STATE OF NEW JERSEY v. TONIJAH CRISS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4145-10T2

A-4986-10T2

STATE OF NEW JERSEY, A-5322-10T2

A-1345-11T2

Plaintiff-Respondent,

v.

TONIJAH CRISS,

Defendant-Appellant.

____________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC CRISS, a/k/a CRISS,

ERICK CRISS, TARIQ MCRAE,

IRVING M. SAMAAD, TARIQ SAMAAD,

TARIQ H. SAMAD, TARIQ,

Defendant-Appellant.

_____________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIHEE JABBAR BRISBANE,1

Defendant-Appellant.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIA STAUC ESTEE, a/k/a

TIA PERRIN STAUCIA CRISS,

TIA STAUCI CRISS PERRIN,

TIA STAUC ESTEE PERRIN,

Defendant-Appellant.

_________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TREZMYNN E. CRISS,

Defendant-Appellant.

________________________________________________

March 3, 2015

 

Submitted December 8, 2014 Decided

Before Judges Simonelli, Guadagno, and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 07-11-814, 08-05-342, 08-08-626 and 08-08-632.

Tonijah Criss, appellant pro se.

Joseph E. Krakora, Public Defender, attorney for appellant Eric Criss (Alison Perrone, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Tihee Jabbar Brisbane (Michele A. Adubato, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Tia Stauc Estee (Monique Moyse, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Trezmynn E. Criss (Michael Confusione, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

TABLE OF CONTENTS

I. FACTS 6

II. ERIC CRISS 22

III. TONIJAH CRISS 49

IV. TIA STAUC ESTEE 63

V. TIHEE JABBAR BRISBANE 97

VI. TREZMYNN E. CRISS 115

VII. CONCLUSION 134

These five appeals were calendared before us back-to-back. We now consolidate them for the purpose of this opinion.

Defendants Eric Criss, Tonijah Criss, Tia Stauc Estee, Trezmynn E. Criss, Tihee Jabbar Brisbane, and ten others not before us on this appeal were initially charged in a 407-count indictment (No. 08-05-342) in connection with a scheme to create and cash fraudulent checks in New Jersey and elsewhere.

Tia2 was charged under a second indictment (No. 08-08-632) with possession of a false government document, hindering apprehension or prosecution, and false incrimination.

The trial court granted the State's motion to consolidate the two indictments for trial. After pretrial hearings, the court denied motions by Tonijah, Eric, and Trezmynn to sever; a motion by Eric to suppress evidence gathered from an apartment; and a motion by Tia to suppress evidence obtained after a warrantless search of a baby car seat.

Trial began on October 20, 2010. On December 8, 2010, a jury returned verdicts finding Eric guilty of racketeering; leader of organized crime; financial facilitation of criminal activity (money laundering); failure to file income tax reports; manufacturing false documents; transferring false government documents; conspiracy to transfer false government documents; conspiracy to commit theft by deception; and possession of a false government document.

Tonijah was found guilty of racketeering; transferring false government documents; conspiracy to transfer false government documents; conspiracy to commit theft by deception; four counts of forgery; four counts of uttering a forged instrument; four counts of exhibiting a false government document; four counts of wrongful impersonation; and four counts of theft by deception.

On Indictment 08-05-342, Tia was found guilty of racketeering; transferring false government documents; conspiracy to transfer false government documents; and conspiracy to commit theft by deception. On Indictment 08-08-632, Tia was found guilty of four counts of possession of a false government document and one count of hindering apprehension or prosecution. On Indictment 07-11-814, Tia pled guilty after trial to uttering a forged check, conspiracy to commit theft by deception, attempted theft by deception, and possession of a simulated driver's license. On Indictment 08-08-626, Tia pled guilty to hindering apprehension or prosecution and obstructing the administration of law.

Trezmynn was found guilty of racketeering; transferring false government documents; conspiracy to transfer false government documents; conspiracy to commit theft by deception; four counts of forgery; four counts of uttering a forged instrument; four counts of exhibiting a false government document; wrongful impersonation; two counts of theft by deception; and two counts of attempted theft by deception. Trezmynn was found not guilty of three counts of wrongful impersonation.

Brisbane was found guilty of accessing a computer for the purpose of executing a scheme to defraud and obtaining protected data or personal information without authorization.

Each defendant's sentence and points on appeal will be discussed seriatim.

I.

FACTS

The State charged that Eric Criss, his sons Tonijah and Trezmynn, his daughter Tia, and others operated a criminal enterprise engaged in the manufacture and negotiation of forged and fraudulent checks. After the checks were created, they were then given to "runners" who were provided with false identification, including driver's licenses and credit cards, in order to cash the checks at banks. The runners were given a portion of the proceeds and promised bail and legal representation if apprehended.

At trial, Kyle P. Frazier testified that he was recruited into the conspiracy by Trezmynn, who explained that Frazier would be given false identification to use when presenting forged checks for payment at banks. Frazier met Eric at Eric's condominium in Pennsylvania, who promised Frazier one-third of the proceeds and legal representation if he was arrested. The forged checks and identification documents were manufactured by Eric at an office in either Elizabeth or East Orange. Eric used a computer to print the checks and had a machine to manufacture the false identification.

Either Trezmynn or Eric was always with Frazier when he cashed checks. Trezmynn would follow Frazier into the bank and get change from a teller while Frazier cashed the check. Frazier was given his share of the proceeds by Trezmynn immediately after cashing the check.

The banks were chosen randomly, and Frazier was instructed by Eric and Trezmynn to put clear nail polish on his fingertips when they went to Wachovia Bank because they required a thumb print to cash a check. Frazier knew that other "crews" were cashing checks at the same time because Trezmynn spoke to them by phone. Frazier was once told to stop cashing a check drawn on a particular account because someone else had been caught cashing a check drawn on the same account. He was also instructed to try and get the check and IDs back and walk out of the bank if there were ever a problem.

On one occasion, when Frazier was attempting to cash a check and the teller approached a manager, Frazier got a call from Trezmynn telling him the police were on their way. Frazier immediately left the bank through the front as the police were entering through the back door. He was later arrested. At trial, Frazier identified himself and Trezmynn in bank surveillance photos cashing or attempting to cash checks.

Shane Elliott testified that he became involved in the check-cashing scheme in 2006 through his girlfriend, Misty Kondracki. She took him to meet with Tia and her husband Terrell, who helped create false identification for him to cash the checks. Either Terrell or Tia would call Elliott to alert him if the police were coming while he was in the bank to enable him to get out. Tia and Terrell told Elliott to put glue on his thumb when he cashed checks at Wachovia Bank. Occasionally, Tia and Terrell provided him with the glue. Elliott estimated that he cashed checks between twenty and thirty times in New Jersey and Pennsylvania. He described Eric as the leader of the organization and Tia and Terrell as his supervisors. Elliott saw Tia and Terrell split the proceeds with Eric five or six times in various parking lots.

Elliott used driver's licenses from Georgia, Maryland, and Florida as identification, and he identified Florida and Maryland driver's licenses, two Discover cards, and checks that he received from Terrell at trial. Tia and Terrell told Elliott that if he were arrested, they would provide bail and legal representation for him.

Nicole Halsey testified as to her participation in the scheme. Halsey had her photo taken to be applied to fraudulent licenses. She received checks from Trezmynn and estimated that she cashed approximately ten checks in New Jersey, Pennsylvania and New York, including three checks at Habib American Bank.

Danielle Hoagland testified that she was recruited by Tia and Terrell in December 2006. She met Eric at an office building and Tia, Terrell, and Eric explained the check-cashing scheme to her. Hoagland and Elliott were told they would be given clothes, identification, and checks, and then Tia and Terrell took her and Elliott to cash checks after observing others do it. Hoagland was trained on how to apply clear nail polish or super glue to her thumb to cover her fingerprint.

Hoagland used fictitious driver's licenses from Pennsylvania, Virginia, Maryland, Georgia, and Delaware, all bearing her picture. She cashed checks in Pennsylvania, New York, New Jersey, and Connecticut and gave the proceeds to Tia.

Kimberly Hart was recruited by Tia in 2007. Tia and Terrell told her that the checks were from "big corporate businesses" and they received them from an unidentified "family member." Like the others, Hart had her photo taken, was given clothes, and was trained how to cash the checks, including putting glue on her thumb. Terrell was always with Hart in the bank when she cashed checks.

Hart testified about her arrest at a Walmart in Phillipsburg, New Jersey. After Terrell parked in a handicapped zone, she entered the Walmart to cash a check. When she returned to the van, Tia told her that a police officer was talking to Terrell. Other officers arrived and found checks and IDs in a baby car seat that was removed from the vehicle. Some of the false IDs had Hart's picture on them and some of the checks contained the names of payees matching the IDs. Hart was not aware that the checks were in the baby seat.

Patrolman Anthony Goodell from Pohatcong Township was on bike patrol on July 19, 2007, when he observed a vehicle parked in the handicapped spot outside the front entrance of the Walmart. The car did not have a handicapped placard in the window, so he went to investigate. The occupants of the vehicle were later identified as Terrell, Tia, and an infant. Hart, who had been inside the store, arrived later.

When Goodell first approached the car, Terrell gave a fictitious name, Marcus Miller, and did not produce a driver's license. Tia interrupted Goodell at least twice, asking if Terrell could go back into the store, which heightened Goodell's suspicion. Goodell did not allow Terrell to leave because he had failed to produce identification. Tia interrupted a second time to ask if they "could pay the ticket right then and there to speed things up." Goodell described Tia as "very impatient."

Terrell gave consent to search the vehicle, but before the search could begin, Goodell saw Tia remove the infant and the baby car seat from the vehicle, and "almost in a run," walk away from the vehicle towards the front of Walmart where another vehicle was parked. Goodell told Sergeant Sylvain, who had arrived to assist him, to stop Tia from leaving.

After stopping Tia, Sylvain recovered a credit card, checks, and three Pennsylvania driver's licenses that were between the cushion and the hard shell of the car seat. One of the checks recovered was from Chemiclene Incorporated, payable to Sharon Graham; a second check was from Chemiclene payable to Betty Gregware. The Pennsylvania driver's license was in the name of Betty Gregware with Hart's picture, and the Discover platinum card was in the name of Betty Gregware. A second Pennsylvania driver's license and Discover platinum card were both in the name of Sharon Graham with Hart's picture. A third Pennsylvania driver's license and Discover platinum card were both in the name of Terry Reynolds and the license had Hart's picture on it. During a search of Tia, $2,788 in cash was found in her back pocket.

Sergeant Robb was also involved in the search of the vehicle. In the glove box, he found a Discover credit card and a Pennsylvania driver's license, both in the name of Wilma Jones.

Steven Jacob Lawyer also participated in the scheme and testified that Tia bought him clothes and that Terrell gave him a cell phone and accompanied him into the bank to cash the checks. Lawyer split the proceeds with Terrell. He also cashed checks with Tonijah.

Kondracki testified that Tia and Terrell approached her together about cashing fraudulent corporate checks. She cashed checks for them in New Jersey, New York, Connecticut, and Pennsylvania, using the names Karen Maddox, Dierra McCormick, Nancy Hill, Dana Brooks, Katrina Johnson, and others. She received driver's licenses from Maryland and Georgia and credit cards used as identification for cashing the checks from Tia and Terrell. Terrell was always in the bank with her and she gave him the money after cashing a check.

Kondracki testified that she was with Terrell and two others, attempting to cash a check at a Wachovia Bank in Bernardsville. She was surrounded by police as she tried to leave the parking lot. At trial, she identified a few of the uncashed checks that were seized during the arrest and she admitted to using the names Katrina Johnson and Yolanda Smith that were on the checks.

Edmund DeFilippis, Jr., a detective with the Hunterdon County Prosecutor's office, testified that he responded to a call of a suspicious person attempting to cash a check in Bernardsville. When he arrived, he arrested Kondracki and two others. He seized a number of items during a search of the three individuals and their vehicle, including three checks from the account of "Frank Lowe, Limited slash Clark," payable to Katrina Johnson, Melody W. Schaeffer, and Yolanda Smith; two checks from Windsor Temps, Inc., payable to Yolanda Smith and Katrina Johnson; two checks from World Logistics USA, Inc., payable to Yolanda Smith and Melody W. Schaeffer; a number of driver's licenses from various states with Kondracki's picture but bearing the names of Yolanda Smith, Katrina Johnson, Dixon Ebony, and Dierra McCormick; a number of credit cards in the names of Dierra McCormick, Kim White, Karen S. Maddox, and Yolanda Smith; and a Maryland driver's license in the name of Melody W. Schaeffer, with a picture of a black female.

Peter Bottorff had known Tonijah since seventh grade and was brought into the organization through him. Bottorff cashed between 100 and 250 fictitious checks. He looked to Tonijah as his "supervisor" and testified that Tonijah took him to get his picture taken for false identification.

Bottorff testified that Eric rented a room in East Orange with computer equipment, two printers, check papers, and blank licenses. One printer could read barcodes and a second was used to print checks. He observed driver's licenses being created using a machine that printed out a finished license after blank license forms were fed into it.

Bottorff was given fictitious driver's licenses from Florida, Georgia, Maryland, Delaware, Virginia, and Pennsylvania and used the names of David Cutler, Samuel Boyed, James Wilmott, Mark Riley, Terrance Jones, Brian Peach, Rich Holmes, and others. He testified that Eric and Tonijah had "hologram paper" that they used in the license machine in order to produce licenses with holograms that stated "Genuine/Secure."

At trial, he identified checks he and others had cashed from a number of businesses, including the City of Linden Municipal Court and the County of Union. He was able to identify checks in court because he recognized the names and the type of check paper as the type used by Eric.

Bottorff cashed checks at banks in New Jersey, Connecticut, New York, Pennsylvania, and Ohio. He went to Ohio twice with Tonijah and cashed between five and fifteen fictitious checks at different branches of the Fifth Third Bank.

Bottorff explained the structure of the enterprise as including Tonijah's crew, consisting of himself and Hoagland; Tia and Terrell's crew, consisting of Elliott and Kondracki; and Trezmynn's crew, consisting of Frazier and a female. Eric had a crew consisting of someone from Georgia.

There were times when several "runners" went out to cash checks from one account at the same time. Bottorff explained

I would get a phone call from Tonijah. We would wind up meeting up at either the 570 Broad Street or the East Orange office. We would pick up the checks and the licenses from Eric Criss, and we would be sent out, and told that there was other runners out doing the same account.

If one crew was unsuccessful in cashing the check, the others would be told to disregard that account and move to the next one.

Bottorff obtained between five and ten legitimate corporate checks from a coworker and gave them to Tonijah. In return, Tonijah gave Bottorff $100 per check to give to his coworker.

In August 2007, Bottorff was with Tonijah in Tonijah's car, parked in a Jackson shopping center. Bottorff went into a bank to cash a check. He handed the check, his license, and a credit card to a teller, but the teller went into another room. Shortly thereafter, a police officer arrived and arrested Bottorff. The officer seized two licenses, two credit cards, one or two checks, four Visa gift cards, and one American Express gift card.

Eric and Tonijah had told Bottorff that if he were arrested, he was to keep his mouth shut and he would get bailed out and be provided with a lawyer. After his arrest, bail was posted by Bottorff's girlfriend, Kendra Foster, who was accompanied by a male associated with the "Criss family," who they referred to as "Man."

Harry Torres, Jr., the custodian of records for Blaze Bail Bonds, testified that Foster and Herbert Bennett applied for a bail bond for Bottorff. Bennett claimed he was Bottorff's brother.

Bottorff testified that, after he was released on bail, Eric told Tonijah to take him to "one of the lawyers that he uses." He and Tonijah met with Michael Montanari, who represented Bottorff for a few months. Eric and Tonijah paid for Bottorff's lawyer.

Montanari testified that he represented Bottorff in either August or September of 2007, until he was relieved of counsel because of an unexplained conflict of interest. He claimed that he did not know who paid his firm's bill for Bottorff's representation.

Although most of the check-cashing was delegated to the runners, some of the core members of the organization negotiated checks themselves. Trezmynn cashed forged checks at branches of Sovereign Bank in August 2007. Tonijah cashed checks at both Sovereign and Peapack-Gladstone Bank in June 2007. Tia was arrested and ultimately pled guilty to negotiating a forged check in 2007.

Most of the victims of the scheme were businesses whose account numbers were used on the forged checks, although the banks bore the ultimate losses. One of these victims was the Regional Perinatal Consortium of Monmouth and Ocean County (RPCMOC). RPCMOC maintained checking and savings accounts at Ocean First Bank for payments to vendors and for utilities or services but not for payroll.

Raymond Martin from the Ocean First Bank's security and loss prevention department testified that in August 2007, fifteen forged RPCMOC checks bearing the memo "payroll" were cashed at various Ocean First branches totaling $38,000.

Another victim was Rubbyy Corp, which owned a McDonald's franchise in the Newark area and maintained a payroll account at Sovereign Bank. Celestina S. Quintana, the owner of Rubbyy Corp, testified and identified several forged checks drawn on the Rubbyy payroll account.

Representatives of several other businesses victimized by the scheme testified at trial, including S. & S. Plumbing and Heating, with $33,365.11 in forged checks; Solomon's Warehouse Corporation, $7,759.92; Hammer Bedding, $23,948.09; and Custom Alloy Corporation, $19,758. In addition, several businesses with accounts at Wachovia Bank, Commerce Bank, and Bank of America were all victims.

Government entities were also targeted by the organization, including the County of Union, the City of Hackensack, and the municipal courts of Linden and Greenwich Township.

On February 24, 2008, Eric Criss was arrested. Five days later, a search warrant was executed at the offices rented by him at 570 North Broad Street in Elizabeth. Detectives seized blank check stock paper, a laminator, a printer-copier, and a box containing Verizon Wireless customer information.

Jim Rodzon, a sales manager for Verizon Wireless, testified that Brisbane had worked as a sales representative for Verizon Wireless in Branchburg. He spoke with customers, arranged for services, and took credit applications. Brisbane had access to the computer records of Verizon Wireless, including customer addresses, phone numbers, billing information, and social security numbers. He was not authorized to take customer information home or outside of the facility and was not allowed access to such information after he was no longer employed by Verizon Wireless.

Rodzon identified Verizon Wireless customer information on documents seized during the search of Eric's offices at trial. He explained that the documents were "screen shots" of customer accounts and orders from the Branchburg billing system. Several of the documents included Brisbane's name. As a result of the seizure, Verizon Wireless notified between 2,700 and 2,800 customers on the East Coast that their information "had been compromised."

Tonijah testified that he had known Brisbane since he was a child. Eric and Brisbane shared office space at 570 North Broad Street in Elizabeth and shared a mailing address at 71 South Orange Avenue. Tonijah denied looking at Verizon Wireless records with Bottorff at South Orange Avenue, but he might have seen the records at the North Broad Street offices.

Brisbane testified that he had started working for Verizon Wireless as a sales representative in November 2003. He claimed he was directed to call customers eligible for renewal of their phone contracts in order to sell them additional products and services. He also claimed that he used his "personal database" and brought Verizon Wireless approximately 500 new customers between November and December 2003. Some of those records were in the boxes of documents introduced at trial.

Brisbane claimed he worked from home, making phone calls or stuffing envelopes, and his supervisors at Verizon Wireless, Cheryl Morgan and Denise Scott, had given him customer records to take home. He identified the records presented at trial as the customer records he had been given by his supervisors as part of the outbound program. The documents contained Verizon Wireless customer information from the database. Other documents in the box were records of his "personal customer sales" and "miscellaneous sales orders."

Brisbane claimed he kept the records because they were his customers and he was authorized to keep them since his manager, Morgan, gave the records to him. He maintained that the records belonged to him and he used them for his "private interest" of earning commission from Verizon Wireless. He only "shared" his 500 customers with Verizon Wireless and denied taking any proprietary information.

Brisbane left Verizon Wireless in January 2005. He placed the Verizon Wireless records in a storage facility and did not use them from 2005 through 2007. In the summer of 2007, he moved two of his businesses, including a cell phone business, to 570 North Broad Street, sharing space with Eric.

One of the rooms in the office suite there was used as a storage room and Brisbane moved the Verizon Wireless records into that room. He intended to use the records in his cell phone business. Brisbane testified that he never intended to use the Verizon Wireless customer contact information illegally and claimed that no one was ever defrauded with that information.

The State called Cheryl Morgan as a rebuttal witness. She was one of Brisbane's supervisors at Verizon Wireless. She testified that Brisbane was authorized to access the internal database of Verizon Wireless only for Verizon Wireless business. She identified the documents found in the search as originating from the Verizon Wireless system called Vision and noted that the documents included personal identification information about Verizon Wireless customers.

According to Morgan, Brisbane was not authorized to remove proprietary documents from the office and he did not have access to the internal system from home. Morgan had seen similar documents in Brisbane's desk at work and when they disappeared, she asked Brisbane where the documents were. Brisbane told Morgan he had discarded them.

Brisbane was terminated from Verizon Wireless in January 2005 for violating company policy. Morgan made the recommendation to terminate him.

II.

Eric Criss

Eric Criss was sentenced on February 17, 2011. The court merged counts eight, nine, ten and eleven with count one, second-degree racketeering, N.J.S.A. 2C:41-2. On that count, Eric was sentenced to ten years with five years to be served without parole. On count two, second-degree leader of organized crime, N.J.S.A. 2C:5-2(g), ten years, to run consecutively with the term imposed on count one; on count four, second-degree money laundering, N.J.S.A. 2C:21-25(b), ten years, three years to be served without parole, concurrent to the terms imposed on counts one and two; on count six, failure to file an income tax report, N.J.S.A. 54:52-8, four years, concurrent to counts one and two; on count eight, second-degree manufacturing of false government documents, N.J.S.A. 2C:21-2.1(b), eight years concurrent to counts one and two; on count 403, fourth-degree possession of false government documents, N.J.S.A. 2C:21-2.1(d), one year concurrent to counts one and two.

On March 7, 2011, Eric was resentenced nunc pro tunc to February 17, 2011. The court modified the ten-year sentence on count two to run concurrently, rather than consecutively, to count one and modified the eight-year term on count four to run consecutively, rather than concurrently, to count one. The court did not address the other terms imposed.

Eric raises the following points on appeal

point one

improper jury charges on racketeering and leader of organized crime deprived defendant of his right to a fair trial, necessitating the reversal of his convictions. (partially raised below).

point two

defendant's money laundering conviction must be reversed because the court failed to properly define the concept on knowingly in the context of this offense. (not raised below).

point three

defendant's convictions for transfer of false government documents (count nine) and possession of false government documents (count four hundred three) must be reversed because the trial court incorrectly charged the jury on these offenses.

point four

defendant's convictions for conspiracy to transfer false government documents (count ten) and conspiracy to commit theft by deception (count eleven) must be reversed because the trial court incorrectly charged the jury on these offenses. (not raised below).

point five

the trial court erred by explaining to the jury that the counts it would consider during deliberations had survived a motion for judgment of acquittal, which meant that the court had found that a jury could find guilt beyond a reasonable doubt.

point six

the cumulative effect of the trial court's errors deprived the defendant of a fair trial.

point seven

the three-year period of parole supervision imposed upon defendant must be vacated.

Eric's first five points challenge the court's charge to the jury. We will address each charge separately.

Racketeering Charge

Eric first argues that the court's charge on racketeering was improper because the court "failed to instruct the jury that it must unanimously agree as to which predicate offenses formed a pattern of racketeering activity." He contends that the court's specific refusal to give that charge led to a non-unanimous verdict and a prejudicial impact because he was facing conviction of seven different predicate offenses.

He also argues that the trial court erroneously told the jury that wrongful impersonation could be a predicate offense and "neglected to inform the jury that the activities of the racketeering enterprise had to [a]ffect trade or commerce in New Jersey."

In order to assess Eric's claim, and because other defendants present similar challenges to the charge, we reproduce a significant portion of the charge

The racketeering statute provides in part that it shall be unlawful for any person employed by or associated with any enterprise engaged in activities . . . which affect trade or commerce to . . . participate directly or indirectly in the conduct of the enterprise's affairs through a pattern of racketeering activity.

. . . .

Now, that's the statute. It contains elements of the offense. And you've heard me say from time to time that a defendant is presumed to be innocent unless and until each and every element of each of a particular charge is proven beyond a reasonable doubt. And I'll go through the elements. . . .

 
The defendants Eric Criss, Tonijah Criss, Tia Perrin, and Trezmynn Criss are charged with violating the racketeering statute by conducting or participating directly or indirectly, in the affairs of an enterprise through a pattern of racketeering activity.

Now, racketeering is a separate crime which is comprised of incidents of racketeering conduct. In this case, the State charges in the indictment that these four defendants committed certain acts of racketeering; that is, acts or incidents . . . to advance the purposes and objectives of the racketeering enterprise which the State alleges was to get money.

In furtherance of that enterprise, the indictment charges the defendant Eric Criss with financial facilitation of criminal activity, failure to file income tax return[s], manufacture [of] false government documents, transfer [of] false government documents, conspiracy to transfer false government documents, conspiracy to commit theft by deception, and possession of a false government document.

Tonijah Criss is charged with crimes which constitute racketeering or may constitute racketeering activity of manufacturing false government documents, transferring false government documents, conspiracy to transfer false government documents, and conspiracy to commit theft by deception, forgery, uttering a forged instrument, exhibiting a false government document, wrongful impersonation, and theft by deception.

Tia Perrin is charged with transferring false government documents, conspiracy to transfer false government documents, and conspiracy to commit theft by deception.

Trezmynn Criss is charged with transferring false government documents, conspiracy to transfer false government documents, conspiracy to commit theft by deception, forgery, uttering a forged instrument, exhibiting a false government document, wrongful impersonation, theft by deception, and attempted theft by deception.

To prove any one of those defendants guilty of the crime of racketeering charged in count 1, the State must prove all of the following six elements beyond a reasonable doubt

One, that the alleged check cashing scheme constituted an enterprise. And I'll define what an "enterprise" is shortly.

Two, the enterprise engaged in[,] or its activities affected[,] trade or commerce. I'll tell you what that means in a minute.

Three, the defendant was associated with the enterprise.

Four, the defendant engaged in a pattern of racketeering activity. And I'll define "pattern of racketeering activity" for you.

Five, the defendant conducted or participated directly or indirectly in the conduct of the enterprise's affairs through that pattern of racketeering activity.

Six, and the defendant acted knowingly and purposely.

So racketeering has six elements. I'll now review with you each of those six elements.

One. The State contends the activity alleged in the indictment those crimes which I've just told you the defendants are charged with and other activity constituted an enterprise; that is, a group of individuals who come together . . . to engage in illegal activity. Okay?

The statute further defines an "enterprise" as including any sole proprietorship, partnership, corporation, business, association, or any other legal entity, or any group of individuals associated in fact even though not a legal entity, and includes legal as well as illegal enterprises. Okay?

Now, the evidence, therefore, must show the existence of a single enterprise as charged in the indictment which existed on or about the days set forth in the indictment which to my recollection was January of '06 through I believe March of '08, okay and that the enterprise was substantially the way it's described in the indictment.

. . . .

If you find a single enterprise has been proven beyond a reasonable doubt as charged in the indictment, then the defendants should be found guilty of racketeering.

Now, I just caught myself. I said "then the defendants." Then the individual defendant that you find engaged in the pattern of racketeering activity, directly or indirectly, should be found . . . guilty. All right. So if I make that mistake again, be mindful of it and make that mental correction even if I don't.

Now, the second element is that the enterprise must be engaged in trade or commerce or the activities of the enterprise must affect trade or commerce. Now, to be engaged in or affect trade or commerce only means that they're engaged in or affect some economic activity involving or relating to any commodity or service. So, any economic activity, anything involving money, affects trade or commerce.

Third element, that the defendant was employed by or associated with the enterprise. Okay? So we have the enterprise, group of people coming together for an illegal purpose, engaged in activities which affect trade or commerce, and that individual defendant must be associated with the enterprise. This can be shown by showing that the defendant knowingly participated directly or indirectly in the conduct of the affairs of the enterprise. The defendant need not have known the identity of all other participants in the enterprise, nor does it have to be proven that the defendant knew the details of the commission of each of the racketeering incidents committed by others, but it must be shown that the defendant was aware of the scope and general unlawful activity of the enterprise.

Fourth element, the defendant must conduct or participate directly or indirectly in the conduct of the enterprise's affairs through a pattern of racketeering activity. Now, the third element was the defendant was associated or employed by the enterprise. The fourth element is that the defendant . . . participated directly or indirectly in the conduct of the enterprise's affairs through a pattern of racketeering activity. Okay.

In order to participate directly or indirectly in the conduct of the affairs of the enterprise, one must participate in the operation or management of the enterprise itself. However, an enterprise is operated not just by upper management but also by lower rung participants in the enterprise who are under the control of upper management.

Further, at least two racketeering acts must be proven with respect to a particular defendant in order to establish that defendant's participation in a pattern of racketeering activity. Okay?

Now, that means that each defendant must have engaged in two things, two acts of conduct, to establish the pattern of racketeering activity as to that defendant, and those two acts must have occurred within ten years. The second must have occurred within ten years of the first. That's not an issue. All right?

The racketeering acts here are charged by the State and they are described in the indictment. These acts are specific criminal offenses identified by reference to the New Jersey Criminal Code. Each racketeering act involves a separate and distinct violation of the law. The elements of the specific racketeering acts, that is the specific crimes charges, will be explained later in the Court's charge. We're still on racketeering.

Now, let me give you a more general discussion of the . . . racketeering law.

Not all of these defendants are alleged to have committed all of the racketeering acts charged. Remember I told you you have to find that each defendant participated in at least two of the racketeering acts charged. Each racketeering act set forth in the indictment identifies the particular defendant or defendants who are charged with committing that particular offense.

As with every element of the offenses charged, the State has the burden of proving beyond a reasonable doubt that a particular defendant committed a particular racketeering act or acts.

. . . .

Now, if you find that a particular defendant committed two or more or engaged in two or more racketeering incidents, then you must consider whether those incidents constituted a "pattern of racketeering activity." . . .

Now, in order to find a pattern of racketeering activity, at least two incidents must be proven as to a particular defendant, and that particular defendant must be the one you are considering at that time. However, proof of two racketeering acts do not necessarily prove a pattern. Generally, two of anything is not enough to form a pattern. You must focus on whether a pattern of activity, of racketeering activity, exists not just the number of racketeering acts that have been proven. . . .

In determining whether incidents constitute a pattern of racketeering activity, you should consider whether the incidents are related to each other or related to the affairs of the enterprise. The incidents may be considered to be related if due to . . . organization, duration, objectives of the enterprise, they are related and whether they pose a threat of a continuing series of criminal violations over a significant period of time.

. . . .

Evidence of relatedness may also be shown if the racketeering acts had the same or similar purposes, the same or similar results, participants, victims, methods of commission, or were otherwise interrelated by distinguishing characteristics and were not just isolated events. . . .

Now, to continuity. Evidence of continuity, or a threat of continuous criminal activity, may be shown by the existence of [an] ongoing series of criminal violations over a significant period of time. You should consider the number of acts committed, the length of time during which they were committed, the similarity of the acts, participants, victims, methods of commission, etcetera, the number of victims, and any distinguishing characteristics of the acts in regard to whether a pattern of racketeering activity occurred.

In summary, you may find that a particular defendant engaged in a pattern of racketeering activity if you find that defendant committed at least two or more of the racketeering acts or incidents alleged, that is the crimes charged against that particular defendant, that the acts were related, not isolated events, and that the acts reflected ongoing criminal activity. Relatedness, continuity.

The fifth element. It has to be shown that the particular defendant participated directly or indirectly in the conduct of the affairs of the enterprise through that pattern of racketeering activity. This element requires the State to prove beyond a reasonable doubt that a connection exists between the enterprise on the one hand and the pattern of racketeering acts on the other hand. A connection is shown if the racketeering acts were related to the activity of the enterprise, or the defendant was able to commit the racketeering acts solely because of his position in the enterprise, or is involved in the control of the affairs of the enterprise.

And then the sixth element is that the defendant acted knowingly and purposefully.

. . . .

To summarize, count 1, racketeering: The State must prove the check cashing activity alleged in the indictment constituted an enterprise. An enterprise is a group of people who come together for a particular purpose; the enterprise engaged in or affected trade or commerce it involved money that's what's alleged; the particular defendant was associated with the enterprise; the defendant engaged in a pattern of racketeering activity which includes at least two racketeering acts; the defendant conducted or participated directly or indirectly in the conduct of the affairs of the enterprise through that pattern of racketeering activity; and the defendant acted knowingly and purposely. Okay? Those are the six elements.

If you find that the State has proven all of those . . . foregoing six elements of this offense of racketeering beyond a reasonable doubt, your duty is to find the particular defendant whose case you are considering guilty of the crime of racketeering. If, on the other hand, you find that the State has failed to prove any one of the foregoing elements of the offense of racketeering beyond a reasonable doubt, separately as to each defendant charged with

that crime, it is your duty to find that particular defendant not guilty.

"An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are at the heart of the proper execution of the jury function in a criminal trial." State v. Afanador, 151 N.J. 41, 54 (1997) (citations and internal quotation marks omitted). "Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986).

In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999).

The court instructed the jury several times that at least two predicate racketeering acts must be proven with respect to each defendant. The court also instructed the jury throughout the charge that it had to consider each defendant individually, and later instructed that it had to be unanimous in its verdict on each count. The court listed the predicate racketeering acts with which each defendant was charged and instructed the jury as to each act that defendants were charged with separately.

Eric was charged in separate counts and found guilty of specified predicate racketeering acts, including financial facilitation of criminal activity, failure to file income tax returns, manufacture of false government documents, transfer of false government documents, conspiracy to transfer false government documents, conspiracy to commit theft by deception, and possession of a false government document. Thus, we perceive no danger that the jury failed to unanimously agree upon the specific acts he committed in furtherance of the racketeering enterprise.

Similarly, we find no merit to Eric's argument that the court erred in instructing the jury that wrongful impersonation was a predicate act. In listing the predicate acts charged against Eric, the court did not include wrongful impersonation. When the court later mentioned the wrongful impersonation instruction, it advised the jury that only Tonijah and Trezmynn were charged with committing that crime. Counsel made no objection after the charge was given; furthermore, the jury had a copy of the charge containing the predicate acts charged against each defendant.

Finally, Eric argues, for the first time on appeal, that the court erred in failing to advise the jury that the activities of the racketeering enterprise had to affect trade or commerce in New Jersey.

N.J.S.A. 2C:1-3(a) provides in pertinent part

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;

(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[.]

"[T]erritorial jurisdiction is a non-material element, and for good reason never submitted to the jury unless there is some factual dispute concerning whether the crime occurred in this State." State v. Denofa, 187 N.J. 24, 41 (2006). "[A] trial court is required to instruct the jury regarding this element only if there is an issue regarding the relevant facts." State v. Casilla, 362 N.J. Super. 554, 561-62 (App. Div.), certif. denied, 178 N.J. 251 (2003).

It was not disputed that much of the activity in this check-cashing scheme occurred in New Jersey and it was never even suggested that this activity did not affect trade or commerce in New Jersey. It was not plain error under Rule 2:10-2 for the trial court to fail to charge territorial jurisdiction sua sponte in this case, or specifically mention that the activities had to affect trade or commerce in this state.

Money Laundering Charge

Eric next argues that the trial court "failed to properly define the mental state of knowingly" in the context of the money laundering charge. As this point was not raised below, we disregard it "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. Where a jury charge is concerned, "[f]or an error to constitute plain error, . . . not every possibility of an unjust result will suffice. With a jury trial, the possibility must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Jordan, 147 N.J.409, 422 (1997) (quoting State v. Macon, 57 N.J.325, 336 (1971)).

During the racketeering charge, the judge gave the following instruction on the concept of "knowingly"

Now, a person acts knowingly with respect to the nature of his or her conduct or the attendant circumstances if he is aware that his or her conduct is of that nature, or that such circumstances exist, or he or she is aware of a high probability of their existence. A person acts knowingly with respect to the result of his or her conduct if he or she is aware that it's practically certain that his or her conduct will cause such a result. Knowing, with knowledge or equivalent terms have the same meaning.

In other words, a person acts knowingly if they understand what they're doing and they expect that if they do what they're doing a particular result is going to come about.

The court also explained that purposely and knowingly were "states of mind" that can "only be determined by inference from conduct or acts."

The court's definition of "knowingly," based on N.J.S.A. 2C:2-2(b)(2), is equally applicable to money laundering. The charge for money laundering appears in the transcript only nine pages later. Although the court did not repeat the definition of knowingly again or make reference to the definition just provided in the context of the racketeering charge, when the charge is viewed as a whole, as it must be, Simon, supra, 161 N.J.at 477, it cannot be said that the court's failure to repeat the definition of "knowingly" can be construed as plain error. We are satisfied that the trial court properly charged the jury on the definition of "knowingly."

False Government Documents Charge

Eric argues that his convictions for transfer of false government documents and possession of false government documents must be reversed because the trial court "failed to define the elements of the offenses or delineate the State's burden of proof." He claims the court "merely read the statute on transfer of false government documents, N.J.S.A. 2C:21-2.19(a), in lieu of providing specific, tailored guidance to the jury."

The court charged the jury on transfer or possession of false government documents as follows

A person who knowingly sells, offers, or otherwise transfers or possesses with the intent to sell, offer, or otherwise transfer, a document which falsely purports to be a driver's license or other governmental document which could be used as a means of verifying a person's identity is guilty of a crime.

[A] person who knowingly sells, offers, [or] transfers a government document which is false or possesses a false government document with the intent to sell, offer, or transfer it, if that document could be used as a means of verifying a person's identity, is guilty of a crime.

The court then defined conspiracy and transfer, portions of the charge Eric does not challenge, and explained that possession of a false government document is a lesser-included offense of intent to transfer a false government document.

In the context of this case, the concept of possession and/or transfer of a false government document is relatively simple and uncomplicated. The terms used have a commonly understood meaning and did not require further definition. See State v. Rovito, 99 N.J. 581, 584-85 (1985) (holding that generic terms such as "offer," "transfer," or "otherwise transfer possession" did not need further definition for the jury). "Certain words can be understood by 'a person of average intelligence' and 'would not send the average citizen scrambling for a dictionary.'" State v. N.I., 349 N.J. Super. 299, 308-09 (App. Div. 2002) (quoting State v. Afanador, 134 N.J. 162, 171 (1993) ("[O]rganizer, supervisor, financier or manager . . . carry their ordinary and well understood meanings.")).

Throughout the charge, the court repeated the State's obligation to prove the elements of each charge beyond a reasonable doubt. The court's failure to repeat that statement for each and every count cannot be considered plain error. R. 2:10-2.

Conspiracy to Transfer False Government Documents/Theft by Deception Charge

For the first time on appeal, Eric challenges the model jury charge given by the court on conspiracy to transfer false government documents and conspiracy to commit theft by deception without "simultaneously giving the definitions of transfer of false government documents or theft by deception during that portion of the charge." He claims the court "fatally abbreviated" the conspiracy to commit theft charge by leaving out the section on whether defendant knew that his statements or core communications were false. Eric argues that the court should have given the charge on the substantive crimes of transfer of false government documents and theft by deception twice, once during the charge on conspiracy and once for the substantive charge itself. We disagree.

As to the conspiracy charge, the court instructed that "[t]he 10th and 11th counts of the indictment charge the defendants Eric Criss, Tonijah Criss, Trezmynn Criss, and Tia Criss with the crimes of conspiracy to transfer government documents and conspiracy to commit theft by deception." Looking at the charge as a whole, it is clear that the jury was provided with the charge on the substantive offenses shortly after the charge on conspiracy and advised to consider each defendant individually.

Eric next argues that the court erred when it failed to include a section of the model charge on theft by deception that defendants knew his communication was false. Although Eric was charged with conspiracy to commit theft by deception, he was not charged with the substantive crime. The substantive charge given was related to only Tonijah and Trezmynn. Regardless, the section of the model charge referenced by Eric in his brief is optional. The model charge has three optional sections under the heading "[CHOOSE APPROPRIATE]" and separated by "OR." Model Jury Charge (Criminal), "Theft by Deception" (2013). One of them is that the defendant must have known of the falsity of his statement or impression given. The court read one of the other optional sections. Moreover, there was no suggestion at trial that Eric or any of the defendants believed that the checks and/or identifications that they used to cash the checks were anything but fraudulent. In fact, it was clear that they had created them.

Wrongful Impersonation Charge

Eric argues that the court "gave an improper jury charge on conspiracy to commit theft by deception at the time it charged the jury on wrongful impersonation" after deliberations began.

The court realized that it had initially failed to include the charge on wrongful impersonation when the jury asked for the definition during deliberations. Trezmynn, Tonijah, and Eric all moved for a mistrial based on the error and the fact that the jury began deliberations without that charge. They did not object to the court's redacted version of the model charge that was provided to all parties before being read to the jury. As the court noted, "[W]rongful impersonation is one of five crimes charged in four separate indictments involving Tonijah and one of five crimes charged . . . [in] four separate incidents involving Trezmynn" and any conviction returned "will likely merge for the purpose[s] of sentencing." In connection with the racketeering charge, the court noted that wrongful impersonation "was only one of the ten crimes charged as alleged by the State as constituting an act of racketeering."

The court denied the motion for a mistrial because "[i]t is not a case where the jury is misinformed; it is a case where the jury is uninformed on that one charge out of 13 substantive crimes charged." The jury had only been deliberating about three hours on a case with "60 witnesses and six-and-a-half weeks of testimony."

The court remedied the omission by giving the missing charge and asking the jury to begin deliberations anew. When Eric and Tia objected thereafter to incorporating them into the wrongful impersonation charge under the conspiracy charge in count eleven, the court responded that conspiracy is "a different charge, and conspiracy encompasses an agreement to promote a criminal activity, and a conspirator may be guilty of a conspiracy to commit a crime even if he or she doesn't know all of the coconspirators or all of the activity they're engaged in, including wrongful impersonation."

In the full context of the charge, Eric's contention that the court's charge on conspiracy to transfer false government documents and conspiracy to commit theft by deception was "incorrect, incomplete, and misleading" is not supported by the record. Although the wrongful impersonation charge was initially left out, the court remedied the omission and instructed the jury to begin any deliberations on those charges anew. The jury is presumed to have followed those instructions. State v. Loftin, 146 N.J. 295, 390 (1996). We find no reversible error here or in any of the jury charges challenged by Eric.

Judgment of Acquittal

Eric complains that the trial court told the jury on four occasions that it was dealing with defense motions for judgment of acquittal, and if there were any counts left after the motions, the jury could find defendants guilty beyond a reasonable doubt as to those counts. He claims that "[t]hese statements were necessarily prejudicial, as they amounted to a judicial stamp of guilt, and violated defendant's right to a fair trial." We address each instance challenged by Eric seriatim.

First, while advising the jury that the trial was going to take longer than first anticipated, the court explained that it normally entertained defense motions at the close of the State's case. The court explained that "[t]hey are called motions for judgment of acquittal, and they're based upon whether a jury, based upon the evidence presented, can find guilt beyond a reasonable doubt, and we have 109 counts in this case."3 The court was advising the jury that it would hear defense motions at the close of the State's case.

Second, after the State rested, the court explained why it was dismissing the jury for a break

Now, as the judge of the law, it is now my responsibility to review certain matters at the end of the State's case with counsel, and I need to do that outside of your presence to see if any or all of the charges will be submitted to you at the end of the case for your deliberations. Okay?

Now, sometimes as a matter of law at the conclusion of the State's case I may determine that not every charge in the indictment you remember the indictment, 109 or 107 counts I may determine that some of those counts are not going to be submitted to you. I told you at the beginning of the case, the State has the burden of proving each and every element of each and every offense beyond a reasonable doubt. Okay? I have to do all of that . . . outside of your presence. All right? And whatever the result of that endeavor is is not binding on you and your deliberations. In other words, if I if one of the lawyers says, well, the State hasn't proven that this particular element of this particular offense has been proven to the extent that a reasonable jury could find guilt beyond a reasonable doubt, okay, and whether I agree or disagree in other words, whatever, whatever we go forward with is not binding on you in terms of your deliberations. All right?

Third, on the following day, the court explained why it had taken so long to bring the jury back into court

[W]hen this trial began, I told you about the charges that were contained in the indictment. I also explained that the indictment is not evidence but merely a written document that brings the charges before this Court and the jury so that you can decide whether any one of the defendants has been proven guilty beyond a reasonable doubt as to any of the charges stated in the indictment.

This indictment, as I may have mentioned, started out approximately four times the size it is today, but it started out in excess of 400 counts and we began this trial in excess of 100 counts.

As the judge of the law, it is my responsibility to review those charges with the attorneys at the end of the State's case to decide which charges will survive to go forward, and ultimately which charges will be submitted to you for your deliberation and decision.

As a matter of law, I have determined that not every charge in the indictment should be submitted to you, and I have acted upon that responsibility, and that has taken a lot longer than I anticipated.

Finally, when instructing the jury as to the verdict sheet, the court explained why the counts were not sequential

You'll find as you go through there are large sequence[s] of numbered counts which aren't on the jury verdict sheet. That's because they don't exist anymore. They were counts which applied to the codefendant cooperating witnesses or they were counts which I dismissed at the end of the State's case. You'll remember I said I have to take, address some attention to defendants' motions? Okay. So that they're not here doesn't mean you're missing something. Okay? Everything you have to consider is here.

In the first three instances, it is apparent that the court was simply trying to explain to the jury the reason for the delay and that the court and counsel were not simply wasting time while the jury waited in the jury room. Although it would have been preferable for the court to simply advise the jury that the court had to address legal matters in the jury's absence, we are not convinced that the court's mention of addressing defense motions somehow prejudiced defendants or gave the impression that the court approved the State's case as to the remaining charges. In the last instance, the court was simply explaining why the counts listed on the verdict sheet were not sequential so that the jury did not question whether counts were missing.

The jury was instructed as to the State's burden of proof on numerous occasions throughout the trial and during the jury charge. It was instructed that the court's rulings were "not meant to be an expression by me . . . on the merits of the case. Neither should any other ruling or any other aspect of the trial be taken by you as my favoring one side or the other." It is presumed the jury followed the court's instructions. Loftin, supra, 146 N.J. at 390. We find no error in the court's comments.

Cumulative errors

Eric next contends that the cumulative effect of the trial court's errors deprived him of a fair trial. Where legal errors in the aggregate are of such a magnitude as to have rendered the trial unfair, a criminal defendant will be entitled to a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). This does not mean, however, that "incidental legal errors," which do not prejudice the defendant or make the trial unfair, may be invoked to upset an otherwise valid conviction. Ibid.

We are satisfied that none of the errors complained of, even when considered as a whole, rise to the level of requiring a new trial.

Sentencing

Eric challenges only the court's imposition of two three-year periods of parole supervision on the second-degree racketeering and second-degree leader of organized crime counts. The State concedes that this aspect of the sentence was imposed in error as N.J.S.A. 2C:43-7.2(c) (which provides for mandatory parole supervision) applies only to the crimes governed by N.J.S.A. 2C:43-7.2(a) listed in N.J.S.A. 2C:43-7.2(d), which does not include second-degree racketeering or leader of organized crime in the enumerated offenses requiring the imposition of the mandatory period of parole supervision.

Further, at his February 17, 2011 sentencing, the court imposed a one-year concurrent term on count 403, which was not noted in his judgment of conviction of that date. At Eric's March 7, 2011 resentencing, the court modified his sentence without addressing the one-year term on count 403. Not only does his operative judgment of conviction fail to reflect his modified sentence, but it is further unclear whether the one-year term on count 403 stands.

We affirm Eric's convictions and remand for resentencing on these two limited issues.

III.

Tonijah Criss

Tonijah Criss was sentenced to an eight-year term of imprisonment on his racketeering conviction (count one), with two years of parole ineligibility. He was sentenced to four years on each of the four other counts of conviction, with those terms to run concurrently with the term imposed on count one. Tonijah does not challenge his sentence on appeal but raises the following points

I.

the defendant's sixth and fourteenth amendment rights to due process of law was violated when the trial court failed to submit elements of charge(s) to the jury.

a. territorial jurisdiction.

b. identification charge, when identification is a major component of the case.

c. it was plain error to not give the model jury charge for "wrongful impersonation," until after deliberation had begun. (plain error, not raised below.)

ii.

defendant's state and federal constitutional rights were violated as well as sixth, fourteenth, and fifth amendment rights by errors in the trial which denied the defendant a fair and impartial jury. to include the court's ex parte jury communication and undue influence on deliberations.

iii.

the trial courts denial of defendant's motionto proceed pro se violated defendant's constitutional right to self representation requiring reversal. (not raised below.)

iv.

the trial court abused its discretion and committed plain error in denying defendant's motion to sever defendant's on trial for bruton issues. (not raised below.)

v.

the weight of the evidence presented at trial does not support a conviction for racketeering.

vi.

the trial court erred in excluding defense from introducing testimony to impeach states witnesses.

Territorial Jurisdiction Charge

For the reasons discussed on this issue as to defendant Eric Criss, we find no error in the trial court's failure to charge territorial jurisdiction sua sponte in this case, or specifically mention that the activities had to affect trade or commerce in New Jersey.

Identification Charge

Tonijah next argues, for the first time on appeal, that the court erred in failing to give a cross-racial identification charge sua sponte. He asserts that, despite the "hundreds of photographs posited by the state," there was no "photographic identification" linking him to the three checks that he was convicted of cashing. He argues that Hoagland's testimony, which identified bank surveillance photographs of Tonijah cashing fraudulent checks, was "spotty and inconclusive."

Tonijah was identified as a participant in this check-cashing scheme by a number of witnesses who were personally acquainted with him. Elliott testified that he met with Tonijah approximately ten times during the time period charged in the indictment. Hoagland testified that when she began cashing checks, Tonijah instructed her that if she were arrested, she should not say anything and would get bailed out. Bottorff had known Tonijah since the seventh grade, and testified that Tonijah was his "supervisor in this organization" and with him on many check-cashing outings in several states.

Identification of Tonijah as a participant in the organization was not in dispute and therefore it cannot be considered error, let alone plain error, for the court to have failed to issue the cross-racial identification charge sua sponte. R. 2:10-2.

Wrongful Impersonation Charge

In his brief's table of contents, Tonijah contends that it was plain error for the court to give the model jury charge for wrongful impersonation after the jury began deliberations. However, he does not address this issue within his brief. Since Tonijah has not offered any argument on this point, we treat it as abandoned. In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989) (noting that an issue not briefed is waived). In any event, the issue has no merit, and for the reasons previously expressed, we find no error in the court's treatment of the wrongful impersonation charge.

Jury Claims

Tonijah next contends that his constitutional rights were violated and he was denied a fair and impartial jury because of the court's ex parte communication with the jury and undue influence on its deliberations. He also claims error in the court's decision to dismiss one juror and not to dismiss, or at least question, another.

"A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). This impartiality requires "that the jury's verdict be based on evidence received in open court, not from outside sources." State v. R.D., 169 N.J. 551, 557 (2001).

Trial courts must protect jurors and their deliberations from illegitimate influences that may taint the verdict. State v. Williams, 93 N.J. 39, 60 (1983).

A trial court has discretion in the way it investigates allegations of jury misconduct. State v. Scherzer, 301 N.J. Super. 363, 488 (App. Div.), certif. denied, 151 N.J. 466 (1997). We review a trial court's determination under the abuse-of-discretion standard. R.D., supra, 169 N.J. at 559.

Rule 1:8-2(d)(1) provides that "the court for good cause shown may excuse any of [the jurors] from service provided the number of jurors is not reduced to less than 12 . . . ." "Dismissal of a juror is committed to the sound discretion of the trial court" and will not be disturbed on appeal "absent a clear showing that the trial court abused its discretion . . . ." State v. Mance, 300 N.J. Super. 37, 55 (App. Div. 1997). "When the issue of financial hardship is brought into focus at an early stage of a criminal proceeding, the balancing of interests allows greater flexibility favoring the prospective juror with the asserted hardship." State v. Williams, 171 N.J. 151, 164 (2002).

Juror Number Eight

First, Tonijah argues that the court erred in excusing juror eight, "one of the few African American Jurors," based on financial hardship.

Juror eight had first requested to be excused from the panel just before opening statements because his employer would only pay him for ten days of jury service and anything beyond that time would be a financial hardship for him. The court initially refused but later reconsidered and advised counsel that it felt it was within the court's discretion to excuse the juror on the basis of financial hardship because the request had been made so early on in the case. Tonijah and Eric objected because juror eight was one of only three African American jurors on the panel.

After he was questioned further about his claim of financial hardship, the juror indicated that he had already used six of his ten paid jury duty days and he could then use five days of sick time. He indicated that he did not want to use any vacation time because he had a planned vacation to Africa starting on December 13, 2010. When counsel for Brisbane asked the juror if he would be "able to concentrate fully and give it [his] best shot in light of these other pressures," the juror responded "no" and was excused.

As the court noted, the request was made very early in the case and the panel still had alternates available. We find no error in the court's decision to dismiss juror eight for financial hardship.

Ex Parte Communication

Tonijah also contends that the trial court met with the jury outside the presence of counsel on November 4, 2010, and that counsels' objections to this were "not reflected in the transcript." He maintains that the judge's "countenance" towards the Criss family was "[l]ess than favorable (euphemistically speaking)" and that "[t]hings like tone, awkward looks, mannerisms, and what might be characterized as disdain" are not readily apparent from reading the transcript. He argues that the court "may have further influenced the jury during the deliberation process" and rushed them to a verdict "by suggesting that read-backs for clarification might protract proceedings" and by advising the panel that he would not be present if deliberations went past a certain date.

In accordance with Rule 1:2-1, "[a]ll trials . . . shall be conducted in open court . . . ." Further, ex parte communications between a judge and the jury are erroneous and improper. State v. Basit, 378 N.J. Super. 125, 134 (App. Div. 2005). Ex parte communications "between a trial judge in chambers and a jury engaged in deliberations in the jury room concerning any matter implicated ever so remotely in the consideration and decision of the case are forbidden by the essentials of our trial procedure as imperiling, perhaps, the principles of due process." Guzzi v. Jersey Cent. Power & Light Co., 36 N.J. Super. 255, 264 (App. Div.), certif. denied, 19 N.J. 339 (1955).

The record reflects that the judge spoke to the panel on the record but outside the presence of counsel about scheduling issues before they began deliberations. The discussion involved the jurors' availability for additional days and hours of trial and the anticipated schedule for completion. He told the jury that counsel were aware that he was speaking to the panel without them because he thought they "might be freer to talk about it in their absence." There was no objection noted on the record and Tonijah does not deny that all counsel had consented to the communication. There is nothing in the exchange that could have influenced the verdict.

Further, there is nothing in the record to support Tonijah's vague and general claim that the judge somehow showed disdain towards the Criss defendants.

Finally, there is no support in the record for Tonijah's contention that the court influenced the jury during deliberations by advising them that it would take time to read back requested testimony or that another judge would be present if deliberations went past a certain date.

As to the request for a read-back of certain testimony, the court merely advised the jury that it would likely take a total of six-and-a-half hours to read the entirety of the testimony requested. The court then asked if they could "narrow [the] focus on what you're looking for. And if the answer is we want it all, then you'll have it all." Any claim that the court's response had a chilling effect on the jury's willingness to request additional information is pure speculation. It is just as likely that "the jury answered the question for itself by continuing its deliberations and reaching a unanimous verdict." State v. Bey (III), 129 N.J. 557, 607 (1992), supplemented by, 137 N.J. 334 (1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995).

There was also no error, let alone plain error, in advising the jury in advance that another judge would preside over deliberations if proceedings took longer than expected. The judge said, "just let me give you a peek into the future without taking this as putting any pressure on you to do one thing or another, or without expressing any expectation on my part." He then advised the jury that another judge would manage jury deliberations and take the verdict if deliberations went beyond the end of the week. There is nothing in the judge's statement that could be construed as influencing the jury or rushing them to a verdict.

Juror Six

Tonijah next argues that, during trial, juror six stared at either him, or at his sister sitting behind him, showing a look of "frown or disgust," and that the court erred in failing to address the juror individually.

On November 12, 2010, during the trial, counsel for Tia mentioned to the court that juror six appeared to "scowl" or have "a constant frown." The court conducted a hearing on this issue.

With counsel's agreement, the court questioned the panel as a whole as to whether they knew any of the defendants and specifically advised that Tia Perrin used to be known as Tia Criss; none of the jurors indicated that they knew any of the defendants.

In explaining his decision to deny any further inquiry, the judge acknowledged the seriousness of the question of potential bias of a juror and the court's discretion as to the extent of the examination. Outside of the presence of the jury, the court continued

Now, admittedly, the examination I just conducted with this jury is not a, quote, exhaustive and searching, close quote, examination because I did not believe that the information before me was necessary to individually examine Juror Number 6 or any other juror.

I note for this record, because it will not appear otherwise, that when I indicated to the jury that Tia Perrin's birth name was Tia Criss, and then asked the jury en banc whether any of them knew Ms. Perrin as Tia Criss, as I was posing that specific question, I made a point of making eye contact with Juror Number 6 who received my gaze and shook her head in the negative. . . . I did make a point of looking at her when I asked that question.

. . . .

None of the jurors, including six, gave me any body language or other indication that they felt that they were on the spot or that they needed to be defensive in regard to the inquiry.

Although the court also indicated a willingness to explore the issue further "if additional information comes to light," at that point the court did "not see that there is a likelihood of the existence of any bias, prejudice or partiality in favor of or in opposition to the position of either the State or any of the defendants."

The standard for dismissing a juror during trial, before deliberations begin, is "for good cause shown." R. 1:8-2(d). We will not disturb the trial court's "good cause" ruling "absent a clear showing that the trial court abused its discretion in refusing to excuse the juror or the defendant suffered harm." Mance, supra, 300 N.J. Super. at 55.

In this situation, the trial judge was in the best position to evaluate any potential bias of the juror, and it was within his discretion to determine that there was no basis for further inquiry into the juror who twice denied knowing Tia. We find no error in the court's decision to not conduct any further inquiry into this matter.

Denial of Tonijah's Motion to Proceed Pro Se

Tonijah's point heading indicates that he challenges the court's decision denying his motion to proceed pro se. As he did not brief this issue, it is waived. Bloomingdale, supra, 233 N.J. Super. at 48 n.1.

Denial of Tonijah's Motion to Sever

Tonijah's point heading indicates that he challenges the court's decision denying his motion to sever. As he did not brief the issue, it is waived. Ibid.

Weight of the Evidence

Tonijah argues that the weight of the evidence does not support a conviction for racketeering.

Rule 2:10-1 provides that a weight-of-the-evidence argument is "not cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Tonijah did not move for a new trial on this ground; therefore, he is procedurally barred from raising this issue on appeal. State v. McNair, 60 N.J. 8, 9 (1972).

Impeaching Bottorff

Finally, Tonijah argues that the court erred in preventing him from cross-examining Bottorff about his discharge from the military for larceny in order to impeach his credibility. During cross-examination, Tonijah's counsel attempted to question Bottorff about his military service. When the prosecutor objected, counsel advised that it was related to credibility and, at side bar, advised the court that it wanted to introduce part of Bottorff's statement to police where he had admitted to a "[b]ad conduct discharge" from the military. The court ruled that it would not allow that testimony because it was a "character attack."

A trial court has broad discretion to determine the proper limits of cross-examination involving a witness's credibility. Delgaudio v. Rodriguera, 280 N.J. Super. 135, 141 (App. Div. 1995). "[F]or the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility . . . ." N.J.R.E. 607.4 "In short, N.J.R.E. 607 permits the introduction of extrinsic evidence affecting a witness' credibility regardless of whether that evidence is relevant to any other issue in the case." State v. Parker, 216 N.J. 408, 418 (2014).

Nevertheless, such evidence may be excluded if "the risk of . . . undue prejudice, confusion of issues, or misleading the jury" substantially outweighs its probative value. N.J.R.E. 403. The trial court's discretion under N.J.R.E. 403 is broad. State v. Sands, 76 N.J. 127, 144 (1978). Determinations by the trial court under this rule will not be overturned unless the finding "was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quotation marks omitted).

Tonijah contends that Bottorff was discharged "by way of special court martial" and formally charged with larceny and wrongful appropriation. This claim is not substantiated in the record and without more information as to the nature of the military discharge, including when the discharge occurred, the relevance of the testimony is questionable. Bottorff testified extensively as to his involvement in the check-cashing scheme and was cross-examined as to his truthfulness. Balanced against the potential prejudice and confusion if evidence of his military discharge were admitted, the relevance of this testimony was minimal.

We are satisfied that no manifest injustice resulted from excluding this testimony.

IV.

Tia Stauc Estee

Tia Stauc Estee was convicted after trial of second-degree racketeering and other charges in relation to the check-cashing scheme (Indictment 08-05-342). She was sentenced to eight years imprisonment with two years of parole ineligibility on those convictions. She was sentenced to a term of either three years or twelve months5 on counts 11-14 of Indictment 08-08-632, to run concurrently with the eight-year term on Indictment 08-05-342, and an eighteen-month term on count 20 on Indictment 08-08-632, to run consecutively with Indictment 08-05-342.

When Tia appeared for sentencing, she pled guilty to outstanding charges.6 Pursuant to a plea agreement, Tia was sentenced to a three-year term on charges of third-degree hindering prosecution and a twelve-month term on charges of fourth-degree obstructing the administration of law, both terms to run concurrently to indictments 342 and 632.

On appeal, Tia raises the following points

point one

the trial court's erroneous jury charges deprived tia perrin of her right to due process and a fair trial. (u.s. const. amends. v, vi, and xiv; n.j. const. (1947), art. I, pars. 1, 9, and 10.) (partially raised below).

1. racketeering indictment no 08-05-0342 (count one) (raised below).

(a) the trial court failed to instruct the jury that it must unanimously agree as to which predicate offenses formed a pattern of racketeering activity.

(b) the trial court's instruction on predicate acts was confusing and misleading.

(c) the trial court improperly charged the jury on wrongful impersonation and racketeering.

(d) the trial court did not instruct the jury that the enterprise engaged in or affected trade or commerce in new jersey.

2. transfer of false government documents indictment number 08-05-342 (count nine); possession of false government documents indictment number 08-08-0632 (counts eleven, twelve, thirteen, and fourteen) and indictment number 08-05-0342 (lesser included offense of count nine); exhibiting false government documents indictment number 08-05-0342 (lesser included offense of count nine. (not raised below).

(a) the court's charge on transfer of false government documents was faulty.

(b) the court's charge on possession of false government documents lessened the state's burden and did not provide adequate guidance to the jury.

(c) the court's instruction on exhibiting false government documents was inadequate because it was merely a reading of the crime.

3. conspiracy to transfer false government documents indictment number 08-05-0342 (count ten) and conspiracy to commit theft by deception indictment number 08-05-0342 (count eleven) (not raised below).

4. hindering indictment number 08-08-0632 (count twenty) (not raised below).

point two

the trial court erred by denying tia perrin's motion to dismiss indictments 08-05-0342 and 08-08-0632 based on mandatory joinder.

point three

the trial court erred by denying tia perrin's motion to suppress evidence on indictment number 08-08-0632.

point four

the trial court erred by explaining to the jury that the counts it would consider during deliberations had survived a motion for judgment of acquittal, which meant that the court had found that a jury could find guilt beyond a reasonable doubt. (not raised below).

point five

the trial court abused its discretion by imposing a manifestly excessive sentence.

Racketeering Charge

Like Eric, Tia claims that the court's charge on racketeering was improper because the court "failed to instruct the jury that it must unanimously agree as to which predicate offenses formed a pattern of racketeering activity." She argues that the court's specific refusal to give that charge led to a non-unanimous verdict and had a prejudicial impact because she was facing three different predicate offenses.

Also, like Eric, Tia argues that the court erred in instructing the jury that wrongful impersonation was a predicate act because that charge had been dropped against her, and that the court erred in failing to instruct the jury that the enterprise had to affect trade or commerce in New Jersey.

For the reasons previously explained, we find no error in the racketeering charge as to either defendant.

False Government Documents Charge

As Eric did, Tia argues for the first time on appeal that the court's charge for transfer, possession, and exhibiting false government documents was "faulty" because the court "did not delineate the elements of the crime, did not discuss the state's burden of proof, and did not offer any definitions." She specifically argues that the charge on exhibiting false government documents was "inadequate because it was merely a reading of the crime."

Tia also argues that the court's charge on conspiracy to transfer false government documents and conspiracy to commit theft by deception was faulty because the charge on conspiracy was not given at the time of the charge on the substantive crimes, and because the court failed to reference Tia and that the theft by deception charge related to the previous conspiracy charge.

As we previously explained, we find no plain error in the court's charge on possession, transfer, and exhibiting false government documents, or on conspiracy to transfer false government documents because the charge on the substantive offense was not repeated at the time of the charge on the conspiracy. R. 2:10-2.

Hindering Charge

For the first time on appeal, Tia challenges the court's charge on hindering the apprehension or prosecution of another, claiming the court "failed to delineate the elements of the crime or instruct the jury on the state's burden."

N.J.S.A. 2C:29-3 provides, in pertinent part

a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense . . . he

. . . .

(3) Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;

. . . .

b. A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense. . . he

(1) Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him[.]

After advising the jury that it could not consider hindering the apprehension or prosecution of herself or Terrell as one of Tia's two racketeering incidents (she was charged separately with hindering, not as part of the racketeering charge), the court charged the jury as follows

Now, she's charged with having hindered the apprehension or prosecution of herself or Terrell Perrin in that she is alleged on July 19, 2007, in Pohatcong Township, with the purpose to hinder her or Terrell Perrin's own detention, apprehension, investigation, [or] prosecution for a crime by knowingly suppressing by way of concealment or destruction any evidence of the crime; that is, by secreting fictitious checks, two fictitious checks, six fraudulently-manufactured driver's licenses, and six fraudulently-manufactured credit cards in a child's safety seat to conceal the same from the police for the purpose of hindering the detection, prosecution of her and/or Terrell Perrin.

Now, a person commits that offense if, with the purpose to hinder the detention, apprehension, investigation, or prosecution of oneself or another, suppresses by way of concealment any evidence of the crime which might aid in her or another's discovery or apprehension or in the lodging of a charge.

[F]or you to find Tia Perrin guilty of this offense, the State must prove each of the following three essential elements beyond a reasonable doubt

One, that Tia Perrin knew that she and/or Terrell were likely to be charged with possession of false government documents or another crime if this evidence was discovered; and that she concealed evidence of a crime by secreting the documents in a child's safety seat; and that she did so with the purpose to hinder the detention, apprehension, investigation, prosecution of herself or Terrell. Okay?

She must have known that either her or Terrell were going to be charged or were liable to be charged with possession of false government documents this doesn't mean the State has to prove she had them actually on her [person] or personal knowledge that Terrell had committed an offense, but rather that she knew such facts either by her own observations or by information given to her as would reasonably alert her that Terrell was likely to be charged with an offense.

The second element is that she suppressed by way of concealment the evidence that might aid in the discovery, apprehension of her or Terrell or in the lodging of a charge against one or both of them.

Tia now challenges the court's failure to discuss the third element, which was the "required state of mind element of purpose" as contained within the model charge.

When viewed as a whole, the charge informed the jury of the three elements of the crime that the State was required to prove. Although the court did not go into detail about the third element, that she concealed evidence with the purpose to hinder the detention, apprehension, investigation, prosecution of herself or Terrell, it stated four times that she had to have that purpose. Moreover, the court had previously defined "purposely" within the charge and that definition sufficiently instructed the jury as to this offense as well.

Further, the court instructed the jury that the hindering charge related to the charge of possession of false government documents and the court specifically referred the jury to the State's claim that Tia secreted the fraudulent checks, driver's licenses, and credit cards within the baby seat.

We find no plain error in the court's instruction on hindering. R. 2:10-2.

Joinder and Double Jeopardy

Tia next challenges the court's denial of her motion to dismiss Indictments 08-05-342 and 08-08-632 because of her prior guilty plea under Indictment 07-11-814. She argues that the charges contained in Indictments 08-05-342 and 08-08-632 "stem from activities which were part of one racketeering enterprise" and either they "should have been joined with those in Indictment Number 07-11-814" or the State should have been barred from prosecuting her for them later.

We glean the following facts from the motion hearings and the judge's extensive ruling on the issue. Tia was arrested in Bernardsville on October 24, 2007, and charged under Indictment 07 11-814 (first indictment) with giving false checks, identification, and credit cards to three others on that same date. She pled guilty on January 11, 2008, and was sentenced to a ninety-day suspended sentence with three years' probation on April 25, 2008.

Indictments 08-05-342 and 08-08-632 (second and third indictments) were returned on May 28, 2008 and August 27, 2008, respectively. On June 15, 2010, the court heard argument on Tia's motion to dismiss those two indictments because of a failure to mandatorily join them with the first indictment, or because of double jeopardy. Counsel argued that Tia was charged in the first indictment for counts related to her October 24, 2007 arrest, and that the second and third indictments included counts against her that related to events from that same date. Counsel maintained that there was an "interrelationship" between the indictments because the information that formed the basis for the subsequent indictments came from Tia and Kondracki on the day they were arrested. He claimed that the State knew enough information to bring the racketeering indictment before Tia was sentenced on the first indictment; therefore, double jeopardy attached and prevented prosecution on the later indictments.

The State provided a chronology of events and noted that Somerset County follows the Administrative Office of the Courts' guidelines of getting to the grand jury within thirty days of arrest, and that the investigation on the entire conspiracy could not have been completed within the short time frame that led to the first indictment. The prosecutor argued that the critical date for mandatory joinder under Rule 3:15-1 and N.J.S.A. 2C:1-8 was January 11, 2008, the date when Tia pled guilty under the first indictment. The investigation was ongoing at that point.

The trial court dismissed counts 372-76 and 377-81 in indictment 342 for failure to join them in the first indictment because the acts giving rise to those charges "were part of a single [criminal] 'episode.'" The court found that the remaining charges were distinct in time, place, victims, and use of different runners and different fraudulent instruments; it therefore denied Tia's motion to dismiss the remaining counts of the second indictment and the entirety of the third indictment.

The Fifth Amendment guarantee against double jeopardy protects criminal defendants (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) from multiple punishments for the same offense. State v. Biegenwald, 110 N.J. 521, 532 (1988). The State is not permitted to divide a single conspiracy into several smaller ones for the purpose of multiple prosecutions against the same defendant. State v. Ferrante, 111 N.J. Super. 299, 303 (App. Div. 1970).

In State v. Gregory, 66 N.J. 510, 522 (1975), the Supreme Court "adopted the compulsory joinder rule barring separate trials for multiple offenses that are known to the prosecuting attorney, when the offenses are based essentially on the same conduct or arise from the same criminal episode." State v. Williams, 172 N.J. 361, 367 (2002). "In response to Gregory, Rule 3:15-1(b) and N.J.S.A. 2C:1-8b were enacted." Ibid.

Pursuant to Rule 3:15-1(b), "a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court." "The relevant statutory provision, N.J.S.A.2C:1-8(b), mirrors this Rule." State v. Pillot, 115 N.J.558, 567 (1989).

In State v. Yoskowitz, 116 N.J. 679 (1989), this Court provided additional guidance by summarizing the four factors that a defendant must satisfy in order for multiple offenses to be joined in one prosecution

(1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose out of the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court.

[Williams, supra, 172 N.J. at 368.]

"If the offenses are not joined, the omitted offense may not be further prosecuted." Ibid.

Where offenses "are factually distinct in terms of time, place, and victim," joinder is not required. Pillot, supra, 115 N.J.at 567. Courts have adopted "a 'flexible' approach to determine whether multiple offenses are factually distinct, or are part of the same episode." Williams, supra, 172 N.J.at 371. "Under the 'flexible' approach, heightened significance is accorded to the time and place of the offense, and whether one offense is part of a larger scheme." Ibid.

Cases applying a "flexible" approach have analyzed many factors, including the nature of the offenses, the time and place of each offense, whether the evidence supporting one charge is necessary and/or sufficient to sustain a conviction under another charge, whether one offense is an integral part of the larger scheme, the intent of the accused, and the consequences of the criminal standards transgressed.

[Ibid.]

In this case, it is clear that similar crimes were involved, but it is also apparent that they did not constitute the same conduct, episode, or transaction. In the first indictment, Tia was charged with four counts of conspiracy to commit theft by deception, attempted theft by deception, uttering a forged instrument, and possessing a simulated driver's license. The charges stemmed from events that occurred on October 24, 2007.

In contrast, Tia was charged in the second indictment with transfer of false government documents, conspiracy to transfer false government documents, and conspiracy to commit theft by deception related to incidents that occurred between October 1, 2006 and February 29, 2008. The charges from the same date as the first indictment were dismissed by the court before trial. The remaining charges related to incidents involving different participants or runners, different victims, different banks, and took place in different counties or states.

Tia relies on State v. James, 194 N.J. Super. 362, 364-65 (App. Div. 1984), as support for her argument that the offenses covered by the second indictment were from the same episode as those in the first indictment even though her actions occurred over several months and at different locations. However, that case does not assist her.

In that case, the State did not dispute the fact that the other offenses were known to the prosecuting officer at the time of the first trial and that all of the offenses arose from the same episode. Id. at 365. In contrast, the State here made no such concession and in fact argued that at the time of her guilty plea on the first indictment, the State was still investigating the allegations learned from Tia and Kondracki and was not yet aware of the extent of the check-cashing scheme.

We find no error in the court's declination to dismiss the later indictments for failure to join them with the earlier charges.

Motion to Suppress Evidence from Motor Vehicle Stop

Tia argues that the court erred in denying her motion to suppress evidence relating to the warrantless search of the baby car seat. She contends that the automobile exception to the warrant requirement does not apply because the car seat was searched when it was outside the automobile and because the police did not have "probable cause to believe the car seat contained evidence of a crime nor did exigent circumstances exist."

When Patrolman Goodell noticed a minivan parked in a handicapped spot in front of Walmart without a handicapped permit, he approached the driver. When Terrell provided a name and date of birth that proved to be false, Goodell grew more suspicious and called for backup.

While Goodell waited for backup, Tia asked if they could "pay this ticket to speed this up" but Goodell explained that he needed to identify the driver first. Terrell then told Goodell that he, Tia, and Hart were coming from his mother-in-law's house in Easton, Pennsylvania. When Goodell asked Hart the name of the driver, she identified him as Terrell Perrin but said they had come from visiting friends in Perth Amboy.

At that point, Tia motioned to Goodell indicating that she needed to speak with him. In a low whisper, Tia advised Goodell that she was working with Detective Visor from the Easton Police Department; that she was undercover and working a drug buy from passenger Hart. Goodell then called dispatch to try and confirm this information. While waiting for a response, he approached Terrell again to ask if he was working "with any agencies." Terrell responded that they were working with the FBI.

Goodell noticed an "urgency" with Terrell and placed him in handcuffs because of the inconsistencies. Terrell then gave Goodell his correct name and said he had lied because he believed his license was suspended. Goodell then learned that they were not working with the Easton police.

Goodell then asked Terrell for his consent to search the vehicle; the fireworks had been seen in the back seat but not yet seized. Terrell consented to the search.

Goodell began to read a consent to search form to Terrell, but before he completed it, he observed Tia walking rapidly away from the vehicle with the baby seat in the direction of another vehicle parked nearby. He yelled to Sylvain to stop Tia.

When asked why he gave that command, Goodell explained, "I believed, truly believed that whatever was in that baby seat, I didn't know what it was, firearms, drugs, narcotics, I had no idea what it was, but I truly believed at that point that there was evidence leaving my area." When asked what facts led him to that conclusion, he explained

Well, it started earlier with not being able to ID the driver, the inconsistencies with the law enforcement, the formula, wanting him to get out of the vehicle, leave the vehicle, her interrupting me several times, confirming that the Easton PD was not involved, [and] the conflicting stories of Hart. There's a whole slew of things that had my wheels turning with this. And I knew inside, from the very beginning when I called for back-up, that there was something definitely, there was definitely things that were going on here.

Goodell explained that in his experience with narcotics and motor vehicle stops, criminals "will use babies to conceal or baby car seats, specifically, to conceal narcotics, to conceal weapons . . . and that's part of [his] training." Given that "the urgency all along in this motor vehicle stop was to get the baby to leave," he "felt that they were trying to hide something."

After allowing them to remove the baby from the car seat, Sylvain searched the seat without obtaining a warrant and recovered several items including two checks from Chemiclene, three Pennsylvania driver's licenses, one of which had Hart's picture but a different name, and three Discover cards with names that matched the three driver's licenses. At that point, all three individuals were placed under arrest.

Sylvain agreed that he did not have a search warrant before searching the car seat, but he claimed that he could not have obtained a warrant "at that scene under those circumstances" as "it was moving too fast" and "[t]here was no way we could have halted that scene the way it was and then gone through with a search warrant." He did not believe that he could have applied for a warrant telephonically. Also, the baby could not have been lawfully driven away from the scene without the car seat. He did not know if the other car had a car seat.

Goodell attempted to search Tia incident to arrest but she was "yelling and being very loud" and "[c]learly shaken." Police later recovered $2,788 in cash from her back pocket.

Tia moved to suppress the evidence obtained from the baby seat, arguing that the warrantless search was illegal. The court acknowledged that its decision hinged upon whether the search fell under one of the exceptions to the warrant requirement discussed later and whether the State could meet its burden of proving, by a preponderance of the evidence, the "overall reasonableness of the search" within the exception.

The court first addressed the "so-called automobile exception which requires a finding of probable cause and exigent circumstances," and found Goodell's testimony "clear," "precise," "responsive," and thus credible. After recounting Goodell's testimony, the court found that Goodell "had a reasonable suspicion to approach the minivan, and he had probable cause to believe that the people in it may have been involved in criminal activity."

The court noted that "[c]onsidering the officer's objective observations, this trained police officer drew reasonable inferences and made entirely appropriate deductions which raised a suspicion that the particular individuals being detained were engaged in criminal activity." Goodell had a "particularized and objective basis to suspect that criminal activity." Sylvain's testimony corroborated the assertion that there was insufficient time or opportunity to apply for a telephonic warrant because things were moving too fast and "the scene was chaotic."

The court found that "the police did not violate the Fourth Amendment by searching the child safety seat" under the automobile exigent circumstances exception because the car seat had been in the car until it was removed by Tia. It stated that the police "had probable cause to arrest Terrell Perrin, Tia Perrin, and Kimberly Hart, and that the evidence seized subsequent to that lawful arrest, being an exception to the warrant requirement, will not be suppressed." The motion to suppress evidence was denied.

We examine the trial court's resolution of a suppression motion by considering whether the motion to suppress was properly decided "based on the evidence presented at that time." State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). We do "not weigh the evidence anew, but determine whether sufficient credible evidence in the record supports the trial court's decision." State v. Johnson, 42 N.J. 146, 157 (1964). We"defer to the trial court's findings that are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case," and may make our own factual findings only if the trial court's "are so clearly mistaken that the interests of justice demand intervention and correction[.]" State v. Mann, 203 N.J. 328, 336-37 (2010).

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against unreasonable searches and seizures, and emphasize that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Only unreasonable searches and seizures violate the United States and New Jersey Constitutions. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 2527, 37 L. Ed. 2d 706, 713 (1973). A search without a warrant is presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). When a search is conducted without a warrant, the search is unreasonable unless a delineated exception to the warrant requirement applies. Ibid.

Under the automobile exception, the warrant requirement may be excused "where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J.6, 28 (2009). The Court has explained

Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry.

Legitimate considerations . . . include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 28-29 (citations omitted).]

"The exception is applicable when the search is necessary to prevent disappearance of the suspect or destruction of the object of the search, to search for weapons to protect the safety of an officer or, because of the mobility of a motor vehicle, to prevent its flight." State v. De Lorenzo, 166 N.J. Super. 483, 489 (App. Div. 1979).

In the present case, there was sufficient credible evidence in the record to support the trial court's denial of Tia's motion to suppress the warrantless seizure of items from the car seat. First, there can be no dispute that the stop was unexpected. The illegally-parked minivan was discovered by the officer on a routine patrol. Second, the record supports the court's finding that there was probable cause to believe that there was evidence of criminal activity in the car. The evidence was derived from the testimony of Goodell, whose testimony the court found "worthy of belief without question," and was corroborated by Sylvain. Specifically, the driver initially gave a false name and only revealed his real name after he was placed under arrest. Tia repeatedly interrupted the investigation, asking to send Terrell, herself and Hart back into the store, and asked to pay the ticket "on the spot" in order to "speed things up."

Further, Tia and Hart walked back into the store and then returned "with no merchandise in their possession." The three occupants gave conflicting responses to questions about where they had been prior to parking. Tia and Terrell falsely claimed to be working with local police or the federal authorities in an undercover operation.

Moreover, Tia acted suspiciously in her attempts to remove the baby and car seat from the scene after Terrell orally consented to a search of the vehicle. In this context, there is support for the court's finding that there was probable cause.

Third, the record also supports the court's finding that there were exigent circumstances that made it impracticable to obtain a warrant. The court accepted Goodell's testimony that he suspected the baby seat contained evidence of criminal activity and that "[t]hings were just happening too quickly" to obtain a warrant. Sylvain also testified that the scene was "chaotic" and that there was not time or opportunity to obtain a telephone warrant because they were still trying to identify the driver and things were "moving too fast." Having found that the State met all three prongs of the automobile exception, we find no error in the trial court's denial of Tia's motion to suppress.

Court's Instructions after Motion for Acquittal

For the first time on appeal, Tia raises the same issue as Eric, claiming that the court erred when it advised the jury on four occasions that certain counts had survived a motion for judgment of acquittal. She claims that these statements "lowered the state's burden and gave a judicial stamp of approval to the state's case," thereby depriving her of due process and a fair trial.

For the reasons previously stated, we reject this argument and find no error in the court's comments.

Sentencing

Tia argues that her sentence was excessive for four reasons. First, she argues that the court erred in its analysis of the aggravating and mitigating factors.

Second, Tia maintains that the court erred by failing to "clarify which aggravating factors applied to which indictments, and appeared to have applied all six aggravating factors to all indictments." She claims this was an error because Indictment 08-05-342 "does not involve law enforcement," Indictment 08-08-626 "does not involve organized criminal activities," and Indictment 08-08-632 "does not involve acts against the state government."

Third, Tia argues that the court erred in imposing consecutive sentences on indictments 342 and 632 with no discussion of the Yarbough7 criteria. She claims that consecutive terms cannot be justified because, at the time of the motion for joinder, the prosecutor certified that the criminal charges in the two indictments "allege the same criminal acts and transactions and are part of the same criminal racketeering scheme."

Fourth, Tia argues that the court erred in revoking her driving privileges for two years pursuant to N.J.S.A. 2C:43-2(c), without engaging in the "required analysis about the potential effect of the loss of driving privileges on Tia's ability to be rehabilitated."

The court applied aggravating factors three, five, six, eight, nine, and ten. It rejected mitigating factors eleven, twelve, and thirteen, finding that no mitigating factors applied to Tia's case.

Aggravating and Mitigating Factors

The court explained its application of aggravating factors as follows

Clearly, aggravating factors, three, six, and nine apply. Ms. Perrin, clearly, has a risk of committing another offense based upon her history, she has a prior criminal record . . . [a]nd there is a need for general deterrence and specific deterrence for Ms. Perrin . . . .

As to aggravating factor five, this Court finds that Ms. Perrin was engaged in organized criminal activity. Organized criminal activity is not synonymous with racketeering activity. They're separate and distinct and the application of this particular aggravating factor does not constitute an element of the racketeering statute and, therefore, does not constitute double counting.

In my view, aggravating factor five applies. Ms. Perrin was found guilty of second degree racketeering, second degree transferring false government documents, second degree conspiracy to transfer false government documents, and second degree conspiracy to commit theft by deception, and other companion and associated third degree crimes. Ms. Perrin, in the pyramid scheme of this racketeering enterprise with her father at the top, was a middle manager who organized, supervised, and controlled a group of so called runners. Ms. Perrin, in that capacity, was the conduit of the means and methods of this criminal activity from her father to the runners, whom she drove to the target banks, supervised their activity therein, and profited therefrom.

Danielle Hoagland, Misty Kondracki, Shane Elliott, Jacob Lawyer, Kimberly Hart, all testified to Ms. Perrin's position in the pyramid as their supervisor and their comptroller in the cashing of not countless, but I would guess hundreds of fraudulent checks. She would collect she would send them into the bank, having provided them with the fictitious checks, driver's license, secondary or backup identification, supervised their activity while in the bank. Either accompany them or meet them back in the car after their activity was concluded, give them their cut, either a flat fee or 10 percent of the amount realized from the fraudulent check cashing, take her end or her portion of that money, and pass the rest up to her father.

It was on-going, it was organized, highly so, it was sophisticated, and Ms. Perrin was an active participant therein.

The court also applied aggravating factor number eight (offense against a police or other law enforcement officer) because Tia "was charged and/or pled guilty to committing crimes involving police officers and county corrections officers . . . acting in performance of their duties, while in uniform and exhibiting evidence of authority." Specifically, at the time of her arrest, she lied about working undercover with police.

Finally, the court applied aggravating factor ten "because Ms. Perrin, in her supervisory role, along with her codefendants, targeted governmental entities as part of their racketeering activities," when they cashed fraudulent checks from State and local government entities.

The court rejected mitigating factor eleven (excessive hardship), despite acknowledging that Tia's incarceration would work some hardship to her children, as "this is the ordinary hardship associated with the consequences of . . . this degree of criminal activity." The court then rejected mitigating factor twelve (willingness to cooperate) because "her evidence of willingness to cooperate, such as it was, was not motivated by the sort of cooperation with law enforcement contemplated under mitigating factor 12." Finally, the court rejected mitigating factor thirteen (youthful defendant influenced by mature person), because although Tia was influenced by her siblings and father, "being provided with the opportunity to commit crimes is not the same or synonymous with being substantially influenced by another person to engage in criminal activity." The court found that "it didn't take much convincing for her to jump in with both feet and move forward with that activity with gusto." We are satisfied that there is credible evidence supporting the court's application of the aggravating factors and the finding that no mitigating factors applied.

Tia claims that aggravating factor eight, N.J.S.A. 2C:44-1(a)(8) was erroneously applied to the charges contained in Indictment 08-05-342. In pertinent part, factor eight provides

The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant;

The sentencing court provided the following reasons for applying aggravating factor eight

As to aggravating factor Number 8, Ms. Perrin was charged and/or pled guilty to committing crimes involving police and county corrections officers, which are among those persons contemplated as triggering the application of aggravating factor Number 8. Clearly, this defendant committed these offenses against police and correctional employees, acting in the performance of their duties, while in uniform and exhibiting evidence of authority. She committed these offenses because of the status of those individuals in their law enforcement capacities. So aggravating factor eight applies.

Based on these vague conclusions unreferenced to any of the proofs at trial, it is not clear that Tia's crimes were committed against a law enforcement employee and that aggravating factor eight was properly applied. We remand with the direction that the court provide facts firmly grounded in the record to support the application of aggravating factor eight. See State v. Fuentes, 217 N.J. 57, 63 (2014). Further, we direct that the court clarify Tia's sentence on counts 11, 12, 13, and 14 of Indictment 08-08-632 and resolve the inconsistency in the record.

Consecutive Sentences

N.J.S.A. 2C:44-5(a) provides for consecutive and concurrent sentences of imprisonment for offenders convicted of more than one offense. The Court in Yarbough, supra, 100 N.J. at 643-44, set forth the following standards to guide a sentencing court in deciding whether to impose consecutive or concurrent sentences

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences imposed are numerous;

(4) there should be no double counting of aggravating factors; [and]

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]

The reasons for imposing consecutive sentences must be expressly stated by the court, and the failure to do so may compel a remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987).

Tia's sentence on Indictment 08-05-342 was consecutive to the terms imposed on Indictment 08-08-632. She contends that the court erred in imposing consecutive sentences without discussing the Yarbough criteria and that the consecutive terms cannot be justified because the criminal acts are part of a common scheme or plan.

The court imposed the eighteen-month consecutive sentence "on the basis that there are no free crimes. This is a separate, distinct in character and kind, criminal event from the other indictments." This conclusion finds adequate support in the record. Tia played a supervisory role in the criminal enterprise which victimized several banks businesses and individuals. The charges under Indictment 08-08-632, referred to by the sentencing court as the "Pohatcong Township indictment," related to Tia's actions in posing as an undercover operative and claiming to be working with the Easton, Pennsylvania police in a drug investigation. Once Terrell gave Officer Goodell consent to search the vehicle, Tia removed the baby seat containing forged checks and licenses and began to walk briskly away. This was a clear attempt to remove the forged checks and licenses secreted in the baby seat to prevent their detection by the police.

The charges against Tia contained in Indictment 08-08-632 clearly meet the "predominantly independent" test of Yarbough, as both the crimes and their objects were independent of those charged in Indictment 08-05-342. "Consecutive sentences are not an abuse of discretion when the crimes involve multiple victims and separate acts of violence." State v. Roach, 167 N.J. 565, 568 (2001). While the check-cashing scheme was directed at defrauding banks and businesses, the misrepresentations to Officer Goodell impacted state and federal law enforcement agencies in a manner unrelated to those charges. While the sentencing court did not carefully articulate the reasons for imposing consecutive sentences, we are persuaded that there was no abuse of discretion as the facts clearly justified those sentences. See State v. Jang, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003) (consecutive sentences affirmed where the facts and circumstances leave little doubt as to the propriety of the sentence imposed).

Driving Privileges

N.J.S.A. 2C:43-2(c) provides

Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed two years the driver's license, registration certificate, or both of any person convicted of a crime, disorderly persons offense, or petty disorderly persons offense in the course of which a motor vehicle was used. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the crime or offense and the potential effect of the loss of driving privileges on the person's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial sentence.

The court revoked Tia's driving privileges under N.J.S.A. 2C:43-2(c) for a period of two years after her release, with the following rationale

That is a discretionary sentencing aspect and it is imposed because of Ms. Perrin's activity, which involved the use of a motor vehicle, couldn't have been accomplished without the use of a motor vehicle, couldn't have taken day trips to various counties and states and hit numerous banks, cashing fraudulent checks along the way without a motor vehicle. It is entirely appropriate that her privilege to operate a motor vehicle under these circumstances be suspended.

The license revocation provision set forth in N.J.S.A. 2C:43-2(c) was added in 1981. State v. Gross, 225 N.J. Super. 28, 30 (App. Div. 1988). We have held that "[t]he obvious application of that section is to situations where a crime or offense has been committed and a motor vehicle was used in aiding or facilitating the commission of that crime or offense or a motor vehicle was somehow used in connection with the unlawful activity." Ibid.

Tia does not dispute that motor vehicles were used to transport the runners and her coconspirators to and from the banks in the operation of the check-cashing scheme. Moreover, Tia was arrested using a vehicle in the Pohatcong Township incident. "Revocation of a driver's license under these circumstances would serve to deter the individual from committing further similar crimes since he would then be unable to operate an automobile." Id. at 30-31.

Tia's convictions are affirmed. We vacate the sentence imposed on counts 11, 12, 13, and 14 of Indictment 08-08-632, and remand for resentencing. We also direct that the court make findings firmly grounded in the record to support the application of aggravating factor eight, N.J.S.A. 2C:44-1(a)(8). Otherwise, the sentences imposed are affirmed.

V.

Tihee Jabbar Brisbane

Defendant Tihee Jabbar Brisbane was convicted of one count of second-degree accessing a computer system for the purpose of executing a scheme to defraud, N.J.S.A. 2C:20-259(c), and one count of taking data or personal identification information protected from disclosure without authorization, N.J.S.A. 2C:20-25(e). The court merged the two counts and sentenced defendant to a three-year term of imprisonment. On appeal, Brisbane raises the following points

point i

testimony that defendant was terminated from his job at Verizon was inadmissible 404(b) evidence which should not have been admitted by the trial court.

point ii

it was an abuse of discretion for the trial court to deny the defendant's motion for mistrial based upon the prosecutor's prejudicial questioning if defendant was terminated for theft.

point iii

the prosecutor engaged in gross misconduct by questioning defendant as to whether he was terminated for theft which deprived defendant of a fair trial.

point iv

the court's jury charge on computer criminal activity was inadequate and did not sufficiently advise the jury of the elements necessary for a conviction. (not raised below.)

point v

the relevant facts and case law do not support a conviction of computer criminal activity beyond a reasonable doubt.

point vi

it was an abuse of discretion for the trial court to deny the motion for severance of defendant from a joint trial.

point vii

the three year flat sentence imposed upon the defendant was excessive and should be modified and reduced. (not raised below.)

Brisbane first argues that the court erred in allowing the State to present the testimony of his former supervisor at Verizon Wireless, Cheryl Morgan, as a rebuttal to his testimony that he was not fired for theft. Brisbane argues that Morgan's testimony should have been excluded as it "dealt with the very issue the jury was considering" and was "grossly prejudicial."

When questioned on direct examination as to whether he believed that he exceeded his authority by having the Verizon Wireless records, Brisbane responded "[n]o, not at all. Like I said, Verizon actually gave me a very good recommendation for my next job." On cross-examination, the prosecutor began his questioning by asking Brisbane about his departure from Verizon Wireless

[PROSECUTOR]: Verizon Wireless gave you a good recommendation for your next job?

[BRISBANE]: Yes.

. . . .

[PROSECUTOR]: If I bring Jim Rodzon back in here, what is he going to say with regard to your separation in November of '05?

[BRISBANE]: Bring Jim Rodzon back.

[PROSECUTOR]: What is he going to say?

[BRISBANE]: He is going to say he referred me to Sprint which gave me a position as a Solutions Consultant, and they started me at $75,000.

[PROSECUTOR]: You were not fired from Verizon Wireless?

[BRISBANE]: I was not fired.

The State then called Brisbane's former supervisor, Morgan, as a rebuttal witness. Before Morgan testified, the court conducted an N.J.R.E. 104 hearing to determine whether to permit her testimony under N.J.R.E. 404(b).

During the hearing, Morgan stated that Brisbane was terminated from Verizon Wireless on January 25, 2005, after a customer complained about cell phones and plans placed on his account that he had not ordered. An investigation revealed fraud on five accounts where they found "odd things" like orders placed without proper documentation and products shipped to addresses other than the customers' addresses of record. The loss to Verizon Wireless was estimated at $20,000. Morgan testified that Brisbane was not authorized to take proprietary documents home.

The court ruled that it would not permit evidence that Brisbane was responsible for $20,000 in losses to Verizon Wireless because that evidence was hearsay. The court concluded that, under State v. Cofield, 127 N.J. 328, 338 (1992), although the evidence was relevant to the material issue of Brisbane's credibility and similar in kind to the charges at issue, the prejudicial effect to Brisbane would be "devastating." In addition, the loss was not reasonably close in time to the instant charges and had not been established by clear and convincing evidence.

The court did permit limited rebuttal testimony because defendant "opened the door to the State's rebuttal case that his departure from Verizon was based upon his violation of company policy and he was terminated." When defense counsel continued to object, the court responded that "it is a situation created by Mr. Brisbane's testimony," and Brisbane was present at the termination meeting and therefore knew at the time of his testimony that "the company's perception of the circumstances of his separation were distinct and different from his own." When the court suggested advising the jury that it cannot use the testimony given to show that Brisbane had a "disposition to do wrong and, therefore, must be guilty of the charged offenses," but only for the "specific narrow purpose of affecting his credibility," Brisbane's counsel responded that the instruction was acceptable.

The jury was brought in and Morgan testified that Brisbane was not authorized to remove proprietary documents from the office and was terminated from Verizon Wireless in January 2005 for violating company policy. Immediately following Morgan's testimony, the court instructed the jury that the testimony about Brisbane's termination for violation of company policy was admitted to rebut Brisbane's testimony about whether he was terminated from Verizon Wireless and spoke to his credibility, but could not be used to establish that Brisbane had a tendency to commit bad acts.

Brisbane now challenges the admission of the testimony under N.J.R.E. 404(b). We note initially that the court specifically excluded the most serious prior bad act evidence by not allowing the State to introduce evidence that Brisbane was fired for theft.

"The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." State v. James, 144 N.J. 538, 554 (1996). The doctrine "operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context." Ibid. Evidence is still subject to exclusion, however, where a court finds that the probative value of the otherwise inadmissible responsive evidence is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury. Ibid.

A judge's discretionary rulings on the admissibility of evidence should not be disturbed absent a mistaken exercise of discretion. State v. Fortin, 189 N.J. 579, 597 (2007). Error in the admission of evidence is not harmful if the defendant's fundamental rights were not impaired and the cumulative evidence against the defendant enjoys great weight. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).

We are satisfied that the court acted within its discretion in allowing the rebuttal witness to testify, and appropriately limited her testimony to avoid the specific reason for his termination as a prior bad act under N.J.R.E. 404(b). The court also appropriately instructed the jury as to the limited use of the rebuttal testimony, and the jury is presumed to have followed those instructions. Loftin, supra, 146 N.J. at 390. We find no abuse of discretion in allowing the rebuttal testimony of Morgan.

Motion for Mistrial

Brisbane next argues that the court abused its discretion in denying his motion for a mistrial after the prosecutor's "prejudicial questioning if defendant was terminated for theft." He claims that it was prosecutorial misconduct to question him about his termination from Verizon Wireless.

A mistrial is an extraordinary remedy that should be granted "only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). The decision to grant a mistrial lies within the sound discretion of the trial judge. Ibid. Prosecutorial misconduct is not a ground for reversal unless it was so egregious as to deprive the defendant of a fair trial. State v. Jackson, 211 N.J. 394, 409 (2012). "[A] prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Smith, 167 N.J. 158, 177 (2001).

The prosecutor's questions about whether Brisbane was fired and whether he was fired for theft were in direct response to his initial testimony that he was given a good recommendation by Verizon Wireless. Brisbane was aware that the State had a copy of his termination memo and thus knew his statement was false. The prosecutor asked Brisbane if he had been fired and Brisbane responded that he had not been fired. When the prosecutor then asked, "You were not fired for theft?" Brisbane again responded that he "was not fired" before his attorney could object to the question. The court sustained the objection to the second question about being fired for theft, although defendant had already responded; cross-examination continued on another topic.

It was not until the following day, after the N.J.R.E. 104 hearing on Morgan's testimony, that Brisbane's counsel claimed more relief was required than striking the question. In fact, during the argument, when the court indicated that Morgan's testimony should be limited to a statement that Brisbane was "terminated for cause based upon violation of company policy," Brisbane's counsel consented to that scope of testimony. The court then ruled that it would not permit the State to introduce evidence of the alleged fraud under N.J.R.E. 404(b).

As argument continued, defense counsel acknowledged that Brisbane had created the problem by testifying that Verizon Wireless recommended him to Sprint but claimed that the prosecutor "barged through that door" by "attack[ing] him on cross" about being fired for fraud.8 Counsel argued that the "bell has been rung" and "we are going to need a curative instruction at the minimum" now that the jury had been "contaminated."

Although it is not clear on the record before us if Brisbane actually moved for a mistrial, the court ultimately denied the motion for a mistrial because it found that Brisbane "cannot create the situation which now gives [him] a basis to move for a mistrial." After Morgan's rebuttal testimony, the court instructed the jury as follows

As to Ms. Morgan's testimony, the State has introduced that testimony to rebut Mr. Brisbane's testimony and to establish for your consideration that Mr. Brisbane was terminated by Verizon for violation of company policy, and that his separation from Verizon was not perhaps as voluntary or under as cordial circumstances as his testimony may have suggested.

Normally such evidence is not permitted under our Rules of Evidence because . . . our Rules of Evidence specifically exclude evidence that a particular defendant has committed other wrongs or bad acts because that may be considered by a jury . . . to show that he has a disposition or a tendency to do wrong, and therefore, must be guilty of the offenses with which he is charged here.

You can't do that. That testimony is permitted only to rebut his testimony that "I left voluntarily, it was cordial, they gave me a recommendation."

. . . .

In this case, the evidence has been permitted by me and you may consider it solely for the purpose of judging Mr. Brisbane's credibility, and you may not consider that because he may have been terminated by Verizon for cause in 2005 that he is guilty of the present crime charges.

Brisbane's counsel neither claimed error nor objected to the curative instruction.

The prosecutor's questioning of Brisbane on cross-examination was an attempt to impeach his credibility, which is permissible under N.J.R.E. 611(b). Indeed, "the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown[.]" State v. Martini, 131 N.J. 176, 263 (1993), overruled on other grounds by State v. Fortin, 178 N.J. 540, 646 (2004).

The court immediately sustained defendant's objection to the prosecutor's question as to whether Brisbane was fired for theft. The court also instructed the jury as to the appropriate use of the rebuttal testimony. We are satisfied that any error was harmless and that it was well within the court's discretion to deny defendant's motion for a mistrial.

Jury Charge

Next, and for the first time on appeal, Brisbane challenges the court's jury charge on computer criminal activity, claiming it failed to "adequately advise the jury as to the necessary elements of the charged criminal conduct for a guilty conviction." Specifically, he argues that the court failed to define the "essential elements" of "access without authorization" and "access in excess of authorization and intent to defraud," as well as the "mens rea elements of purposely and knowingly."

Under the two sections of N.J.S.A. 2C:20-25 that Brisbane was charged

A person is guilty of computer criminal activity if the person purposely or knowingly and without authorization, or in excess of authorization

. . . .

c. Accesses or attempts to access any data, data base, computer, computer storage medium, computer program, computer software, computer equipment, computer system or computer network for the purpose of executing a scheme to defraud, or to obtain services, property, personal identifying information, or money, from the owner of a computer or any third party;

. . . .

e. Obtains, takes, copies or uses any data, data base, computer program, computer software, personal identifying information, or other information stored in a computer, computer network, computer system, computer equipment or computer storage medium[.]

A violation of N.J.S.A. 2C:20-25(c) is a crime of the third degree, "except that it is a crime of the second degree if the value of the services, property, personal identifying information, or money obtained or sought to be obtained exceeds $5,000." Ibid. A violation of N.J.S.A. 2C:20-25(e) is a crime of the third degree, except that it is a crime of the second degree if, among other things, the data, data base, computer program, computer software, or information "has a value exceeding $5,000." Ibid.

The court gave the following charge as to counts 405 and 406

Next, count 405 charges Tihee Brisbane, and only Tihee Brisbane, with computer criminal activity. A person is guilty of computer criminal activity if the person purposely or knowingly, and without authorization, or in excess of authorization you'll notice I emphasize the conjunctive "and" and the disjunctive "or", and you know how to treat those accesses or attempts to access any data, database, computer, computer program, software, equipment, system, network for the purpose of executing a scheme to defraud or to obtain the property, personal identification information from the owner of a computer or any third party is guilty of a crime. Okay?

This form of computer criminal activity, two elements: Accessing a computer program, software, network, etcetera, without authorization or in excess of authorization with the intent to defraud,

Mr. Brisbane is charged in count 406 with computer criminal activity in that he purposely or knowingly, without authorization or in excess of authorization, obtains or uses, copies or takes any identification or information stored in a computer or computer network. Okay?

Since Brisbane did not object to this instruction at trial, we employ the plain error standard of Rule 2:10-2. State v. Singleton, 211 N.J. 157, 182 (2012). In the context of a jury instruction, plain error means "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to . . . convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Id. at 182-83. "There is no reversible error where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury[.]" State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002) (internal quotation marks omitted).

Brisbane challenges the court's failure to define certain words, including access, without authorization, in excess of authorization, and intent to defraud. The statutory definitions of "access" and "authorization" do not contravene their commonly understood meaning. See N.J.S.A. 2C:20-23(a), (q). The court had previously defined knowingly and purposely earlier in the charge. As we previously noted, terms that have a commonly understood meaning do not require further definition. See Rovito, supra, 99 N.J. at 584-85. Here, omission of instructions on the statutory definitions of such terms did not possess the capacity to bring about an unjust result under Rule 2:10-2. We find no error in the charge on computer criminal activity.

Weight of the Evidence

Brisbane next argues, also for the first time on appeal, that there was insufficient evidence to support the two remaining charges of computer criminal activity against him after the trial court dismissed counts 11 (conspiracy to commit theft by deception) and 407 (computer criminal activity).

Rule 2:10-1 provides that a weight-of-the-evidence argument is "not cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Brisbane did not raise this issue below, nor did he move for a new trial on this ground, so he is procedurally barred from raising this issue on appeal. McNair, supra, 60 N.J. at 9.

Motion to Sever

Brisbane next argues that the court's decision to deny severance from the "Criss defendants" was an abuse of discretion mandating a new trial. He claims that he was not implicated in the check-cashing scheme and that the only evidence against him were records found during a search of the North Broad Street office where Brisbane sublet office space from Eric and the Westminster Avenue location where they planned to open a cell phone store together. Brisbane argues he was "substantially prejudiced" and denied a fair trial "[b]ecause of the gross disparity in testimony and evidence presented against the Criss defendants and Mr. Brisbane."

Brisbane did not file a separate motion for severance and it is not at all clear on this record whether he joined in the severance motion filed by Tonijah. There is reference to the court receiving a "flurry of recent correspondence" in the days before Tonijah's motion hearing "with regard to those 'joining in,'" but Brisbane is not specifically mentioned as one of those joining the argument, and he did not file an individual brief or seek to make argument concerning his particular circumstances.

Regardless, at the time of the motion to sever, the conspiracy charge against Brisbane was still in place and would require the same evidence and witnesses to prosecute.

Rule 3:15-2(b) requires a showing of prejudice before severance will be considered

If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

In considering a motion for severance, the trial court should "balance the potential prejudice to defendant's due process rights against the State's interest in judicial efficiency." State v. Brown, 118 N.J. 595, 605 (1990). Joint trials "serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability advantages which sometimes operate to the defendant's benefit." Richardson v. Marsh, 481 U.S. 200, 210, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176, 187 (1987). When the crimes charged arise from the same series of acts, and when much of the same evidence is needed to prosecute each defendant, a joint trial is preferable. Ibid. The danger by association that inheres in all joint trials is not in itself sufficient to justify a severance, provided that the separate status of codefendants can be preserved with proper instructions to the jury. State v. Freeman, 64 N.J. 66, 68 (1973).

There was no proof that Brisbane's defense was antagonistic or irreconcilable to any other defendant. Any prejudice he may have suffered from a joint trial was addressed by the court's charge to the jury that each defendant's guilt must be determined separately.

Sentencing

Finally, Brisbane argues that his three-year sentence was excessive. In sentencing Brisbane, the court noted that he had just one prior disorderly persons conviction but found it to be a "serious source of concern" because it was originally a charge of wrongful impersonation and presentation of false government documents. Brisbane had "used a fictitious Georgia driver's license to defraud a bank in using the same means and methods as any number of runners in this case." The court stated that "but for [his earlier conviction's] association with the Criss family," Brisbane would have received "straight probation" on the instant charges.

The court did not apply aggravating factor three (risk of another offense), but found that aggravating factor six (prior criminal record), did apply, because of the nature of the prior offense insofar as he was "charged with the same crimes that some of the defendants in this case were charged with." The court also applied aggravating factor number nine (need to deter), because it found a need for general and specific deterrence in this case given that the "magnitude of this theft was substantial." The court was not persuaded that any of the mitigating factors argued by defense counsel applied.

In reviewing a trial court's sentencing decision, an appellate court must not substitute its judgment for the trial court or upset the sentence unless the decision represents an abuse of the trial court's discretion. State v. Roth, 95 N.J. 334, 362-65 (1984). We find no abuse of discretion on Brisbane's sentence, given the substantial evidence supporting its imposition.

Brisbane's convictions and sentence are affirmed.

VI.

Trezmynn E. Criss

Trezmynn E. Criss was convicted of second-degree racketeering and sentenced to an eight-year term of incarceration with two years of parole ineligibility. He was also sentenced to a three-year consecutive term on count 246, theft by deception. On appeal, Trezmynn raises ten points

point 1

the trial court erred in denying defendant's motion for severance and separate trial, resulting in an unfair trial for defendant.

point 2

the trial court erred in ruling that defendant lacked standing to challenge evidence seized by police from a co-defendant; and the court erred in denying the motion to suppress.

point 3

the trial court erred in denying defendant's motion for acquittal as to the racketeering, money laundering, transferring of false government documents, and conspiracy charges under counts 1, 4, 9, and 10.

point 4

the trial court should have declared [A] mistrial, barred evidence proffered by the state, or at least permitted adjournment of [THE] trial below, because of discovery violations by the state.

point 5

the trial court improperly permitted hearsay that violated defendant's right to confront the witnesses against him at trial, and the jury charges were insufficient in this regard, depriving defendant of a fair trial.

point 6

the trial court erred in submitting wrongful impersonation to the jury when the court omitted to give the jury instructions on how to consider the charge; because the jury had already begun deliberating without instructions, the mistrial requested by defendants was necessary; the supplemental charge given by the trial court was improper and prejudiced defendant's right to a fair trial.

point 7

cross-examination by defendant's trial counsel offended at least one juror on the jury panel. the trial court erred in not excusing the juror as requested by defendant, depriving defendant of a fair trial before an impartial jury below; at the very least, defendant received ineffective assistance of trial counsel because of this, providing [AN] alternative ground for relief from the resulting convictions.

point 8

the trial court erred in permitting evidence at trial of alleged criminal charges that the state had already dismissed and were not at issue before the jury, and in permitting evidence of conduct outside new jersey; and the court's jury charges on racketeering were insufficient and prejudicial.

point 9

the fairness of the deliberating jurors was compromised; the trial court erred in not conducting further inquiry to ensure that the jurors remained fair and impartial.

point 10

defendant's sentence is improper and excessive.

Trezmynn argues that the court erred in denying his motion for severance because the evidence against him specifically was "sparse" and contained hearsay that might not have been admitted had he been tried alone. Tonijah had originally moved to sever. Eric, Tia, and Trezmynn then joined in the motion. Only Tonijah, who does not challenge the severance ruling on appeal, was permitted to argue the motion before the trial court.

The court denied the motion, ruling that "each individual crime in the series would be admissible in a trial to prove the other crimes and the larger conspiracy as evidence of modus operandi. . . . [T]here is no undue prejudice here and . . . the grounds advanced are not sufficient to compel this Court to grant the motion for severance." The court also found that "guilt by association through a joint trial will not, without more, mandate a severance" and that the case was not "intellectually or otherwise complex."

The State's first witness, Frazier, testified at length about Trezmynn's extensive involvement in the check-cashing scheme as the source for the checks he cashed and as the source for information about Eric as the person manufacturing the checks and false identifications. Trezmynn recruited Frazier and told him he could make money cashing fake checks with fake identification. Trezmynn told Frazier about Tonijah's involvement and about other "runners" and "crews" cashing checks for the organization. Further, Frazier testified that Trezmynn was either with him in the bank or on the phone with him during the transactions. Trezmynn was also identified in a number of surveillance photographs. We find no abuse of discretion with the court's denial of Trezmynn's severance motion.

Motion to Suppress Evidence from the Apartment

Trezmynn next argues that the court erred in ruling that he lacked standing to challenge the evidence seized at the apartment of an acquaintance of Eric, Jessica Hamilton, and in denying the motion to suppress that same evidence. He maintains that he had standing to challenge the evidence seized at Hamilton's apartment because it was used in a joint trial against him.

During the pretrial hearing on the motion to suppress, the State moved for a finding that none of the codefendants had standing to challenge the search and seizure of evidence at Hamilton's apartment. The court explained that the test for standing is whether the party had an interest in the premises searched, and not whether the evidence seized implicated him in a crime. Noting that there must be "some contemporary connection between the defendant and the place searched or the items seized" under State v. Bruns, 172 N.J. 40, 58 (2002), the court ruled that the codefendants lacked standing to challenge the admissibility of evidence seized at Hamilton's apartment to which they had no connection.

In order to contest the admission of evidence obtained by a search or seizure, a defendant must first demonstrate that he or she has standing. Id. at 46. "In assessing whether a defendant has a connection or relationship with evidence sufficient to give him standing to challenge its seizure, this jurisdiction applies a broad standard." State v. Mollica, 114 N.J. 329, 339 (1989). New Jersey applies the rule "that a criminal defendant is entitled to bring a motion to suppress evidence obtained in an unlawful search and seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Alston, 88 N.J. 211, 228 (1981).

Trezmynn does not detail what specific evidence seized from Hamilton's apartment was used against him or if possession of the seized evidence at the time of the contested search is an essential element of guilt. The four items seized an inkjet printer, six photographs in a CVS envelope, a document with three signatures of Jeffrey Powell, and a document from Brick City Motors were largely innocuous in context and did not specifically pertain to Trezmynn. Although some of the evidence recovered generally supports the racketeering and conspiracy charges, none of this evidence was linked directly to Trezmynn or to his participation in the check-cashing scheme and its possession was not an essential element of any of the offenses charged against him.

On this record, as found by the court, there is nothing to suggest that Trezmynn had any proprietary, possessory, or participatory interest in the few items seized from Hamilton's apartment other than their use in connection with the racketeering and conspiracy charges. Moreover, the search was conducted with Hamilton's consent and the trial court ruled that the search was lawful. We find no error in the determination that Trezmynn had no standing to challenge the evidence seized from Hamilton's apartment.

Motions for Judgment of Acquittal

Trezmynn next argues that the trial court erred in denying his motions for acquittal on the racketeering, money laundering, transferring of false government documents, and conspiracy to transfer false government documents counts filed at the close of the State's case. He claims the proofs presented at trial were insufficient to establish the elements of these offenses, in that "[m]uch of the State's proofs related to Eric Criss (or to the codefendants), not to Trezmynn Criss."

The court granted Trezmynn's motion for a judgment of acquittal on the money laundering count. In denying the remainder of Trezmynn's motion, the court found

In regard to the racketeering enterprise with which Mr. Trezmynn Criss is charged along with the other defendants, the State must prove an enterprise and a pattern of racketeering activity, and as I've indicated, that requires continuity and relatedness. Proof of these elements in this case entails evidence of numerous criminal activity, numerous criminal acts engaged in by a variety of persons in which each defendant, including Mr. Trezmynn Criss, may reasonably claim that he or she had no direct participation in some of those acts. However, evidence of those acts is relevant to a racketeering charge against each defendant because it tends to prove the existence and the parameters of the racketeering enterprise.

Thus, despite the fact that an individual defendant, in this case Mr. Trezmynn Criss, claims that he did not personally participate in some of the alleged racketeering conduct, the jury's entitled to consider this evidence in support of the racketeering charge against him. Therefore, the application on counts 1 [racketeering], . . . and nine [transfer of false government documents] as to Mr. Trezmynn Criss are denied.

The court then highlighted some of the evidence supporting the "racketeering enterprise" and specifically noted, among other evidence, Frazier's testimony that he received a check, "fake ID," and a credit card from Trezmynn and that he was with Trezmynn when he cashed checks. The trial judge also noted that Trezmynn told Frazier to "go cash the checks, use these fake IDs, [and] come out with the money," and that Trezmynn was present with Frazier at Eric's residence in Pennsylvania when they "talked [about] what they expected of me." Trezmynn told Frazier that his father, Eric, manufactured the IDs in Elizabeth, and Trezmynn collected his and Eric's share of the proceeds and delivered them to a CVS in East Orange. Another witness, Halsey, testified that Trezmynn was with her when she cashed checks.

The court ruled that there was sufficient evidence presented that all members of the Criss family "were members of the common scheme and were part of the conspiratorial racketeering enterprise." The court did not specifically address the transfer of false government documents and conspiracy to transfer false government documents counts, but did recount the evidence presented through the State's witnesses at trial that supported those charges.

Under accomplice liability theories, the court found that, with the exception of the money laundering count, "the evidence presented demonstrate[s] that these defendants acted in concert with each other and others which . . . [is] sufficient for a reasonable jury to find these defendants guilty beyond a reasonable doubt of the crimes charged despite the fact that the defendant did not personally participate in the particular activity."

When a motion is made for acquittal at the conclusion of the State's case under Rule 3:18-1, the trial judge must deny the motion if, viewing the State's evidence in its entirety, whether direct or circumstantial, and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). The appellate court will apply the same standard. State v. Moffa, 42 N.J. 258, 263 (1964).

The evidence against Trezmynn was more than sufficient to survive a motion for judgment of acquittal. Trezmynn was identified by several witnesses as a direct participant in the check-cashing scheme, and he directly provided at least one witness, Frazier, with the fraudulent checks, fake identification, and credit cards used in the operation. Trezmynn was present when the enterprise was explained to Frazier and Trezmynn collected and distributed proceeds therefrom. The court correctly denied the motion for judgment of acquittal.

Motion for Mistrial

Trezmynn next argues that he was entitled to a mistrial, or an adjournment of trial, based on three discovery violations. Significantly, he does not provide any detail as to what prejudice or violation would have warranted a mistrial.

As to the first alleged violation, Eric's counsel claimed during jury selection that the State had not yet complied with the court's order to provide the judgments of conviction for the State's witnesses. Because the State had sought interlocutory relief from that order, and we had just denied the relief a few days earlier, the court found no wrongdoing and no prejudice to defendants because of the delay. There is no suggestion that the State failed to provide the judgments of conviction thereafter.

Second, Eric, Tonijah, and Trezmynn objected to the introduction of several color photographs at trial because the State had only provided "grainy" black and white copies of the photographs in discovery. The court overruled the objection because "they substantially are identical to those pictures" provided in discovery.

Third, Eric's counsel objected to a State witness, Campbell, because discovery pertaining to him had not been provided in a timely fashion and consisted only of an American Express card receipt from Eric showing a $500 payment to Campbell, an attorney, for representation of another coconspirator.

A trial court has discretion to allow or deny discovery. State v. Long, 119 N.J. 439, 490 (1990). We review a trial court's discovery rulings for abuse of discretion. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).

Ignoring for the moment the fact that Trezmynn objected to only one of the three "violations" he now raises, and that the third alleged violation had nothing to do with his case, there is nothing to suggest that Trezmynn was prejudiced by the late provision of the judgments of conviction or the provision of black and white photographs prior to trial. We find no abuse of discretion in allowing the challenged evidence.

Hearsay

Trezmynn next contends that the court erred in permitting hearsay testimony "from the alleged runners who testified for the State . . . ." Specifically, he claims the court erred in permitting hearsay from Frazier and Elliott "under the co-conspirator, declaration against penal interest, and statement of party opponent exceptions," and from Kondracki "under the co-conspirator exception."

Trezmynn does not detail what specific testimony was improperly permitted, arguing only generally that the court erred in permitting hearsay testimony because it violated his right to confront the witnesses against him and that the jury charges were insufficient, which deprived him of a fair trial.

The few references to the record provided by Trezmynn are to objections made by Eric's counsel. Without specific citations to what testimony Trezmynn claims was admitted in error, meaningful review by us is not possible.

Wrongful Impersonation Charge

Trezmynn also argues that the trial court erred when it first omitted the wrongful impersonation charge and then issued the charge after deliberations began. He claims that the court should instead have declared a mistrial and that the charge given was "improper and prejudiced defendant's right to a fair trial."

For the reasons we have previously mentioned, we find no error with the court's resolution of this matter.

Juror Nine

Trezmynn argues that the court erred in refusing to dismiss juror nine after she advised the judge that she had been offended during counsel's cross-examination of a witness. By not excusing the juror, Trezmynn argues, he was denied an impartial jury and a fair trial. He alternatively argues ineffective assistance of counsel, which will not be addressed here as such arguments should instead be addressed in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992).

During his cross-examination of Elliott, Trezmynn's attorney asked if Elliott were aware that he could have received a sentence of twenty years, instead of ten years. When Elliott responded in the negative, the following colloquy occurred

[COUNSEL]: Okay. Okay. So then none of this affects your credibility here today? You are here because you're a good citizen, right?

[ELLIOTT]: No.

[COUNSEL]: Are you a priest, bishop or rabbi?

[ELLIOTT]: No, sir.

[COUNSEL]: So you are not here to

THE COURT: [Counsel], there are good citizens among us.

[COUNSEL]: I believe that, Judge.

THE COURT: who are not priests, ministers or rabbis, and I don't think that question is relevant.

[COUNSEL]: Are you a monsignor? I'm kidding. I retract that one. No further questions.

Then, at the end of the day's proceedings, juror nine asked for a side bar with the judge. Outside of the presence of the rest of the panel, but with all counsel present, juror nine stated

I I was offended by the comment made by Mr. Gerage about the witness being a rabbi or a priest. I felt that it was side commentary and I felt it was offensive. And when the first day you asked me why I wanted to do this I said to you I would want the same to be done for me, and if I were sitting there as a witness listening to all this side commentary, and that's just one example, but this is one of many that I felt the last couple days has been this side commentary by multiple lawyers and you've told them multiple times not to do this. We are supposed to be sitting here not seeing any of that and and we're seeing it and it's ridiculous. So either you need to continue to reinforce it or it's going to prevent me from being a fair juror.

. . . .

It wasn't the first witness that anything like that had been done to. The same thing had happened to [a] previous witness. All these little side commentar[ies], this little snippy stuff that has been going on shouldn't have been done in front of us.

THE COURT: [Juror Nine], I take responsibility for that because I am responsible for the conduct of this trial in my courtroom. I am embarrassed that you bring this to my attention. Although embarrassment or not, I appreciate it. I sincerely do. The question now becomes whether your perception of counsel's conduct or interrelationship with witnesses or the Court has now prevented you from sitting as a fair and impartial juror in this case.

JUROR NINE: I thought about it and honestly because it was more than him, it was multiple counsel, then I feel that I can still be fair. But I don't want to see it again.

THE COURT: Okay. Now, the next question is, have you discussed your concern with any of your fellow jurors?

JUROR NINE: No. Because it just happened.

The court then instructed the juror not to discuss her concerns with any of the other jurors and the juror agreed. After the juror left the courtroom, the court also admonished counsel and advised that it would not tolerate further "sniping among and between counsel" or "the editorial comment."

The next day, Trezmynn's counsel asked to have juror nine excused because "we don't know . . . the extent to which she can taint the balance of the panel." The court noted that

We had a juror yesterday who was sufficiently upset by what she perceived to be inappropriate behavior. Now, whether it was inappropriate or not, objectively does not matter. It is her subjective perception of it which becomes her reality. She was upset enough by it to come out and bring it to our attention. Face to face. That took some degree of courage. . . . I don't know that your ordinary juror would be anxious to come out in front of the lawyers and judge that she is criticizing and say something. That being the case, given that amount of rectitude, I think I can rely upon her when she says she's not at that point where it has impaired her ability to be fair and impartial going forward. And I can rely upon her statement to me that she's not discussed it with any of her fellow jurors. So, the application to excuse juror number nine will be denied.

The court advised the parties that it would instruct the jury that "what the attorneys say is not evidence." The judge then instructed the jury panel as follows

It occurs to me that there's been some wisecracking or sniping among and between the attorneys and I think it is appropriate for me to comment on it by way of telling you that after almost forty years in this business, the first thirty-three of which were spent was spent down there. (Indicating.) There is a lot of pressure on a lawyer when he or she is called upon to try a case. It is it is daily and it is chronic in the sense that it's present all of the time. From time to time, to continue the medical analogy, it becomes acute. Sometimes there's just that little (Indicating) pin prick and pap. Now to people like me who've seen it for four decades, it just kind of washes over or is taken in stride. Okay. Perhaps not for you. Now, it's regrettable. It's not appropriate. But it's not something to get exercised over. Okay. It's it's always unpleasant to see adults engage in that sort of behavior and it it creates a kind of a stand back reaction. But I ask for your understanding, your patience and your accommodation.

To the extent that it may go beyond the bounds of tolerance I'll step in and I think I have on occasion. Counsel were reminded of it yesterday. They were reminded of it again this morning, and I trust they will successfully resist the temptation to engage in it.

And I remind you that the little speeches that counsel make when they talk to me for your benefit, the talking objections, the use of hyperbole or a string of adjectives to describe a situation, that is lawyering. It is not evidence. Okay.

The trial then continued with no further objection on that issue.

After expressing the offense she took to counsel's comments, the juror indicated that she could remain fair and impartial as long as the behavior improved, and she indicated that she had not discussed this incident with the jury panel. Without alerting the panel to the one juror's comments, the court advised the entire panel that the behavior of the attorneys was essentially understandable in light of the intense pressure of a trial, and that they should ignore any objectionable comments that may be presented. Further, the court advised the jury that the comments of the attorneys were not evidence.

We review a trial court's determination of whether to excuse a juror under the abuse-of-discretion standard. R.D., supra, 169 N.J. at 559. We find no error in the court's decision to deny the motion to excuse her.

Juror Six

Trezmynn also argues that the "fairness of the deliberating jurors was compromised" when the court failed to inquire with juror six about the allegation that she knew Tia and failed to investigate whether the juror had "imparted any prejudice to other jurors." For the reasons previously mentioned, we find no error in the court's decision to not conduct any further inquiry into this issue.

Evidence of Dismissed Criminal Charges

Trezmynn next challenges the trial court's decision to permit the State to introduce evidence related to criminal activity that occurred on July 2, 2007, despite the fact that the charges dealing with that date had been dismissed during the trial. Eric objected to this evidence at trial, and the court ruled that the evidence was admissible because it was "relevant to prove the pattern of racketeering activity," and "[p]roof of these elements may well entail evidence of numerous disparate criminal acts engaged in by a variety of persons not limited to the defendants in this courtroom and on trial here." The court continued

Each defendant in a racketeering case may reasonably claim that he or she had no direct participation in some of those specific acts. Nevertheless, evidence of those acts is relevant to the racketeering charge against each of them because it has a tendency to prove the existence and the nature of the racketeering enterprise. Thus, despite the dismissal of these counts, the jury is entitled to consider this evidence in support of the charge of racketeering. This evidence is relevant in depicting the nature of the organization and the means and methods employed to effect its objectives.

We find no error in allowing the evidence from the dismissed charges as it was relevant to show the pattern of racketeering activity.

Sentencing

Trezmynn challenges his sentence. We note that there are inconsistencies between Trezmynn's oral sentencing and his judgment of conviction.

At his February 17, 2011 oral sentencing, the court imposed an eight-year term with two years' parole ineligibility on count one and a three-year consecutive term on count 246 (theft by deception). The court did not impose any further terms.

Trezmynn's judgment of conviction, however, reflects a four-year consecutive term on counts 246, 261, 311, and 321. The jury found Trezmynn guilty of those counts, but the judge does not appear to have included those counts in the oral sentence.

The oral issuance of a sentence controls over the judgment of conviction. State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). We affirm Trezmynn's convictions and remand to conform the judgment of conviction to the oral sentence, and for sentencing on counts 261, 311, and 321.

VII.

CONCLUSION

To recapitulate

We affirm Eric's convictions and remand for resentencing on the two limited issues identified.

We affirm Tonijah's convictions and sentence.

We affirm Tia's convictions. We remand for resentencing and direct that the court clarify the term imposed on counts 11, 12, 13, and 14 of indictment 08-08-632, 632, and provide facts firmly grounded in the record to support the application of aggravating factor eight, N.J.S.A. 2C:44-1(a)(8). Otherwise, the sentences imposed are affirmed.

We affirm Brisbane's convictions and sentence.

We affirm Trezmynn's convictions. We remand to conform the judgment of conviction to the oral sentence, and for sentencing on counts 261, 311, and 321.

1 Incorrectly designated as Tihee Jab Brisbane.

2 Because the four "Criss" defendants are related and share a common last name, we employ their first names in order to avoid confusion.

3 Of the 407-counts in the indictment, only 109 were submitted to the jury.

4 While there are exceptions to this general rule set forth at N.J.R.E. 405 and 608, they do not apply here.

5 The court initially imposed a three-year term, but shortly thereafter imposed a twelve-month term for these same counts.

6 Although Tia's judgment of conviction lists these charges under Indictment 08-08-626, the court orally sentenced Tia on her plea under Indictment 08-09-391. The judgment of conviction bears a handwritten notation changing the typewritten reference to Indictment "08-09-381" to "08-09-391."

7 State v. Yarbough, 100 N.J. 627 (1985).

8 In cross-examining Brisbane, the prosecutor actually used the word "theft," not fraud.