STATE OF NEW JERSEY v. WALLY NANCE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1493-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WALLY NANCE, a/k/a
WILLEY NANCE,

     Defendant-Appellant.
_______________________________

              Submitted November 6, 2017 - Decided February 15, 2018

              Before Judges Messano, Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              13-05-0665.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Sophie Kaiser, of counsel and
              on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Timothy P. McCann,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
    Following the denial of his motion to suppress his

statement to employees of the Department of Labor investigating

his claim for unemployment benefits, defendant Wally Nance was

convicted by a jury of one count of third-degree theft by

deception, 
N.J.S.A. 2C:20-4(a).       Defendant was sentenced to 364

days in the county jail, ninety days to be served immediately on

the weekends, with the remainder to be served at the end of his

five years' probation.   Defendant was also ordered to pay

$16,000 in restitution on a five-year payment plan.

    Defendant appeals, raising the following issues:

         POINT I.

         THE COURT DENIED DEFENDANT HIS
         CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE
         DEFENSE BY STRIKING CERTAIN TESTIMONY IN
         SUCH A WAY AS TO MAKE DEFENDANT APPEAR
         UNTRUTHFUL AND AS AN INFERIOR WITNESS; THIS
         ERROR WAS EXACERBATED BY THE JURY
         INSTRUCTIONS AND THE PROSECUTOR'S
         STATEMENTS. (Partially Raised Below).

    He adds the following points in a pro se brief:

         POINT I.

         APPELLANT'S CONFESSION WAS INADMISSIBLE
         BECAUSE IT WAS NOT VOLUNTARILY, KNOWINGLY,
         AND INTELLIGENTLY GIVEN AND VIOLATED
         APPELLANT'S FIFTH, SIXTH AND FOURTEENTH
         AMENDMENT RIGHTS UNDER THE NEW JERSEY AND
         THE UNITED STATES CONSTITUTION.




                                  2                           A-1493-15T2
           POINT II.

           THE TRIAL JUDGE'S VIOLATION OF THE RULES OF
           EVIDENCE VIOLATED THE APPELLANT'S
           CONSTITUTIONAL RIGHTS.

    Having considered defendant's arguments in light of the

facts and the applicable law, we affirm.

    The facts presented to the jury were not complicated.

Following the end of his employment by the City of Trenton after

twenty-five years, defendant applied for unemployment benefits

in January 2011.   He began receiving benefits in the second week

of June.   In the middle of July, he got a job with R.M.

Nizzardi, Inc., a plumbing contractor.     He did not, however,

advise the Department of Labor.

    The Department only learned of defendant's reemployment

when Nizzardi filed a "new hire" report in August.    Upon

receiving Nizzardi's report, the Department of Labor placed a

hold on defendant's unemployment benefits.     Defendant, however,

told a representative of the Department on the telephone that he

had not yet started work for Nizzardi, and the hold was lifted.

Defendant started reporting the wages he was earning at Nizzardi

in September 2011, and continued to do so into May 2012.

    In July 2012, another hold was placed on defendant's

account.   After learning of the hold, defendant went to the

Department of Labor and asked to speak to someone about his

                                  3                          A-1493-15T2
benefits.   Defendant met with an investigator, who initiated an

inquiry into the claim.

    The investigator asked Nizzardi for defendant's weekly

wages.   Nizzardi provided the investigator with a report of

defendant's weekly wages based on the timecards defendant

completed each week reporting his hours.   A comparison of

Nizzardi's documents to the Department's records of defendant's

reported wages made clear defendant was omitting and

underreporting his earnings.

    When defendant went again to the Department to discuss his

claim after receiving the Department's summary fact-finding

notice, he was greeted by the investigator and two supervisors.

Their meeting, in a small, windowless conference room with the

door closed, was recorded on a tape machine in the room.     The

investigators told defendant they were there to discuss what

happened and to make a determination "as to the overpayment that

is going to be coming back to the State of New Jersey."

    Defendant immediately asked if he needed a lawyer.     One of

the senior investigators replied, "Nah, you don’t need a

lawyer," but quickly added, "I mean, it's up to you.   You are

entitled to representation."   After defendant said, "nah, it's,

nah I just want to get this [over]," he proceeded to make

several incriminating statements.   Defendant acknowledged the

                                4                            A-1493-15T2
underreporting, but claimed he was unfamiliar with the reporting

requirements, got bad or incomplete advice from the local

unemployment office and was placed in a difficult financial

situation when the Department delayed almost six months before

starting his benefits.

    Defendant explained the delay in his receipt of benefits

left him "in a situation where I'm just about to lose my home ok

so whatever I needed to do, whatever I had to do, I had to do,

ok and you know and however you know you, y'all want to put it

together."   Defendant also told the investigators he was "taking

full responsibility for it and I'm saying yes, yes whatever ya

know whatever it is, it is what it is and I take full

responsibility of it."

    Following a N.J.R.E. 104 hearing, the court denied

defendant's request to suppress the statement, finding defendant

not in custody and the statement clearly voluntary.     The

statement figured prominently at trial.   The prosecutor referred

to it in his opening, played it for the jury in the course of

the State's case in chief and replayed bits of it in his

summation.   Through witnesses from Nizzardi and the Department

of Labor, the State presented proof that defendant was overpaid

$15,548 in unemployment benefits over the course of twenty-seven

weeks.

                                5                             A-1493-15T2
    Defendant testified in his own behalf.       In response to

questions by his counsel, defendant was unable to say when he

began receiving unemployment benefits or when he started work

for Nizzardi, and did not know whether he had begun receiving

his benefits by that time.   Defendant also could not say how

many hours he worked per week for Nizzardi and could only

estimate that he might have worked for the company for six or

seven months.   He claimed it was not he but his wife who called

every two weeks to report his earnings.       Defendant maintained he

did not fail to report his employment with Nizzardi or how much

he earned in wages.

    When confronted on cross-examination with the Department of

Labor's records showing the underreporting, defendant claimed

the records failed to show he "paid over $10,000 back."       The

prosecutor moved to strike, saying, "There's absolutely no

evidence of that in this case."       The court granted the motion

and told the jury it was not to consider the statement.

    A few minutes later, defendant again testified he paid back

the money.   Becoming emotional, defendant said,

         You don't see that. I paid back into it. I
         set up a payment, and I paid back into it.
         They gave me a suspension. They told me to
         pay it back. They told me even put a fine.
         And you know what I said, whatever it is,
         I'll take it, because you know what,
         whatever I need to do to protect my family,

                                  6                           A-1493-15T2
          I'm going to do it. But to tell me I'm a
          criminal, that's just wrong.

    After defendant continued into other areas he had been

repeatedly advised not to mention before the jury having to do

with a separate indictment, the judge ordered a break to permit

defendant to compose himself.    After the trial reconvened,

defendant returned again to the topic of repayment, saying, "You

asked me pay the money back.    I set up a payment plan.   I paid

the money back."     The judge responded, saying "Mr. Nance, Mr.

Nance, please.     Please lower your voice. . . . I've addressed

that. . . . And so the payment plan, it's stricken from the

record.   There is no evidence about the payment plan."    On the

last exchange in the cross, defendant testified the

investigators told him if he made payment he would not be

prosecuted, "and now I'm being prosecuted."

    After defendant rested, the State requested a curative

instruction on the issue of repayment, claiming there was no

proof defendant repaid any monies voluntarily.     The prosecutor

claimed any sums defendant repaid were either withheld from

other benefits or were court-ordered while defendant was

enrolled in the Pre-trial Intervention Program, which he could

not address with defendant on cross examination given the




                                  7                         A-1493-15T2
obvious prejudice of discussing his participation in PTI.1

Noting the several times defendant returned to the topic even

after the court struck the testimony, the prosecutor claimed the

jury "has now been left with the thought that somehow Mr. Nance

has come up with $10,000 and repaid the State of New Jersey, and

now the big bad State is going after him again for some unknown

reason."

     Defendant's counsel expressed the view that a curative

instruction was not necessary.   The judge explained he struck

the testimony regarding repayment because

           [t]heft by deception occurs when one obtains
           the property of another by creating a false
           impression. It's purposeful conduct, and
           the State has alleged that the Defendant has
           created the false impression that he was
           [un]employed at various [times]. His
           efforts to compensate at a later date does
           not really have anything to do with his
           state of mind at the time he allegedly gave
           that false impression. The Defendant's
           restitution in this matter or repayment
           commenced well after the offense, the
           alleged offense had been committed.

                In addition, his repayment was ordered
           by PTI. There was really no choice in the
           matter. Therefore, any evidence as to his

1
   Defendant was admitted into PTI and remained in the Program
for a year before voluntarily withdrawing without completing it.
The prosecutor represented the initial amount defendant was
deemed to owe to the Department of Labor was $23,970, which was
reduced subsequently by benefits withheld. The prosecutor
claimed defendant was ordered to repay the State $18,890 in PTI.
At trial, the State claimed defendant was overpaid $15,548.

                                 8                        A-1493-15T2
         restitution or repayment is not relevant to
         his state of mind or to offset any type of
         intent at the time the alleged offense was
         committed.

              Additionally, the State is entitled to
         criminally prosecute the Defendant for his
         crime whether or not he decided to pay it
         back at a later date or not. It does not
         touch upon the issues of the Court, and I
         believe it improperly focuses attention on
         the Defendant's subsequent efforts to repay
         the debt, and it's just not proper.

    Following that discussion, the judge delivered two

"curative" instructions to the jury, the first at the request of

defendant and the second at the request of the State.   They were

as follows:

              And I would like to address two matters
         concerning testimony you may have heard in
         this case. During this case, you may have
         heard testimony from Department of Labor
         witnesses that the Department of Labor made
         certain determinations in this case with
         regard to fraud or penalty.

              I direct you, I further direct you,
         that you are in no way to consider in your
         deliberations any determination in this case
         by the Department of Labor with regard to
         fraud or the penalty. In addition, the
         Defendant in this matter testified that he
         repaid a portion of his employment benefits
         to the State. Immediately after I provided
         — he provided such testimony, I ordered it
         stricken from the record and instructed you
         to disregard it. I would like to repeat
         that instruction. His testimony concerning
         repayment is stricken. It is not evidence
         and shall not enter into your final
         deliberations. It must be disregarded by

                               9                          A-1493-15T2
           you. This means that even though you may
           remember the testimony, you are not to use
           it in your discussions or deliberations.

    We reject defendant's argument that the court's decision to

strike his testimony regarding the repayment of benefits was

error or that it deprived him of a meaningful opportunity to

present a complete defense.   "A defendant in a criminal trial

has a Sixth Amendment right to offer any evidence that refutes

guilt or bolsters a claim of innocence."   State v. Harris, 
156 N.J. 122, 177 (1998).   The right to present a defense,

"[a]lthough fundamental, . . . is not absolute."   State v.

Jenewicz, 
193 N.J. 440, 451 (2008).   "The accused does not have

an unfettered right to offer [evidence] that is incompetent,

privileged, or otherwise inadmissible under standard rules of

evidence."   Ibid. (quoting Montana v. Egelhoff, 
518 U.S. 37, 42

(1996)).

    Defendant claims his "defense was that any underreporting

on his part was negligent, not intentional or criminal" and that

his "willing[ness] to pay the money back upon realizing his

mistakes" was relevant to prove his errors were unintentional.

We accept that conduct occurring after a charged offense may

circumstantially support an inference about a defendant's state

of mind, and that such evidence might be offered to show the

defendant's conduct was not intentional.   See State v. Williams,

                               10                         A-1493-15T2

190 N.J. 114, 125 (2007).   To the extent the proffered evidence,

limited to defendant's willingness to repay the funds, was

probative of his state of mind, however, it was cumulative of

similar statements defendant made to the investigators, which

were played for the jury.

    But the statements excluded went beyond merely expressing a

willingness to return any overpayment.   Defendant attempted to

testify, not only that he was willing to repay the money, but

that he paid back $10,000, and the State was prosecuting him

anyway.   The State argued that testimony was misleading because

defendant's repayment was not voluntary.   The State maintained

it recouped monies overpaid to defendant by withholding other

benefits due him and from payments defendant was ordered to make

as a condition of PTI.   Defendant did not dispute that assertion

at trial.   We agree that any such payments were not probative of

a "willingness" to repay if not made voluntarily.   Further,

involuntary payments do not make it more likely defendant's

conduct in obtaining the funds was negligent and not

intentional.

    We also agree the State was limited in attacking the

testimony on cross-examination because of the prejudice to

defendant in discussing his participation in PTI.   Accordingly,

the evidence, even if deemed relevant, was properly excluded

                               11                          A-1493-15T2
under N.J.R.E. 403(a) because its probative value was

substantially outweighed by the risk of undue prejudice,

confusion of issues and misleading the jury.    We accordingly do

not find the trial judge abused his considerable discretion in

excluding defendant's testimony that he repaid monies to the

State.    See State v. Cole, 
229 N.J. 430, 449 (2017).

    We do not agree the judge's instruction striking the

testimony was in any way prejudicial to defendant, see State v.

Tilghman, 
385 N.J. Super. 45, 60 (App. Div. 2006), or that the

"curative" instruction, considered in the context of the entire

charge, was error.    See State v. McKinney, 
223 N.J. 475, 497

(2015).   At the same time the judge told the jury it was to

disregard any evidence of repayment to the State, he also

advised them to disregard any statements by the investigators at

the Department of Labor referring to fraud or penalty.   We see

no prejudice to defendant.

    We find no error in the prosecutor's remarks in summation.

The prosecutor's argument was based on the facts in the record,

indeed, defendant's own words, and the reasonable inferences to

be drawn therefrom.   See State v. Timmendequas, 
161 N.J. 515,

594 (1999).    Defense counsel made no objection to the remarks,

leading us to infer he did not find them prejudicial.    See State

v. Irving, 
114 N.J. 427, 444 (1989).   Having examined the entire

                                12                          A-1493-15T2
record, we are satisfied "it was the weight of the evidence,

particularly the damning statements uttered by defendant

himself, that led to this . . . conviction rather than the

prosecutor's . . . comments."   See Timmendequas, 
161 N.J. at 596

(quoting State v. Feaster, 
156 N.J. 1, 63-64 (1998)).

      Finally, we reject defendant's argument that the judge

erred in admitting his statement to the Department of Labor

investigators.   There is no dispute that defendant was not in

custody when he made his recorded statement to the

investigators.   The investigators thus had no obligation to

provide him with Miranda2 warnings or to terminate the

questioning when defendant asked whether he should get a lawyer.

See State v. P.Z., 
152 N.J. 86, 121 (1997) (finding "no basis to

require [Division of Youth and Family Services] caseworkers to

give Miranda warnings or afford a right to counsel during non-

coercive, non-custodial interviews of parents subject to Title

Nine investigations" and no constitutional or other basis on

which to hold the statement inadmissible).     There is no

indication in the record that the investigators interviewed

defendant with the purpose of aiding in this criminal

prosecution, which had yet to be instituted.    Id. at 120.



2
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                13                            A-1493-15T2
    To the extent we have not addressed them, defendant's

remaining arguments lack sufficient merit to warrant discussion

in a written opinion.   See R. 2:11-3(e)(2).

    Affirmed.




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