STATE OF NEW JERSEY v. JAMIEL H. HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6449-05T46449-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

JAMIEL H. HARRIS,

Defendant-Appellant.

 
___________________________

Submitted November 13, 2007 - Decided

Before Judges Weissbard and S.L. Reisner.

On appeal from Superior Court of Jersey, Law Division, Camden County, 05-02-0464-I.

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

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Jamiel H. Harris appeals from his conviction on a single count indictment charging that he "unlawfully and purposely obtain[ed] by deception property of Cherry Hill Dodge with a value in excess of $500 with purpose to deprive the owner thereof." N.J.S.A. 2C:20-4. On May 19, 2006, the trial judge sentenced defendant to a one-year term of probation conditional upon his finding full-time employment. Appropriate penalties and assessments were also imposed. On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AS THE STATE DID NOT PROVE ITS CASE BEYOND A REASONABLE DOUBT AS TO INTENT TO DECEIVE.

POINT II: THE JUDGE'S CHARGE TO THE JURY INCORRECTLY INCLUDED LANGUAGE THAT DEALT SOLELY WITH A FIDUCIARY OR CONFIDENTIAL RELATIONSHIP WHICH WAS NOT PRESENT IN THIS CASE.

POINT III: THE COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S MOTION TO ACQUIT.

POINT IV: THE COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

We agree with defendant's arguments set forth in Point I; therefore, we reverse his conviction and order the entry of a judgment of acquittal.

The State presented its case through the testimony of two former employees of Cherry Hill Dodge. Lamar McDaniel testified that on Saturday, January 17, 2004, he was employed at Cherry Hill Dodge as a sales consultant. On that day defendant came to the dealership to purchase a car. After looking at several vehicles defendant decided to buy a 2004 Dodge Intrepid. Pursuant to a "special" offered by the dealership that weekend, the dealership accepted defendant's 1997 Ford Mustang, which was in poor condition, as a trade-in valued at $8,807.70. After the trade-in value was deducted, defendant owed a balance of $29,694.99, which was to be financed through Chrysler Financial. Defendant was to return on the following Monday or Tuesday with a deposit of $2,000.

At the time of the transaction, defendant presented an expired identification document from the State of Pennsylvania, his expired military identification and an insurance card. Nevertheless, after McDaniel spoke with his sales manager, they decided to accept the identification documents. Defendant did not have a driver's license with him at the time. McDaniel testified as follows concerning the insurance card:

Q You also indicated that the defendant provided you with an insurance card?

A Yes.

Q Is that a requirement that you take an insurance card from someone before you sell them a car?

A Yes.

Q The insurance card that was provided by the Defendant, did that reflect that he had a valid insurance policy in place?

A No, not really, because it didn't show any effective dates. As most insurance cards do, it has a - - a police [sic] effective date and when it expires.

Q So in this case, what did the - - if the document did not reflect an effective date, what did the document reflect? What did the insurance card reflect?

A It reflected that there was an insurance policy in place but it had never said what date it was that it was in place.

McDaniel attempted to verify defendant's insurance by calling the insurance agent listed on the card, however, the agency was not open on Saturday. Notwithstanding, McDaniel permitted defendant to leave with the new vehicle because McDaniel and his manager "thought that he had an active policy in place," based on defendant's representation.

On the following Monday and Tuesday, "and a few more times after that," they attempted to verify defendant's insurance by speaking with his agent in North Carolina. Contact was eventually made with the agent but the insurance coverage could not be verified. Nevertheless, the agent in North Carolina gave them assurances "that if the defendant came down and completed the paperwork, the car would be covered." McDaniel's manager, Marcus DeAngelis, was present when the conversation with the agent took place. Based on that conversation, they were satisfied that "there was some type of insurance coverage."

As a result of speaking with the agent, McDaniel attempted to call defendant many times on the several telephone numbers that defendant provided on January 17. McDaniel left several messages, but defendant never returned any of the phone calls.

On the following Saturday, defendant reappeared at the dealership with his $2,000 deposit. McDaniel was surprised to see him and they spoke briefly. Defendant did not drive the Dodge Intrepid to the dealership that day. If he had, the dealership intended to prevent him from leaving with the car until the insurance situation was verified. Defendant told McDaniel that he "was on his way down to North Carolina to get [the insurance] handled." McDaniel did not think that was unusual and he was comfortable, based on his own experience, with defendant's assurance that he was going to take care of the insurance. Having not heard from defendant again, on February 24, 2004, the dealership filed a complaint with the Cherry Hill Police Department.

Marcus DeAngelis testified that he was the general sales manager at Cherry Hill Dodge on January 17, 2004. DeAngelis made a "judgment call" that defendant could leave with the vehicle on January 17, 2004, based on his assurances concerning the insurance on the vehicle. DeAngelis testified as follows concerning the conversation with defendant:

He was - - after he had given us the down payment, he had assured us that he was going down to his agency. I'm not sure if he was flying or if he was driving down but he was going to take care of the insurance. The - - the insurance agent actually also said that she had spoken with him and that he was - - he had made - - you know, told them that he was going to come down and I don't know if he had to sign paperwork and give them some more money for his policy or - - I don't know the particulars but I know that he had arrangements to, you know, go down there and - - and finish up the insurance.

Ultimately, defendant never provided proof of insurance and made no payments toward the 2000 Dodge other than the $2,000 down payment. Nor did defendant ever return the Intrepid to the dealership.

At the conclusion of the State's case defendant moved for a judgment of acquittal. The court denied the motion, reasoning that the evidence could support a conclusion that defendant purposely obtained the Intrepid by deception which

was the presentation of an insurance identification card as well as contact phone information either on that card or accompanying that card that would have led the dealership to believe that if not then, immediately thereafter, valid insurance would be in place. And it was based upon that representation, that is, that the defendant either had insurance or would immediately have insurance, that the transaction took place."

The judge continued as follows:

To the extent that the testimony in this case indicates that there was never, in the final analysis, documentation supplied that verified the presence of this valid insurance. It could be interpreted as indicating that defendant never intended to either have it in effect at the time that he presented the card or to supply it, thereby supporting the inference, albeit it is circumstantial, that the defendant presented a document with the intent to deceive the dealership. That is, with the intent to lead them to believe that there would be appropriate insurance, but in the final analysis, reflecting no intention to ever have that insurance in effect or to supply it, thereby there was an intent at the time of the supply of the card or within the days following the supply of the initial card, to make the dealership rely on something that was not true and the defendant acted intentionally or purposely in that he knew at that time that he was not going to supply it. That, of course, would be information that would be circumstantial, it would have to be inferred from the totality of the events and the State would ask that this inference be drawn essentially because the car was never paid for and that therefore that supports the inference of some initial deception.

As the trial judge correctly recognized, the test for granting an acquittal at the end of the State's case is found in State v. Reyes, 50 N.J. 454, 459 (1967):

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Reyes remains the governing standard today, State v. Horne, 376 N.J. Super. 201, 208 (App. Div. 2005), and we apply that same standard on appeal in deciding whether the motion for judgment of acquittal should have been granted. State v. Moffa, 42 N.J. 248, 263 (1964); State v. Gora, 148 N.J. Super. 582, 596 (App. Div.), certif. denied, 74 N.J. 275 (1977). In reviewing the denial of defendant's motion we consider only the evidence adduced in the State's case and do not consider any evidence, or inferences therefrom, produced in defendant's case. Reyes, supra, 50 N.J. at 459; State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974) certif. denied, 67 N.J. 72 (1975). Of course, on a post-verdict motion for judgment of acquittal the court may review the entire record including evidence in the defendant's case. Reyes, supra, 50 N.J. at 462. In this case, since we conclude that defendant's motion for judgment of acquittal at trial should have been granted, we need not deal with his post-trial motion.

As both the defendant and the State recognize, the most troublesome issue in the case is whether defendant could be said to have had an intent to deceive the dealership at the time that he left with the vehicle on January 17, 2004. According to the State's evidence, defendant produced an insurance card with the name of an agent and a phone number. Although the dealership was not able to contact the agent on that Saturday, contact was made on the following Monday or Tuesday. At that time, the agent assured McDaniel and DeAngelis that defendant had insurance in place and that the appropriate paperwork to document the same would be taken care of as soon as he appeared at their office. Defendant did come in with the deposit, albeit about five days after he had promised to do so, and again provided assurance, which the dealership accepted, that he would go immediately to North Carolina and complete the necessary paperwork to document his insurance coverage.

Other than the fact that defendant never produced valid proof of insurance, the State did not submit any other proofs from which an inference could be drawn that defendant harbored an intent to deceive on the date of the initial transaction. We conclude that the proofs were deficient in that regard and could not reasonably support a jury's conclusion of proof beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316-19, 99 S. Ct. 2781, 2787-89 61 L. Ed. 2d 560, 571-74 (1979). As defendant points out, to the extent that the judge relied on the fact that defendant did not follow through on his assurances, it runs counter to that aspect of N.J.S.A. 2C:20-4, stating that "deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise." In any event, we are firmly convinced that the State's proofs could not support reasonable conclusions that: (1) when he obtained the vehicle on January 17, defendant knew that he did not have proper insurance coverage in place; or (2) defendant had no intention of getting that coverage within the foreseeable future so as to complete the transaction, including the financing. We do not know what efforts, if any, the State made to contact the insurance agent in North Carolina to ascertain the truth concerning defendant's coverage or his efforts to obtain coverage. But we do know that no such witness was produced at trial to confirm the falsity of defendant's representations. In other words, the State produced no legally competent evidence that defendant did not have insurance on the car. The evidence as to defendant's intention was entirely equivocal and suggests, if anything, that he believed he had insurance coverage. The statements of the agent in North Carolina supported that belief. What may have caused the transaction to thereafter go awry remains unknown.

The defendant's motion for judgment of acquittal should have been granted. As a result of our disposition we have no need to address the issues raised in defendant's remaining contentions.

Reversed and remanded with directions to enter a judgment of acquittal.

(continued)

(continued)

10

A-6449-05T4

December 26, 2007