STATE OF NEW JERSEY v. RONALD THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0405-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD THOMAS,

Defendant-Appellant.

_________________________________________

April 5, 2011

Submitted March 14, 2011 Decided

Before Judges Rodr guez and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-01-0005.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Ronald Thomas was convicted of third degree official misconduct, N.J.S.A. 2C:30-2; and the disorderly persons offense of theft by deception, N.J.S.A. 2C:20-4. The judge imposed a five-year probationary term on the official misconduct conviction and a concurrent two-year probationary term on the theft conviction. The judge imposed as a condition of probation service of fifty hours of community service, and payment of a $200 fine and other mandatory penalties. The judge also ordered defendant to get and maintain employment, and to refrain from "frequenting unlawful, disreputable places and . . . consorting with disreputable persons; support dependents and meet family obligations." The judge transferred probation supervision to New York City and ordered forfeiture of his position and disqualification from future public office requiring honor and trust. We affirm.

These are the salient facts. Defendant worked for the Office of the Attorney General, Division of Consumer Affairs, Home Improvement Unit (HIU). The HIU regulates and licenses home improvement contractors in New Jersey. To obtain a license, contractors are required to fill out an application, submit a certificate of liability insurance, and pay a $90 registration fee. Sometimes, payment of other fees is required.

At trial, Rafael Ramos and Rosa Castro testified that on March 20, 2006, they went to the HIU to check on the status of their recently filed application. They had filled out the required paperwork and paid the applicable fees. However, they had not received a license. They met with defendant, who told them they would get the license, if they paid $45 in cash. They paid defendant $45. Defendant took the cash and gave them a computer printout marked "paid." There was no notation in the printout that $45 was paid in cash.

Three weeks later, Ramos and Castro went back to the HIU because they still had not received the license. They met with a different HIU employee and explained that they had paid $45 in cash, but had not received the license. This led to a formal investigation because cash transactions are not allowed.

Division of Criminal Justice Detective Scott Donlon found other contractors, Rafael Sessa, Angel Gonzales and Gabriel Riccardi, who had paid defendant small amounts of cash. The three contractors testified at trial, but could not identify defendant. The State introduced their prior consistent statements through Donlon. There were no discrepancies with their trial testimony.

Defendant contends on appeal:

THE ADMISSION INTO EVIDENCE OF HEARSAY STATEMENTS, WHICH WERE PRIOR CONSISTENT STATEMENTS USED IMPROPERLY TO BOLSTER THE CREDIBILITY OF KEY STATE WITNESSES, RENDERED [DEFENDANT'S] TRIAL UNFAIR (Not Raised Below).

We are not persuaded.

Because there were no objections at trial, our scope of review is plain error, i.e., we will not reverse on the ground of such error unless the appellant shows plain error: i.e., error "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice. Stated in terms of its effect in a jury trial, the possibility 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). Judged against that standard, we conclude the judge did not commit plain error by not excluding such testimony from Donlon.

Moreover, Donlon testified about his investigation, which indicated that only Ramos and Castro could identify defendant. They were the State's main witnesses. Their testimony was direct and unequivocal. Donlon's reference to his interview with Sessa, Gonzalez and Riccardi was hearsay. However, it was not introduced for a hearsay purpose, i.e., to prove the truth of the statement, but to show that Donlon continued with the investigation after speaking with Ramos and Castro. More importantly, Sessa, Gonzalez and Riccardi, testified at the trial. They were subject to cross-examination. Each testified that they could not identify defendant, and gave a version of events that was consistent with Donlon's account of what they said to him.

Defendant also contends:

THE TRIAL COURT DID NOT INSTRUCT THE JURY ON THE ESSENTIAL ELEMENT OF KNOWLEDGE OF COUNT ONE, DEPRIVING [DEFENDANT] OF HIS RIGHT TO DUE PROCESS (Not Raised Below).

We perceive no error, let alone plain error, in the jury instruction. The jury returned the verdict on knowing misconduct. The judge did charge the jury on purposeful misconduct. Although the judge should have charged purposeful and knowing states of mind, there was no prejudice to defendant from the lack of an instruction on knowing misconduct. Therefore, the error was not capable of producing an unjust result. Moreover, the evidence clearly established each element of the official misconduct and theft offenses.

Lastly, defendant contends:

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

We disagree. The sentence imposed was a five-year term of probation on the official misconduct and a two-year term of probation on the theft by deception.

From our careful review of the record, we conclude that the sentence is in accord with the sentencing guidelines and based on a proper weighing of the statutory factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).