STATE OF NEW JERSEY v. NORMAN PRICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2847-06T2

A-3484-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NORMAN PRICE,

Defendant-Appellant.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATASHA McRAE,

Defendant-Appellant.

________________________________

December 6, 2011

 

Submitted October 3, 2011 - Decided

 

Before Judges A. A. Rodr guez, Sabatino, and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0873.

 

Joseph E. Krakora, Public Defender, attorney for appellant Norman Price in A-2847-06T2 (Alison Perrone, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant Natasha McRae in A-3484-06T2 (William Welaj, Designated Counsel, on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in both appeals (Debra G. Simms, Special Deputy Attorney General/Deputy Chief Assistant Prosecutor, of counsel and on the brief).

 

Appellant Norman Price filed a pro se supplemental brief.

PER CURIAM

These back-to-back appeals by co-defendants, which we consolidate solely for purposes of this opinion, stem from a criminal trial arising out of a scheme to defraud the City of East Orange ("the City" or "East Orange") with respect to the City's upgrade of its police communications and dispatch center. In particular, defendant Norman Price, a former East Orange police officer, and his wife and co-defendant, Natasha McRae, were each found guilty by the jury of multiple crimes, including second-degree money laundering and third-degree theft by deception.

Both defendants contend on appeal that they were denied a fair trial because of prosecutorial misconduct; that the trial court erroneously denied their motions for judgment of acquittal; and that the sentences imposed were excessive. Price separately argues that the trial court erred in denying his pre-trial motion to dismiss the indictment and also that he is individually entitled to a new trial based upon alleged newly-discovered evidence. He also has submitted a pro se supplemental brief raising additional points, including a claim that his right against self-incrimination was violated at trial.

For the reasons stated in this opinion, we affirm defendants' convictions and their corresponding sentences in all respects.

I.

The indictment charged Price with numerous offenses. Specifically, the indictment contained: (1) two counts of second-degree money laundering, N.J.S.A. 2C:21-25(b)(2)(a), N.J.S.A. 2C:21-25(c), and N.J.S.A. 2C:2-6 (counts one and two); (2) three counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (counts three, five, and seven); (3) four counts of second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2 (counts four, six, eight, and nine); (4) three counts of second-degree compensation for past official behavior, N.J.S.A. 2C:27-4(a)(3) (counts ten, twelve, and fourteen); (5) three counts of second-degree conspiracy to receive compensation for past official behavior, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:27-4(a)(3) (counts eleven, thirteen, and fifteen); (6) four counts of second-degree fraudulent contracting, N.J.S.A. 2C:21-34(a) and (b) (counts sixteen, twenty, twenty-two, and twenty-six); (7) two counts of third-degree conspiracy to commit fraudulent contracting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-34(a) and (b) (counts nineteen and twenty-five); (8) four counts of second-degree conspiracy to commit fraudulent contracting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-34(a) and (b) (counts seventeen, twenty-one, twenty-three, and twenty-seven); (9) two counts of third-degree fraudulent contracting, N.J.S.A. 2C:21-34(a) and (b) (counts eighteen and twenty-four); (10) three counts of third-degree theft by deception, N.J.S.A. 2C:20-4 (counts twenty-eight, thirty, and thirty-two); (11) four counts of third-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (counts twenty-nine, thirty-one, thirty-three, and thirty-four); and (12) four counts of fourth-degree unlawful business transaction, N.J.S.A. 2C:27-9 (counts thirty-five, thirty-six, thirty-seven, and thirty-eight).

McRae was also charged in nineteen of the counts (counts one, three through six, ten through thirteen, sixteen through nineteen, twenty-four, twenty-five, twenty-eight through thirty-one, thirty-five, and thirty-six).1

The State's proofs at the lengthy trial in April and May 2006 adduced the following chronology of relevant events relating to defendants' criminal venture.

The Motorola Contract and the Opportunities for Subcontracting

In late 2001, the East Orange Police Department ("the Department") was under a State deadline to upgrade its communications/dispatch center. The City awarded a $2,000,000 contract to Motorola to perform the upgrade work, which Motorola could complete itself or subcontract out to other companies.

In an effort to save the City money on the contract, Charles Grimes, who was then the Police Chief, assigned three of the Department's detectives Price, William Garvin, and Matthew Gariski to perform some of the renovations themselves. Price, Garvin, and Gariski were instructed to perform those tasks under the supervision of Sergeant Troy Boone.

Consultants advised Grimes and the Department's budget analyst, Keith Rollins, that the Department was paying large mark-ups to Motorola under the contract. Upon learning of those mark-ups, Grimes authorized Price to look for more reasonably-priced subcontractors and vendors.

Price's Efforts to Arrange Subcontracts for Gem, RC, and Starrpoint

Price thereafter told Grimes that Gem Furniture Technology ("Gem"), a company purportedly located in Jersey City, could supply all the furniture for the communications center for $76,590, a lower price than Motorola intended to charge. Price provided Grimes with a quote from Gem, which was approved first by Grimes and Rollins and then by the Department's purchasing and finance units. Thereafter, Rollins faxed a Gem quote dated February 1, 2002, to Dominick Fowler, the project coordinator at Motorola. Grimes then forwarded to Motorola a permission letter dated March 1, 2002, and Motorola approved the use of Gem as a substitute subcontractor.

Fowler subsequently reached out directly to Gem for some needed tax information. Fowler testified that he spoke to someone named "Carmen Ferrara" at Gem. Fowler later received a W-9 form prepared by a "Waynne Barrett," who was identified as an owner of Gem.

Gem encountered difficulties getting paid under the subcontract. Rollins spoke to Fowler about the problem and also tried to call Gem directly, but he only reached an answering machine. Price ultimately called Fowler directly, and, according to Fowler, Price was "arrogant" and demanded that Motorola "pay him his money." Motorola subsequently mailed Gem a check dated June 7, 2002. However, after the bank refused to honor the check due to an endorsement issue, Motorola ultimately made a wire transfer directly to Gem.

When additional furniture was needed six months later, Grimes again consulted Price, who turned to Gem. Gem submitted a $15,240 invoice directly to the Department on October 21, 2001, for that additional furniture.

Meanwhile, several months earlier, Price had approached Grimes and recommended that the Department purchase needed photo identification equipment from Starrpoint, Inc. ("Starrpoint"). Price did not mention that his then-fiancée, defendant McRae, was the owner of that company. Starrpoint's quote was ultimately approved, and in August 2002, the Department paid $16,025 to Starrpoint for a printer, a video camera, and a tripod. A few months later, in December 2002, the Department purchased "Nortel 600VPN box service" from Starrpoint for an additional $7740. The Department also purchased a Dell computer from Starrpoint for $2600.

In early 2003, the Department received a grant to install Global Positioning System ("GPS") units in its police vehicles. Grimes consulted Price, who recommended purchasing a system from a company identified as RC Technology ("RC") for $63,825. Price served as the Department's contact person in connection with this purchase, which ultimately received all necessary approvals. The Department paid for the system in March 2003.

In late April 2003, Gariski approached Lieutenant Paul Davis in the Department's Internal Affairs unit and expressed concerns regarding the legitimacy of RC and the compatibility of the new GPS system with the Department's police cars. Davis subsequently determined that the GPS modems provided by RC had actually been manufactured by Data Link Systems, Inc. ("Data Link"). He contacted a Data Link representative, who forwarded a invoice indicating that Data Link had charged RC $33,455 for the system.

On April 24, 2003, Davis and Garvin drove to the alleged business address of RC in Sewaren, which turned out to be a townhouse. They spoke to the residents of the home, Raymond Mims and Colleen Murphy. Mims denied any personal relationship with Price. Later that day, Davis spoke to Gariski and Price and asked them to submit reports concerning the RC invoice and any relationship they had with Mims. Price thereafter submitted a report dated April 25, 2003, in which he stated that the only business relationship he had with Mims was in connection with the purchase of the GPS devices and that he and Mims had no personal relationship.

 

The Internal Investigation By Davis

Davis undertook an investigation into other recent departmental purchases involving Price. Davis learned that the actual manufacturer of the furniture for the communications room was Matovski Co., Inc., and not Gem. He spoke to Miroslav Matovski, the owner of that company. Matovski testified that, in early 2002, Price and an officer with a "Polish" name approached him about a custom furniture order for the Department. They negotiated a price of $35,700, and Price directed Matovski to prepare an invoice made out to Gem, with a company address on Warren Street in Jersey City.2 Price explained that Motorola was paying for "all of it" and that the invoice had to go to Gem. Matovski denied that anyone from Gem worked on the order as a consultant.

According to Matovski, he received a check dated July 14, 2002 from Gem, but it bounced; consequently Matovski attempted to contact Gem and left messages on Gem's answering machine. McRae, who Price said worked for Gem, called Matovski back and ultimately wired him the money due. Later in 2002, Price contacted Matovski about some additional furniture and they negotiated a price of $12,700, again billable to Gem. Matovski received a check from Gem in full payment for the additional furniture in December 2002.

Davis next looked into the Department's purchase of the Dell computer and photo identification equipment from Starrpoint. He learned that McRae had purchased the computer directly from Dell for $674.84, using an American Express card she had taken out in the name of "MC Micro Solutions." Detective Richard Gould, a police computer forensics analyst, found no indication that the computer had been enhanced with upgrades by Starrpoint before it was delivered to the Department.

Davis also discovered that the photo identification equipment supplied by Starrpoint had actually been manufactured by Alpha Card Systems ("Alpha"). Davis contacted David Leivick, a sales director at Alpha, for information. Leivick related that, on July 19, 2002, he was contacted by Price, who identified himself as an East Orange police detective and inquired whether Alpha could supply the Department with a photo identification card system for under $16,000. Leivick quoted a price of $6443. Price expressed interest, but he stated that the transaction had to go through Starrpoint. Leivick said that Alpha was not comfortable extending credit to a company it did not know and that it would require a purchase order directly from the Department.

Price subsequently gave Leivick Starrpoint's phone number and asked him to reconsider. Leivick dialed the number several times and left multiple messages on what seemed to be a private answering machine. He did eventually speak to two people, "Natasha" and "Sahara," who sounded alike and whom he believed to be the same person. Leivick grew suspicious of Price and made inquiries to confirm that Price did, in fact, work for the Department.

When Leivick ultimately insisted that Alpha could only accept a purchase order from the Department, Price became upset and hung up on Leivick. He later called back, however, and advised Leivick that a Department purchase order would be forthcoming. When Leivick failed to receive the purchase order, he called the Department directly but was unable to speak to anyone familiar with the situation. Price then called Leivick and berated him for calling the Department. Ultimately, Natasha called and said that Alpha could bill her credit card for the equipment. Leivick then shipped the equipment directly to the Department.

Davis also investigated the various bank accounts associated with Gem, Starrpoint, and RC. He learned that Mims opened three business accounts for Gem with PNC Bank, Fleet National Bank ("Fleet"), and Trust Company Bank of New Jersey ("Trust"). The PNC Bank account was opened on July 3, 2002, and a $76,000 check from Motorola endorsed by a "Carmen" was deposited in the account on July 8, 2002. Mims wrote three checks on the account: one to himself for $700; one to Matovski for $35,700; and one to McRae for $38,000 "for consulting." PNC subsequently closed this account because of the check endorsement issue noted previously, and the three checks were not honored.

Mims opened the second Gem account with Fleet on July 29, 2002, with an initial deposit of $100. On August 1, 2002, $76,000 was deposited into the account through a wire transfer from Motorola. The next day there was a $35,700 debit wire transfer. Mims subsequently wrote three checks on the account: one to cash for $10,000; one to McRae for $10,000 for "blueprint consulting"; and one for $20,350 to Gem Furniture Technology written August 8, 2002, which removed all remaining funds and closed the account.

Mims opened the third and final Gem account with Trust on August 8, 2002, and deposited $20,350. There were subsequent deposits into the account, including $15,240 from the City and $590 from Motorola. Mims wrote several checks on the account: two to McRae for $2475 and $11,000, respectively, "for consulting"; one to Matovski for $12,700; one to Antonovich Furs for $1495; and one to Price for $1500 "for consulting."

Davis further learned that Mims opened an RC account with Wachovia in March 2003 and closed it two months later. The sole deposit into that account was a check for $63,825 from the City. Additionally, McRae opened a business account in Starrpoint's name at PNC on June 25, 2002. Between that date and May 9, 2003, when the account was closed, there were only two deposits, both of which were from the City. On August 23, 2002, a check was written on this account to McRae for $9900, and, thereafter, McRae made a $7000 cash withdrawal.

As part of his internal investigation, Davis also looked into an aborted purchase of surveillance cameras from New Vision Technologies ("New Vision") for $94,018.52 in 2002, when Garvin was the contact person for the Department. At this point, Davis realized that he had a significant problem within the Department, and he decided to contact the Essex County Prosecutor's Office.

The Prosecutor's Investigation

In May 2003, Garvin, who had been granted use immunity, gave a statement to the Prosecutor's Office. Garvin related in his statement that, in 2002, Price advised him that the Department was in the market for surveillance equipment and showed him how to set up New Vision so that he could pose as a legitimate vendor and submit bids for approval. According to Garvin, Price cautioned him that he had to conceal his identity as the actual owner of the business. Garvin admitted that he was aware of the illegality of the scheme. Price suggested websites where Garvin could purchase the surveillance equipment at discounted prices.

According to Garvin, Price said that he and McRae had created Gem for the sole purpose of submitting a bid to supply the furniture the Department needed for the communications room. Price further told Garvin that he had made a $40,000 profit selling furniture and other equipment to the Department.

Garvin admitted that he warned Price about Davis's investigation. Garvin shut down New Vision on April 14, 2003, because of that investigation. Garvin testified that he retired from the Department in December 2004 apparently so that he would not be fired.

In July 2003, Mims, who had also been granted use immunity, gave a statement to the Prosecutor's Office. Mims stated that he had been friends with Price for over twenty-five years. In 2001, Price approached Mims about setting up some companies to sell computer equipment to the police departments in East Orange, Newark, and Irvington. Thereafter, accompanied by Price, Mims opened two business accounts in Gem's name one at Fleet on July 29, 2002 and one at Trust on August 8, 2002. Mims also opened a business account in RC's name at Wachovia on March 8, 2003.

Mims recounted that, after opening the Gem accounts, he simply provided Price with a number of signed starter checks for Price to later fill out. Mims denied opening an account in Gem's name at PNC Bank or signing any checks on that account. He also denied ever meeting Matovski and claimed that he did not remember if he derived any income from Gem. Mims insisted that Price filed Mims's 2002 tax return without providing it for review. Mims did not remember if he received a tax refund.

Mims admitted that he was actively involved in RC's transactions with the Department. In particular, Mims located Data Link and purchased the GPS system, listing his fiancée as the customer. He deposited the Department's check for $63,825 and paid Data Link. Mims also stated that he withdrew $17,220 from RC's account on May 2, 2003, gave $16,000 in cash to Price, and kept the remainder for himself. He made an additional withdrawal of $8,447.83 from RC's account on May 5, 2003, which he kept for himself. Mims admitted that Price warned him prior to Davis's visit on April 24, 2003.

In September 2003, Gariski, who also had been granted use immunity, gave a statement to the Prosecutor's Office. He related that, in 2001, he and Price saw a list of all the furniture and equipment that was to be purchased for the communications room and realized that Motorola was grossly overcharging the Department. Thereafter, he and Price visited Matovski and arranged for Matovski to provide furniture to the Department through Gem. Gariski admitted that Price gave him a check for $5000 in September 2002 that was signed by McRae. The check was intended to be a bribe so that Gariski would keep quiet about Price's and McRae's involvement with Gem.

Corroborating Testimony from Other Witnesses for the State A regional loss prevention and security manager with Sovereign Bank, Joseph DeCagna, identified bank statements for a checking account maintained by McRae in 2002. DeCagna testified that, on September 3, 2002, there was an $11,000 deposit into that account. On September 12, 2002, McRae wrote out a check from that account for $5000 payable to Price, and the next day she wrote out another check for the same amount payable to Gariski.

Several other witnesses for the State provided corroborating testimony. Waynne Barrett testified that she met Price through her son-in-law and that Price had prepared her taxes in 2002. Barrett denied that she ever worked for Gem or that she gave Gem permission to use her name. Frank Hermann, an investigator with the Essex County Prosecutor's Office, determined that Gem's putative address in Jersey City was a residential building with no suites.

Daniel Antonovich, owner of Antonovich Furs, testified that in December 2002, Price ordered a custom fur jacket and later made a payment using a Gem check. Michael Pilichos of J2 Global Communications, Inc., testified that McRae paid for Internet fax service for Starrpoint and Gem using her personal credit card. Natalie Erdossy, custodian of records for Sprint Nextel, testified that there were numerous phone calls between McRae, Mims, Garvin, and Price on April 24, 2003. Erdossy also confirmed that the telephone number listed on the Starrpoint invoices submitted to the Department was actually McRae's personal cell phone number.

Phillip Michaels, an employee at the New Jersey Department of Treasury, testified that neither Gem nor RC had valid state contract numbers. Rather, Gem and RC had each fraudulently used numbers belonging to other companies. Michaels confirmed that it was illegal to misuse state contract numbers.

 

The Limited Defense Proofs

Neither defendant took the stand. However, Price presented testimony from Boone, who was, by that point, a former member of the Department. Boone stated that there had been a previous dispute between Price and Davis. Both defendants also presented a number of character witnesses, who vouched for their positive character traits and reputations.

The Verdict, Sentencing, and Price's Post-Trial Motion Following deliberations, the jury acquitted Price on counts two, nine, fourteen, twenty-three, and thirty-two of the indictment but convicted him on all remaining counts that had not been previously dismissed. The jury convicted McRae on all counts remaining against her.3

On November 17, 2006, both defendants appeared for sentencing. As to Price, the court merged the various conspiracy counts (counts four, six, eight, eleven, thirteen, seventeen, nineteen, twenty-one, twenty-seven, twenty-nine, and thirty-one) into the corresponding counts alleging substantive offenses (counts three, five, seven, ten, twelve, sixteen, eighteen, twenty, twenty-six, twenty-eight, and thirty). Thereafter, the court sentenced Price to: (1) a ten-year term of imprisonment on count one; (2) nine additional ten-year terms of imprisonment on counts three, five, seven, ten, twelve, fifteen, sixteen, twenty, and twenty-six, to run consecutively to the sentence imposed on count one but concurrently to each other and to the sentences imposed on all other counts; (3) five separate five-year terms of imprisonment on counts eighteen, twenty-four, twenty-eight, thirty, and thirty-three, to run consecutively to the sentence imposed on count one, but concurrently to each other and to the sentences imposed on all other counts; and (4) three eighteen-month terms of imprisonment on counts thirty-five, thirty-six, and thirty-seven, to run consecutively to the sentence imposed on count one, but concurrently to each other and to the sentences imposed on all other counts.

In sum, Price's aggregate sentence was twenty years of imprisonment with no period of parole ineligibility. The court also imposed various monetary penalties and assessments.

As to McRae, the court merged the various conspiracy counts (counts four, six, eleven, thirteen, seventeen, nineteen, twenty-nine, and thirty-one) into the corresponding counts alleging substantive offenses (counts three, five, ten, twelve, sixteen, eighteen, twenty-eight, and thirty). Thereafter, the court sentenced McRae to: (1) a seven-year term of imprisonment on count one; (2) five additional seven-year terms of imprisonment on counts three, five, ten, twelve, and sixteen, to run consecutively to the sentence imposed on count one, but concurrently to each other and to the sentences imposed on all other counts; (3) three separate four-year terms of imprisonment on counts eighteen, twenty-eight, and thirty, to run consecutively to the sentence imposed on count one, but concurrently to each other and to the sentences imposed on all other counts; and (4) two nine-month terms of imprisonment on counts thirty-five and thirty-six, to run consecutively to the sentence imposed on count one, but concurrently to each other and to the sentences imposed on all other counts.

Based on these determinations, McRae's aggregate sentence amounted to fourteen years of imprisonment with no period of parole ineligibility. The court likewise imposed upon McRae various monetary penalties and assessments.

In December 2009, Price moved before the trial court for a new trial on the basis of alleged newly-discovered evidence. The trial court denied that motion, issuing a written opinion on December 18, 2009.

 

The Issues on Appeal

These related appeals by Price and McRae ensued. Price's attorney raises the following points:

POINT I

 

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY. (PARTIALLY RAISED BELOW)

 

POINT TWO

 

THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION TO DISMISS CERTAIN COUNTS OF THE INDICTMENT AND THE CONVICTIONS OF THOSE COUNTS MUST THEREFORE BE REVERSED.

 

POINT THREE

 

THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTIONS OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE AND AT THE CONCLUSION OF THE DEFENSE CASE AND THE CONVICTIONS MUST THEREFORE BE VACATED.

 

POINT FOUR

 

CHIEF OF POLICE GRIMES'[S] CIVIL DEPOSITION TESTIMONY CONSTITUTED NEWLY DISCOVERED EVIDENCE ENTITLING DEFENDANT TO A NEW TRIAL. ACCORDINGLY, THE LOWER COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.

 

POINT FIVE

 

THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

 

Additionally, Price filed a supplemental pro se brief, which argues:

POINT ONE

 

THE MONEY LAUNDERING STATUTE WAS IMPROPERLY APPLIED TO THE FACTS AT ISSUE IN THE INSTANT CASE DEFENDANT ARGUES THAT THE STATE DID NOT INTRODUCE SUFFICIENT EVIDENCE TO SUPPORT HIS CONVICTION FOR MONEY LAUNDERING, IN VIOLATION OF [N.J.S.A.] 2C:21-25(b)(2)(a).

 

POINT TWO

 

THE DEFENDANT'S FIFTH AMENDMENT RIGHT UNDER THE CONSTITUTION WAS VIOLATED BY THE INTRODUCTION OF AN INTER-DEPARTMENTAL STATEMENT BARRED BY DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION UNDER [N.J.S.A.] 2A:81-17.2a2.

 

POINT THREE

 

THE PROSECUTING ATTORNEY OVERSTEPPED THE BOUNDS OF PROPRIETY AND FAIRNESS WHICH SHOULD CHARACTERIZE THE CONDUCT OF SUCH AN OFFICER IN THE PROSECUTION OF A CRIMINAL OFFENSE DURING CLOSING ARGUMENTS.

 

POINT FOUR

 

THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S REQUEST TO EXERCISE THE COURT'S POWER TO ENFORCE A VALID SUBPOENA PROPERLY SERVED UPON A STATE'S WITNESS TO INVESTIGATE THE POSSIBLE PERJURED TESTIMONY OF AN UNINDICTED INDIVIDUAL WHOM THE DEFENDANT'S WERE CHARGED AS AN ACCOMPLICE VIOLATING THE DEFENDANT'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS.

 

 

 

 

 

POINT V

 

THE INDICTMENT WAS A PRODUCT OF MISCONDUCT AND THE CONVICTION WAS PROCURED BY THE KNOWN USE OF PERJURED TESTIMONY.

 

McRae, meanwhile, has raised these points for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY. (PARTIALLY RAISED BELOW)

 

POINT II

 

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO THE CHARGE OF MONEY LAUNDERING EMBODIED IN COUNT 1 OF THE INDICTMENT.

 

POINT III

 

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

 

For the reasons we detail in Part II, the arguments raised by defendants do not warrant relief.

II.

A.

Defendants contend that they are entitled to a new trial because of various allegedly prejudicial remarks made by the prosecutor in his summation. We disagree.

In summation, a prosecutor may make remarks that constitute legitimate inferences from the facts, provided that he or she does not go beyond the facts before the jury. State v. Perry, 65 N.J. 45, 47-48 (1974); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 593 (1969). A prosecutor may also fairly respond to arguments raised by defense counsel during his or her own summation so long as the prosecutor does not venture beyond the facts presented at trial. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001); State v. C.H. 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). The duty to achieve justice does not prohibit a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation and internal quotation marks omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Our Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

One of the most telling characteristics of a defendant's claim of prosecutorial misconduct on appeal is whether defendant objected to the prosecutor's closing remarks at the time they were made. Ramseur, supra, 106 N.J. at 322-23; see also State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Where defense counsel failed to object at trial, "the reviewing court may infer that counsel did not consider the remarks to be inappropriate." State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993).

If, as is largely the case here, a defendant's claim of improper closing argument by a prosecutor is raised for the first time on appeal, a reviewing court need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his or her] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived defendant of a fair trial. Ramseur, supra, 106 N.J. at 322; see also State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

We also are mindful of the importance of considering the prosecutor's summation as a whole, rather than analyzing isolated comments. State v. Ingram, 196 N.J. 23, 43 (2008). A conviction may be reversed based on prosecutorial misconduct only where the misconduct is so egregious in the context of the trial as a whole as to deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

In their appellate counsels' briefs, defendants highlight six aspects of the prosecutor's summation which they contend were improper and unduly prejudicial. Defendants raised no objection to these comments at the time they were made, although some of them were noted in the motions for mistrial they each made on the day following summations. None of the comments, either singularly or in combination, mandate a new trial.

First, defendants object to the prosecutor's comments alluding to "Carmen Ferrera" and other fictitious names defendants used in connection with the contrived businesses, such as Gem, that were part of the scheme to defraud the City of public funds. During his summation, the prosecutor rhetorically posed questions like "[w]ho is Carmen Ferrera?" and "[w]here are [Carmen and Sahara]?"

We do not regard these questions to amount to, as defendants posit, improper attempts to shift the State's burden of proof to defendants. Cf. State v. Loftin, 146 N.J. 295, 389 (1996) (finding that although the prosecutor's comment in closing argument that "'there has been no dent made in the proofs of the State' . . . could be interpreted as shifting the burden to the defense to disprove the State's allegation, it seems more likely to have been intended as an observation of the strength of the State's case"). The prosecutor here appears to have been detailing why the State had come to the conclusion that Gem, Starrpoint, and RC were fake companies set up by Price and McRae to carry out their illegal scheme. That argument is consistent with the State's position that Ferrera simply did not exist, just like the various phony addresses set forth on the three companies' invoices.

Second, defendants allege that the prosecutor improperly suggested that defendants had an obligation to testify. Defendants fault the prosecutor for describing the State's proof as "incontrovertible," and for pointing out numerous unanswered questions about the bona fides of Gem and the other companies. Although we are cognizant that the Fifth Amendment bars a prosecutor from disparaging a defendant's failure to testify, see State v. Lanzo, 44 N.J. 560, 563 (1965), we do not regard the prosecutor's comments about the strength of the State's evidence and the gaps in the defendants' theme that the companies were genuine and aboveboard as improper.

Third, defendants contest the prosecutor's references to "money laundering" scams because the State presented no expert witness on money laundering practices. The prosecutor's brief references to money laundering were legally accurate and comprised fair argument. Moreover, the judge issued a comprehensive charge on money laundering at the end of the proofs, ameliorating the effect of the prosecutor's allegedly objectionable statement.

Fourth, defendants seek a new trial based on the fact that the prosecutor expressly "thanked" Davis and the other internal affairs officers who were part of the investigation that led to defendants' arrests. Defendants maintain that these words of thanks violated the principle that a prosecutor should not express to jurors a personal belief as to defendant's guilt. See State v. Marshall, 123 N.J. 1, 154 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). We do not consider the prosecutor's brief expressions of gratitude to be anything more than surplusage. Although it may well have been preferable for the prosecutor to refrain from thanking anyone who took part in the investigation, we are not particularly troubled by what the prosecutor said in this regard.

Fifth, defendants contest the prosecutor's negative characterization of them in summation. Among other things, the prosecutor described Price, on the one hand, as a manipulator of McRae, and McRae, on the other hand, as venal and susceptible to manipulation. These characterizations have reasonable support in the evidence and were not per se improper.

Sixth, McRae focuses upon a supposed misstatement in the State's summation, in which the prosecutor suggested that Matovski had testified that Price told him that McRae worked for Gem. The suggestion is reasonably consistent with Matovski's trial testimony and provides no basis for reversal.

In his pro se brief, Price argues, for the first time, that the prosecutor erroneously stated during his summation that there was no approval process under the Motorola contract and that Price was thus able to secure whatever vendor approvals he wanted at will. Price insists that these remarks were belied by the trial testimony of Rollins and Grimes. However, through these remarks, the prosecutor was simply suggesting that the approval process was executed in a cursory manner, without any type of thorough investigation into the proposed vendors, so that Price was able to execute his fraud. The remarks, in short, were fair comment and allowable.

B.

Price contends that the trial court erred in denying his pre-verdict motion for judgment of acquittal. McRae likewise argues that the trial court erred in denying her motion for judgment of acquittal on count one (money laundering).

More specifically, at the close of the State's case, counsel for McRae moved for a judgment of acquittal on count one, arguing that she had not been shown to be a knowing participant in any unauthorized conduct. The prosecutor responded that the State was entitled to all inferences that could be derived from the extensive evidence of McRae's involvement in Price's scheme. Counsel for Price requested a judgment of acquittal on the counts that were previously the subject of his pretrial motion to dismiss the indictment. The trial court initially reserved decision on these motions.

At the conclusion of their cases, defense counsel renewed their motions for judgment of acquittal. Counsel for Price conceded, however, that there was evidence in support of counts one and two with respect to Gem and RC.

The trial court rejected the motions. It ruled that there was sufficient evidence connecting both defendants to all three companies, from which a jury could find that these companies were created to enable defendants to make an illegal profit. The court was satisfied that a reasonable jury could find that defendants had committed the crimes for which they were charged based upon the extensive testimonial and documentary evidence presented by the State.4

In ruling upon a motion for a judgment of acquittal, the test to be applied is

whether the evidence viewed in its entirety and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

 

[State v. Moffa, 42 N.J. 258, 263 (1964).]

 

See also State v. Martin, 119 N.J. 2, 8 (1990) ("In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'") (quoting State v. Brown, 80 N.J. 587, 592 (1979) (emphasis in original)).

The probative value of proffered evidence is not diminished by the fact that it is circumstantial. See State v. Carroll, 256 N.J. Super. 575, 603 (App. Div.), certif. denied, 130 N.J. 18 (1992). Circumstantial evidence alone will support a jury's verdict of guilt. Ibid. Also, an inference reasonably may be drawn by a jury when "'it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference.'" State v. Thomas, 132 N.J. 247, 256 (1993) (quoting Brown, supra, 80 N.J. at 592).

On appeal, McRae renews her contention that the State failed to prove that she, as Price's accomplice, knowingly engaged in money laundering in violation of N.J.S.A. 2C:21-25(b)(2)(a). McRae concedes that the evidence presented by the State linked her, in varying degrees, to all three companies. However, McRae insists that there was no evidence from which a jury could have concluded that she "was ever aware of and intended to participate in any illegal transaction or scheme[.]" She maintains that, at best, the evidence showed that she was an unknowing pawn in Price's criminal enterprise. We disagree.

In order for a defendant to be criminally culpable under accomplice liability principles, he or she must possess the same intent as that of the principal. State v. Fair, 45 N.J. 77, 95 (1965); State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993). Contrary to McRae's representations, the record was replete with evidence from which the jury could have inferentially concluded that she was a knowing participant in Price's criminal scheme.

In particular, it was clear that McRae knew that Price was hiding his involvement in all three companies because she and Mims were handling all of the banking and transactional details. She also knew that she was receiving large checks for consulting work she never performed. Additionally, McRae was aware that the three companies remained in existence only for brief periods and transacted no other business. Telephone records revealed that McRae was involved in the flurry of calls through which Mims was warned of Davis's impending visit on April 24, 2003, to investigate RC. Finally, Gariski testified that he was given a $5000 check signed by McRae so that he would "keep quiet." Given these formidable proofs, we reject McRae's contention that the trial court erred in denying her motion for judgment of acquittal on count one.

Price argues the trial court similarly erred in denying his motion for judgment of acquittal. He insists that there was no evidence that the Department was overcharged in its dealing with Gem, Starrpoint, and RC. Additionally, Price maintains that there was no evidence directly linking him to Starrpoint. Finally, Price argues that there was insufficient evidence as to count one. All of these contentions are unavailing.

Although Price would have it otherwise, the question of whether the prices charged by the various shell corporations were fair or whether the prices saved the Department money, was irrelevant. The case was about whether Price had profited from illegal transactions, not whether the Department was overcharged. Additionally, a jury could have reasonably inferred from Leivick's testimony that Price was principally involved in Starrpoint. As to Price's remaining contention, i.e., that there was insufficient evidence in support of count one, we note that his motion for judgment of acquittal did not include this count and that, in fact, Price's counsel conceded that there was some evidence in support of the money laundering charge. In any event, the record amply reflected that Price created shell corporations, which he used to funnel illegally obtained proceeds into his own pockets.

In his pro se brief, Price further argues, again for the first time, that N.J.S.A. 2C:21-25(b)(2)(a) is inapplicable to this case. Price relies on federal case law interpreting the federal money laundering statute, 18 U.S.C.A. 1956, upon which New Jersey's statute was based and maintains that "illegitimate money cannot be considered laundered unless it is generated in a distinct transaction separate from the laundering transaction[.]" In Price's view, his alleged actions involved connected transactions with no predicate offense from which any proceeds were generated and were, therefore, lawful. We disagree.

In State v. Harris, 373 N.J. Super. 253, 266 (App. Div. 2004), certif. denied, 183 N.J. 257 (2005), we confirmed that N.J.S.A. 21-25(b), the New Jersey money laundering statute, "requires two 'transactions,' (1) the underlying criminal activity generating that property, and (2) the money-laundering transaction where the property is either (a) used to facilitate or promote criminal activity, or (b) concealed, or 'washed.'" The federal case law upon which defendant relies likewise indicates that money laundering is a separate crime (one distinct from the illegal obtaining of funds). United States v. Edgmon, 952 F.2d 1206, 1213-14 (10th Cir. 1991), cert. denied, 505 U.S. 1223, 112 S. Ct. 3037, 120 L. Ed. 2d 906 (1992).

The scheme perpetrated in this case logically can be viewed as involving independent predicate offenses and subsequent transactions. First, the shell corporations were set up so that Price could illegally contract with the Department. The illegal proceeds were then processed through bank accounts maintained by the third parties before making their way to Price, either by check or in cash. Although concealment factored into both aspects of the scheme, we are not persuaded that this renders N.J.S.A. 2C:21-25(b)(2)(a) inapplicable.

Price further argues in his pro se brief that his acquittal on count two, which alleged a violation of N.J.S.A. 2C:21-25(c), precluded his conviction on count one of a violation of N.J.S.A. 2C:21-25(b)(2)(a). However, subsections (b) and (c) of N.J.S.A. 2C:21-25 set forth independent crimes. See Harris, supra, 373 N.J. Super. at 263 ("[t]he text of N.J.S.A. 2C:21-25 makes clear by use of the designations (a) or (b) or (c) that it criminalizes three distinct types of conduct").

Lastly, Price insists in his pro se brief, again relying upon 18 U.S.C.A. 1956, that money laundering is not a "continuing offense," and that the trial court "erroneously informed the jury that the State was allowed to add the amounts together to form a single total amount pursuant to one scheme" and charge him with a second-degree offense. This argument is specious. N.J.S.A. 2C:21-27(a) specifically recites that "[a]mounts involved in transactions conducted pursuant to one scheme or course of conduct may be aggregated in determining the degree of the offense." (Emphasis added).

 

C.

Price argues that the trial court erred in denying his pretrial motion to dismiss various counts of the indictment containing allegations regarding Gem, Starrpoint, and RC, as well as counts one and two alleging money laundering.5 We discern no such error.

During the grand jury proceedings, the prosecutor provided an initial synopsis of the allegations against defendants. He explained that Price "was given responsibility" with respect to the refurbishment of the Department's communications center. However, rather than simply facilitate the refurbishment, Price set up several so-called "dummy" corporations to purchase equipment from legitimate vendors, sold the equipment through his "dummy" corporations to the Department at substantial markups, and pocketed the profit, which ultimately totaled $90,527.

The prosecutor thereafter presented testimony to the grand jury from Davis, who confirmed that Grimes had delegated to Price the responsibility of locating vendors from which the Department could more cheaply purchase some of the items it needed for the refurbishment project. By virtue of his status as a police officer, Price was prohibited from doing any business directly with his employer. Davis testified that he became suspicious of some of the purchases arranged by Price, after learning that an RC representative was at the station attempting to install a second GPS in the Department's police cars. As we have noted, Davis investigated and discovered that Price's friend Mims had formed RC; that RC had used a phony state contract number on its invoice; and that RC was nothing more than a shell corporation operated out of Mims's home. In a statement to police Mims admitted that Price was his partner; that Price had served as the contact person for the Department in arranging the transaction; and that Price had received the majority of the profits.

As noted in Part I, supra, Davis subsequently looked into certain furniture purchases made from Gem, another vendor selected by Price who again served as the Department's contact person. Davis learned that Gem had billed the Department $91,240 for furniture which it had purchased from Matovski, the actual manufacturer, for $48,400. He also discovered that there was no business located at Gem's purported address; that Gem paperwork contained a phony state contract number; that Mims was also the purported owner of Gem; and that Price's fiancée, McRae, was Gem's contact person. Davis determined that Gem was another shell corporation through which Price, Mims, and McRae made a significant profit.

As shown by his testimony, Davis also learned that Starrpoint, the vendor of the photo ID equipment, was owned by McRae and that Price was the Department's contact person for the transaction. He discovered that Starrpoint was another shell corporation operated out of the McRae's home, utilizing her personal cell phone. He determined that Starrpoint had billed the Department $16,025 for equipment it had purchased from Alpha for $6448.

In moving to dismiss portions of the indictment before trial, Price argued that: (1) no proof had been presented that he had actually overcharged the Department; (2) the grand jury was misled when the prosecutor failed to explain for whom Price served as a contact person; and (3) the prosecutor presented speculative indicia, rather than the necessary direct proof, of the alleged scheme.

When it denied Price's pretrial dismissal motion, the trial court expressed satisfaction that the prosecutor had presented an overwhelming "picture of a corrupt scheme." The court noted that "[t]here [was] evidence backwards, forwards, all over the place" suggesting directly or inferentially that Price had "entered into a conspiracy with . . . McRae and others . . . to perpetrate a scheme by which he would pick the pockets of the citizens and taxpayers" of East Orange using a series of shell corporations. The scheme depended upon the money laundering process in order to hide Price's involvement.

A trial court's authority to dismiss an indictment for alleged deficiencies pursuant to Rule 3:10-2 should not be exercised unless the indictment is "manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996). A trial judge's decision in this regard will only be reversed upon a showing of clear abuse of discretion. Id. at 229. No such "clear abuse" occurred here.

The prosecutor was not obligated to present to the grand jury the same quantum of proofs that eventually persuaded the petit jury of Price's guilt beyond a reasonable doubt. The direct and circumstantial proofs presented to the grand jury were more than sufficient to suggest that Price had conspired with several people close to him to steal from his employer, the City. Again, whether or not the prices charged by the various shell corporations were fair or whether they saved the Department money was irrelevant. It is also irrelevant whether invoices were submitted by the shell corporations directly to the Department or to its contractor Motorola, since any monies that Motorola paid belonged to the Department.

D.

Following his conviction, Price filed a motion with the trial court for a new trial on the grounds of newly-discovered evidence. He relied upon certain deposition testimony generated in a federal civil suit against East Orange and the Department filed by a civilian computer expert, who claimed he had been consulted by Price during the renovation of the communications room. In his civil deposition, Grimes offered testimony, which Price contends is exculpatory, stating that:

Price was not given any authority . . . to purchase/buy for the Department; that Price was not in charge of the projects of the communication room or the computer room; that he did not rely on Price's recommendation, or anyone else's recommendation to sign off . . . on purchase orders, invoices, or requisitions to purchase/buy for the department; that it was not Price who picked vendors that the department would do business with . . . and that it was the . . . City's Senior Purchasing Agent . . . who would authorize and make any payments to vendors[.]

 

At the hearing in December 2009 on Price's new trial motion, defense counsel argued that Grimes, a key witness in the case, had offered only misleading half-truths when he described the Department's multi-tiered purchasing approval process at the criminal trial, thereby creating the false impression that Price had had extensive authority in that process. Defense counsel maintained that Grimes's earlier testimony at the criminal trial could not be squared with his testimony at the civil deposition.

The trial judge rejected Price's new trial motion, ruling that Grimes's deposition testimony did not constitute newly discovered exculpatory evidence. In his subsequent written opinion, the judge reviewed Grimes's trial testimony and confirmed that Grimes had, in fact, described the process in "sufficient detail" and provided an accurate overview of the Department's multi-tiered purchasing process on both direct and cross examination. Grimes also repeatedly referenced the fact that Price had been under Boone's supervision while the refurbishment project was ongoing.

In short, there was nothing misleading about Grimes's testimony at the criminal trial as to Price's purchasing authority. The judge also found that Grimes's testimony was not materially inconsistent with his later deposition. Consequently, and because the State had offered overwhelming proof of Price's guilt, the trial court concluded that Grimes's deposition testimony did not have the capacity to change the jury's prior verdict.

In order "to qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). All three elements must be fulfilled before the evidence can justify a new trial. State v. Johnson, 34 N.J. 212, 223, cert. denied, 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961). The decision to grant or deny a motion for a new trial based upon newly discovered evidence rests within the sound discretion of the trial judge. State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997).

Applying these standards, we discern no abuse of discretion, nor any other error, in the trial court's denial of Price's new trial motion. We agree with the trial judge that, independent of Grimes's testimony at the criminal trial, the evidence of Price's guilt was overwhelming. We also perceive no material contradictions between Grimes's trial testimony and his ensuing testimony at the civil deposition that would compel the reversal of defendant's conviction and a remand for a new trial. We affirm the denial of Price's motion, substantially for the reasons cogently expressed by Judge Thomas R. Vena in his December 18, 2009 written opinion.

E.

Lastly, both Price and McRae argue that the trial court imposed excessive sentences upon them, based upon a faulty assessment of the applicable aggravating and mitigating factors. We are not so persuaded.

In reviewing a criminal defendant's sentence, an appellate court must determine whether the trial court's findings of fact as to the aggravating factors, as set by N.J.S.A. 2C:44-1(a), and the mitigating factors, as set by N.J.S.A. 2C:44-1(b), were based on competent and credible evidence in the record. We also must assess whether the court applied the correct sentencing guidelines enunciated in the Code and whether the application of the factors to the law constituted such clear error of judgment as to shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989). In performing that review, an appellate court must avoid substituting its judgment for the judgment of the trial court. O'Donnell, supra, 117 N.J. at 215; see also State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Roth, 95 N.J. 334, 365 (1984).

Price contends that the sentencing judge erred in deeming aggravating factors (3), (9), and (11) applicable, N.J.S.A. 2C:44-1(a)(3), (9), (11), and in failing to find mitigating factors (8), (9), and (11) applicable. N.J.S.A. 2C:44-1(b)(8), (9), (11). With one exception, those contentions lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Our only disagreement with the trial court is its application of aggravating factor (11), N.J.S.A. 2C:44-1(a)(11). Aggravating factor (11) is applicable only if the sentencing court is balancing a noncustodial term against a state prison sentence. State v. Dalziel, 182 N.J. 494, 502-03 (2005). Here, Price was faced with presumptive prison terms for his numerous second-degree convictions, and no effort was made by the defense to overcome that presumption pursuant to N.J.S.A. 2C:44-1(f)(2). Even so, the sentence imposed upon Price need not be disturbed because the remaining three aggravating factors still outweigh any mitigating factors, particularly where the court appropriately assigned special weight to aggravating factor (4), i.e., Price's offenses manifestly involved a breach of the public trust. Its twenty-year aggregate sentence was fully justified.

McRae's arguments contesting her fourteen-year sentence are similarly unavailing. At her sentencing hearing, the court initially deemed the following four aggravating factors applicable: that there was "the risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); that the defendant's crimes "involved a breach of the public trust . . . or the defendant took advantage of a position of trust . . .," N.J.S.A. 2C:44-1(a)(4); that there was a need for deterrence, N.J.S.A. 2C:44-1(a)(9); and that the imposition of a fine without the imposition of a term of imprisonment would be perceived by the defendant as merely part of the cost of doing business, N.J.S.A. 2C:44-1(a)(11).

As to aggravating factor (3), the sentencing judge explained that he was unconvinced that McRae was incapable of re-offending as had been suggested by her supporters, noting that the only remorse she had expressed had been for herself and her family and not for the citizens of East Orange. The judge further found that aggravating factor (4) was wholly applicable, as McRae had assisted a public servant in breaching the public trust. With respect to aggravating factor (9), the judge observed that there was a need to deter both McRae and "others from committing such acts of public corruption and assisting public servants in committing such acts."

The court deemed applicable only mitigating factor (7), i.e., that McRae had no history of prior criminal activity, N.J.S.A. 2C:44-1(b)(7). The judge recognized that McRae was not the "mastermind" of the series of corrupt acts and relied upon that fact in withholding the maximum terms that could have been imposed upon her. The fourteen-year cumulative sentence was instead near the midpoint of the sentencing range.

McRae now argues that the sentencing judge should have found an "overwhelming preponderance of mitigating factors which clearly justified imposing a sentence 'toward the lower end' of the applicable range for a second-degree offense, or five years." We reject that assertion, mindful of our limited scope of review of sentencing decisions.

As with Price, aggravating factor (11) was not applicable to McRae. However, the trial judge did not abuse his discretion in finding that McRae posed a risk of re-offending, particularly given her lack of remorse. Contrary to McRae's representations, simply because McRae was found guilty as an accomplice to her husband's actions did not render aggravating factor (4) inapplicable. The judge also duly noted that the proofs showed that McRae did not blindly do as Price asked, but she knowingly and intelligently assisted him in his criminal endeavors. That behavior precludes a finding that her character shows that she was unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9), or that her conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8).

In sum, because the remaining three aggravating factors still outweigh the mitigating factors raised by McRae, we sustain her sentence as well.

F.

We have considered all of the other points raised on appeal, including those raised by Price in his pro se submission, and conclude that they lack sufficient merit to warrant discussion or a reversal of either defendant's conviction or sentence. R. 2:11-3(e)(2). The proofs of guilt were overwhelming, the trial was fair, and the punishment imposed was justified.

Affirmed.

 

 

1 Prior to trial, the court granted Price's motion to dismiss counts twenty-two, thirty-four, and thirty-eight. Additionally, during the trial, the court dismissed count twenty-four as to McRae and count twenty-five as to both defendants.

2 The number of this street address differed from the street address for Gem that Price had initially provided to Grimes.

3 Defendants, who were not incarcerated during trial, failed to appear for the jury verdict, and the court subsequently issued bench warrants for their arrest. On June 17, 2006, Price was arrested in Arizona on a forgery charge. McRae surrendered to the Essex County Sheriff's Department a few weeks later on July 5, 2006.

4 The court did, however, dismiss counts twenty-four and twenty-five as to McRae.

5 Notably, in his original motion, defendant did not challenge counts seven, eight, ten, eleven, fourteen, fifteen, and thirty-five of the indictment, nor has he made any argument as to these counts on this appeal.