STATE OF NEW JERSEY v. J.B. SCHMIDT

NOT FOR PUBLICATION WITHOUT THE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.

J.B. SCHMIDT,

Defendant-Appellant.

_____________________________________

February 8, 2016

Submitted September 28, 2015 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-06-1012.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant J.B. Schmidt, the executrix of her second cousin's estate, guilty of misapplication of entrusted property and theft for taking money from the estate, and a judge sentenced her to three years of probation on each count. Defendant raises one argument on appeal

POINT ONE

BECAUSE [THE] STATE FAILED TO PROVE THAT DEFENDANT DID NOT ACT UNDER A CLAIM OF RIGHT AND THEREFORE DID NOT PROVE THAT SHE POSSESSED THE REQUISITE INTENT TO MISAPPLY PROPERTY OR TO COMMIT THEFT, HER CONVICTIONS MUST BE REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE.

We reject her argument and affirm the judgment of conviction.

A Middlesex County Grand Jury charged defendant in a superseding indictment with six third-degree crimes: misapplication of entrusted property, N.J.S.A. 2C:21-15 (count one); theft, N.J.S.A. 2C:20-3 (count two); theft by failure to make proper disposition, N.J.S.A. 2C:20-9 (count three); theft, N.J.S.A. 2C:20-3 and -2(e) & (h) (count four); theft by deception, N.J.S.A. 2C:20-4 (count 5); and theft of property delivered by mistake, N.J.S.A. 2C:20-6 (count six). Following the State's presentation of proofs at trial, the judge dismissed counts five and six on defendant's motion with the State's consent. The jury convicted defendant on the first two counts and acquitted her of the fourth count.1 The trial judge sentenced defendant to concurrent probationary terms of three years, ordered her to undergo a mental health evaluation, and imposed appropriate penalties and assessments.

The State's trial proofs were essentially undisputed. In March 2006, Mary Gaydosh executed a will in which she named defendant, her second cousin, as the executrix, and her niece, Julie Kopko, as the sole beneficiary. When Ms. Gaydosh died on October 14, 2006, she had liquid assets totaling approximately $82,000, a $10,000 life insurance policy, and a home. She had no mortgage, no car payments, no credit cards, and no substantial debt.

Defendant opened an estate account in November 2006 and a second estate account in February 2007. She was removed as executrix in December 2007. During the time she was executrix of Ms. Gaydosh's estate, defendant wrote checks totaling approximately $35,000 to "cash" or to pay for personal expenses. The personal expenses included the trial and appeal of a traffic violation, the purchase of a niche for her ashes upon her death and cremation, and construction services for a house she owned. The checks payable to cash mostly were noted to be for "Estate Miscellaneous" or "Estate Expenses." Defendant also deposited four pension checks payable to Ms. Gaydosh and mailed to her after she died.

Defendant gave a statement to Middlesex County Prosecutor's investigators before she was indicted, and testified at trial. She admitted that she took the money represented by the checks payable to cash, and she also admitted using estate checks to pay for personal expenses, including legal services for her traffic offense, though she initially told the investigators the corresponding checks were for legal services for the estate.

The first provision in the will stated: "The very first order commandment from the will for Mary Gaydosh, I order and direct my Executor hereinafter named to pay all my just debts." In her defense, defendant explained that she had spoken to Mary Gaydosh about the "just debts"

[Mary Gaydosh] knew that her father, John Gaydosh, Senior, borrowed money from my grandmother back in 1924 with which he bought that property . . . in Perth Amboy [where Mary Gaydosh lived until she died].

Now, she said,

I know he never paid it back. He never paid your grandmother back. Now, I'm the last one on this end and you're the last one on your end alive, so I'd like to have you take care of that. You'll be handling the money as Executor, so you take care of it as soon as you can.

According to defendant, she and Mary Gaydosh both intended the "just debts" as "this loan that was outstanding for [eighty-two] years."

When questioned about why she noted "Estate" miscellaneous or expenses on the checks made to cash, defendant testified that at Mary Gaydosh's wake she overheard Julie Kopko's brother, who had been executor of Mary Gaydosh's prior will, say he intended to contest the will. Later, she received a letter from a lawyer saying the will would be contested. So she decided to repay herself the old family loan in increments to see if the will would be contested. During her trial testimony, she acknowledged that in hindsight, it was a mistake to repay the old family loan in increments rather than in "one fell swoop." Asked why she didn't write "repayment of loan" on the checks rather than "Estate expense," she replied, "I didn't use the right terminology."

Concerning Mary Gaydosh's pension checks, defendant testified that after receiving them she made several telephone calls to "Trenton," to the agency that handled State pensions, several times. She was told by a person whose name she could not recall "essentially, that they would take care of it, [she] should deposit the checks[.]"

Defendant reiterated that at all times when she acted as the estate's executrix, she believed she was carrying out Mary Gaydosh's wishes.

In her single point on appeal, defendant contends the verdict was against the weight of the evidence. She argues her convictions should be reversed because she acted under an honest claim of right to the property and did not know her conduct was unlawful. She asserts the State failed to disprove her defense.

Defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R.2:10-1. Defendant did not make a motion for a new trial on this ground in the trial court.

Moreover, there was ample evidence from which the jury could have concluded defendant's testimony was incredible. Defendant told investigators money she had used to pay an attorney to defend a traffic offense was expended for legal services for the estate; the checks she made payable to cash she noted as being for estate expenses; and she offered no plausible explanation for making the checks payable to cash and noting they were for estate expenses, rather than making them out to herself and noting they were made in repayment of a just debt. Considering those circumstances, we conclude there was no "manifest denial or miscarriage of justice." Dolson v. Anastasia, 55 N.J.2, 7 (1969) (citation omitted).

Affirmed.

1 Counts two and three involved a single course of conduct, so the jury was instructed on the verdict sheet not to consider count three if it found defendant guilty on count two.