STATE OF NEW JERSEY v. MARIE GATTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIE GATTI, a/k/a MARIE

DONOFRIO, MARIE SPINELLI,

Defendant-Appellant.

________________________________

October 29, 2014

Submitted July 8, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-03-0341.

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

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from her conviction and sentence following a jury verdict finding her guilty of two counts of third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3), and two counts of third-degree theft by deception, N.J.S.A. 2C:20-4. Defendant raises the following arguments on appeal

POINT I

THE COURT'S DECISION ALLOWING THE STATE TO INTRODUCE, WITHOUT SANITIZATION, DEFENDANT'S PRIOR CONVICTION FOR THE VIRTUALLY IDENTICAL OFFENSE AGAINST THE SAME VICTIMS PRECLUDED DEFENDANT FROM TESTIFYING (Partly Raised Below).

POINT II

THE COURT IMPOSED AN EXCESSIVE SENTENCE ONLY AFTER RELYING ON AN INAPPLICABLE AGGRAVATING FACTOR, PLACING UNDUE WEIGHT ON DEFENDANT'S RECORD, AND FAILING TO FIND NO LESS THAN FOUR APPLICABLE MITIGATING FACTORS.

We have considered these arguments in light of the record and the applicable law, and we affirm.

Briefly, the facts are as follows. In 2010, and for some years prior thereto, defendant lived across the street from the Jones family.1 Peter Jones (Peter), a health care worker, and his wife, Rita, lived there with their two children, and they maintained a checking account at a local bank (the bank). In October 2010, Rita, a former accountant, noticed one of the checks in her book was missing, and she went to the bank to make an inquiry. A bank representative printed out a copy of the check for her, which was payable to defendant in the amount of $1,412 and purportedly signed by Peter. The check was negotiated or cashed at a TD Bank on October 12, 2010, and had defendant's driver's license number on the back.

Peter and Rita both testified that they did not give defendant a check at any time; that Peter's "signature" was a forgery; and that they never had any dealings with defendant at all.

Moreover, Lilly, the Jones' daughter, discovered that a joint checking account at another bank she maintained with her mother had been charged $920 she had not authorized. Rita contacted that bank, as well, and received a copy of a check for $920 payable to "cash" and purportedly signed by Lilly. Lilly and Rita both testified that they never gave defendant a check at any time; that Lilly's "signature" was a forgery; and that they never had any dealings with defendant at all. The check was also negotiated at a TD Bank on September 28, 2010.

A detective from the Old Bridge Police Department obtained copies of the checks from Rita and obtained surveillance films from the TD Bank on the relevant dates. He thereafter interviewed defendant who admitted that the surveillance photographs showed her negotiating the two checks. A redacted version of defendant's statement during the interview was played for the jury at defendant's trial.

Defendant had a number of prior convictions for theft-related crimes dating back to 2001, including forgery. The trial judge held that if defendant testified, sanitized versions of the crimes would be admissible for impeachment purposes. Defendant elected not to testify and the jury returned a verdict finding defendant guilty of all charges.

On October 26, 2012, the trial judge sentenced defendant to an extended term of imprisonment on the State's motion. After appropriate mergers, defendant was sentenced to eight years imprisonment, with four years to be served without parole. This appeal followed.

Turning to defendant's first point on appeal, defendant argues that the trial judge erred when he ruled that the facts underlying defendant's earlier 2009 conviction for theft predicated on her forgery of checks belonging to the same victims could be introduced by the State to rebut any claim raised by defendant that the Jones family had given her the checks. Defendant argues that this ruling chilled the exercise of her right to testify at trial.

Initially, the trial judge had ruled that the State could introduce such evidence on its own case under N.J.R.E. 404(b). However, prior to trial, the judge reversed that ruling and held the State could only introduce the unsanitized facts of defendant's 2009 conviction if the defendant offered evidence suggesting that the "victim somehow entrusted . . . defendant with the check[s]."

Defendant elected not to testify or offer evidence at trial and, thus, defendant's 2009 conviction, or, indeed, any evidence pertaining to any of defendant's prior convictions, was not introduced. Defendant did not indicate at the time of her election not to testify that she would have testified had the judge not issued his ruling pertaining to the 2009 conviction.

We disagree with defendant's argument and we hold the trial judge did not err in his ruling with respect to the 2009 conviction. "Trial court decisions concerning the admission of other-crimes evidence should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).

The admissibility of such evidence is left to the sound discretion of the trial court, as that court is in the best position to conduct the balancing required under State v. Cofield, 127 N.J. 328 (1992), due to its "intimate knowledge of the case." State v. Covell, 157 N.J. 554, 564 (1999). Therefore, a trial court's decision concerning the admission of other-crimes evidence will not be disturbed absent a finding of abuse of discretion. Ibid. Our review of a trial judge's purely legal conclusions, however, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

That said, we are mindful that since "other-crime evidence is highly inflammatory, having the unique tendency to turn a jury against the defendant, trial courts are required to make a careful and pragmatic evaluation of the evidence based on the specific context in which it is offered." State v. Hernandez, 170 N.J. 106, 119 (2001) (citation and internal quotation marks omitted). The admission of other-crime evidence is governed by N.J.R.E. 404(b), which states

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

In Cofield, the Supreme Court established a four-part test to govern the admissibility of such evidence for those purposes. The Cofield tests require that

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007) (citing Cofield, supra, 127 N.J. at 338).]

Here, defendant concedes that the crimes are similar in kind and that the evidence of the prior crimes is clear and convincing. Defendant argues, however, that such evidence was unnecessary to show that the victims were unlikely to entrust blank checks to her, in the event she were able to marshal evidence to support that contention, and that evidence of the 2009 crime would be gravely prejudicial.

We discern no abuse of discretion by the court in its ruling. This evidence would patently be relevant in rebutting a defense claim that the Joneses had entrusted checks to someone convicted a year earlier of forging their checks. Indeed, defendant told the investigating detective in the redacted portion of her statement that the checks had been given to her for yardwork undertaken by her husband. This outlandish claim would have been powerfully rebutted by defendant's conviction a year earlier of forging the Jones' checks.

The trial judge carefully addressed the Cofield criteria and his limited ruling prior to trial does not constitute error.

Next, defendant argues that the judge erred in sentencing by relying on an "inapplicable" aggravating factor and refusing to find four "relevant mitigating factors." Defendant states that the judge relied on defendant's record of eight prior indictable offenses to impose an extended term and also emphasized defendant's record to impose an eight year term with a four year period of parole ineligibility. She adds that the judge improperly found aggravating factor (11) restitution without incarceration would be perceived by defendant as the "cost of doing business," N.J.S.A. 2C:44-1a(11).

She also asserts that the judge should have employed mitigating factor (1) that defendant's conduct "neither caused nor threatened serious harm," N.J.S.A. 2C:44-1b(1); (2) that defendant did not contemplate her conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1b(2); (6) that defendant was ordered to pay restitution, N.J.S.A.2C:44-1b(6); and (4) that defendant's history of psychiatric illness tended to "excuse or justify" her conduct, N.J.S.A. 2C:44-2b(4).

Our standard of review of the trial court's sentencing determinations is limited. If a sentencing court properly identifies and balances the applicable aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). A sentence that is so imposed, consistent with the guidelines, should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 611-12 (2010) (discouraging appellate courts from "second-guessing" the sentencing assessments of trial judges that are based upon the pertinent aggravating and mitigating factors).

Applying this limited standard of review, we find no reason to disturb the sentence imposed by the trial court. The sentence does not shock the judicial conscience. The trial court adequately took into account defendant's background in imposing the custodial term and the parole disqualifier.

Defendant had, in the past, been given the benefit of probation and had violated her probation. In 2009, while on parole after receiving a sentence of five years imprisonment, defendant committed the crimes at issue here. The judge noted defendant's history of a gambling addiction and mental illness, but also determined that there was an absolute risk of reoffending. Prior probation and parole had not deterred defendant and she violated each. The judge appropriately weighed the aggravating and mitigating factors supported by the record and imposed sentence.

Affirmed.

1 We employ fictitious names for the family members out of concern for their privacy.