STATE OF NEW JERSEY v. RONALD SWALLOW

NOT FOR PUBLICATION WITHOUT THE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.

RONALD SWALLOW,

Defendant-Appellant.

______________________________

July 22, 2014

Submitted January 29, 2014 - Decided

Before Judges Sapp-Peterson, Lihotz, and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-01-0093.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted of theft by deception, N.J.S.A. 2C:20-4. He was sentenced to probation for two years and ordered to pay $30,000 in restitution. Defendant challenges his conviction and the appropriateness of the sentence he received. We affirm the conviction and sentence imposed, but remand for a hearing on his ability to pay the restitution ordered.

I.

The following facts were adduced at the bench trial. In early September 2010, the victim, Emily Broslawski, a ninety-two-year-old woman, received several telephone calls informing her she won the Publishers Clearing House lottery in the amount of $500,000. She testified she spoke to a female and, later, a male caller. The callers convinced her to send them $30,000 in order to secure her winnings.

She was told that the caller's nephew would arrive by limousine to escort her to her bank. On September 7, 2010, defendant arrived in a limousine and escorted the victim to the bank. He told the victim to tell bank personnel that he was her brother. At the bank, she authorized a wire transfer of $30,000 from her savings account to defendant's bank account and closed her bank account. Afterwards, defendant took the victim to a restaurant for coffee and then took her back home. She did not receive the purported lottery winnings nor did she recover her $30,000.

When asked why she gave the money to defendant and the callers, Broslawski initially indicated she believed poor people in other countries needed her money. She later stated the female caller made her nervous and frightened because she threatened to "grab" her and take her to a house in Pennsylvania if she did not give up the money. During her testimony, Broslawski kept asking defendant, who was seated in the courtroom, how his aunt was doing. She correctly identified Swallow in a photograph of herself and defendant taken at the bank, although she wrongly indicated the photo was taken while they were at the restaurant. She also indicated Swallow had visited her home on more than one occasion to collect money, but she later stated that he came only once.

Peter Abarba was the assistant branch manager on duty at Provident Bank in Bloomfield Center on September 7, 2010. He testified defendant accompanied Broslawski to the bank that day and she introduced him as her brother. Broslawski requested the transfer of $30,000 from her savings account to defendant's bank account. When defendant stepped away from his desk, Abarba asked Mrs. Broslawski if she was comfortable with the transaction, and she indicated that she was fine with it. She was calm and did not appear frazzled. He explained that it is the bank's policy not to question the transfer of funds so long as the customer has adequate funds to cover the transaction and has provided a valid recipient account, routing number, and address to the bank. Since Broslawski was the sole authorized user of her account, Abarba explained he processed the transaction using the bank account information she provided.

When the State completed its case in chief and rested, defendant moved for a judgment of acquittal. The judge denied defendant's motion, finding that although there was "barely a scintilla" of evidence, when viewed in the light most favorable to the State, "the trier of fact could reasonably conclude that the State has proved its case beyond a reasonable doubt."

Defendant testified on his own behalf. He described himself as a self-employed scientist from Macungie, Pennsylvania. He met Broslawski through an acquaintance, a Jamaican man named Peterson.1 He explained that for about two years prior to meeting Broslawski, he had given Peterson over $20,000 to secure a "lottery sequence." He eventually stopped giving Peterson money because his lottery money "never seemed to come through," but rather, he "always owed more."

On the evening before he took Mrs. Broslawski to the bank, Peterson called him and asked him to go to Broslawski's home to escort her to the bank where funds would be transferred into his bank account. Peterson instructed defendant to then wire the money to Peterson in Florida two days after it was deposited in his bank account. Peterson promised to pay defendant $5000 for his services. He agreed to go along with Peterson's request as a way to recoup some of the money he had lost to Peterson.

The next morning, he traveled from Pennsylvania to Broslawski's home. He intended to rent a cab but "ended up with a limousine." He picked up Broslawski, whom he never previously met, and together they went to her bank, where she transferred $30,000 to his bank account. He testified he did not know anything about Broslawski's "lottery group" and had no idea why she was sending Peterson money.

According to defendant, a couple of days after the money transfer, he received a call from an FBI agent, who identified himself as Larry Bell, and a woman he believed to be Broslawski. He was convinced Bell was with the FBI because, inexplicably, Bell knew he had called Africa earlier that day. The callers demanded the return of Broslawski's money. Bell instructed him to wire the money to someone named Amanda Jackson in Arizona and he did so.

Defendant's bank statement, which was admitted into evidence, shows that the money was wired out of his bank account on September 8, 2010, one day after it was transferred into his account. Defendant denied he intended to defraud Broslawski and claimed he thought he was returning the money to her when he forwarded the funds to Arizona.

Upon completion of his testimony, defendant renewed his motion for a judgment of acquittal, which the court once again denied. The court found defendant guilty, crediting the State's proofs. In its factual findings, the court found that defendant's actions were purposeful and intended, along with others, to further a scheme to deprive Broslawski of her money through deceptive means. The court stated:

I'm satisfied that [defendant] acted with purpose, that he did his part, along with others, but he did his part in the extracting of thousands and thousands of dollars from Miss Broslawski's account on the basis of deception and impression that he and others created and reinforced and upon which she relied, and part of that reliance is, perhaps, the result of age, but that's the victim they chose. Perhaps the result of isolation, but that's the victim they chose.

At sentencing, the court placed defendant on probation for two years, assessed a variety of fines, and ordered to him to make restitution in the amount of $30,000. Regarding his ability to pay, defendant requested more time, as he was "right now under social security seeking funds for my corporation." He later indicated he intended to obtain the money either from his investors and other "fund seeking," or from his social security payments. Defendant then proposed to pay $25 per month, which the judge found unreasonable given Mrs. Broslawski's age. Ultimately, the court ordered him to pay $300 per month "towards his" $30,000 restitution obligation.

On appeal defendant raises the following points for our consideration:

POINT I

DEFENDANT'S CONVICTION MUST BE VACATED BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO PROVE DEFENDANT COMMITTED THEFT BY DECEPTION BEYOND A REASONABLE DOUBT. ALTERNATIVELY, BECAUSE THE JUDGE FAILED TO FIND DEFENDANT GUILTY BEYOND A REASONABLE DOUBT, THE CONVICTION MUST BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL.

A. BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD COMMITTED THEFT BY DECEPTION, THE TRIAL COURT SHOULD HAVE GRANTED MR. SWALLOW'S MOTION FOR A JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, FOUND HIM NOT GUILTY.

B. BECAUSE THE TRIAL JUDGE FAILED TO FIND THE DEFENDANT GUILTY OF THEFT BY DECEPTION "BEYOND A REASONABLE DOUBT," DEFENDANT'S CONVICTION MUST BE VACATED AND REMANDED FOR A NEW TRIAL.

POINT II

THE RESTITUTION ORDER MUST BE VACATED OR, IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING ON RESTITUTION INCLUDING AN ABILITY-TO-PAY HEARING.

A. BECAUSE THE JUDGE FOUND DEFENDANT GUILTY OF THEFT BY DECEPTION AS A DISORDERLY PERSON'S OFFENSE, WHICH CAPS THE THEFT AT $200, THE JUDGE ERRED IN IMPOSING RESTITUTION IN AN AMOUNT GREATER THAN THE OFFENSE LIMIT.

B. THE TRIAL COURT'S ORDER MUST ALSO BE VACATED BECAUSE ORDERING A DEFENDANT TO PAY RESTITUTION OUT OF FUNDS DERIVED WHOLLY FROM SOCIAL SECURITY BENEFITS VIOLATED THE FEDERAL ANTI-ALIENATION PROVISIONS CONCERNING SOCIAL SECURITY BENEFITS (U.S. CONST. ART. IV, CL. 2.) (NOT RAISED BELOW).

C. IN THE ALTERNATIVE, BECAUSE THE TRIAL COURT ERRED WHEN IT ORDERED RESTITUTION WITHOUT CONSIDERING DEFENDANT'S PRESENT AND FUTURE ABILITY- TO-PAY, THIS MATTER MUST BE REMANDED FOR RESENTENCING ON RESTITUTION AND FOR AN ABILITY-TO-PAY HEARING.

D. THE DISPARITY BETWEEN THE SENTENCE IMPOSED ON THE DEFENDANT AND HIS CO- DEFENDANTS UNDERMINES THE NOTION OF FAIRNESS AND UNIFORMITY REQUIRING REMAND FOR RE-SENTENCING.

When defendant made his initial motion for a judgment of acquittal at the end of the State's case, the court characterized the quality of evidence before it as requiring a "strobe light" in order to view the evidence in the light most favorable to defendant. The court articulated the standard of review for such a motion, noting that it required the court to draw all reasonable inferences in favor of the State and if there is a "scintilla" of evidence it should deny the motion. In addressing that standard, the court stated it was doing its best to "give [the State] the benefit of those inferences. It is not a question of the value or worth of the testimony, at this point, or the evidence, but simply whether there's a scintilla and I must say there is barely a scintilla. I'll deny the motion." After the court found defendant guilty, defendant moved for a judgment notwithstanding the verdict, which the court denied:

The State's proofs are very slim. The State even began with a misimpression. The State tried to present to this [c]ourt that there was a deception in what Miss Broslawski said to the bank when the bank wasn't the victim of the theft. Then the State shifted gears, but the evidence is the evidence, and it appears to the [c]ourt that however slim the evidence is, this defendant was the recipient of monies from Miss Broslawski's account into his account . . . .

. . . .

I find the defense position to be preposterous and that doesn't wear away consideration of the evidence. That position remains preposterous and I reject it. I find that the State's proofs are the credible evidence and they overwhelm the preposterous position taken by the defense.

It is these findings upon which defendant has based his Point I contention that the proofs were insufficient to meet the standard of proof beyond a reasonable doubt. We disagree.

A motion for judgment of acquittal of a charged offense shall be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The court must view the State's evidence in its entirety, give the State the benefit of all favorable testimony and all favorable inferences which reasonably could be drawn from the evidence, and determine whether a reasonable trier of fact could find the defendant guilty of the charge beyond a reasonable doubt. State v. Nero, 195 N.J. 397, 410 n.3 (2008). Where the motion is made after both sides have presented all of their evidence, the trial court must confine its analysis to the sufficiency of the State's evidence alone in determining whether the State has met its burden as to all elements of the charged crime. State v. Samuels, 189 N.J. 236, 245 (2007); Pressler Verniero, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2014).

Appellate courts are similarly constrained to solely consider the State's proofs upon review of a motion for judgment of acquittal based on insufficiency of the evidence pursuant to Rule 3:18-1. Pressler & Verniero, supra, comment 3.2.6. on R. 2:10-2; see State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd o.g. 177 N.J. 540 (2003). In doing so, the appellate court is guided by Rule 2:10-2, under which trial error may be ignored "unless it is of such a nature as to have been capable of producing an unjust result."

Guided by these principles, the court's denial of defendant's motion for acquittal was amply supported by the facts in the record. Defendant presented himself as the individual who called Broslawski. Consistent with the information the caller gave to Broslawski, defendant arrived in a limousine and escorted her to the bank, instructing the victim, in advance of their entry into the bank, to tell bank personnel he was her brother. Once inside, the victim transferred $30,000 to defendant's account. Presented with the foregoing facts, a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. Therefore, defendant's motion was properly denied.

A person commits theft by deception "if he purposely obtains property of another by deception." N.J.S.A. 2C:20-4. To be guilty of theft by deception, a person must "obtain" property of another by "deception." Ibid. To "obtain" property means "to bring about a transfer or purported transfer of a legal interest in the property." N.J.S.A. 2C:20-1(f). A person who "deceives" purposely "[c]reates or reinforces a false impression, including false impressions as to law, . . . intention or other state of mind . . . ." N.J.S.A. 2C:20-4(a).

There is no question that the money at issue belonged to Broslawski. Defendant concedes he received the money by facilitating the wire transfer. He also admitted to forwarding the money to yet another account, although he claims he assumed he was returning the money to Broslawski by doing so. He, however, denies that he purposefully deceived Broslawski in any way to convince her to effectuate the transfer or that she did so in reliance upon any false impression he created or reinforced. The trial court did not credit this testimony. Even if we were to credit defendant's argument he did nothing to convince Broslawski to transfer her money to his account, his actions were entirely in line with the narrative constructed by the people who presented the lottery scheme to Broslawski over the phone. He presented himself to Broslawski as the female caller's nephew, pretended to be Broslawski's brother to avert suspicion at the bank and provided his bank account information to facilitate the transfer. Furthermore, as the trial judge found, defendant admitted that he had lost money to Peterson in the past and that he hoped to recover some of his losses by participating in this scheme. The evidence sufficiently supports defendant's conviction.

Review of a judge's decision in a criminal trial is limited to "determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[,]" given the burden of proof, which is proof beyond a reasonable doubt. State v. Johnson, 42 N.J. 146, 161 (1964); see also N.J.S.A. 2C:1-13(a). Our scope of review is limited, and we are required to accord substantial deference to the trial judge's findings of fact in a non-jury trial. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We defer to the credibility determination made by the judge who hears the testimony. State v. Locurto, 157 N.J. 463, 474 (1999). The trial judge's legal interpretation of the statute, however, and "the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). "The only question before [this court] is whether the record contains sufficient evidence to support the judge's conclusion." State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996) (citing Johnson, supra, 42 N.J. at 161).

Applying these principles in this case, it is clear that the trial court's determination is amply supported by the record. The evidence presented and considered by the court in its factual findings, when applied to the law, support the judge's conclusion that defendant committed theft by deception.

II.

Despite admitting he received $30,000 from Broslawski, defendant now argues on appeal that the trial judge erred in ordering restitution in that amount because he was convicted of theft by deception as a disorderly persons offense, specifically a theft of property valued under $200. Defendant's position is wholly without merit.

On appeal, the trial court's imposition of restitution is reviewed under an abuse of discretion standard. State v. Rhoda, 206 N.J. Super. 584, 593-94 (App. Div.), certif. denied, 105 N.J. 524 (1986). Restitution, unlike a fine, which is intended to punish, "serves to rehabilitate the wrongdoer and to compensate the victim of the wrongdoer's conduct." State v. Newman, 132 N.J. 159, 169 (1993); see also N.J.S.A. 2C:43-3 ("A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both[.]"); State v. Harris, 70 N.J. 586, 593 (1976)(distinguishing restitution from fine). In imposing restitution, "the court must balance the goals of victim-compensation and offender rehabilitation, and thoughtfully establish a fair and reasonable amount of restitution and method of payment." Newman, supra, 132 N.J. at 173.

Defendant does not dispute the loss sustained by the victim, but merely claims restitution is capped at $200 because he was convicted of a disorderly persons' offense. This contention is without merit. See State v. Kennedy, 152 N.J. 413, 424 (1998) (recognizing that although defendant was convicted in municipal court of a disorderly persons offense, the court was not limited in the amount of restitution it could impose); see Cf. State v. Paone, 290 N.J. Super. 494, 497 (App. Div. 1996) (upholding restitution award ordered by municipal court in excess of $102,000 conditioned upon court conducting hearing to determine the defendant's ability to pay).

Next, defendant, who was seventy-two years old at the time of trial and admittedly self-employed as a scientist, claims that his only source of income was the social security benefits he was receiving. Defendant asserts the trial court abused its discretion when it ordered him to make restitution payments from his social security benefits, as the restitution order offends the anti-alienation provision of the Social Security Act, 42 U.S.C.A. 407(a), which states:

The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

We need not address this issue because, as the State points out in its brief and defendant does not dispute, there is no pending order directing that restitution be paid out of defendant's social security funds and, more importantly, defendant implied to the court he had alternate sources of income, "investor and other monies that [he] will be finding through fund seeking." See State v. Pulasty, 259 N.J. Super. 285 (1992) (declining to rule on the anti-alienation provisions of the Social Security Act, 42 U.S.C.A. 407(a), where an alternate source of funds to make restitution were available), aff'd 136 N.J. 356, cert. denied, 513 U.S. 1017, 115 S. Ct. 579, 130 L. Ed. 2d 494 (1994).

We do, however, remand for a hearing on defendant's ability to pay. Such a hearing is unnecessary where the amount of restitution ordered and the ability to pay may be gleaned from the record. In the absence of evidence of the amount and ability to pay, "due process requires a hearing on both the ability to pay and the time period for making restitution. State v. McLaughlin, 310 N.J. Super. 242, 264 (App. Div.) (internal quotation omitted), certif. denied, 156 N.J. 381 (1998). Here, the amount of restitution is not in dispute. It is unclear, however, whether defendant, who was seventy-two years old, has the ability to pay. Although he made some reference to investors and a corporation, his ability to pay remains uncertain.

N.J.S.A. 2C:44 2(c)(2) sets forth the criteria for imposing fines and restitutions and provides in relevant part:

In 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.

A sentencing judge must make these findings and state reasons on the record before imposing a fine or restitution. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994). Because the judge did not make the requisite findings before requiring restitution, we vacate the order for restitution and remand for a hearing as to defendant's ability to make restitution.

III.

Finally, defendant contends the sentence imposed was not justified because it is much higher than that of his co-defendants and therefore, this case should be remanded for resentencing. He posits that at the very least, they should be ordered to share in the obligation of paying the $30,000 restitution. We disagree.

We initially observe that the superseding indictment named only defendant. Nonetheless, his two co-defendants in the original indictment entered into negotiated plea agreements pursuant to which they pled guilty to third-degree theft by deception. Each co-defendant's sentence included a custodial term in excess of one year. Defendant received a probationary sentence and an order directing that he make restitution. We therefore conclude his contention that the sentence imposed was unjustified is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

We vacate the order of restitution and remand for a summary hearing on defendant's ability to pay the $30,000 restitution award. We affirm defendant's conviction and sentence in all other respects. We do not retain jurisdiction.

1 The record does not provide Peterson's first name.