STATE OF NEW JERSEY v. PAUL W. KERSEY, JR.

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL W. KERSEY, JR., a/k/a

BILL KEARSEY, JOE KEARSEY,

PAUL W. KERSEY, PAUL W. KERSY,

PAUL W. KEARSEY, and JOE KERSEY,

Defendant-Appellant.

November 7, 2016

Submitted October 6, 2016 Decided

 
Before Judges Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 12-03-0340, 12-04-0381, and 07-01-0095.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Claudia Joy DeMitro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Paul W. Kersey, Jr., was convicted on July 18, 2013, of third-degree passing bad checks, N.J.S.A. 2C:21-5. He was sentenced on February 26, 2014, after several postponements, to a three-year state prison term, $1895 in restitution to TD Bank, and appropriate fines and penalties.

At sentencing, the trial judge simultaneously disposed of defendant's pending violation of probation on an unrelated indictment.1 The sentencing hearing proceeded despite defendant's request for additional delay. We affirm.2

The State's principal witness was an investigator employed by TD Bank. He testified both during the course of an N.J.R.E. 104 hearing and at trial regarding the bank's paperwork and the events that resulted in the charge.

On August 22, 2011, defendant opened a bank account by completing an application, executing a signature card, and making a five dollar deposit. He was required to provide his driver's license, his social security number, phone number, and current address. The bank's security video system recorded the transaction.

On August 24, again while being recorded, defendant deposited two checks into the account, one for $1400 and the other for $800. He withdrew $100 that day, and $1800 the next. The checks were dishonored, making the account overdrawn.

Still photographs were taken from the videos depicting the person who opened the account, deposited the checks, and withdrew the funds. In court, the investigator identified defendant as the person depicted in one of the photos. The actual videos were destroyed or overwritten within sixty to ninety days of being made, pursuant to bank protocol. The films were not preserved, although the investigator viewed them in order to produce the stills, and referred the matter to the authorities, within sixty days of the opening of the account.

The TD Bank investigator attempted to call defendant, but the phone number he had provided when the account was opened belonged to an "accounting company." The letter demanding payment on the overdrawn account was returned unclaimed. The investigator turned the matter over to the Woodbury Police Department on October 17, 2011.

The Woodbury Police Department detective testified that she verified the driver's license information, confirming the license belonged to defendant. On an unspecified date, she mailed a criminal complaint to the address listed on the license.

In December 2012, the TD Bank investigator "received a call from a person purporting to be [defendant], wanting to enter into a[n] agreement to [] repay the bank." Defendant agreed to repay the $1895, with an initial payment of $100, and $400 per month installments thereafter until the balance due was satisfied. Accordingly, the investigator forwarded a written agreement dated January 28, 2012, for signature to the branch at which defendant had opened the account. The document was also introduced into evidence at trial, and defendant's signature appeared on the last page notarized by an employee of TD Bank. It had been sent to the address defendant gave when he opened the account.

At the close of the Rule 104 hearing, the judge ruled the repayment agreement was admissible as a business record. See N.J.R.E. 803(c)(6). She did not agree with defense counsel's objection that admission was barred by N.J.R.E. 408, which in some instances bars the admission of settlement agreements. The judge distinguished between the scenario in which TD Bank might seek to introduce the repayment agreement to prove the amount that was due in a civil action, as opposed to the State of New Jersey introducing the agreement in a criminal prosecution. Because the State was prosecuting defendant for bad check charges, the agreement to repay TD Bank was not inadmissible proof of a settlement.

At trial, when defense counsel objected to the admission of the stills because the original films were not available, the judge nonetheless admitted them. She barred the investigator from talking about the videos during his testimony, however, and instead allowed counsel to argue to the jury that they could draw a negative inference from the fact the films had been destroyed. The point was raised in summation by defendant's attorney, who vigorously argued that the State had not demonstrated the identity of the perpetrator beyond a reasonable doubt. Additionally, counsel asked the jury to compare the signature purported to be from "Paul W. Kersey" on the front and the back of the two checks the State moved into evidence.

Defendant did not appear for sentencing in September 2013, when the matter was originally scheduled. Although not entirely clear from the record, it appears that a bench warrant issued for his arrest, he was taken into custody, and placed on the Home Electronic Device (HED) program. While also not entirely clear from the record, it appears that despite defendant's participation in the HED program, he did not appear at several court dates scheduled thereafter.

At the sentencing hearing, defendant argued that his earlier failures to appear were attributable to his medical problems. After considering counsel's argument requesting an additional postponement, the judge stated she had previously attempted to accommodate defendant's health, but that his medical issues could be accommodated by the Department of Corrections. She also observed that despite defendant's alleged back problems, requiring him to be brought to court on a gurney, when his attorney was not in the courtroom, he did not appear to be in pain. Once his attorney arrived, he did appear to be in pain.

On appeal, defendant raises the following issues

POINT ONE THE TRIAL COURT ERRED BY ADMITTING THE BANK ACCOUNT REPAYMENT AGREEMENT.

POINT TWO THE IDENTIFICATION OF DEFENDANT, AND CONSEQUENTLY HIS CONVICTION, WERE TAINTED BY THE DESTRUCTION OF THE BANK SURVEILLANCE VIDEOS.

POINT THREE TESTIMONY ABOUT A TELEPHONE CALL RECEIVED BY INVESTIGATOR SELB WAS NOT PROPERLY ADMITTED AS AN EXCEPTION TO HEARSAY.

POINT FOUR THE COMMENTS OF THE PROSECUTOR DURING HER SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT.

POINT FIVE THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO ADJOURN SENTENCING.

I.

A.

We review a judge's decision regarding evidence employing an abuse of discretion standard. State v. Nantambu, 221 N.J. 390, 402 (2015). On appellate review, "considerable deference [is afforded] to a trial court's findings based on the testimony of witnesses. State v. Buckley, 216 N.J. 249, 260 (2013) (citing State v. Elders, 192 N.J. 224, 260 (2013)). Only when admissibility rulings require an interpretation of law will they be reviewed de novo. Id. at 260-61.

B.

Defendant's first point is that the trial court erred by admitting the repayment agreement pursuant to the business records rule, N.J.R.E. 803(c)(6). In support of that contention, he argues that the State did not sufficiently identify him as the person who entered into the agreement. Defendant also argues admission of the repayment agreement violated the right of confrontation guaranteed by both the United States and New Jersey constitutions. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); State v. Buda, 195 N.J. 278 (2008). New Jersey's Constitution in Article 1, Section 10 includes an identical guarantee to the federal right of confrontation found in the Sixth Amendment in the United States Constitution. Defendant's third argument is that admission violated N.J.R.E. 408, as it was evidence of a settlement offer.

N.J.R.E. 803(c)(6) provides that the following is not excluded by the hearsay rule

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

In order to qualify as a business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events described in it, (3) under circumstances demonstrating trustworthiness. State v. Kuropchak, 221 N.J. 368, 387-88 (2015) (citing State v. Matulewicz, 101 N.J. 27, 29 (1985)).

In this case, it is not disputed that the repayment agreement met the first two prongs of the test. It is the trustworthiness, the third prong of the test, that is challenged. Defendant argues that since the investigator did not witness the signature, and the State did not call the bank employee who did, the document was not trustworthy.

The circumstantial evidence surrounding the agreement and the return of the document with an initial $100 payment, however, do sufficiently establish trustworthiness. The person who opened the bank account used defendant's driver's license as photo identification. In October, when the matter was turned over to the authorities, upon checking the license information provided by the bank, the identity of the license holder was verified. The license holder was defendant. A complaint issued, mailed to his last known address. Only after that juncture did anyone contact the bank about repayment of the overdrawn account.

After the investigator entered into the agreement, he mailed the document to defendant's address, and it was returned signed and notarized with defendant's name. This circumstantial evidence is "certain, satisfying, and persuasive" enough to establish defendant as the person who entered into the agreement. See State v. Goodman, 9 N.J. 569, 581 (1952).

With regard to the claim that the agreement was not admissible because it violated the right of confrontation, we note that records of regularly conducted business activities, the traditional business records exception to the hearsay rule, are exempted from the Crawford analysis. See State v. Chun, 194 N.J. 54, 141 (2008). The primary purpose of the repayment agreement, the document in this case, was neither for litigation nor prosecution, nor was it prepared for the primary purpose of accusing defendant. See State v. Berezansky, 386 N.J. Super. 84, 94 (App. Div. 2006) ("the rationale for [the business records exception] is that such a document is likely to be reliable because it was . . . not created primarily for evidence at trial"). It was prepared to document the account holder's acknowledgment of responsibility to reimburse the bank for the sums it was owed. Therefore, the document's admission did not violate defendant's right of confrontation.

Defendant's contention that the repayment agreement was inadmissible because it was a settlement agreement, and is therefore barred by N.J.R.E. 408, is similarly unavailing. The rule states that proofs regarding settlements between parties are inadmissible "[w]hen a claim is disputed as to validity or amount[.]" Evidence of settlement negotiations or a settlement are not inadmissible, however, "when offered for another purpose[.]" Ibid.

In this case, the existence of the debt was not challenged. The dispute centered around identity.

Additionally, a $100 payment was made by defendant towards the debt. As set forth in State v. DeAngelis, 281 N.J. Super. 256, 263-64 (App. Div. 1995), statements made by a defendant admitting guilt and promising to pay money to avoid criminal prosecution are admissible to establish his wrongdoing. The rule does not protect those who agree to pay money to protect themselves from criminal prosecutions. Id. at 264.

Arguably, that is what occurred here. Defendant's phone call was triggered by his receipt of a criminal complaint in the mail. In other words, he entered into a repayment agreement with TD Bank in order to avoid the criminal prosecution that he knew had been initiated.

Moreover, as the judge found, the agreement between TD Bank and defendant was merely an agreement by a customer to pay on an overdrawn account. As DeAngelis concluded, wrongdoers should not benefit from the rule in order to defeat prosecution. Therefore, admission of the document did not violate N.J.R.E. 408.

II.

We next address defendant's contention that the judge erred in admitting the TD Bank investigator's testimony regarding his phone call with defendant. See N.J.R.E. 803(b)(1) and N.J.R.E. 803(c)(25). The judge held that defendant's statements were admissible as exceptions to the hearsay rule: statements by a party opponent and statements against the declarant's interest. When defendant raised his objection at trial, the judge preliminarily ruled that sufficient circumstantial evidence existed to identify defendant as the caller, although it was ultimately left to the jury to decide the person's identity.

It is well-established that so long as there are no constitutional bars, such as Miranda, subject to N.J.R.E. 104(c), a defendant's statements can be introduced at a criminal trial as statements of a party opponent. See State v. Gore, 205 N.J. 363, 382 (2011); N.J.R.E. 803(b). Such statements may be offered regardless of whether a defendant testifies, and may be used as substantive evidence. State v. Boyer, 221 N.J. Super. 387, 399 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988).

Defendant's argument that there was insufficient evidence in this case that he was the declarant is unconvincing. For the reasons we have stated with regard to the agreement, there was sufficient evidence from which a jury could find that defendant was the caller. And we agree with the judge that, additionally, it was up to the jury to decide whether the statement was credible and inculpatory. See State v. White, 158 N.J. 230, 246-47 (1999). There must be some evidence that the declarant was the defendant. State v. Bowens, 219 N.J. Super. 290, 296 (App. Div. 1987). Such evidence existed here. State v. Mays, 321 N.J. Super. 619, 629 (App. Div. 1999).

The jury was charged that before they could decide the telephone call was inculpatory evidence, they must first determine that it was defendant who was speaking to the investigator. Once having made that determination, they were then to consider the statement employing the same analysis as they would any other statement. The court said

There is for your consideration in this case a written and/or oral statement allegedly made by the [d]efendant. It is your function to determine whether or not the statement was actually made by the [d]efendant and, if made, whether the statement or any portion of it is credible.

In considering whether or not an oral statement was actually made by the [d]efendant and, if made, whether it was credible, you should receive, weigh and consider this evidence with caution.

Based on the generally recognized risk of misunderstanding by the hearer or the ability of the hearer to recall accurately the words used by the [d]efendant.

The specific words used and the ability to remember them are important to the correct understanding of any oral communications because the presence of absence or change of a single word may substantially change the true meaning of even the shortest sentence.

Now, in this case, there is the alleged repayment agreement and any and all statements that may have or may not have been made to Mr. Selb.

In considering whether or not the statement is credible, you should take into consideration the circumstances and the facts, as to how the statement was made, as well as all other evidence in this case relating to this issue.

If, after consideration of all these factors, you determine that the statement was not actually made or that the statement is not credible, then you must disregard the statement completely.

If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.

Therefore, the agreement and the call were admissible. The judge's decision to admit the testimony was not an abuse of discretion.

III.

Next, we turn to defendant's claim that the prosecutor's brief comments urging the jury to compare signatures on the checks were prosecutorial misconduct constituting plain error. No objection to the comments was made at trial, hence we review the claim employing the plain error standard of review. R. 2:10-2. We will "disregard[]" it unless the error was "clearly capable of producing an unjust result. . . ." Ibid.

In this case, the defense attorney argued in her closing at some length that the defendant was not the perpetrator of the crime, that the State had not borne its burden of establishing his identity beyond a reasonable doubt, and that examining the signatures on the checks would lead to that conclusion. Thus it was not surprising that the prosecutor would have responded in kind, and that no objection was made to her comments. The prosecutor briefly requested the jury examine the signatures on the checks, the deposit slip, and the account form.

Defense counsel argued that the signatures on the checks did not match. The prosecutor responded that they did. Even if urging the jury to compare the signatures was an error of law, which it was not, the prosecutor's remarks were simply an effort to refute a statement made by defense counsel on summation. See State v. Williams, 317 N.J. Super. 149, 158 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). We find no error, much less one capable of producing an unjust result.

IV.

Finally, we address defendant's two remaining claims of error, which do not require much discussion in a written opinion. R. 2:11-3(e)(2). Defendant claims that the destruction of the bank videos "tainted" his trial. To the contrary, the production of only still photographs and destruction of the videos, if anything, worked to defendant's advantage. The underlying reason defendant objected to the admission of the photographs was because they were inculpatory. That they were pulled from the videos was irrelevant. The judge directed the investigator not to mention the videos because they had been destroyed. When the investigator mistakenly did so once, the judge immediately instructed the jury to ignore the comment, and subsequently allowed defendant to argue the jury should draw a negative inference from the destruction of the videos. The admission of photographic evidence is also reviewed under the abuse of discretion standard and we see none here. See Saldena v. Michael Weinig, Inc., 337 N.J. Super. 35, 49-50 (App. Div. 2001).

Defendant also contends that his application for a postponement to adjourn sentencing was improperly denied. We disagree. Defendant's initial sentence hearing was scheduled for September 2013, and it was not finally conducted until February 2014. Those delays were occasioned by defendant, whether for medical reasons or otherwise. The judge's review of defendant's medical records established that he suffered from back pain. The day of sentencing, he was able to interact with counsel and was able to fully participate in the sentence proceeding. We affirm for the reasons stated by the judge in her decision declining defendant's request for additional adjournments. We see no abuse of discretion in this decision either. See D.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008) ("[A] trial court has wide discretion in controlling the courtroom and the court proceedings.").

Affirmed.

1 Defendant was also sentenced for violating probation on a third charge; the appeal of that sentence has been withdrawn.

2 Defendant's appeal was originally listed on an Excessive Sentence Oral Argument calendar; he asked that it be removed to the plenary calendar. See R. 2:9-11.