STATE OF NEW JERSEY v. LEE D. ROBERTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4440-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE D. ROBERTS,

Defendant-Appellant.

_______________________________

October 31, 2016

Argued October 5, 2016 Decided

Before Judges Sabatino, Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-04-0367.

Andrew Mark Ferencevych argued the cause for appellant (Furlong and Krasny, attorneys; John S. Furlong and Mr. Ferencevych, on the brief).

Timothy F. Trainor, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Lee D. Roberts was found guilty of second-degree wrongful impersonation, N.J.S.A. 2C:21-17(a)(4) (count one), and third-degree trafficking in personal identifying information, N.J.S.A. 2C:21-17.3(b)(1) (count two). The trial court sentenced defendant to a six-year custodial term on count one and a concurrent four-year custodial term on count two.

On appeal, defendant argues that (1) the jury charges were flawed in certain respects; (2) the verdict sheet should have been revised to clarify the elements relating to the grading of the charged offenses; (3) the trial court permitted a police lay witness to express improper expert opinions; and (4) the court erred in admitting into evidence a duplicate copy of a document where the original's authenticity was disputed. For the reasons that follow, we find no need to set aside defendant's conviction on any of these asserted grounds, and we thus affirm.

I.

The State's proofs at trial concerned defendant's alleged illicit sale of personal identifying information to a cooperating witness, Wayne Bessant.1 In essence, the prosecution's theory was that defendant, a tax preparer, provided the names and other personal identifying information of several of his clients to Bessant in exchange for money and other consideration.

At the time in question, Bessant was the night audit manager at a hotel in Ewing Township. Bessant met defendant through a mutual acquaintance, and learned that he assisted persons in preparing their tax returns. Bessant testified that he told defendant that he "was involved in some identity things," and that defendant allegedly "said he could provide [Bessant] with some identities [of other individuals]."

Pursuant to his CW arrangement with the Mercer County Prosecutor's Office, Bessant reported to detectives in that office his conversation with defendant, including defendant's willingness to provide customer identities to Bessant. After receiving that information, detectives arranged to have Bessant call defendant in a recorded conversation and offer to purchase customer identifications from him. According to Bessant, he told defendant that he would use the identifications to engage in fraudulent transactions.

More specifically, Detective Denise Gorlin of the Prosecutor's Office, who took part in the undercover investigation, testified that defendant agreed to sell Bessant ten customer identifications for $360. In addition, defendant allegedly stated that he might need Bessant's help in obtaining a discounted room at the hotel where Bessant worked.

Bessant telephoned defendant to arrange a time to purchase the identifications. Defendant told Bessant that he would pick Bessant up outside of defendant's office. In advance of that arranged meeting, detectives searched Bessant for any contraband. Bessant did not have a pencil or paper on his person after he was searched. The detectives provided Bessant with $360 in cash to use for the planned transaction with defendant.

Bessant and a Detective Clark2 then drove to defendant's tax preparation office in Trenton. Bessant got out of the vehicle alone, entered defendant's office, and spoke with their mutual acquaintance. Bessant then spoke on the phone with defendant, who was presently off site at a mechanic's shop. Defendant told Bessant he would pick him up at his office. Defendant soon arrived, driving a Toyota sedan. Bessant got into the Toyota, and defendant drove them to a bank parking lot.

While parked in the Toyota, defendant and Bessant conversed with one another. Their conversation was recorded, and that audio recording was played for the jury at trial. During their interaction in the car, defendant read from and gave to Bessant a single sheet of paper containing the personal identifying information of several individuals. As reflected in the recording, Bessant asked defendant if he could use the information defendant provided to "get a credit card," to which defendant answered "[r]ight." Bessant and defendant further discussed splitting the proceeds from the illegal use of additional identities in the future.

Defendant was subsequently arrested. A grand jury then issued the two-count indictment.

The State's trial evidence consisted of testimony from Bessant and Detective Gorlin, as well as the recorded undercover conversations. In addition, the State presented, over defense counsel's objection, a photocopy of the document with customer names and personal information that Bessant testified defendant gave him while in the Toyota. Defendant did not testify. He did present the character testimony of an attorney who had known him for about twelve years, who vouched for his truthfulness and honesty.

As noted, the jury convicted defendant of second-degree wrongful impersonation on count one, but only the lesser-included offense of third-degree trafficking on count two. The court then imposed the aforementioned custodial sentences.3

II.

Defendant's brief raises the following points for our consideration

POINT ONE

THE JURY CHARGES WERE INCORRECT, CONFUSING, AND MISLEADING RESULTING IN THE JURY'S IMPROPER VERDICT BECAUSE THE TRIAL COURT FAILED TO PROPERLY CHARGE THE JURY ON ATTEMPT AND PROVIDED OTHER ERRONEOUS INSTRUCTIONS (not raised below).

POINT TWO

THE TRIAL COURT ERRED WHEN IT FAILED TO USE A SPECIAL INTERROGATORY FORM BECAUSE THE CONFUSING NATURE OF THE CHARGES AGAINST APPELLANT REQUIRED A SPECIAL VERDICT SHEET TO CLARIFY THE GRADING OF THE OFFENSES (not raised below).

POINT THREE

THE TRIAL COURT IMPROPERLY ADMITTED EXPERT OPINION TESTIMONY THROUGH A POLICE LAY WITNESS (not raised below).

POINT FOUR

THE TRIAL COURT IMPROPERLY ADMITTED A DUPLICATE COPY OF A CRITICAL PIECE OF EVIDENCE WHEN THE ORIGINAL'S AUTHENTICITY WAS A GENUINE ISSUE.

Before addressing these points, we present for ease of reference the applicable language of the criminal code relating to the two counts of the indictment.

As to count one, under the provisions of N.J.S.A. 2C:21-17(a)(4) pertinent to this case, a person is guilty of wrongful impersonation if he: (1) knowingly obtained personal identifying information pertaining to another person; (2) purposely used that information "or assist[ed] another person in using the information," in order to assume the identity of another person or to represent himself as another person; (3) knew that he lacked authorization to use the personal information, and (4) had the purpose to fraudulently obtain a benefit or services or attempted to obtain a benefit or services. See N.J.S.A. 2C:21-17(a)(4) (emphasis added).

As to count two, N.J.S.A. 2C:21-17.3(b)(2) provides, in relevant part, that a person is guilty of second-degree trafficking in personal identifying information if he: (1) "distributes, manufactures or possesses 50 or more items containing personal identifying information pertaining to another person, or ten or more items . . . pertaining to five or more separate persons;" (2) does so without authorization, and; (3) does so with knowledge that the actor is facilitating a fraud or injury to be perpetrated by anyone. See N.J.S.A. 2C:21-17.3(b)(2) (emphasis added). A third-degree offense for trafficking involves the same elements, but instead requires only twenty (rather than fifty) or more items containing personal identifying information pertaining to another person or five (rather than ten) or more items pertaining to five or more separate persons. See N.J.S.A. 2C:21-17.3(b)(1).

A.

Defendant's first contention is that the jury charge explaining these offenses and other applicable legal concepts was deficient in several respects. In particular, defendant contends that (1) the charge should have expanded upon the Model Criminal Charges for wrongful impersonation and should have provided a more detailed recitation of the concept of attempt; (2) the charge erroneously mentioned the portion of the State's allegations that defendant had sold personal identifying information that included "credit reports, personal identification numbers and corporate business information" and also superfluously included the definition of solicitation; (3) the portion of the charge on accomplice liability misstated that an instruction on wrongful impersonation would follow, when in fact the wrongful impersonation elements had already been charged; and (4) the charge confusingly repeated instructions on the applicable mental states in multiple places.

None of these present criticisms of the jury charge were raised by defendant with the trial court in the transcribed charge conference. In fact, the only issue during the charge conference was raised by the prosecutor, which concerned the grading of the trafficking count, and which the court resolved without objection by having that aspect of the charge replicate the language of the proposed verdict form. Defendant's trial counsel4 affirmatively stated that the revised charge prepared by the judge was "sufficient." Indeed, defendant acknowledges in his brief on appeal that his arguments concerning the charge were not raised below.

In light of defendant's failure to object to the jury charge in the trial court, the plain error standard of review applies to our analysis. If a party does not object to jury instructions at trial, that party must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Afanador, 151 N.J. 41, 54 (1997); State v. Macon, 57 N.J. 325, 336 (1971). Where a defendant has not objected at trial, "it may be presumed that the instructions were adequate." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010), certif. denied, 205 N.J 81 (2011). Appropriately raising jury instruction concerns at trial allows the court to "fashion[] a better charge" to address those concerns. State v. Delibero, 149 N.J. 90, 106 (1997).

That said, we are mindful of the importance of providing clear and correct jury instructions in a criminal trial. See State v. Alexander, 136 N.J. 563, 571 (1994). We are cognizant in this regard that, as a general proposition, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987), certif. denied, 156 N.J. 387 (1998)). Nevertheless, we are not persuaded that any of the criticisms now levied against the jury charge by defendant's appellate counsel here are consequential, or that they warrant a new trial.

First, we discern no necessity in this case for the trial court to have provided a plenary instruction on the concept of attempt. The State's theory at trial, as reflected in the prosecutor's summation, was that defendant violated the terms of both the wrongful impersonation statute and the trafficking statute as an accomplice. Under the State's theory, he did so by selling the names of his customers to Bessant, with knowledge that Bessant planned to use that information for illicit purposes without those customers' permission. There was no "attempt" by defendant to sell the customer information to Bessant; the evidence showed that the information was actually sold in exchange for the cash that was tendered. The court accordingly charged the jury on accomplice liability in a manner consistent with Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995). In a related vein, we also discern no error, let alone plain error, in the court's inadvertent statement during the accomplice liability charge that it would be defining wrongful impersonation, having already done so.

Likewise, the court's inclusion of the standard definitions of solicitation in this case was inconsequential. The definitions provided were consistent with the text of the full model charge on accomplice liability. Similarly, we discern no reversible error in the court mentioning the State's allegations that defendant had provided "credit reports" and "personal identification numbers." These references to the State's allegations were not presented as judicial findings of fact, and the jury clearly remained free to accept or reject the allegations based on the evidence presented. Any over-inclusiveness in this respect is of no moment, particularly given the lack of any objection.

We simultaneously detect no undue confusion that could have resulted from the court's repetition of the various mental states of "knowing" and "purposeful" conduct contained in the various substantive crimes that were charged. The charge accurately recited the pertinent mental states associated with each offense. The instructions did not have the "clear capacity" to mislead or confuse the jury. R. 2:10-2.

B.

We need not comment at length about defendant's argument that the verdict form was confusing with respect to the grading of the two charged offenses and should have been supplemented with special interrogatories relating to that grading. The form adhered to the recommended format in the model charges. See Model Jury Charge (Criminal) 21-17(a)(1) "Impersonation: Theft of Identity" (revised April 2009).

The "[u]se by the court of model jury charges is recommended as a method, albeit not perfect, for avoiding error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 to R. 1:8-7 (2016); see also State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999). If the trial court tracks the Model Criminal Charges, an appellate court may affirm a conviction even if the model could be improved. See, e.g., State v. Jenkins, 182 N.J. 112, 135-36 (2004) (affirming a conviction based on the Model Criminal Charge, but suggesting that the Supreme Court's model charge committee consider amending the charge).

Moreover, special interrogatories on a verdict form are warranted only in limited circumstances, such as to "clarify complex issues in a lengthy trial and reduce juror confusion." State v. Simon, 79 N.J. 191, 204 (1979). No such special clarification was necessary here.

The verdict form was sufficiently clear in defining the number of persons whose identities were misused and the numbers of items containing personal identifying information. In fact, defendant apparently derived some benefit from the subpart format of the verdict sheet when the jury rejected the higher alternative for the number of misused items in count two (the second-degree charge) and instead selected the lower alternative for the number of items (the lesser-included third-degree offense).

C.

Defendant does raise, albeit for the first time on appeal, a viable argument that Detective Gorlin improperly presented expert testimony as a lay witness, in opining that she had listened to the surveillance recordings and that she personally believed that a transaction had occurred in the Toyota between defendant and Bessant. The detective further opined, without being qualified as an expert witness, that Bessant received from defendant personal identifying information of ten persons that Bessant planned to use in order to create fraudulent credit cards, and that the conversation also reflected that defendant told Bessant how he obtained the names and information and how he verified they were correct.

In State v. McLean, 205 N.J. 438, 456 (2001), the Supreme Court made clear that N.J.R.E. 701 does not authorize the State to present lay testimony from police officers who offer opinions about a defendant's guilt or innocence. In addition, the Court admonished in McLean that such testimony should not address matters falling within the zone of the "understanding of ordinary people on the jury." Id. at 460.

Here, Detective Gorlin's lay opinions about the tenor of the taped conversations strayed from these testimonial boundaries established by the Court in McLean. Nevertheless, that deviation does not compel reversal of defendant's conviction.

Defendant's trial counsel did not object to or move to strike the improper testimony. There is no plain error on this point "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. Taffaro, 195 N.J. 442, 454 (2008); see also R. 2:10-2.

The jurors readily could have reached their own conclusions about the taped conversations and events, having had the opportunity to listen to the tapes and consider the evidence directly themselves. It was circumstantially patent what had been going on when defendant and Bessant planned the illicit transaction and then later carried it out in the Toyota when defendant provided the customer information in exchange for cash. At most, the detective's opinion was stating an obvious reasonable inference from the context presented. Cf. State v. Simms, 224 N.J. 393, 405 (2016) (in which a detective provided improper lay opinion in response to a lengthy hypothetical question posed by a prosecutor that assumed facts not in evidence); State v. Cain, 224 N.J. 410, 431 (2016) (likewise involving a lengthy improper hypothetical query that amounted to a "mid-trial summation").

Moreover, the prosecutor did not mention the detective's opinions on the subject in closing argument. Given the strong proofs presented in the State's case and the minimal attention paid to the detective's gratuitous opinions, the admission of those opinions was merely harmless error.

D.

The last issue presented on appeal concerns the State's use of a duplicate copy, rather than the original, of the sheet of names and personal identifying information that defendant gave to Bessant in the car. As two detectives explained in testimony to the trial court at a pretrial Rule 104 hearing, the original of the document was misplaced by the Prosecutor's Office after it had been photocopied. The trial court determined after hearing this testimony that the original had not been lost in bad faith, and that the Prosecutor's Office had diligently searched for it. Consequently, the judge overruled defendant's objection to the admission of the duplicate, and it was presented to the jury.

Under the "Best Evidence" provisions within the Rules of Evidence, an original document is generally required to prove the contents of a writing, subject to certain enumerated exceptions. See N.J.R.E. 1002. In particular, a duplicate copy is "admissible to the same extent as an original unless (a) a genuine question is raised as to the authenticity of the original, or (b) in the circumstances it would be unfair to admit the duplicate in lieu of the original." N.J.R.E. 1003. Originals are not required if they are lost or destroyed, "unless the proponent lost or destroyed them in bad faith[.]" N.J.R.E. 1004. Furthermore, the authenticity of a document is "satisfied by evidence [that is merely] sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901.

Defendant posits that the authenticity of the duplicate in this case can be reasonably questioned, because there was the possibility that Bessant wrote the list of names and personal identifiers himself and hid it in his sock, or that he might have obtained the document with that information from another person in defendant's office. However, this creative speculation does not raise a genuine issue as to the authenticity of the contents of the writing.

Defense counsel was given a fair opportunity to cross-examine Bessant as to the author of the writing. The jurors appropriately were given the opportunity to inspect the duplicate copy themselves. There was no competent evidence offered to substantiate that the duplicate copy was not genuine or was altered, or showing that its introduction was unduly prejudicial to defendant. Consequently, the trial court did not abuse its discretion in admitting the copy in conformance with the exception set forth in N.J.R.E. 1002.

We are bound to accept the trial court's credibility findings as to the diligence of the Prosecutor's Office's search for the original and the absence of bad faith. State v. Locurto, 157 N.J. 463, 474 (1999) (underscoring the great degree of deference owed to a judge when acting as a finder of fact). Our opinion in State v. Moore, 158 N.J. Super. 68, 84 (App. Div. 1978), cited on this evidentiary point by defendant, is clearly distinguishable, because in that case the proponent of the duplicate failed to provide ample justification to present secondary evidence in lieu of original payroll records. Here, such justification is clearly present, in light of the credible search for the original performed by the detectives as was attested to at the Rule 104 hearing.

In sum, we defer to the trial court's sound exercise of discretion in this evidential ruling. See State v. Brown, 170 N.J. 138, 147 (2001) (calling for the affirmance of discretionary rulings by a trial court, absent a showing of a "clear error of judgment").

We have fully considered the balance of defendant's subsidiary contentions, and conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 We have not been asked to use initials for Bessant. The briefs, which have not been sealed, use Bessant's name. As noted in the trial testimony, a cooperating witness ("CW") is a person who assists law enforcement officers and knows that he or she will be expected to testify at a trial, as distinguished from a confidential informant ("CI") whose identity is to be kept confidential. See N.J.R.E. 516.

2 The record does not divulge Clark's first name.

3 Defendant does not challenge his sentences on appeal.

4 Defendant is represented by different retained counsel on appeal.