STATE OF NEW JERSEY v. MICHAEL A. VIOLANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3234-05T43234-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. VIOLANTE,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 8, 2007 - Decided

Before Judges Cuff and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1670.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald M. Spector, Designated Counsel, of counsel and on the brief).

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

PER CURIAM

The jury found defendant guilty of third-degree theft by deception, N.J.S.A. 2C:20-4 (count one), fourth-degree forgery, N.J.S.A. 2C:21-1a(2) (count two), and fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3) (count three). Defendant was sentenced to four years probation, conditioned upon serving six months in the county jail. He was ordered to pay restitution of $6,750, and all mandatory monetary assessments. On appeal, defendant argues:

POINT I

The trial court's failure to dismiss the charge of theft by deception as a matter of law deprived defendant of due process of law and the right to a fair trial. u.s. const. amend. xiv; n.j. const. (1947) art. I, pars. 1, 9, 10. (Not Raised Below).

POINT II

The trial court abused its discretion and denied the defendant the right to a fair trial when the court ruled that defendant's two remote prior convictions, which were not serious and did not involve lack of veracity, dishonesty or fraud, would be admissible if he testified. u.s. const. amend. xiv; n.j. const. (1947) art. I, pars. 1, 9, 10; N.J.R.E. 609.

POINT III

The trial judge's statements in the jury's presence that evidenced lack of impartiality and expressed skepticism about the basis for the affirmative defense of claim of right, and the failure to charge the jury on that defense, deprived defendant of due process of law and the right to a fair trial. additionally, counsel's failure to formally request a charge on claim of right constituted ineffective assistance of counsel. u.s. const. amendS. VI AND XIV; n.j. const. (1947) art. I, pars. 1, 9, 10 (Partially Raised Below).

A. The Trial Judge Exhibited Partiality Toward the State and Skepticism of the Defense of Claim of Right.

B. The Trial Court's Failure to Charge the Defense of Claim of Right Constituted Plain Error.

C. Defense Counsel's Failure To Formally Request A Charge On Claim Of Right Constituted Ineffective Assistance Of Counsel.

We reject these arguments and affirm.

Defendant and his former fiancé, Arlyn Adasczik, lived together for several years. Defendant was an automotive mechanic, and long before the relationship with Adasczik began, he owned a business known as D&B Auto and Truck. During the relationship, defendant designated Adasczik as CEO of D&B Auto and Truck and authorized her to sign checks drawn on the business account. The parties also maintained joint personal checking and savings accounts. They both contributed to all of these accounts, including the business account, and commingled their funds.

During the first year of their relationship, defendant and Adasczik initiated a snow plowing business. Soon after that, the two moved into a two-bedroom apartment together. Adasczik and her two children moved from 7 Civic Center Drive, Apartment 15, in East Brunswick, to 6 Civic Center Drive, Apartment 11.

The subject of the underlying charges against defendant pertained to a 2000 Jeep. Adasczik had acquired the 2000 Jeep as her personal vehicle. She traded in her previous personal vehicle, a Saturn, to purchase it. Title to the 2000 Jeep was in her name. The address on the title certificate was her address at the time she acquired it, 7 Civic Center Drive.

At some point, Adasczik wished to purchase a different vehicle, a Jeep Liberty, and she intended to trade in the 2000 Jeep to do so. Defendant had recently purchased a snow plow that would fit the 2000 Jeep. Accordingly, he asked Adasczik not to trade in that vehicle. Defendant agreed that he would make the payments on both vehicles. Adasczik agreed. Payments were made on the Jeep Liberty through commingled funds, and defendant issued a check to Ford Motor Credit Company in the amount of $9,550, which apparently paid off the balance due on the 2000 Jeep.

The relationship ended in February 2004. Defendant moved out of the apartment and moved in with his sister. Defendant was regularly driving the 2000 Jeep at that time. Adasczik asked defendant to return the 2000 Jeep to her. Defendant refused and informed her that the title was in his name. Adasczik denied ever signing over the title to defendant, and she denied authorizing defendant to transfer the title. She ordered a search of records from the Division of Motor Vehicles, which revealed that an alleged "sale" of the 2000 Jeep from her to defendant occurred on October 19, 2003. The transfer document reflected her address as 7 Civic Center Drive and defendant's address as 6 Civic Center Drive at the time of the transfer. As of October 19, 2003, Adasczik and defendant lived together at 6 Civic Center Drive.

The Division of Motor Vehicle records further showed that defendant subsequently transferred title to his sister, Susan Violante. Susan Violante testified at trial. She said when her brother moved in with her he wished to borrow money from her and signed over the 2000 Jeep to her in August 2004 as collateral for the loan.

Adasczik reported these events to the police. Adasczik consistently maintained that she never signed over the title to the 2000 Jeep to defendant, never authorized him to sign her name, and was never aware of the purported transfer of ownership of that vehicle until after the parties broke up. Based upon the information Adasczik provided, these charges were brought against defendant.

At trial, the issue was squarely framed. The State, relying on Adasczik's unwavering position, asserted that the signature on the title, purporting to be Adasczik's, was a forgery by defendant. The defense position was that Adasczik signed the document. In his opening statement, defense counsel told the jury, "you're also going to learn that, the signature, which [the prosecutor] claims was forged, was her actual signature. Not my client's. That's the case in a nutshell, basically."

As expected, Adasczik testified that the signature on the title was not hers. Defendant did not testify. However, on cross-examination of Adasczik, defense counsel elicited from Adasczik that when Adasczik asked defendant how he transferred the title defendant said, "you signed it over," to which Adasczik said, "no, I didn't. I would have remembered that," to which defendant replied, "no, you just forgot."

This was the theme of the defense. Indeed, the defense attempted to prove that Adasczik had memory problems, and the defense produced a handwriting expert in an effort to prove that the signature on the title was Adasczik's.

In rebuttal, the State produced a handwriting expert who contradicted the defense expert.

By its verdict, the jury obviously believed that the purported signature of Adasczik on the title was a forgery and that defendant presented the forged document to the Division of Motor Vehicles. These acts constituted forgery and uttering a forged document, and by surreptitiously transferring legal title to the vehicle into his name, defendant also committed theft by deception.

Defendant argues that the judge should have granted his motion for a judgment of acquittal on the theft by deception charge at the end of the State's case. He argues that the State failed to prove that he obtained the property through his "deception" of Adasczik. Defendant argues that the deception element was lacking because Adasczik acknowledged an agreement with defendant to permit him to keep the 2000 Jeep. Defendant further argues that failure to dismiss the theft by deception count undermined the legitimacy of his convictions for forgery and uttering a forged instrument, as a result of which the convictions of those charges should be vacated and remanded for a new trial. We do not agree.

A motion for judgment of acquittal of a charged offense shall be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The court must view the State's evidence in its entirety, give the State the benefit of all favorable testimony and all favorable inferences which reasonably could be drawn from the evidence, and determine whether a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967).

To be guilty of theft by deception, a person must "obtain" property of another by "deception." N.J.S.A. 2C:20-4. To "obtain" property means "to bring about a transfer or purported transfer of a legal interest in the property." N.J.S.A. 2C:20-1f. A person "deceives" who purposely "[c]reates or reinforces a false impression, including false impressions as to law, . . . intention or other state of mind . . . ." N.J.S.A. 2C:20-4a.

Without question, legal title to the 2000 Jeep was held by Adasczik. The evidence well supported a finding that, without Adasczik's authorization, defendant forged Adasczik's signature on the title documents and presented them to the Division of Motor Vehicles, thus causing the legal ownership of the 2000 Jeep to be transferred into his name. The jury was free to accept that version of the events and reject the contrary version proffered by defendant, namely that in exchange for his paying off the balance due on the 2000 Jeep and paying monthly payments on the Jeep Liberty Adasczik acquired, Adasczik agreed to and did sign over the 2000 Jeep to him for use in the business. The jury could have accepted defendant's version, but it did not. The jury had the opportunity to assess Adasczik's testimony and evaluate her credibility. It also had for its consideration that the funds used for the various payments were commingled, and not exclusively those of defendant or his business, and the testimony of the competing handwriting experts. The jury was also aware that Adasczik traded in her personal vehicle, her Saturn, in acquiring the 2000 Jeep.

One of the elements of theft by deception that the State is required to prove is that the victim relied on a particular act of deception by the accused. State v. Mann, 244 N.J. Super. 622, 626-27 (App. Div. 1990). The evidence provided a sufficient factual basis to support the conclusion that defendant consciously acted to transfer title to the vehicle to his name through the use of false representations about his intent with respect to the vehicle. He expressed the intent to use the vehicle in his snow plowing business, and, based on that representation, Adasczik agreed not to trade in the 2000 Jeep when acquiring a different vehicle. However, use of the vehicle does not equate to legal ownership of the vehicle, and the evidence supports the jury's conclusion that Adasczik never agreed to transfer legal ownership to defendant, but only agreed to allow him to use the vehicle while their relationship was ongoing.

Applying the Reyes standard, the judge did not err in denying defendant's motion for acquittal of the theft by deception charge at the end of the State's case.

We next consider defendant's argument that he was denied a fair trial because the judge ruled that if he chose to testify the State could present evidence of his prior convictions to impeach his credibility. A Sands/Brunson hearing was held at the end of the State's case. Defendant had two prior indictable convictions. He was sentenced on February 1, 1999 for distribution of a controlled dangerous substance to three years probation conditioned upon serving 180 days in the county jail. He was sentenced on November 28, 1994 for conspiracy to possess a controlled dangerous substance to two years probation. Therefore, defendant's most recent probationary term expired on November 28, 1996, eight-and-one-half years before the May 2005 trial, and less than seven years before the October 19, 2003 offense date.

Whether to allow evidence of prior convictions to impeach a defendant's credibility is left to the sound discretion of the trial judge. Sands, supra, 76 N.J. at 144. "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid. Remoteness is the key to exclusion. Ibid. Judges should balance the lapse of time and the nature of the prior crime or crimes to determine whether the relevance with respect to credibility outweighs the potential prejudicial effect to the defendant. Id. at 144-45. Intervening convictions may be considered which, in effect, may toll the time of more remote convictions for purposes of admissibility, and consideration of a multiplicity of prior crimes is appropriate and gives greater weight to the probative force of the evidence. Id. at 145.

The judge made these findings:

He was sentenced to a term of three years -- I'm sorry -- two years probation -- correct -- in '96 -- seven years, almost to the month, from the termination of probation, to the current charge. I don't know that I could find this is remote. I realize that Sands is a gray line. It depends upon the nature of the charges, and a variety of other things. But it seems that there is some consistency, given the reality that the gentleman has not been able to remain conviction-free, even for a nine or ten-year period, after the termination of probation supervision.

Defendant was convicted of violating the law on two separate occasions, which gave greater weight to the probative value of the evidence of those convictions than had he committed only one criminal act. The convictions were of a nature that involved knowing or purposeful (as opposed to reckless) criminal conduct. Distribution of illegal drugs is serious criminal conduct, and conspiracy to possess illegal drugs involves an agreement with at least one other person and an ongoing course of criminal conduct designed to accomplish an illegal purpose. As to the lapse of time, the judge's reference to defendant's failure to remain conviction free "even for a nine or ten-year period" was reasonable. See id. at 149 (Pashman, J., concurring) (referring to the federal rule and suggesting that "where the defendant has maintained an unblemished criminal record for ten consecutive years since release from confinement or other sentencing conditions of a given prior offense, the burden should shift to the State to justify the admission of evidence of such a remote conviction").

We are satisfied that the judge considered and applied the appropriate factors and did not mistakenly exercise his discretion in concluding that defendant failed to carry his burden of demonstrating a basis for exclusion of the prior convictions.

Defendant's final argument revolves around an asserted claim of right defense. This argument pertains only to the theft by deception charge. It has no relevance to the forgery and uttering counts.

It is an affirmative defense to a prosecution for theft that defendant "[a]cted under an honest claim of right to the property . . . involved or that he had a right to acquire or dispose of it as he did." N.J.S.A. 2C:20-2c(2). Defendant argues on appeal that there was sufficient evidence to support submission of this defense to the jury, and that he was deprived of a fair trial because the judge did not charge the jury to consider defendant's asserted claim of right. In a related argument, defendant argues he was deprived of the effective assistance of counsel because his trial counsel did not request the charge. Finally, defendant argues that the judge made statements in the presence of the jury evidencing a lack of impartiality and expressing skepticism about the basis for defendant's assertion of claim of right. We find these arguments unpersuasive.

As we stated earlier in this opinion, defendant's consistent position in this trial was that Adasczik knowingly and voluntarily signed the title conveying legal ownership of the 2000 Jeep to him. He produced no evidence and made no argument to the jury that he signed Adasczik's name on the title because he honestly believed that she agreed to give him ownership of the 2000 Jeep and authorized him to sign her name.

We note that a person is guilty of forgery if, with purpose to defraud another, he or she executes a document "so that it purports to be the act of another who did not authorize that act." N.J.S.A. 2C:21-1a(2) (emphasis added). Accordingly, the jury in this case was correctly instructed that defendant could be convicted of forgery only if the State proved beyond a reasonable doubt that he signed the disputed document, purporting the signature to be the act of another, namely Adasczik, who did not authorize the act. The jury found that the State carried its burden. Therefore, it was conclusively established in this trial that defendant took it upon himself to sign over the title to his name without Adasczik's knowledge or authorization. This finding directly conflicted with defendant's version of the events, namely that Adasczik willingly signed over the title to him. He presented evidence to that effect and made that argument to the jury. The jury rejected it.

The judge permitted defendant extensive latitude in presenting evidence of the relationship between defendant and Adasczik, and his generosity to her. The prosecutor repeatedly objected to the relevance of this evidence, insisting that the narrow issue before the jury boiled down to who signed the title, and that there could be no claim of right to committing an illegal act, namely forging, without authorization, another's signature. The judge said to defense counsel, "You're arguing two theories to the jury. Two theories to the Court. One is, is that he's entitled to it. Second, it's her signature." Defense counsel responded, "Absolutely." The judge clarified, "So, I guess you want to tie them, saying []he's entitled to it. That's why she signed the document over to him." Defense counsel again replied, "Absolutely, your Honor." The prosecutor then argued that defendant's argument did not constitute a claim of right defense, to which the judge replied:

I agree. But that's not what he's saying. He's saying, he's arguing, a consistent theory, over the course of the relationship, up until October 19th, 2003, he contributed money to the relationship. That she willingly, knowingly, intelligently, voluntarily signed the document. And that he went to the automobile registry -- the DMV -- and converted it to his name.

We agree with this analysis. The so-called claim of right that defendant is asserting, under the factual scenario presented, is not actually the defense set forth in N.J.S.A. 2C:20-2c(2). It was, instead, an argument relating to the admissibility of evidence and hoped-for weight the jury would attribute to it in an effort to persuade the jury that Adasczik did indeed sign over the title to defendant. In the context of this trial, we conclude that defendant was not entitled to a claim of right charge.

Because defendant was not entitled to a claim of right charge to the jury, neither prong of the Strickland/Fritz test is satisfied. There was no deficient conduct in failing to request a charge that was inapplicable, and, even if there were, it would not have changed the result because the charge would not have been given.

Finally, we find no impropriety in comments made by the judge in the presence of the jury regarding defendant's "claim of right." As we have stated, the judge afforded defendant considerable leeway, over objection, in presenting his case and attempting to persuade the jury that Adasczik indeed signed the title. For example, when defense counsel sought to cross-examine Adasczik about a series of checks for her benefit signed by defendant, the prosecutor objected, arguing they were irrelevant and the presentation was a waste of time. Defense counsel said he had "no intention of going over every check with the victim. That would take all day." The judge responded, "Well, you are entitled to take all day. I'm not going to preclude you from doing that which needs to be done to present your case." When the prosecutor further pressed his objection, the judge said, "You understand the Court's concern? Because I do not want to preclude him from laying a foundation, that this was a voluntary gift, if that's what he's saying, or in payment to him for supporting her." The judge then said in further response to the prosecutor's comment, "Let's see what happens. If you want to go over every check, you can go over every check. That's fine."

All of the comments we have quoted above were out of the presence of the jury. We are satisfied from our review of the entire trial record that the judge was eminently fair and evenhanded in his rulings. Defendant complains on appeal of isolated comments the judge made in the presence of the jury. There was no objection at trial to the comments, and we do not find any impropriety or prejudicial effect. The judge was merely explaining to the jury the purpose for which evidence of the checks and circumstances of the personal relationship between the parties was being presented. The explanation was appropriate because the evidence might have seemed extraneous and been confusing without some guidance. Viewed in context, we do not deem the comments as reflecting a lack of impartiality or skepticism about defendant's case.

Affirmed.

State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).

During colloquy after jury selection but prior to openings, the issue of the admissibility of defendant's prior convictions was mentioned. The judge said he would conduct a Sands/Brunson hearing at the end of the State's case. There was no objection to that arrangement. It is advisable to conduct the hearing prior to trial, because the result might affect a defendant's strategy throughout the entire trial. Because there was no objection to deferring the hearing, and because no argument is made that defendant was prejudiced in any way, we need not address the issue further.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-3234-05T4

November 28, 2007