and her testimony could not be trusted if she was called as a defense witness. See Clawans, supra, 38 N.J. at 171-72 (noting one of the factors to consider is the relationship of the witness to the parties).

However, a party seeking a Clawans charge must comply with the procedure set forth by the Court. In particular, "the party seeking to obtain a charge encompassing such an inference [must] advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case, of his intent to so request and . . . the reasons for the conclusion that the[] [witness] ha[s] superior knowledge of the facts." Id. at 172 (emphasis added).

In this case, defendant did not request the charge prior to the State resting. More importantly, defendant failed to demonstrate at trial, or before us, that Pavlo had "superior knowledge" of the material facts involving the two offenses charged in the indictment. As the discussion above regarding the necessary elements of each crime demonstrates, defendant's assertion that Pavlo was a "main party to the criminal event" is simple unpersuasive. Defendant has failed to explain how Pavlo's testimony would be relevant to whether defendant "willfully fail[ed] to provide support which he c[ould] provide and which he kn[ew] he [wa]s legally obliged to provide to" his son. N.J.S.A. 2C:24-5. Similarly, we fail to see how Pavlo's testimony would be relevant to whether defendant "purposely or knowingly disobey[ed] a judicial order." N.J.S.A. 2C:29-9(a). In both instances, even if relevant, Pavlo's testimony would not have been "superior to that already utilized in respect to the fact[s] to be proven." Hickman, supra, 204 N.J. Super. at 414. The judge properly denied defendant's request for a Clawans adverse inference charge.

 
Affirmed.

State v. Clawans, 38 N.J. 162 (1962).

The indictment identified "Robin Pavlo" as the person to whom defendant was obligated to provide support. We have not been provided with any of the Family Part orders referenced at trial, but it would appear to be undisputed that defendant owed no duty of support to Pavlo; as the testimony at trial revealed, his obligation was limited to child support on behalf of B.M. No issue was raised at trial regarding the discrepancy, nor is one raised on appeal.

We assume the prosecutor was directing her remark to defendant who was present in court.

(continued)

(continued)

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A-5417-06T4

March 30, 2010