STATE OF NEW JERSEY v. ANTHONY J. BRENNAN, Jr.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4895-06T54895-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANTHONY J. BRENNAN, Jr.,

Defendant-Respondent.

__________________________

 

Submitted October 22, 2007 - Decided

Before Judges Weissbard and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 06-06-1154-I.

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

Chamlin, Rosen, Uliano & Witherington, attorneys for respondent (Charles J. Uliano, of counsel; Andrew T. Walsh, on the brief).

PER CURIAM

Defendant Anthony J. Brennan, Jr., was named in two counts of a sixteen-count indictment charging a conspiracy to commit theft by deception and a substantive count of theft by deception. N.J.S.A. 2C:5-2 and 2C:20-4. The conspiracy count charged sixteen individuals with participating in a scheme masterminded by defendant's brother, Paul Brennan. The conspiracy involved defrauding Onyx Leasing by creating fraudulent automobile leases for cars that either did not exist or were of lesser value than the values portrayed on the lease. According to the State, the scheme followed this general pattern:

Paul Brennan would find a vintage or classic automobile and notify Onyx Leasing, which would purchase the automobile from him after arranging for the necessary financing. Onyx Leasing would then lease the automobile to the individual provided by Paul Brennan. The ten transactions conducted by Paul Brennan and his co-conspirators were much more involved.

Onyx Leasing received money for the ten leases for approximately one year, but then the payments stopped. Mr. Haller, an employee of Onyx Leasing, noticed all of these leases were brokered by Paul Brennan and that the payments, often in the form of a money order, came from the same location. In September 2002, Mr. Haller sent certified letters to the ten lessees. He personally spoke with Luigi Carulli, John Gebala and Jennifer Gilarmo, who admitted they had signed leases through Onyx Leasing, but had never received the motor vehicles. On September 12 or 13, 2002, Mr. Haller spoke with Frank Dicomo who claimed that he never leased a motor vehicle from Onyx Leasing and that he did not know Paul Brennan. Mr. Haller never received responses from the other five individuals. At this point, Mr. Haller contacted the Marlboro Police department to report the fraudulent leases.

Count Two of the indictment charged Paul Brennan alone while each of the remaining counts (Three through Sixteen) charged Paul Brennan with one of the other co-defendants. Anthony Brennan was charged in Count Four.

Following return of the indictment, Anthony moved to sever his trial from that of his co-defendants and to dismiss counts One and Four. The State did not oppose the motion to sever, but did oppose dismissal. After hearing oral argument on April 5, 2007, the court granted Anthony's motion to dismiss. We granted the State's notice for leave to appeal and now affirm.

Anthony's lease, dated June 5, 2000, was for a 1966 Chevrolet Corvette. It called for an initial payment of $1,590 and fifty-eight payments of $795, beginning July 5, 2000. Anthony insured the vehicle with coverage commencing June 5, 2000. A verification letter from Anthony's insurance agent confirmed that coverage was continuously in force through at least January 23, 2007.

On May 22, 2006, the matter was presented to the grand jury through the testimony of Detective Edward Clayton of the Marlboro Township Police Department. Clayton testified that Mr. Haller of Onyx related that Anthony had told him "that he had never received" the Corvette, and that "he (Anthony) had a lot of credit card debt and that Paul (Brennan) indicated to him that he had a way out." Anthony informed Haller "that the vehicle was supposedly in a shop in Long Island being restored." Clayton testified to the contents of an interview with Anthony conducted on February 25, 2003. Anthony told Clayton that the "deal" in question - involving the leased Corvette - "went bad and he regrets getting into it." Anthony stated that "he received some up front cash that paid off some of his credit card debt . . . . He went on to mention that he had an obligation with Onyx and was going to continue to make the monthly payments . . . . And he had continued to make some of those payments."

Clayton related statements made to him by Paul Brennan concerning the car leased to Anthony. Paul told him that in September 2001 "he sold the car to another individual," in New York. The questioning concerning Anthony continued as follows:

Q. Further down the page, he is asked on page 9, "Did Anthony Brennan know that he was not going to receive a '65 or '66 Chevy Corvette"? And the answer is?

A. "No, he did receive the car for one hour. He drove the car for an hour. He never took it home."

Q. The next question, "Please explain in detail the arrangements with Anthony with regard to this vehicle." And the answer?

A. "I approached my brother, knowing he was in high credit card debt, to purchase this vehicle from Onyx Leasing, which I can control the amount of money received by Onyx through Alan and Bill Bernardi (phonetic) to help pay off his credit card debt. I told my brother that this was an investment, that he would earn in excess of $20,000 on the purchase, lease and resale of this car. I gave my brother approximately $20,000 to help with his credit card debt. And to this day, he is still making payments to Onyx Leasing on a car he does not have.

"Onyx Leasing is in possession of the license plates for almost two years. Onyx Leasing knows that the car is not in the possession of Anthony Brenman and he is fulfilling his obligation on the car. Anthony Brennan had no knowledge of the sale of this vehicle. Everything was done through me on this."

Anthony's motion to dismiss was premised on two arguments: (1) that there was insufficient evidence presented to the grand jury; and (2) that the State failed to present the grand jury with "compelling exculpatory evidence." Essentially, Anthony argued that the State should have presented to the grand jury the fact that by the time of presentation in May 2006, Anthony had completely paid off his lease obligation to Onyx. Furthermore, Anthony continued to make insurance payments while the lease was in force. In fact, the lease was fully paid on August 17, 2005, at which point title was transferred to Anthony. In contrast, the co-defendants simply stopped paying for their leases after periods ranging from three to twenty four months. Indeed, in the grand jury, Clayton recited Haller's claim that payments for these leased vehicles, in general, stopped after "approximately one year."

The motion judge rejected defendant's claim of insufficient evidence, as do we. The evidence presented a prima facie case of theft by deception and a classic "wheel conspiracy" with Paul Brennan at its hub. See State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987). However, while also rejecting defendant's exculpatory evidence argument under the standard set forth in State v. Hogan, 144 N.J. 216 (1996), the judge reframed the issue as whether the presentation concerning Anthony was fundamentally fair given the complicated nature of the scheme, the number of people involved, and the different facts concerning each person. In that regard, the judge was particularly concerned with Detective Clayton's testimony about his February 2003 interview with Anthony in which Anthony said that he "was going to continue to make the monthly payments [to Onyx] and he had continued to make some of those payments." (emphasis added). This left the false impression that Anthony had not made all the payments as of February 2003. Worse yet, the State failed to inform the grand jury that Anthony actually continued to make all scheduled payments and paid off the lease nearly a year before the grand jury session.

 
While it is true that Anthony may have continued to make payments in hope of avoiding criminal liability, the judge concluded that the grand jury might have taken a different view of his culpability if it had all the facts. In this case, there was the very real danger of Anthony being "lumped in" with his co-defendants as a result of the State's misleading, albeit unintentional, grand jury presentation. While the case may not fit neatly under the Hogan umbrella, and while we recognize the precept that indictments should only be dismissed on the "clearest and plainest grounds," Hogan, supra, 144 N.J. at 228, we find ourselves in agreement with the judge's conclusion that Anthony's indictment resulted from a fundamentally flawed presentation that should not be left without remedy. Our ruling should not be read as creating a broad and general fairness standard for review of grand jury presentations. Rather, our conclusion is limited to the unusual facts of this particular matter. We note, as well, Judge Mellaci's observation that this case can be readily re-presented to a grand jury. Accordingly, we affirm for the reasons cogently expressed by Judge Mellaci in his oral ruling of April 5, 2007.

Affirmed.

See State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 23 (1984); State v. Louf, 126 N.J. Super. 321, 336-37 (App. Div. 1973), rev'd in part on other grounds, 64 N.J. 172 (1973).

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A-4895-06T5

December 7, 2007