STATE OF NEW JERSEY v. LARRY KUSHNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2870-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY KUSHNER,

Defendant-Appellant.

_____________________________________________________

December 3, 2012

Submitted May 8, 2012 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1175.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Larry Kushner appeals from his conviction and sentence for second-degree theft by deception, N.J.S.A. 2C:20-4, and third-degree failure to file a tax return, N.J.S.A. 54:52-8. For the reasons that follow, we affirm.

The record reveals that defendant and his wife were arrested on February 8, 2007, on charges alleging credit card fraud and identity theft. On May 12, 2008, a grand jury charged defendant with five counts of second-degree theft by deception (counts one-five), N.J.S.A. 2C:20-4; two counts of third-degree theft by deception (counts six-seven), N.J.S.A. 2C:20-4; second-degree theft of identity (count eight), N.J.S.A. 2C:21-17a(1); fourth-degree false statements made in procuring a credit card (count nine), N.J.S.A. 2C:21-6b; third-degree fraudulent use of a credit card (count ten), N.J.S.A. 2C:21-6h; four counts of third-degree failure to file returns or reports (counts eleven, thirteen, fifteen, and seventeen), N.J.S.A. 54:52-8; and four counts of third-degree failure to pay or turn over taxes (counts twelve, fourteen, sixteen, and eighteen), N.J.S.A. 54:52-9. The charges stemmed from allegations that defendant and his wife failed to return over one million dollars obtained from seven members of their religious community.

On September 14, 2010, defendant pled guilty to counts four and fifteen of the indictment. The plea agreement contained the following provision: "Restitution has been determined by the Prosecutor's Office to be $1,122,200. Defendant reserves right to present evidence contesting the amount of restitution prior to sentence." Defendant agreed that the restitution amount was to become a civil judgment against him. Under the agreement, all charges against defendant's wife and all remaining charges against defendant were to be dismissed.

During the September 14, 2010 plea hearing, the judge engaged in extensive questioning to ascertain whether defendant understood the terms of the agreement. Defendant, who had both an accounting degree and a law degree, admitted that restitution was set at $1,122,200, subject to defendant submitting evidence before sentencing that the amount should be lowered. The judge pointed out that defendant would have enough time to produce the evidence since the sentencing was not scheduled for four months. After defendant provided a factual basis for both counts, the court accepted his guilty plea.

As part of the plea agreement, defendant reserved the right to bring a speedy trial motion. On October 8, 2010, defendant filed a motion to dismiss the indictment for lack of a speedy trial. The trial judge heard and denied defendant's motion on November 18, 2010.

At the sentencing hearing on January 28, 2011, defendant requested a two or three day adjournment, in part to afford him time to present evidence supporting a lower amount of restitution. The judge denied defendant's request on the basis that he had already granted a three week adjournment once in January for defendant to get ready for the hearing and that defendant had nearly five months to provide the court with his evidence concerning the amount of restitution. Further, the judge provided, if defendant produced documentation after his sentencing to demonstrate that the restitution amount should be reduced because he had made payments to the victims, that the judge would enter an amended judgment of conviction reflecting the lesser amount.

Despite his agreement at the plea hearing, defendant refused to have the restitution amount become a civil judgment against him until the amount was settled. Defense counsel assured the judge that defendant "will compensate the victims . . . I don't want it to be misconstrued when he's questioning the amount of restitution, that he's not going to pay the restitution back."

The defendant also asked the judge to sentence him to probation to allow him to earn money in order to rapidly repay the victims. Again defense counsel stated, "[i]t is his intent to pay these people back []." Defendant made repeated reference to a pending employment opportunity that would enable him to repay most of the restitution amount in a matter of weeks. In stating again that he would pay back all his victims, defendant noted: "It's an opportunity for me to restore my name, be with my family. . . . I pled guilty to one person, the restitution deals with many more than that." The judge responded, "I understand you're not denying as to the others." Later, defendant added, "I would get the ability to pay people back, make restitution, and do right by everybody . . . ." At least eight times during the hearing defendant directly or through counsel assured the judge that he fully intended to pay restitution to all the victims.

After balancing the aggravating and mitigating factors, the court sentenced defendant to an aggregate term of seven years imprisonment with an order of restitution amounting to $1,122,200 for all seven victims. The judge dismissed all charges against defendant's wife as well as all remaining charges against defendant. This appeal followed.

On appeal, defendant raises the following contentions for our consideration.

POINT I: THE MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED BY THE SIXTEEN-MONTH DELAY BETWEEN ARREST AND INDICTMENT. U.S. Const. Amends. VI; XIV; N.J. Const. Art. I, 10.

POINT II: THE COURT FAILED TO ELICIT A FACTUAL BASIS AT THE PLEA HEARING FOR RESTITUTION BASED ON DISMISSED COUNTS AS REQUIRED BY STATE V. BAUSCH, 83 N.J. 425 (1980), AND STATE V. KRUEGER, 241 N.J. SUPER. 244 (APP. DIV. 1990), AND THEREFORE THE RESTITUTION ORDER SHOULD BE LIMITED TO THE VICTIM'S LOSS ON COUNT FOUR. ALSO, THIS MATTER MUST BE REMANDED FOR A RESTITUTION HEARING BECAUSE THE COURT FAILED TO DETERMINE THE VICTIM'S ACTUAL LOSS OR DEFENDANT'S ABILITY TO PAY.

First, defendant argues that the sixteen-month delay between his arrest and his indictment was unreasonable, prejudicial, and infringed on his right to a speedy trial. Defendant notes that his case was a simple matter of reviewing his family's tax returns that did not warrant sixteen months of analysis. He also claims that the numerous discovery documents were available to the State at the time of his arrest and did not require months to obtain and review. Additionally, defendant maintains that, although he was not imprisoned during the sixteen-month pre-indictment period, he was prohibited from traveling out of the country for religious purposes, suffered anxiety and embarrassment because of the arrest, and was prevented from being able to afford the defense counsel of his choice. By contrast, the State claims that the judge's factual findings were supported by the record and that defendant did not suffer any prejudice from the reasonable pre-indictment period.

The decision whether to dismiss an indictment lies within the discretion of the trial court. State v. Hogan, 144 N.J. 216, 229 (1996). See also State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010). It "will only be overturned upon a showing of a mistaken exercise of that discretion." Ibid. In the speedy trial context, when the trial court balances all the relevant factors and arrives at a just conclusion, such a determination should not be overturned unless clearly erroneous. State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009); State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

The defendant's right to a speedy trial attaches upon arrest. State v. Douglas, 322 N.J. Super. 156, 170 (App. Div.), certif. denied, 162 N.J. 197 (1999). In determining whether this right has been violated, courts consider four factors: "(1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) whether defendant was prejudiced by the delay." Ibid. (citing Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101, 116-18 (1972)). A finding of prejudice includes "oppressive pretrial incarceration, anxiety and concern of the accused, and impairment of the defense." State v. Szima, 70 N.J. 196, 201, certif. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). The four Barker factors are interrelated and must be considered along with other relevant circumstances. Ibid.

The trial judge found that the delay was neither intentional nor the fault of the State. The judge noted that the main reason for delay was because the matter was not "a straightforward case." It "started out as a theft case, but when [the State] got into it further . . . it involved many other implications" regarding unpaid taxes, different companies, and different properties, some in different states. The judge determined that, for a complex case such as this, sixteen months was not an overly long period of time. We agree with this determination.

We also reject defendant's claim that the judge erred in finding that defendant did not suffer any special prejudice. The judge noted that restrictions on travel, anxiety and embarrassment of the kind suffered by defendant, and defendant's inability to continue to pay for his private attorney were common problems faced by criminal defendants. Cf. Caplin & Drysdale v. United States, 491 U.S. 617, 624, 109 S. Ct. 2646, 2652, 105 L. Ed. 2d 528, 541 (1989) ("The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.").

We agree with the trial judge that there was no evidence that defendant suffered prejudice that prevented him from presenting his case or deprived him of a fair trial. We also note that defendant never moved for a speedy trial during the pre-indictment period. R. 3:25-2. Accordingly, we agree with the judge's decision to deny defendant's motion for a speedy trial.

Next, defendant requests that we remand to the trial court for a hearing and determination on restitution. Defendant s argument is two-pronged. First, he argues that the trial judge did not properly elicit a factual basis for restitution to the six victims named in the dismissed counts. Consequently, defendant asks that we mold the restitution order to cover only the victim on Count Four. Second, he alleges that the judge failed to conduct a restitution hearing to determine the victim s actual loss and defendant's ability to pay the full amount, and requests that we remand for a restitution hearing.

On appeal, we review the trial court's imposition of restitution under an abuse of discretion standard. See State v. Rhoda, 206 N.J. Super. 584, 593-94 (App. Div.), certif. denied, 105 N.J. 524 (1986) (citing State v. Johnson, 42 N.J. 146, 159-62 (1964)). The judge's factual determinations must be supported by the record. Ibid.

A court shall impose an order of restitution if: "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2b(2). In addition, pursuant to N.J.S.A. 2C:44-2c(2), "[i]n determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay."

When a defendant pleads guilty, a court may consider facts underlying a dismissed count as a basis for restitution only if a relationship exists between the restitution and the goal of rehabilitation with respect to the offense for which the defendant is being sentenced, and an adequate factual basis supports the restitution. State v. Bausch, 83 N.J. 425, 435 (1980). Additionally, "[t]he defendant is entitled to notice and a hearing," where "[h]e may refute the statements and present relevant material bearing on these issues." Id. at 436 (citing In re D.G.W., 70 N.J. 488, 505-08 (1976)).

In our view, by acknowledging under oath numerous times at both the plea hearing and the sentencing hearing that he owed money and would make full restitution to all the victims, defendant established an adequate factual basis for the restitution. Moreover, it is clear from the record that the judge considered the full restitution as necessary for defendant's rehabilitation and defendant concurred. We agree with the State that restitution to all the victims was a significant part of the plea agreement and one that defendant repeatedly proclaimed his willingness to accept. As he readily acknowledged that he would make restitution, we reject his argument now that the judge should have elicited more information as to each victim. Moreover, at no time during the two hearings did he suggest that he did not have the ability to pay. Defendant has an accounting degree and a law degree and at the time of sentencing had an opportunity for employment by a friend that offered the possibility to pay the restitution in a matter of months. While that particular opportunity may no longer be available, we deem defendant's multiple statements under oath that he would pay the victims back as evidence that he considered that he would have the ability to pay by dint of hard work and business opportunities in the future.

Ordinarily, due process requires a hearing on both the ability to pay and the time period for making restitution unless enough evidence is presented at the plea hearing to make an additional hearing unnecessary. State v. Orji, 277 N.J. Super. 582, 589-90 (1994). We perceive that defendant had the opportunity for a hearing but failed to take advantage of it. At the plea hearing, restitution was set at the amount calculated by the State with defendant having the opportunity to provide documentation in the four months before the sentencing that the amount should be less. By failing to do so, even with an additional three week adjournment before the hearing, defendant waived the opportunity to be heard. He cannot subsequent to that opportunity, complain that the judge failed to hold the hearing.

Due process consists of notice and an opportunity to be heard. State v. Schmidt, 206 N.J. 71, 87 (2011); Simmermon v. Dryvit Sys., Inc., 196 N.J. 316, 330 (2008). We are satisfied that under the unique circumstances present here, defendant, having been given notice of the restitution amount being sought and the opportunity to present evidence to lower that amount and having asserted numerous times under oath that he would pay all the victims restitution, received the process he was due. Orji, supra, 277 N.J. Super. at 589-90.

Affirmed.