JERSEY STATE OF NEW JERSEY v. MARIE L. MUNN

NOT FOR PUBLICATION WITHOUT THE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 only binding 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.

MARIE L. MUNN, a/k/a MARIE BOYD,

Defendant-Appellant.

_______________________________________________

October 11, 2016

 

Submitted September 14, 2016 Decided

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-05-0113.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, 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 to a jury, defendant Marie L. Munn was convicted of third-degree tampering with public records N.J.S.A. 2C:28-7(a)(1), and third-degree theft by deception, N.J.S.A. 2C:20-4(a). She was sentenced to a three-year term of probation, 300 hours of community service, and ordered to pay restitution. On appeal, defendant challenges evidentiary rulings by the trial court, alleges prosecutorial misconduct, claims the indictment should have been dismissed, and that she should have been admitted to pretrial intervention. We are not persuaded by any of these arguments and affirm.

I.

The School Lunch Program

Defendant and her husband, Harry Munn, had two children who attended school in the Elizabeth public school system. Beginning in August 2006, defendant submitted six separate applications to allow her children to participate in the school's free or reduced price lunch program funded primarily by the National School Lunch Program (NSLP). The NSLP offers free or reduced rate meals to children qualifying under statewide eligibility criteria set by the United States Department of Agriculture. Eligibility requirements varied from year to year, but in 2006, a family of four was eligible for reduced rate meals with a combined income between $26,000 and $37,000, and for free meals if their combined income was less than $26,000.

On August 2, 2006, defendant submitted an application for both children indicating her family had no income. Defendant's children were temporarily approved for free lunches, but because no income was reported, defendant was required to re-apply within forty-five days. On October 1, 2006 defendant submitted a second application, again reporting no income. On defendant's November 19, 2006 application, she reported a weekly income of $300. Based on the trial testimony, it appears that defendant did not include her husband's income on the applications.1

The State submitted proof that in 2006, defendant's salary was $56,509.58, and her husband's salary was $66,610.72. The parties stipulated that defendant's children received free meals worth $654.30 in 2006, and $662.30 for the 2007-2008 school year.

Defendant completed an application for the 2008-2009 school year on August 4, 2008, reporting an income of $400 per week. Both children were again approved and received $553.90 worth of free meals. Defendant actually earned $67,642.48 in 2008, and her husband earned $17,439.43.

On August 21, 2009, defendant completed an application2 for the 2009-2010 school year, reporting an annual income of $22,000 for herself and $6000 for Harry. Defendant actually earned $76,694.51 in 2009, and Harry earned $474.92. On August 20, 2010, defendant completed an application for the 2010-2011 school year, reporting a biweekly income of $1000, when she actually earned $74,100 for 2010. From 2006 to 2011, the children received $2649.80 worth of free meals.

The Star-Ledger Investigation

In April 2007, defendant was elected to the Elizabeth Board of Education (Board). In May 2011, defendant was elected president of the Board and served in that capacity until her resignation in June 2012.

On August 21, 2011, the Newark Star-Ledger published an article entitled, Taxpayers Buy Lunch for School Officials' Kids Federally Subsidized Program Intended for Elizabeth's Needy. In the article, defendant and two others were identified as "politically connected players in Elizabeth," who's schoolchildren were either getting free lunches or were listed as eligible for the free lunch program. The article noted that defendant was president of the Board of Education and that she and her husband were employed.

After the article was published, defendant retained counsel, Sean Pena, to assist her in drafting a response. On September 15, 2011, the Star-Ledger published an article indicating defendant had repaid the school district $2682 to cover the cost of six years of free meals her children were not entitled to. The article also included the following statement from defendant

In a statement last night, Marie L. Munn said because of misunderstandings and financial complications, she was unaware her children were receiving free lunches until contacted last month by a reporter for The Star-Ledger.

Munn acknowledged she had indeed filled out an application to receive free lunches, but never intended to actually use the program. She said she gave her sons money to buy lunch each day and only recently learned they spent it on snacks and ate the taxpayer-subsidized meal as well.

Defendant was charged in a criminal complaint on October 7, 2011 and indicted on May 30, 2012.

On February 4, 2014, the deputy attorney general (DAG) assigned to prosecute defendant's case, contacted Sean Pena and left a voicemail asking Pena to return her call. On February 6, 2014, the DAG and New Jersey State Police (NJSP) Detective Sergeant Lisa King spoke with Pena and received the following responses to the DAG's questions

[DAG]: Did you submit the response of Marie L. Munn to the Star Ledger?

PENA: Yes. Munn came to our office after the initial Star Ledger article came out asked us for help in drafting a response to submit to the Star Ledger.

[DAG]: Was anyone else present during that meeting?

PENA: Tony Fusco and Ms. Munn's husband or significant other.

[DAG]: Did Ms. Munn authorize you to submit the response to the Star Ledger?

PENA: Yes.

[DAG]: Who drafted the response?

PENA: I did.

[DAG]: Who provided you with information to put in the response.

PENA: Ms. Munn. I sent her a draft or drafts via email. She corrected at least one version and sent it back with her edits.

[DAG]: Do you still have those emails?

PENA: No.

[DAG]: Did Ms. Munn review and approve the final version of the response prior to submission to the Star Ledger?

PENA: Yes.

[DAG]: Did Ms. Munn approve the submission of the response to the Star Ledger?

PENA: Yes.

After the interview, the DAG told Pena that the State would subpoena him to testify at trial. Thereafter, defendant's counsel learned of the interview and the prosecution's intent to call Pena at trial. Defendant filed a motion to disqualify the DAG as the prosecutor and impose sanctions on the State.

After hearing oral argument, the trial judge denied the motion, finding the prosecutor did not violate the Rules of Professional Conduct 8.4(a), 4.4(a), and 3.8(e) by contacting and discussing defendant's statement with Pena because defendant had waived the attorney-client privilege.

At trial, the State called a former food service director for the City of Elizabeth, three employees of the Elizabeth Board of Education, Detective King, and another NJSP detective, Fritz Frage. Defendant called a pastor in her church, her husband, and testified on her own behalf. The jury found defendant guilty on both counts of the indictment.

On appeal, defendant raises the following arguments

point i

the defendant's right to due process of law as guaranteed by the fourteenth amendment to the United states constitution and art. I, par. 1 of the new jersey constitution was violated by the prosecutor's use of the indictment as evidence to discredit the defendant's good character evidence. (Not raised below).

point ii

the defendant's right to due process of law as guaranteed by the fourteenth amendment to the united states constitution and art. I, par. 1 of the new jersey constitution was violated by prosecutorial misconduct. (partially raised below)

a. the prosecutor interfered with the attorney-client relationship by questioning counsel and eliciting information about his client and his work product.

b. the prosecutor's misconduct during opening and summation resulted in an unfair trial. (not raised below).

point iii

the defendant's right to due process of law as guaranteed by the fourteenth amendment to the united states constitution and art. I, par. 1 of the new jersey constitution was violated by the improper admission of highly prejudicial laY opinion evidence. (not raised below).

point iv

the defendant's motion to dismiss the indictment should have been granted.

a. federal preemption.

b. the indictment should be dismissed due to prosecutorial misconduct during grand jury proceedings.

point v

the defendant should have been admitted to pretrial intervention.

II.

A.

Defendant first argues that the State improperly used the indictment in this case to rebut testimony of her good character. Defendant called Gary Hartley, Pastor of Christ Fellowship Church in Elizabeth to testify as to her good character. Pastor Hartley testified that he had known defendant for more than ten years and she had served as a leader of his church. He knew her reputation in the community as "excellent" and described her as "humble and . . . someone who thinks of others first."

On cross-examination, the prosecutor posed the following hypothetical

Q: Okay. Okay. If I told you that she's charged with tampering with public records, meaning that she lied on free lunch applications in an effort to get her children free lunch; if I told you that her second charge is theft by deception, meaning that she deceived the Elizabeth Public School District into giving her children free lunches when she wasn't otherwise entitled, assuming that those facts are true, would that change your opinion as to her character?

A: Well, I don't know about her character. But it most certainly would be a surprise that she would do that kind of stuff. It's out of character. So something seems off.

Q: Would it change your opinion of her?

A: It could. It would question, you know, because there's nothing there hasn't been anything like that in the past.

Defendant now argues that Hartley's response amounted to a retraction of his character testimony. Defendant claims that her character was an essential element of her defense as she "did not dispute the commission of the alleged acts, but sought to raise a reasonable doubt about whether she had acted with criminal intent."

There was no objection to these questions by the prosecutor at trial. Therefore, we review for plain error and will disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The possibility of an unjust result 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. Macon, 57 N.J. 325, 336 (1971).

The failure of defendant's trial counsel to object suggests that the line of questioning was not deemed prejudicial at the time. State v. Frost, 158 N.J. 76, 84 (1999). The failure also deprived the trial court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). Trial courts are afforded broad discretion in controlling cross-examination. State v. Jenewicz, 193 N.J. 440, 467 (2008).

Pastor Hartley did not recant his testimony as to defendant's good character when presented with the guilt-assuming hypothetical. He testified that he would be surprised if the charges contained in the indictment were true and did not know whether that would affect his opinion as to defendant's character. In the court's jury charge, the judge instructed the jury that the "indictment is not evidence of a defendant's guilt on the charges." We are satisfied that the prosecutor's unobjected-to hypothetical was not clearly capable of producing an unjust result and did not constitute plain error.

B.

Defendant next argues that the prosecutor interfered with her attorney-client relationship with Sean Pena by questioning him and improperly obtained Pena's work product as to his representation of her.

The trial judge conducted a Rule 104 hearing to determine the admissibility of defendant's statement contained in the September 15, 2011 Star-Ledger article. Out of the presence of the jury, the State called Sean Pena, who testified that he was retained by defendant to prepare a statement in response to the August 21, 2011 Star-Ledger article. Pena confirmed that he drafted the statement based on information provided by defendant and, after defendant reviewed the statement, he submitted it to the newspaper for publication. The judge ordered some redactions including any reference to defendant's position with the Board, but otherwise permitted the introduction of defendant's statement.

The State did not call Pena as a witness at trial. Rather, the parties stipulated to a redacted statement3 by defendant wherein she admitted to submitting applications for free or reduced rate meals, but did not believe her children were eligible for the program. When she learned of "the discrepancy and the subsidized lunch her children received," she reimbursed the Board.

Defendant argues that the trial judge erred in not disqualifying the prosecutor because she interfered with defendant's attorney-client relationship by speaking with Sean Pena.

The attorney-client privilege protects "communications between a lawyer and his client in the course of that relationship and in professional confidence." N.J.S.A. 2A:84A-20. The proponent of the privilege bears the burden of showing the existence of a privilege, and must also establish that the particular communications at issue are protected by the privilege. Horon Holding Corp. v. McKenzie, 341 N.J. Super. 117, 125 (App. Div. 2001). "[T]he privilege protects only those communications expected or intended to be confidential." O'Boyle v. Borough of Longport, 218 N.J. 168, 185 (2014).

Defendant retained Pena to assist her in drafting a statement in response to the Star-Ledger's August 21, 2011 article. Defendant provided Pena with the information to be included in the statement and authorized him to release her statement to the Star-Ledger for publication. There is nothing in the record to indicate that defendant intended her communications with Pena to be confidential. The trial judge noted that the statement included Pena's name and his firm's contact information "inviting members of the public to contact [him]." The judge concluded that "the response consisted of authorized statements that the [d]efendant wanted her attorney to disclose and disseminate to the public domain." Any privilege that may have attached to these communications was waived when defendant authorized the publication of her response.

The trial judge correctly denied defendant's motion to disqualify the prosecutor. Her questioning of Pena as to the publically disclosed statements of defendant did not violate defendant's attorney-client privilege.

C.

Defendant next objects to statements made during the prosecutor's opening and closing statements to the jury. No objection was made to the statement and we again review for plain error. Defendant first points to the prosecutor's opening statement in which she said, "ask yourselves . . . is it probable to believe that [defendant] was completely unaware for five years that her children were receiving free lunches[?]." Defendant claims the prosecutor's use of "probable" misrepresented the burden of proof. We disagree.

Earlier in her opening, the prosecutor represented that the State would prove both counts of the indictment beyond a reasonable doubt. Moreover, the prosecutor's statement was virtually identical to the judge's charge to the jury on drawing inferences

[C]ircumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. Whether or not inferences should be drawn is for you to decide using your own common sense, knowledge, and every day experience. Ask yourselves is it probable, logical, and reasonable.

We find no error in the prosecutor's statement, let alone plain error.

D.

Defendant next challenges the prosecutor's statement during her summation that "[w]e're talking about $2600 of taxpayer money. Taxpayer money that should have gone to its intended purposes, to feed needy and impoverished school children." Defendant claims that the argument was unfairly prejudicial, and diverted the jurors' attention from the facts of the case.

We view this statement in context with numerous comments made by defendant's counsel which attempted to trivialize defendant's conduct because of the small cost of the school lunches. In his opening, defendant's counsel asked, "[d]id she fill [the applications] out intentionally to steal four dollars a day because that's what these lunches were. Four bucks a day."

The low cost of the lunches became a recurring leitmotif for the defense throughout the trial. During his cross-examination of a secretary for the Board, counsel asked "from what you know that the lunches that [defendant's children] got together totaled about four bucks?" Counsel asked another Board secretary, "[s]o would it be right that for . . . the '09 school year, the value of [] the free lunch would be about two bucks?" Another Board employee was asked on cross-examination

Q: And I think one of the last questions that the State asked you was based on this document, [defendant's child] got free lunch, right?

A: Yes.

Q: Is that am I correct that that means he got a lunch worth about two bucks a day?

During his cross-examination of Detective King, defense counsel again focused on the small value of the lunches

Q: And '08/'09, it looks like $4.15 no 20 cents, right?

A: If you calculated that.

Q: Well, let's do this.

A: I can't do math in my head.

Q: Let me make it easy. It's about four bucks, right?

A: I can't.

Q: '08/'09 is about $4, right?

A: Sure.

Defense counsel repeated the theme in his summation

Now, I'm not saying that $2600 isn't real money. I'm not. But it's got to be viewed in how it was gotten. . . . And with all due respect, who knows what Harry made. We didn't really get that. . . . So we're going to steal four bucks a day. And in the later years . . . two bucks a day, but who cares. . . . I'm not saying it's okay to steal $4 a day. What I am saying is does it make sense. Does it make sense to think after you heard what you heard about and from [defendant] that she would look to steal four bucks a day.

The challenged statement by the prosecutor came in response

Counsel has intended to minimize the significance of this figure throughout the trial. For four bucks a day, four bucks a day here. But we're not just talking about any $2600 here, ladies and gentlemen. We're talking about $2600 of tax payer money.

Taxpayer money that should have gone to its intended purposes, to feed needy and impoverished school children under the National School Lunch Program; not to feed the children of a household making over $100,000 a year; making double, triple, quadruple, five times the income eligibility guideline.

There was no objection to the prosecutor's summation. Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Frost, supra, 158 N.J. at 82-84. A prosecutor's otherwise prejudicial arguments may be deemed harmless if made in response to defense arguments. State v. McGuire, 419 N.J. Super. 88, 145 (App. Div.), certif. denied, 208 N.J. 335 (2011).

Here, the prosecutor's challenged comment came in response to defense counsel's repeated attempts to trivialize defendant's conduct by focusing on the small cost of the school lunches. At trial, there was testimony as to the purpose of the NSLP, and the family income eligibility requirements.

We find no merit in defendant's argument that during her summation the prosecutor improperly commented on defendant's post-arrest silence by noting that a statement defendant gave to the investigators was made before she was charged criminally. Defense counsel had argued that defendant's cooperation with the investigation "demonstrates that she never had the intent to get free lunch." The prosecutor responded that defendant "didn't make this statement after she was charged. She made the statement before she was criminally charged. And I would submit to you that the reason she made it before she was charged was because she was trying to escape culpability by giving a reason, a justification for her actions."

The prosecutor was not commenting on defendant's post-arrest silence. Rather, she was placing defendant's admissions into chronological context and suggesting a possible motive for making the statements. The prosecutor's comments were responsive and were not "clearly capable of producing an unjust result." R. 2:10-2. We find no error in the prosecutor's summation, let alone plain error.

E.

Defendant next objects to two comments made by the first witness called by the State, Carolyn DeCarbo. Ms. DeCarbo testified that she was employed for twelve years as the food service director for the City of Elizabeth, until her retirement in 2007. She provided an overview of the NSLP and the application and approval process. As the relevant portion of Ms. DeCarbo's testimony is brief, we repeat it here with the challenged portions highlighted

Q: If you could just thank you. Now, Ms. DeCarbo, you indicated that the the preprinted instructions excuse me, the preprinted applications that are sent home and also the other application packages contain a set of the instructions. Is that correct?

A: Yes.

Q: Okay. And can you explain in a little bit more detail what those instructions consist of?

A: The instructions line-by-line tell you what you write or what they're looking for in the application. For example, household size, they they clearly describe that it's a family unit living together. If you had a grandparent living with you you counted that in the household.

Sources of income were also clarified. Alimony, child support. Whatever was possible. I'm sorry, I don't remember the wording. There was one time I'm sure I had it memorized. But the instructions are very clear as to what to fill out on each line.

Once again, there was no objection to the prosecutor's question or Ms. DeCarbo's answer. Defendant now claims that Ms. DeCarbo's characterizations of the instructions for the NSLP application as clear amounted to a lay opinion and that the prosecutor intentionally and improperly elicited this "highly prejudicial" evidence which usurped the jury's role. We find this argument lacks sufficient merit to warrant further discussion beyond the following comments.

The record does not support defendant's claim that the prosecutor "persisted in her pattern of misconduct by eliciting prejudicial lay opinion evidence." The prosecutor merely asked Ms. DeCarbo to explain what the instructions consisted of; there was no request for the witness to opine whether they were clear or not. Ms. DeCarbo offered her observation on her own, unprompted by the prosecutor's question.

Moreover, Ms. DeCarbo served as the food service director for Elizabeth for twelve years and had annual training pertaining to the NSLP. She was familiar with the eligibility standards for the NSLP, which changed each year, and was responsible for implementing the program and providing meals to 22,000 of Elizabeth's students. As a fact witness, Ms. DeCarbo's testimony was permissible under N.J.R.E. 602, as she had extensive personal knowledge of the NSLP, the application process, and the eligibility requirements. N.J.R.E. 701 permits a lay witness's "testimony in the form of opinions or inferences . . . if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." To the extent Ms. DeCarbo's testimony represented an opinion as to the clarity of the instructions, it was permissible under N.J.R.E. 701.

F.

Defendant next argues that her motion to dismiss the indictment should have been granted because the prosecution arising under the NSLP was preempted by federal law and because of prosecutorial misconduct during the grand jury proceedings. On April 12, 2013, Judge Robert J. Mega denied defendant's motion. Judge Mega correctly found that the NSLP did not preempt the crimes charged in the indictment and the State had jurisdiction to prosecute defendant. He also correctly found that the State neither presented impermissible evidence nor withheld exculpatory information from the grand jury. We affirm Judge Mega's decision on the basis of his thorough and comprehensive fifteen-page written decision.

G.

Finally, defendant claims that she should have been admitted to pretrial intervention (PTI) because her crime was not a breach of public trust, but rather was conduct of a private citizen. The State notes that as a member, and later president, of the Elizabeth Board of Education, defendant was entrusted with ensuring that the Board made decisions to benefit the school district, and her conduct disqualified her from PTI.

PTI "is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). Acceptance into the program "is based on a recommendation by the criminal division manager, with the consent of the prosecutor," id. at 246, and eligibility for the program includes consideration of the nature of offense, State v. Kraft, 265 N.J. Super. 106, 115 (App. Div. 1993).

Extreme deference is accorded to the prosecutor's decision to prosecute or to consent to PTI. Id. at 112. In order to challenge a prosecutor's decision not to consent to PTI, a defendant must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion." State v. Leonardis, 73 N.J. 360, 382 (1977). Further, such an abuse of discretion requires a showing "that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." State v. Bender, 80 N.J. 84, 93 (1979).

Defendant claims that she was refused admission into PTI solely because her offense was a breach of public trust. The trial judge found that defendant "breach[ed] the public trust because of the high standards for integrity and honesty expected of board members and because the defendant's position made her uniquely suited to understand the impact her actions would have on the budget and the district." However, the judge noted that her ineligibility did not automatically stem from her position on the Board and provided several other reasons which supported the State's refusal.

The judge found that defendant's explanations for her actions "strain credibility and fail to acknowledge that her actions were wrong." For this reason, the judge concluded that

defendant's poor prospects for rehabilitation were appropriate considerations in the state's denial of her PTI application.

[T]he state's decision to deny the defendant's PTI application was based on the goals underlying the PTI program. Allowing the defendant into the program would not serve to deter future criminal conduct, preserve judicial resources, or prevent . . . any harm to the defendant that would come in the event of criminal sanctions.

The record supports the judge's determination that there was no patent and gross abuse of discretion in the prosecutor's decision to refuse defendant admission into PTI.

Affirmed.

1 The applications were admitted at trial, but were not included in the appellate record.

2 At this point, the application was for only one child as one of the children had graduated.

3 The statement was not included in the appendix.