STATE OF NEW JERSEY v. KATHLEEN ROSSANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3345-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KATHLEEN ROSSANO,

Defendant-Appellant.

__________________________________

July 11, 2011

 

Submitted: March 16, 2011 - Decided:

 

Before Judges Cuff and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-1032.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

 

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

PER CURIAM

A jury found defendant Kathleen Rossano guilty of third degree theft of property, N.J.S.A. 2C:20-3 (Count Three); third degree computer theft, N.J.S.A. 2C:20-25a (Count Five); third degree hindering apprehension, N.J.S.A. 2C:29-3b (Count Six); third degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h (Count Eight); and third degree interception of wire or oral communications, N.J.S.A. 2C:156A-3 (Count Nine). Defendant is serving an aggregate term of ten years, including an extended term of ten years on Count Three.1

Defendant served as Vice-President of Group Sales for Cruise Value Center (CVC) from 2002 to 2006. CVC is a travel agency that specializes in pre-booking large blocks of rooms on cruise ships, thereby securing discounted rates, and reselling the rooms to its customers. In addition, the operator of the cruise ship pays CVC a commission on each room it books. CVC pays the cruise line a deposit for each block of rooms it acquires. CVC uses an American Express (AMEX) card to pay these deposits.

Defendant managed the group space acquired and re-sold by her employer. She had access to the company AMEX card and charged between $500,000 and $1,000,000 to the card each year.

On March 15, 2006, her supervisor reviewed the recent AMEX statement and discovered charges for four Continental Airline flights to Fort Lauderdale, Florida, an embarkation point for some cruises. Normally, CVC clients make their own travel arrangements to the departure port. Therefore, it was unusual to see such charges on the AMEX bill. Moreover, no record of this purchase existed in the CVC internal record system. Ross Spalding, a manager of CVC and defendant's supervisor, confronted defendant because she was the agent who booked the airline tickets. Defendant admitted she purchased the tickets for her friends. Spalding asked her to produce proof of payment by her friends. Defendant responded her friends had paid CVC with checks or money orders; however, Spalding found no record of any payments from her friends. Spalding sent defendant home and instructed her to return the following Monday.

That evening, however, Spalding and other employees realized that the computer at defendant's work station was being accessed remotely. Spalding unplugged the computer. He removed the computer from the office and brought it home until he turned it over to a forensic computer investigator for the State in April 2007. Spalding also discovered that the airline tickets were associated with a cruise that was paid in full by CVC, not defendant's friends. Spalding terminated defendant in mid-April 2006.

Further investigation revealed that defendant booked cruises for friends and extended family over a period of four years for which they paid her cash. She accepted the cash, delivered tickets and vouchers to them, but did not remit the money to her employer. For example, in July 2005, defendant booked a cruise for an extended family member that cost approximately $50,000; however, the CVC person in charge of processing cash payments had no record of receiving cash in that amount.

Records from the computer payment systems and the AMEX account were introduced at trial. CVC used the WinCruise program to record and track all clients, bookings, and payments. CVC received payment by cash, money orders, or credit cards. Payments from clients made by check or money order were entered in the Quickbooks system and then payment was made to the cruise ship line by the CVC company credit card. Every employee in the company had access to WinCruise.

The records of the WinCruise and Quickbooks systems were introduced in evidence to establish that defendant had arranged for numerous cruises for clients, and paid for the cruises with the company credit card. However, there was no correlation between the bookings and payments to the cruise operator and the cash received by defendant from some of her clients. In addition, a postal inspector testified certain money orders recorded in the system bore invalid numbers, were never issued by the United States Postal Service, and were for amounts in excess of the $1,000 limit.

On appeal, defendant raises the following arguments:

POINT ONE

THE COURT ERRED IN ALLOWING EVIDENCE OF THE DEFENDANT'S PRIOR BAD ACTS TO BE ADMITTED AND PRESENTED TO THE JURY.

 

A. THE ACTS WERE NOT CLOSE IN TIME.

 

B. THE EVIDENCE WAS NOT RELEVANT OR MATERIAL TO ANY ISSUE IN THIS CASE.

 

C. THE EVIDENCE WAS HIGHLY PREJUDICIAL.

 

POINT TWO

THE TRIAL COURT ERRONEOUSLY FAILED TO GRANT A MISTRIAL AFTER IMPROPER COMMENTS WERE MADE BY THE PROSECUTOR DURING OPENING STATEMENTS.

 

POINT THREE

THE COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE AMERICAN EXPRESS STATEMENTS INTO EVIDENCE IN VIOLATION OF N.J.R.E. 803(c)(6).

 

POINT FOUR

THE COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE EVIDENCE OF THE HARD DRIVE FROM THE COMPUTER TO BE INTRODUCED WHEN IT HAD CLEARLY VIOLATED THE CHAIN OF CUSTODY REQUIREMENTS.

 

POINT FIVE

DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

 

POINT SIX

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I

Prior to trial, the State sought permission to introduce two prior theft convictions to prove absence of mistake. One conviction in 1995 involved a scheme developed by defendant while employed at a department store. She diverted $6400 in returns to her credit card. The other theft conviction in 1994 involved her diversion of $5200 from money paid for products and service by clients to her employer, a veterinarian. The trial judge held that there was a logical connection between the three theft charges to be tried and the two prior theft convictions. He also found that the two prior convictions were close enough in time and similar in kind. Finally, the judge found that the probative value of the evidence of the prior convictions outweighed any prejudice to her. The judge recognized that a carefully crafted limiting instruction would be delivered both at the time the evidence was initially received and in his final instructions to the jury.

Based on this ruling, the prosecutor informed the jury in her opening that they would receive testimony from two prior employers from whom defendant stole money and applied those lessons to the scheme for which she stood trial. The State presented the testimony of a security guard at Macy's and the veterinarian for whom defendant worked regarding her two prior convictions. Defendant argues that the trial judge erred in admitting the prior convictions, and the prosecutor committed prosecutorial misconduct when she referred to the two prior convictions in her opening statement.

A. Admission of the two prior theft convictions

Defendant argues the prior convictions are not relevant to any issue in the case, that they are remote in time from her CVC employment and unduly prejudicial. The State responds that the prior convictions are relevant to disputed issues in the case, specifically absence of mistake and intent.

The use of other crimes evidence is governed by N.J.R.E. 404(b). The rule provides:

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

 

Application of this rule is governed by State v. Cofield, 127 N.J. 328, 338 (1992).2 In order to be admissible and to prevent overuse of other crimes evidence, prior bad acts must comport with the following standard:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Ibid. (citation omitted).]

 

Each determination must be examined through the applicable standard of review. N.J.R.E. 403 allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances. Appellate courts must give substantial deference to the trial judge's discretion in evidentiary rulings. See, e.g., Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a result, the evidential rulings of a trial judge are reviewed under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 484 (1997); State v. Ramseur, 106 N.J. 123, 266 (1987).

As long as intent, motive, absence of mistake, or mens rea are disputed issues in the case, the evidence should be admitted. See State v. Pierro, 355 N.J. Super. 109, 121 n.1 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003). Here, defendant's intent was the focus of the defense. Defendant argued that as an employee in good standing, she was authorized to use the company credit card. Of course, the State argued that she used her access to these cards to steal from her employer and abused the trust reposed in her to divert funds from her employer to enrich herself. The two prior theft convictions, both from employers, tended to substantiate the substantial documentary evidence that defendant committed the present crime.

Similarly, the prior theft convictions are "similar in kind and reasonably close in time to the offense charged[.]" Cofield, supra, 127 N.J. at 338. "[T]emporal remoteness of a past wrong should be considered in evaluating its probative value," Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404 (2011) (citing Ramseur, supra, 106 N.J. at 266), but it is not an essential element to allow admission of prior convictions in all instances.

In State v. Barden, 195 N.J. 375, (2008), the Court explained:

[T]he second prong may be eliminated where it "serves no beneficial purpose." State v. Williams, 190 N.J. 114, 131 (2007). We explained that the "usefulness [of Cofield's second prong] as a requirement is limited to cases that replicate the circumstances in Cofield[.]"

 

Accord State v. Gillispie, ___ N.J. ___, ___ (2011) (slip op. at 36-37). In Cofield, the defendant was indicted for two drug offenses that occurred within a month of each other. 127 N.J. at 331-32. The defendant was tried first for the second crime and was acquitted of the substantive counts. Id. at 332. At trial for the first crime, the State sought to introduce evidence of the second crime, to prove possession of the drugs on the charged offense. Ibid.; Barden, supra, 195 N.J. at 389.

Here, unlike Cofield, the evidence of prior crimes is not being used to prove possession, and thus, the need for temporal proximity is not crucial. "[W]here the other-crimes evidence was relevant only to the defendant's state of mind, . . . the test [becomes] a three-part test by elimination of the similar-in-[time] prong." Barden, supra, 195 N.J. at 389 (citing Williams, supra, 190 N.J. at 131). Moreover, the two prior convictions are not remote in time. Each occurred within ten years of the commencement of defendant's employment at CVC and the initiation of her scheme. Finally, we reject defendant's contention that the probative value of the evidence was outweighed by its prejudice under Cofield's final prong.

Defendant also argues the prejudice was ensured because the trial judge issued a limiting instruction after each witness, O'Neill and Johnson, testified and again during the jury charge. This argument ignores the rule that the limiting instruction must "state specifically the purposes for which the evidence may be considered and, to the extent necessary for the jury's understanding, the issues on which such evidence is not to be considered." State v. Stevens, 115 N.J. 289, 309 (1989). Accord Cofield, supra, 127 N.J. at 341. Moreover, the limiting instruction must be delivered contemporaneously with the administration of the other crimes evidence and repeated in the final charge to the jury. State v. Fortin, 189 N.J. 579, 601 (2007); State v. Angoy, 329 N.J. Super. 79, 89 (App. Div. 2000). The trial judge did just as he was required.

B. Prosecutorial Misconduct

In her opening statement, the prosecutor summarized the evidence the jury would hear about defendant's conduct at CVC. She then informed the jury that it would hear additional testimony from two of defendant's prior employers. The prosecutor stated:

But you're also going to hear from two witnesses in this case that have nothing to do with [CVC], probably never heard of it. . . . Dr. Johnson is a retired veterinarian from the Cranbury Veterinarian Hospital in East Brunswick. Bill O'Keefe was a security guard at Macy's. Both of them had dealings with the defendant years ago. Both of them employed the defendant years ago. The defendant stole from both of them years ago. That's right, members of the jury. It's not the first time she's stealing from an employer.

 

When employed by Macy's department store, the defendant used her own credit cards to charge back merchandise to herself that she had neither purchased nor had any intention of purchasing to an amount of approximately over $6,000. When employed by Dr. Johnson, she stole from him by failing to turn over the cash that people were coming in to buy medicine and food for their animals.

 

This scheme was by far the defendant's most elaborate, but it wasn't her first. She took what she had learned in the past, which was pocketing cash and credit card fraud, and she put it together in a three year scheme that netted her over $75,000 in cash . . . .

 

Members of the jury, that's a flavor of this case. That's what this case is really about. It's about that defendant taking advantage of an employer yet again.

Following his opening statement, defense counsel moved for a mistrial.

The trial judge ruled that a curative instruction would eliminate any harm caused by the prosecutor's remarks. He instructed the jury as follows:

So you heard during the opening statement that [defendant] had a prior incident with a veterinarian's office and with Macy's. And normally, such evidence is not permitted under our Rules of Evidence. . . . Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it's offered only to show that that person has a disposition or a tendency to do wrong, therefore, must be guilty of the crime or charges . . . in the indictment.

 

Before you can give any weight to this evidence, you must be satisfied that she committed the other acts, wrongs or crimes. . . . Our rules do permit evidence of other crimes, wrongs, acts, when it's used for a specific narrow purpose. . . . Narrow purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to the case.

 

Here, the trial judge had already ruled that the prior theft convictions would be admissible at trial. The judge issued an appropriate limiting instruction after the opening statements, and the remarks were consistent with the testimony later offered by the Macy's representative and the veterinarian.

Moreover, in assessing whether prosecutorial misconduct, such as improper remarks in an opening, requires reversal, an appellate court should determine whether "'the conduct was so egregious that it deprives the defendant of a fair trial.'" State v. Loftin, 146 N.J. 295, 386 (1996) (quoting Ramseur, supra, 106 N.J. at 322). This assessment is also informed by the limiting instruction delivered by the trial judge. Ramseur, supra, 106 N.J. at 322-23. Having reviewed the record in its entirety, we are satisfied that defendant received a fair trial. As noted, the evidence that documented defendant's scheme was voluminous and damning. In addition, the State produced persons who made their cruise arrangements through defendant and remitted cash or money orders to her in payment for the travel arrangements. This testimony coupled with the documentary evidence fully exposed defendant's criminal scheme.

II

Defendant argues that the State should not have been allowed to introduce numerous AMEX statements from two credit cards used by CVC to pay for cruises. She contends the State did not provide an adequate foundation to allow admission as business records pursuant to N.J.R.E. 803(c)(6).

N.J.R.E. 803(c)(6) provides:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the source of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

 

In a criminal case, a document is admissible as an exception to hearsay only if it is not testimonial. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2011); Crawford v. Washington, 541 U.S. 36, 56 124 S. Ct. 1354, 1367 158 L. Ed. 2d 177, 195 (2004). Business records are non-testimonial by nature under Crawford. 541 U.S. at 56 124 S. Ct. at 1367 158 L. Ed. 2d at 195-96.

Moreover, foundation witnesses, generally, are not required to have personal knowledge of the facts related in the proffered record. Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996). Instead, a party seeking to introduce a hearsay statement under the business records exception "'must demonstrate that (1) the writing [was] made in the regular course of business, (2) the writing was prepared within a short time of the act, condition or event being described, and (3) the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.'" N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 130 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 347 (2010)).

Here, the billing statements are made in the regular course of business because AMEX creates the records of CVC's credit card transactions and delivers a statement to the company. Once received by the card holder, the statement becomes a business record of a card holder, such as CVC, because it forms the basis for the creation of an account payable by the card holder. Moreover, credit card records are created contemporaneously with the transaction, and the records are produced and disseminated to card holders on a regular basis. Finally, the information in the statement is simply a compilation of credit card transactions, produced by a party with no interest in the litigation, and the credit card records simply corroborate the CVC computer records that the company paid cruise operators through AMEX and received no payment from certain customers on the retail end.

III

Defendant argues that the chain-of-custody of the computer from defendant's work station was compromised. Therefore, she contends the information obtained from her computer is unreliable and inadmissible. We disagree.

Authentication is required and "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. A party introducing tangible evidence has a burden of laying a proper foundation. State v. Brunson, 132 N.J. 377, 393 (1993). An uninterrupted chain of custody is a central requirement in establishing the foundation for a tangible item. State v. Morton, 155 N.J. 383, 446 (1998). "The decision on whether the chain of custody has been sufficiently established is left to the discretion of the trial court." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 901 (2011) (citing Morton, supra, 155 N.J. at 446). Most importantly, defects in the chain-of-custody go to the weight and not the admissibility of the evidence. Ibid.

Here, the chain-of-custody is unassailable. The manager disconnected defendant's work computer, removed it from the office and kept it in his home, until he turned it over to an investigator for the State a year later. Any inferences that Spalding, as the victim of defendant's crime, might have an interest in tampering with or modifying the computer to secure defendant's conviction, is an issue of weight that can be pursued sufficiently through cross-examination and other testimony.

IV

Defendant argues the trial judge should have granted her motion for a judgment of acquittal based on the conviction being against the weight of the evidence. This argument is without sufficient weight to warrant discussion in a written opinion. R. 2:11-3(e)(2).

V

Defendant argues her ten-year extended term is manifestly excessive because the judge misidentified and misapplied the aggravating factors and declined to find two mitigating factors. We disagree.

Under the Criminal Code, the "unfettered sentencing discretion" of pre-code law has been replaced with "a structured discretion designed to foster less arbitrary" sentences. State v. Roth, 95 N.J. 334, 345 (1984). Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, the appellate court must (1) "require that an exercise of discretion be based on findings of fact that are grounded in competent, reasonably credible evidence"; (2) "require that the factfinder apply correct legal principles in exercising its discretion"; and (3) modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 363-64.

The judge properly found aggravating factor 3. N.J.S.A. 2C:44-1a(3) is applicable when the record suggests defendant will commit another offense. Judge Nieves specifically found that there is a risk that defendant will commit another offense. Having stolen from three employers, there is certainly a risk she will steal again.

Aggravating factor 9, N.J.S.A. 2C:44-1a(9), was also appropriately found and applied. Defendant has a history of committing crimes. General deterrence is always appropriate, and here, the less common need for specific deterrence is especially strong.

A

ffirmed.

1 In the sentencing transcript, the judge refers to this as Count One.

2 The Supreme Court recently referred to Cofield as the seminal case on the application of Rule 404(b) and reiterated the continuing vitality of the case stating "the test articulated in Cofield still frames the analysis for the admissibility of evidence under Rule 404(b)." State v. Zarik Rose, ___ N.J. ___, ___ (2011) (slip op. at 24 n.10).