STATE OF NEW JERSEY v. MICHAEL D. STERN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4744-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL D. STERN,

Defendant-Appellant.

_______________________________________

April 30, 2013

 

Submitted January 9, 2013 - Decided

 

Before Judges Ashrafi, Hayden and Lisa.

 

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment

No. 09-10-1061.

 

William H. Buckman Law Firm, attorney for

appellant (Mr. Buckman and Lilia Londar,

on the brief).

 

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Jennifer B. Paszkiewicz, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

As the volunteer treasurer of a youth hockey league, defendant Michael D. Stern wrote checks to himself and his personal business entity from league accounts for a period of more than five years, and he used the money to keep his business "afloat." He was indicted and tried for theft and related offenses. The jury was unable to reach a verdict on a theft charge, apparently because defendant returned some of the money and claimed he always intended to reimburse the league's accounts in full. The jury convicted defendant of misapplication of funds entrusted to him as a fiduciary, in an amount greater than $75,000. N.J.S.A. 2C:21-15. Challenging the unanimity of the jury's verdict as to the amount misapplied, and also challenging his status as a fiduciary, defendant appeals his conviction. We affirm.

I.

A.

Defendant was appointed treasurer of the South Jersey High School Hockey League in about 1996. The league is a not-for-profit organization, composed of teams of high-school-age players but not directly affiliated with high schools. The league has two main sources of funds: the fees paid by the players themselves and gate receipts for admission to the games. Mike Pontonio, the league president, testified at defendant's trial that the cost of participation to players or their parents is substantial, $1,000 or more per player, per season.

Defendant's responsibilities as treasurer were to maintain the league's accounts and to pay bills, with most of the money going to reserve ice time for games at area rinks. Defendant and Pontonio would negotiate contracts with ice rinks, typically for tens of thousands of dollars each. The league would also pay for referees, off-duty police security at games, trophies, maintaining a website, some apparel purchases, and other incidental expenses of its operations.

At the beginning of each hockey season, defendant and Pontonio would determine the league budget, which averaged about $200,000 per year, and they would present a proposal to the member teams for charges to each. Although prior practice had been to return any unspent funds to the teams at the end of each season, Pontonio testified that he had not seen any money actually returned in recent years, and that defendant told him he rolled remaining funds into next season's budget.

During the 2002-03 season, Pontonio began to hear about budgeted funds not being paid to rinks. When he asked defendant about the problem, defendant said the money would be paid and the delays were a side-effect of the league changing bank accounts. At one point, however, a missed payment caused one rink to deny the use of its facility to teams scheduled for a game. Defendant went to the rink and "worked something out with the manager," and the teams were allowed to play.

An employee at another rink testified that when she became concerned about the league's unpaid bill for ice time, she called defendant for payment but did not get a timely response. When defendant finally returned her calls, he twice told her inaccurately that he had made the payment. Defendant finally made the payment after the employee called again and they had a third conversation about the missed payment.

Defendant intended to resign as treasurer after the 2003-04 season, and another person was appointed to work with him and eventually take over the treasurer's tasks. In April or May 2004, Pontonio learned that a $60,000 deposit had recently been made into a league account by a person who had no connection with the league. At a meeting in May 2004 among defendant, Pontonio, and two other league officials, the issue of unpaid bills came to a head. Defendant was confronted with evidence of the $60,000 deposit. He then admitted he "had been using the league funds to help his business stay afloat," and that the $60,000 was a loan he had obtained from a friend to replenish some of the money he took from league accounts. He estimated the league accounts were still missing about $45,000 to $50,000 that he had taken. He promised to pay the money back.

The league formally removed defendant as its treasurer at its May 2004 meeting, which he did not attend. Defendant requested to attend the June 2004 meeting to apologize and to explain his conduct. Before that meeting, defendant borrowed another $45,000 from the same friend, and returned that amount to the league. With that deposit, the league was able to pay its bills for the season, but just barely, leaving a very low balance in its bank account.

At the June 8, 2004 league meeting, which was recorded as all meetings were, defendant openly confessed and apologized. With some detail but no precise information about the amounts he took or returned, defendant admitted he "used cash from [the league] account for my own use." He estimated that, after his reimbursements of $105,000 in the past two months, he still owed another $5,000 to $10,000. He answered questions from league members about the extent of his record-keeping (he did not keep a running total of monies taken and returned) and his obligation to make restitution (he pledged to pay any funds determined to be still missing and suggested that an audit be conducted).

In the summer of 2004, the Burlington County Prosecutor's Office began investigating the matter. A prosecutor's detective took a taped statement from defendant in December 2004. Once again, defendant admitted diverting league funds for the use of his personal business entity, Promo Print, during a period of four-and-a-half to five years. He said he had reimbursed money in the past from his business and personal funds to pay the league's bills as they became due. In the spring of 2004, he first borrowed $60,000 and then $45,000 from a friend to reimburse the league's account because he hoped to have paid all the money back before he resigned as treasurer.

The prosecutor's office subpoenaed and reviewed bank records and other financial documents. Defendant was again interviewed, and he went over copies of checks and other bank records, detailing payments made by and to the league. He was asked to mark checks that he misappropriated for his personal use. Defendant marked 155 checks dated from January 12, 1999, to April 27, 2004, made payable to him personally or to Promo Print, and a few made payable to cash and endorsed by him. At the trial, the prosecution placed in evidence a spreadsheet listing the 155 checks, their amounts totaling $292,572.00.

Defendant testified at his trial, again admitting before the jury that he "used [the league's] account over and over for five years as if it were my account." He claimed he always intended to return the misappropriated funds, and that there was never any danger that the money would not be repaid because he had "a half dozen avenues" for doing so.

The defense also presented the testimony of Dominick Grosso, a friend of defendant and an accountant, whom the court qualified as an expert in the "reconstruction of financial accounts." Grosso testified about his analysis of the league's financial records and concluded that the total still missing from the league's accounts at the time of his review was $25,868.70. On cross-examination, Grosso acknowledged he was unaware that defendant had admitted to diverting the 155 checks shown on the prosecution's spreadsheet and he never analyzed any of defendant's personal accounts.

The jury was not able to reach a unanimous verdict on the charge of theft by unlawful taking, N.J.S.A. 2C:20-3(a), and the court declared a mistrial on that count. The jury unanimously found defendant guilty of misapplication of entrusted property, N.J.S.A. 2C:21-15, and it indicated on its verdict sheet that the amount defendant misapplied was $75,000 or more. After the verdict was announced in open court, the court polled the jury, and all jurors indicated their agreement with the verdict on the misapplication charge.

B.

Two days after the trial ended and the jury was discharged, one of the deliberating jurors, Juror #13, sent a handwritten letter to the trial judge expressing sympathy for defendant and her apprehension about the sentence defendant might receive. She indicated an understanding that the dollar amount misappropriated by defendant would affect the sentence.1 The juror wrote that she and another juror caused the hung jury on the theft charge2 and that she "had not given [her] vote as to the dollar amount applied to 2nd charge." She claimed she would have "probably put [the amount] at 500-1000" dollars. She said she was confused about the proceedings in the court and thought that the jurors would give their verdict as to guilt before returning to the jury room to deliberate about the amount. She added: "If, say you know that a person spent over say $40,000, can you say 500-1000, just to give that person a 'lighter sentence' because you, as the juror, see the 'accused' as being a really good person, who has suffered much emotional distress from his 'wrong doing'"? She asked further: "[I]s it so wrong to have compassion, mercy, as a juror?" She asked the judge to be "merciful" to defendant and to call or write to her.

As a result of the letter, the trial judge had Juror #13 brought into court to provide testimony about her claim that the jury did not vote on the amount of the misappropriation. Under oath, Juror #13 repeated her assertions that she did not agree to the $75,000 amount and that she thought the jurors would deliberate about the amount separately after the verdict of guilty was announced. When asked why she agreed with the verdict when the jury was polled, she gave confusing answers before saying "I made a mistake."

After the hearing at which Juror #13 testified, the case had to be assigned to a different judge. The court was unable to contact all the remaining jurors, but four jurors who had deliberated on the verdict returned to the court for another hearing some months later. The memories of the jurors were imprecise, but the four jurors contradicted Juror #13's testimony that the jury had not decided the amount of the benefit derived by defendant, and they claimed that the jury had been unanimous. Some of the jurors testified that a vote was taken. One testified there had been a quick agreement among the jurors that the amount clearly exceeded $75,000 and the jury saw no need for extensive discussion of the amount. Contrary to Juror #13's version, the other jurors did not expect to resume further deliberations after the verdict was announced. They knew their task was finished.

After the parties briefed the issues raised by Juror #13 s letter and the subsequent testimony of the jurors, the judge rejected defendant s arguments in support of a judgment of acquittal or a new trial. The judge concluded that the post-trial juror testimony was not needed or appropriate to resolve the issues presented, and that the jury had properly returned a unanimous verdict. The judge sentenced defendant to five years in prison and also ordered him to repay what he still owed to the league.3

The five-year prison sentence was the minimum of the ordinary range for a second-degree crime. N.J.S.A. 2C:43-6(a)(2). The State's appellate brief informs us that defendant was subsequently admitted into the Intensive Supervision Program, N.J.S.A. 2C:43-11; R. 3:21-10, and he was released from prison after serving about five or six months in custody.

II.

On appeal, defendant makes the following arguments:

POINT I

 

MR. STERN IS ENTITLED TO A NEW TRIAL BECAUSE HE WAS DEPRIVED OF HIS RIGHT TO A UNANIMOUS VERDICT.

 

A. The Trial Court's Failure to Instruct the Jury That It Must Reach a Unanimous

Decision as to the Amount of the Benefit Mr. Stern Derived Constitutes Reversible Plain Error.

 

B. The Trial Court's Method of Polling Was Insufficient in Protecting Mr. Stern's Right to a Unanimous Verdict.

 

C. The Trial Court erred in Disregarding the Information Yielded from Juror Interviews After determining that It Never Should Have Interviewed the Jurors in the First Place.

 

POINT II

 

MR. STERN IS ENTITLED TO A NEW TRIAL BECAUSE

THE VERDICT WAS AGAINST THE WEIGHT OF THE

EVIDENCE.

For the reasons that follow, we reject these arguments.

A.

Defendant contends the trial court committed plain error in that it failed to instruct the jury specifically that it had to reach a unanimous conclusion as to the amount of benefit defendant derived from misapplication of league funds. The court's general instruction as to jury unanimity was as follows:

The verdict must represent the considered judgment of each juror and must be unanimous as to each charge. This means that all of you must agree if the defendant is guilty or not guilty on each charge.

 

. . . .

 

You may return on each crime charged a verdict of either not guilty or guilty. Your verdict whatever it may be as to each charge as I said must be unanimous. Each of the 12 deliberating jurors must agree as to the verdict.

 

The court's instruction explaining misapplication of entrusted property conformed to the model charge, which directs that the jury first determine whether defendant is guilty of the offense and then make two "additional" findings as to whether defendant benefited from the offense and the amount of the benefit. Model Jury Charge (Criminal), "Misapplication of Entrusted Property (Fiduciary Duty)" (2008). Defendant contends the general unanimity instruction we have quoted, combined with the disjunctive nature of the model charge, may have confused the jury into thinking that unanimity was not required as to the benefit derived.

Because defendant did not object to the instructions when given,4 the plain error standard of review applies, and reversal is appropriate only if the claimed error is "clearly capable of producing an unjust result." R. 2:10-2; State v. Walker, 203 N.J. 73, 89 (2010). A jury charge will be reversed for plain error only if there is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed the clear capacity to bring about an unjust result." State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Because "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial," the ultimate responsibility falls on the trial court "to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). When faced with a claim of error in the jury instructions, we read the charge as a whole and determine whether it conveys the law to the jury in a way that is unlikely to confuse or mislead. Id. at 376.

The charge on which defendant was convicted, second-degree misapplication of entrusted property, is a violation of N.J.S.A. 2C:21-15, which statute provides in relevant part:

A person commits a crime if he applies or disposes of property that has been entrusted to him as a fiduciary . . . in a manner which he knows is unlawful and involves substantial risk of loss or detriment to the owner of the property . . . whether or not the actor has derived a pecuniary benefit. "Fiduciary" includes trustee, guardian, executor, administrator, receiver and any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.

 
If the benefit derived from a violation of this section is $75,000.00, or more, the offender is guilty of a crime of the second degree. If the benefit derived exceeds

$1,000.00, but is less than $75,000.00, the offender is guilty of a crime of the third degree. If the benefit derived is $1,000.00, or less, the offender is guilty of a crime of the fourth degree.

 

According to the model jury charge applicable to that statute, the State must prove six elements to prove defendant's guilt: (1) the defendant knowingly applied or disposed of property; (2) the property at issue was entrusted to the defendant as a fiduciary; (3) the defendant's application or disposition of the property was unlawful; (4) the defendant's application or disposition involved substantial risk of loss or detriment to the owner of the property; (5) the defendant knew that his conduct was unlawful; and (6) the defendant knew that his conduct involved a substantial risk of loss or detriment to the owner of the property or to the person for whose benefit the property was entrusted. Model Jury Charge (Criminal), "Misapplication of Entrusted Property (Fiduciary Duty)" (2008). If the jury finds all six elements proven beyond a reasonable doubt, it must answer two questions that go to the grading of the offense. First, the jury must determine whether the defendant derived a benefit from the misapplication of property. If the jury answers in the affirmative, it must decide how much that benefit was. Ibid.

Here, the question is whether defendant's right to a unanimous determination of his guilt required an additional instruction to the jury, besides the court's general unanimity instruction, that its determination of the amount of the benefit must be by unanimous decision of the jury.

We first note that, if defendant is correct that the trial court committed plain error in failing to give a specific instruction on unanimity on the amount of the benefit, defendant still has no claim as to the jury's verdict that he was guilty of the crime. The issue would only be the degree of the offense. Cf. State v. Clarke, 198 N.J. Super. 219, 226 (App. Div. 1985) (If a jury did not make a finding of the pecuniary loss determining the grading of a criminal mischief offense pursuant to N.J.S.A. 2C:17-3(b), the conviction would be for the least-grade offense under the statute.); State v. Burks, 188 N.J. Super. 55, 61 (App. Div.) (grading of theft offense in accordance with N.J.S.A. 2C:20-2(b) must be determined by the jury), certif. denied, 93 N.J. 285 (1983). We conclude, however, that while a specific unanimity charge on the amount of the benefit would have been appropriate and should have been given if requested, see State v. Gandhi, 201 N.J. 161, 192-93 (2010), there was no plain error in its absence in the circumstances of this case.

The requirement in criminal cases that the jury render a unanimous verdict is central to our system of justice. State v. Parker, 124 N.J. 628, 633 (1991); R. 1:8-9 ("verdict shall be unanimous in all criminal actions"). Unanimity ensures that the jury has reached a "subjective state of certitude" as to the details of defendant's conduct, which in turn facilitates the determination of guilt. Parker, supra, 124 N.J. at 633 (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir, 1977)). In the typical case, a general instruction that the jury must determine guilt unanimously will suffice. State v. Cagno, 211 N.J. 488, 517 (2012); Parker, supra, 124 N.J. at 638, 641.

There are, however, exceptions. Parker, supra, 124 N.J. at 635-37. For example, if the State proffers two separate theories of guilt based on different facts, the jury should be instructed on the need for all to agree on a particular theory. State v. Frisby, 174 N.J. 583, 599 (2002). Or, "where the facts are exceptionally complex, [] where the allegations in a single count are either contradictory or only marginally related to one another, [] where there is a variance between the indictment and the proof at trial, or where there is a tangible indication of jury confusion," a specific unanimity instruction should be given. Parker, supra, 124 N.J. at 636 (citations omitted) (quoting United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir. 1987)).

This was not a case where the State offered two or more factually distinct theories of defendant's guilt. Nor was it a factually complex case. The State's theory of guilt was straightforward, and defendant himself recognized his offending conduct and confessed to it several times. Defendant was entrusted with funds that he was expected to use to pay league bills. He used substantial amounts of the entrusted money for his own benefit. No evidence suggested that the amount defendant misappropriated and used for his own benefit was less than $75,000. In fact, he admitted it was almost four times that amount.

Defendant's contention on appeal rests on a "tangible indication of juror confusion," which he claims demanded a more specific unanimity instruction. The alleged confusion derives from two questions posed by the jury during deliberations: "For both charges do you (juror) have to agree on all of the elements? Of the charges, do all of the elements have to be the same verdict?" After consulting with counsel, the court interpreted the two questions as two different ways to phrase the same inquiry, namely, "for a conviction, must a juror be satisfied beyond a reasonable doubt that the State has proved every one of the elements"? The court answered the question by first reminding the jury that the two counts for its consideration were separate charges and the jury must consider each one separately. The court then continued as follows:

But that said, in order for the defendant to be convicted on either of the charges, each juror must be satisfied that the State has proven every single one of the elements of that charge beyond a reasonable doubt. Every juror must be satisfied beyond a reasonable doubt that the State has proven every single one of the elements pertaining to the charge that you're looking at and then you go and look at the other charge.

 

Defendant did not object to this instruction.

Defendant now argues on appeal that the court's response did nothing to cure confusion on the issue of whether the jurors must agree unanimously on the amount of benefit derived. He contends that, in defining the offense, the court only referred to six "elements," none of which related to the benefit. Defendant's argument, at bottom, is that the instructions were sufficient to apprise the jury of the need for unanimity as to the elements of the crime but that the charge could have been misinterpreted as permitting a majority vote as to the amount.

Nothing in the jury instructions suggested that the jury should decide anything, whether labeled an "element" or an "additional finding," by less than unanimous vote. The jurors indicated their respect for the unanimity requirement when they declared themselves deadlocked on the theft charge. It is highly unlikely that, when it came time to decide on the amount of benefit derived, the jury understood its function differently.

Defendant cites State v. Damiano, 322 N.J. Super. 22 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000), in which we concluded that the model jury charge was not specific enough to assist the jurors in dealing with the complex nature of the case. Damiano is distinguishable for two reasons. First, it did not involve the need for a unanimity instruction. Second, the complexity of the case far surpassed this one, and the failure of the instructions was vastly greater. As we will discuss later in this opinion, the case required the jury's deliberations on forty-four counts, involving several different financial transactions and breach by the defendant of a number of different alleged obligations. Despite the factual complexity, the trial court in Damiano "did not attempt to adapt [the model charge] to the facts of the case." Id. at 50. Here, in contrast, the facts were relatively simple and involved only one form of unlawful conduct.

The trial court's instructions to the jury were not misleading or confusing, and therefore, not plain error in omitting a specific instruction on jury unanimity on the monetary amount of the benefit to defendant.

B.

Defendant argues next that the polling of the jury conducted after the verdict was read was "insufficient to protect his right to a unanimous verdict."

The purpose of the poll in a criminal case is to ensure that the jury's verdict is unanimous, that each individual juror agrees with the verdict as announced in the courtroom. If one or more jurors do not agree, the jury may be instructed to continue deliberations. R. 1:8-10.

The polling should ascertain the concurrence of each individual juror in the verdict, rather than merely the juror's agreement that the verdict reflected the jury vote during deliberations. Ragusa v. Lau, 119 N.J. 276, 281 (1990). Polling is sufficient if it asks a juror to answer simply "yes" or "no," or "I do," to indicate agreement with the verdict as announced in open court. Id. at 282; State v. Smith, 27 N.J. 433, 456-57 (1958); State v. Huff, 14 N.J. 240, 255 (1954). Questioning of jurors that goes further than that necessary to determine agreement risks trampling on the sensitive area of juror deliberations, which is strongly disfavored. See Ragusa, supra, 119 N.J. at 281-82.

Defendant relies on State v. Milton, 178 N.J. 421 (2004), in support of his argument that the polling in this case was inadequate. But that case dealt with whether a juror's hesitant answer to the polling question raised doubts about unanimity of the verdict, not the sufficiency of the polling method itself. Id. at 438-39. Defendant concedes that the polling in this case did not indicate lack of unanimity.

Here, the foreperson announced the jury's verdict of guilty, and also the jury's answers to the additional questions, including that the benefit derived by defendant exceeded $75,000. The court then asked the jurors: "If the verdict as reported is your verdict, please respond yes. If it is not your verdict, please respond no." All twelve jurors, including Juror #13, responded "yes." This was a sufficient method for polling. There was no plain error in failing to ask additional questions of individual jurors.

C.

Defendant's next argument is that Juror #13's letter, along with her subsequent testimony, indicated that the jury in fact was not unanimous as to the amount of the benefit defendant derived from the offense.

Our courts have long recognized a privilege against disclosure of a jury's deliberations, secrecy that ensures free communication and independence in the jury room. State v. Athorn, 46 N.J. 247, 250-51, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966); State v. LaFera, 42 N.J. 97, 106 (1964); see also State v. Harris, 181 N.J. 391, 509-10 (2004) (the privilege does not violate constitutional protections), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). To protect the confidentiality of jury deliberations, our rules of procedure prohibit the parties and any attorney from interviewing jurors, "[e]xcept by leave of court granted on good cause." R. 1:16-1. "More than a mere possibility of a tainted verdict must exist to satisfy the good cause requirement." State v. Young, 181 N.J. Super. 463, 469 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982); accord State v. LaRocca, 81 N.J. Super. 40, 44-45 (App. Div. 1963).

Three reasons support this strong policy against overturning jury verdicts based on the details of deliberations. First, "disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions." Athorn, supra, 46 N.J. at 250. Second, the contrary policy would be tantamount to "an open invitation . . . to any disgruntled juror who might choose to destroy a verdict to which he had previously assented." Ibid. Third, the general refusal to subject jurors to interrogation over their reasons for joining the verdict seeks to foster open, honest, and vigorous deliberations. State v. Difrisco, 174 N.J. 195, 241 (2002).

In LaFera, supra, 42 N.J. at 106, Chief Justice Weintraub stated:

A jury deliberates in secrecy to encourage each juror to state his thoughts, good and bad, so that they may be talked out. "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world."

 

[quoting Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1932).]

 

Generally speaking, the courts have recognized two exceptions to the rule that evidence from jury deliberations will not warrant a new trial. First, if it appears that racial or religious bigotry infected deliberations, a new trial is warranted. State v. Koedatich, 112 N.J. 225, 288 (1988); Athorn, supra, 46 N.J. at 252. Second, a new trial may be granted "when a juror informs or misinforms his or her colleagues in the jury room about the facts of the case based on his personal knowledge of facts not in evidence." Koedatich, supra, 112 N.J. at 288; Athorn, supra, 46 N.J. at 251-52.

"[C]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." Koedatich, supra, 112 N.J. at 288 (quoting Athorn, supra, 46 N.J. at 250). The strictness with which this rule is applied is demonstrated by the facts of Athorn. There, the juror asserted several improprieties. He stated that one juror referenced a newspaper article he had read to convince the other jurors of his view, that other jurors harassed him when he refused to vote guilty, that he was confused by the trial judge's instructions, and that he was tricked into voting guilty. Athorn, supra, 46 N.J. at 249-50. The Supreme Court reversed the trial court's order calling the jurors back for questioning, concluding that "even if [the juror's allegations] were to be substantiated," there would not be sufficient basis to overturn the verdict. Id. at 250. The Court reasoned that the case did not fall into one of the abovementioned exceptions, and thus offered "no reason for departing from the general rule" against inquiring about the content of jury deliberations. Id. at 252. Additionally, there was no evidence that the repudiating juror's will was overborne by improper actions on the part of the rest of the jury. Id. at 253.

In this case, the trial court was ultimately correct in concluding that the jurors should not have been called back for an evidentiary hearing after the court's initial examination of Juror #13. The juror's letter and testimony were rambling and difficult to make sense of at times. She said she did not agree to the amount of $75,000 or more. She mentioned $40,000 in her letter as the amount defendant may have "spent," but she also indicated an intent to attribute a benefit of "500-1000" to him. During her testimony, she said: "I was leaning more towards the 25,000." Confusingly, the juror also said she thought she was voting for "50 to 75,000." As the trial judge stated at a sidebar conference, Juror #13's inconsistency cast doubt on her account.

The juror mentioned the several figures we have quoted without reason or explanation. Her sympathy for defendant and his family clearly motivated her objective attempting to manipulate the potential sentence he might receive rather than to reach a factual finding of the amount misapplied based on the evidence presented at the trial.

This was not a case where the amount of the misappro-priation was a close question, or indeed, a truly disputed issue. Defendant confessed to misapplying 155 checks to his own use, and the total of those checks was $292,572. Even the evidence presented in defense of the theft charge proved that the amount of the misapplication of league funds exceeded the $75,000 threshold for second-degree grading of the offense. Defendant returned at least $105,000 by June 2004, but his return of the money did not affect whether he had misapplied those funds in the first place by using the money for the benefit of his personal business. And the testimony of defendant's accounting expert had no relevance to the factual determination of how much he had misapplied and benefitted.

Juror #13 also lacked a coherent explanation for why she agreed with the verdict when the jury was polled, and why she did not speak up about her alleged belief that the jury would return to the jury room for further deliberations on the amount of the benefit. She was, in fact, a "disgruntled juror who might choose to destroy a verdict to which [s]he had previously assented." Athorn, supra, 46 N.J. at 250.

The post-trial inquiry of jurors inappropriately delved into the nature and content of jury deliberations and not the potential for any external influences or improper biases that may have resulted in the guilty verdict. The fact remains that Juror #13 clearly assented to the verdict when she was polled in open court. There was also no evidence that her will was overborne. To the contrary, she stood her ground on the theft charge with one of the other jurors, resulting in the jury deadlock on that count.

"[D]efendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983) (citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558, 51 L. Ed. 879, 881 (1907)). Defendant is not entitled to a juror who seeks to disregard the evidence for the purpose of controlling the potential sentence after the case is concluded and the jury has announced its verdict.

Juror #13's claims did not warrant a new trial.

 

D.

Defendant's final argument is that the State failed to prove he was acting as a fiduciary, which was necessary to sustain his conviction under N.J.S.A. 2C:21-15. He frames this argument as the verdict being against the weight of the evidence, see R. 2:10-1, 4:49-1, but defendant did not make a motion for a new trial on the ground that the State failed to prove he was a fiduciary. Typically, this omission would bar defendant from making the argument for the first time on appeal. R. 2:10-1. We will nevertheless consider defendant's argument in the interest of justice, see State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993), and as a matter of statutory interpretation subject to a plenary standard of review, see State v. J.D., 211 N.J. 344, 354 (2012).

Defendant argues that N.J.S.A. 2C:21-15 lists fiduciaries that are unlike his position as a volunteer treasurer of a not-for-profit organization. The statute provides examples of fiduciaries "trustee, guardian, executor, administrator, receiver" but it also includes: "any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary." N.J.S.A. 2C:21-15. Furthermore, N.J.S.A. 2C:20-1(b), a definitional statute applicable to chapters 20 and 21 of the Criminal Code, provides a detailed list of titles and functions as meaning "fiduciary," and the list includes: "agent or officer of a corporation, public or private . . . or other person acting in a similar capacity." These statutory definitions are broad enough to include defendant's position as a volunteer treasurer of a not-for-profit organization.

Under N.J.S.A. 2C:21-15, defendant was a "person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary." Under N.J.S.A. 2C:20-1(b), he was a "person acting in a similar capacity" as an "agent or officer of a corporation, public or private." Although the league is not a corporation, defendant's position as treasurer was "similar" to that held by an officer or agent of a privately-held corporation or partnership.

Defendant cites Damiano, supra, 322 N.J. Super. 22, in support of his argument that he was not a fiduciary for the purposes of the statute. In Damiano, the defendant, a prospective purchaser of a car dealership, entered into an agreement by which he would manage the dealership and take over all the financial benefits and obligations of ownership, with actual ownership to come later. Id. at 30. The dealership was in dire financial straits, and the defendant engaged in several acts of financial impropriety. Ibid. Relevant for our purposes, the defendant accepted trade-in cars from customers but failed to use the customers' money to pay off the liens on the trade-ins, id. at 32; he accepted money from customers to purchase an extended warranty but never purchased the warranties, keeping the money for himself, id. at 33-34; and he sold cars he had obtained from the manufacturer on credit while never paying the manufacturer back for the vehicles, id. at 34. For each of these transactions, he was charged with a violation of N.J.S.A. 2C:21-15. We concluded that the defendant was "not a fiduciary in the usual meaning of the term he was not a trustee, guardian, executor, administrator, or similar functionary." Id. at 43.

Unlike the defendant in Damiano, defendant in this case had a relationship with the league members that could be described as "classically fiduciar[y]." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:21-15 (2012). He was in charge of their money, and he had a "duty to remit and apply funds in accordance with the conditions of the trust imposed upon him." State v. Modell, 260 N.J. Super. 227, 251 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993); see also Black's Law Dictionary 640 (7th Ed. 1999) (defining "fiduciary relationship" as occurring when "one person is under a duty to act for the benefit of the other on matters within the scope of the relationship").

The evidence established that defendant was entrusted with the funds of the hockey league, which in turn, was responsible for managing the funds paid to it by the teams or individual players or collected on their behalf through gate receipts. He was a fiduciary within the meaning of that term in N.J.S.A. 2C:21-15.

Affirmed.

1 The statute, N.J.S.A. 2C:21-15, which we quote later in this opinion, post at 14, designates the grading of the crime based on the amount of "the benefit derived" from a violation. The sentencing provisions of New Jersey's Code of Criminal Justice, however, are complex and contain several potentially applicable provisions that might affect the sentence a court ultimately imposes on a particular defendant, or the term of imprisonment a defendant actually serves. Jurors are seldom informed about the sentencing potential for a defendant because the determination of an appropriate sentence is too complex a matter and also is generally not relevant in performing the jury's function of determining whether defendant is guilty or not guilty of the offenses charged. As the events in this case bear out, Juror #13 was mistaken in attempting to predict defendant's punishment simply on the basis of the amount of misappropriation involved.

2 The reason that the juror and one other juror declined to convict defendant on the theft charge under N.J.S.A. 2C:20-3(a) was that they "did not see Mr. Stern as 'intending' to permanently 'deprive'" the league of the money he took.

3 At the sentencing hearing in May 2011, the court orally ordered defendant to pay as restitution the balance still due pursuant to a civil settlement he reached with the hockey league in 2009. The amount of the civil settlement was $73,000, in addition to the amounts he had previously reimbursed the league. Counsel for the league represented at the time of sentencing that defendant still owed a balance of $34,500. The judgment of conviction does not state an amount defendant must pay as restitution but does include a statement that defendant must make payments as set forth in the civil settlement.

4 Defense counsel is directed to Rule 2:6-2(a)(1) and its mandatory provision that the table of contents of appellant's brief include a parenthetical indication if an argument point was not presented in the trial court. Counsel for the State is reminded of Rules 2:6-7 (length of briefs) and 2:6-11(a) (time for service of briefs). Although the State made appropriate motions and obtained this court's permission for extensions of time and an overlength brief, we, as the merits panel, can discern no reason a more-timely and more-concise brief could not have been filed.