STATE OF NEW JERSEY v. FRANCES M. WISE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4992-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCES M. WISE, a/k/a
FRANCES M. DEEMER, and
FRANCES M. FINCH,
Defendant-Appellant.
Submitted November 7, 2018 – Decided December 21, 2018
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 15-01-0004.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Richard T. Burke, Warren County Prosecutor, attorney
for respondent (Kelly Anne Shelton, Assistant
Prosecutor, of counsel and on the brief; Amy Knutsen,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Frances M. Wise stole over $75,000 from an elderly relative
while she had a power of attorney to handle the victim's finances. A jury
convicted defendant of second-degree theft, N.J.S.A. 2C:20-3(a); second-degree
misapplication of entrusted property, N.J.S.A. 2C:21-15; and second-degree
theft by deception, N.J.S.A. 2C:20-4(c). The conviction for theft was merged
with the conviction for theft by deception and defendant was sentenced to
concurrent prison terms of seven years on the conviction for misapplication of
entrusted property and theft by deception. Defendant was also ordered to pay
$143,000 in restitution. Defendant appeals her conviction and the imposition of
restitution. We affirm her conviction, but vacate the restitution award and
remand for a full hearing on restitution.
I
We take the facts from the record developed at trial. Defendant held a
power of attorney for her cousin, J.B., 1 from 2009 to 2013. At that time, J.B.
was over eighty years of age and she had limited financial experience. J.B. had
been married for sixty-five years, and while her husband was alive, he handled
the couple's finances. J.B.'s husband passed away in August 2010. When her
1
We use initials for the victim and a witness to protect privacy interests.
A-4992-16T4
2
husband passed away, J.B.'s main financial assets were a home that she had lived
in for sixty years, which had no mortgage, and a savings account. J.B. had
monthly income from Social Security and her husband's pension, and that
income covered her expenses.
In 2013, defendant gave up the power of attorney and a family friend,
L.M., took over the power of attorney for J.B. L.M. discovered that J.B.'s bank
accounts had been depleted and a reverse mortgage had been placed on the
home. She reported that situation to the Division of Aging and, thereafter, the
police conducted an investigation. The investigation revealed that J.B. had two
bank accounts in her name. In 2009, J.B.'s savings account held nearly $32,000.
A checking account was opened in September 2010, and funds from a $10,000
open-end mortgage on J.B.'s home, which was taken out that same month by
defendant, were deposited into both accounts. By 2013, both accounts had been
depleted. Bank records collected during the investigation showed that those
depletions resulted from a series of withdrawals, a number of which were
withdrawals from automatic teller machines (ATMs). The victim, who testified
at trial, explained that she never made those withdrawals and she did not have
an ATM card or know how to make ATM withdrawals.
A-4992-16T4
3
The investigation also revealed a reverse mortgage on J.B.'s home. Bank
statements and reverse mortgage statements, which were admitted into evidence,
showed that in a six-month period in 2011, the mortgage went from $82,000 to
nearly zero. The victim testified that she never authorized or needed a mortgage.
The evidence at trial also established that when the equity in the home had
been depleted and the bank accounts had been emptied, defendant informed J.B.
that she no longer wanted to have the power of attorney. Based on that evidence,
the jury convicted defendant of theft, misapplication of entrusted property, and
theft by deception. Defendant now appeals.
II
On appeal, defendant makes three arguments, which she articulates as
follows:
POINT I – THE COURT USURPED THE
DEFENDANT'S DECISION-MAKING AUTHORITY,
DECIDING TO ISSUE THE CHARGE ON THE
DEFENDANT'S ELECTION NOT TO TESTIFY
WITHOUT HER CONSENT.
POINT II – BY ARGUING THAT THIS CASE
WAS ABOUT "THE ELDERLY" IN GENERAL, AND
ENCOURAGING THE JURY TO HOLD MS. WISE
"ACCOUNTABLE" THROUGH A CONVICTION,
THE PROSECUTOR COMMITTED
PROSECUTORIAL MISCONDUCT.
A-4992-16T4
4
POINT III – THE COURT SHOULD REMAND
THE MATTER FOR A RESTITUTION HEARING,
FOR A DETERMINATION OF BOTH THE
APPROPRIATE MONETARY VALUE OF
RESTITUTION, AND MS. WISE'S ABILITY TO
PAY.
Having reviewed these arguments in light of the record and law, we reject
the first two arguments and affirm defendant's convictions. Because there was
no hearing on restitution, we remand for a hearing.
A. The Instruction on Defendant's Election Not to Testify
Defendant did not testify at trial. As a result, the judge read to the jur y
the election-not-to-testify charge. Although the judge informed both defendant
and defense counsel that such a charge would be given, neither defendant nor
her counsel objected. On appeal, however, defendant argues that the court
usurped her right to elect not to have the charge given.
If a defendant elects not to testify, the judge should directly inquire of
defendant, in the presence of defense counsel, whether defendant is making that
election and whether defendant wants the court to give a specific election-not-
to-testify jury charge. State v. Cusumano, 369 N.J. Super. 305, 314 (App. Div.
2004) (citing State v. Savage, 120 N.J. 594, 631 (1990)). Under ordinary
circumstances, the court should inquire directly of defendant whether he or she
wants the charge given. State v. Lynch, 177 N.J. Super. 107, 114-15 (App. Div.
A-4992-16T4
5
1981). Moreover, the charge should not be given except when defendant
requests it. Id. at 115 (citing State v. McNeil, 164 N.J. Super. 27, 30 n.1 (App.
Div. 1978)).
On the last day of trial, defendant stated on the record that she was electing
not to testify. The trial judge then had the following dialogue with defendant:
THE COURT: Thank you, Ms. Wise. You understand
that you do have the right to remain silent. You
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And that if you choose to exercise that
right to remain silent and you do not testify at trial the
jury cannot hold it against you? You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: As a result of your election not to testify
there will be a charge given to the jury that they can't
hold that against you. Let me read you that charge.
As you know, the defendant elected not to testify at
trial. It is her constitutional right to remain silent. You
must not consider for any purpose or in any manner in
arriving at your verdict the fact that the defendant did
not testify.
That fact should not enter into your deliberations or
discussions in any manner at any time. Defendant is
entitled to have the jury consider all evidence presented
at trial. She is presumed innocent whether or not she
testifies – chooses to testify.
A-4992-16T4
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Do you understand that the Court will read that jury
charge?
THE DEFENDANT: Yes, sir.
Neither defendant nor defense counsel objected to the court giving the
instruction. Thereafter, the trial judge, counsel, and defendant held a charge
conference. The jury charge and defendant's election not to testify were
reviewed during the charge conference. There was, however, no objection to
that charge. Finally, when the charge was actually given to the jury, there was
no objection.
We are satisfied that any error in failing to inquire specifically whether
defendant wanted the charge was harmless. Although the better practice would
have been for the judge to expressly inquire of defendant and defense counsel
whether they wanted the court to give the election-not-to-testify instruction, here
there was no reversible error. The trial court twice informed defendant and
defense counsel that the election-not-to-testify charge would be given and there
was no objection. Thus, both counsel and defendant knew that the charge was
going to be given and neither indicated in any way that they had an objection to
that charge. Given that record, we discern no plain error. See R. 2:10-2. Indeed,
even when an election-not-to-testify charge is given over a defendant's
objection, such an instruction does not violate the defendant's constitutional
A-4992-16T4
7
right against self-incrimination. Lakeside v. Oregon, 435 U.S. 333, 340 (1978);
McNeil, 164 N.J. Super. at 31.
B. Remarks by the Prosecutor
Next, defendant argues that the assistant prosecutor engaged in
misconduct by making arguments about "the elderly." "Both the prosecutor and
the defendant are allowed wide latitude in summation, but are confined to the
facts in evidence and the reasonable inferences which may be drawn therefrom."
State v. Perry, 65 N.J. 45, 47-48 (1974) (citations omitted) (first citing State v.
Bogen, 13 N.J. 137, 140 (1953); then citing State v. Hill, 47 N.J. 490, 499
(1966)). Prosecutorial misconduct comes about when the "emotional force of
the prosecutor's arguments pose[] a significant risk that the jury [will] be
diverted from its duty to determine defendant's punishment based on the
evidence and in accordance with the trial court's charge." State v. Rose, 112 N.J. 454, 521 (1988).
In assessing whether prosecutorial misconduct requires reversal, we
determine whether the conduct "was so egregious that it deprived the defendant
of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur,
106 N.J. 123, 322 (1987)). Accordingly, we "consider whether defense counsel
made a timely and proper objection, whether the remark was withdrawn
A-4992-16T4
8
promptly, and whether the court ordered the remarks stricken from the record
and instructed the jury to disregard them. If no objection is made, the remarks
usually will not be deemed prejudicial." Ramseur, 106 N.J. at 323 (citation
omitted).
During her opening statement, the assistant prosecutor stated:
This case is not just a theft case. This case is about
crimes against the elderly, the vulnerable, and the
trusting. The case is about [J.B.] She's an 87-year-old
woman who trusted the defendant [Frances] Wise as her
power of attorney with her finances. However, the
evidence is going to show you that her money, all of her
money, was taken by Ms. Wise not for the benefit or
the use for [J.B.]
....
Now once you do this and you have the evidence that's
presented to you in this case by the State, at that time I
am confident that you're going to take that evidence, the
documents that will be given to you, your recollection
of the testimony from the State's witnesses, and you're
going to go back in that deliberation room and you're
going to deliberate and you're going to come back and
you're going to hold this woman, Ms. Wise,
accountable for her actions because we're here for one
reason, one reason only – the crime is about [J.B.] and
taking advantage of the elderly and the trusting and
vulnerable.
But we're here for one reason and that reason is the
conduct of that woman. And with that, I would like to
thank you for your time, your consideration on the case,
and above all your patience. Thank you.
A-4992-16T4
9
In her closing argument, the assistant prosecutor stated: "Now we get to
a point and remember I told you in my opening that this wasn't just a theft case,
it's a crime against elderly." Defendant did not object to either statement in the
opening or closing. Accordingly, we review these statements for plain error to
determine if the error is "of such a nature as to have been clearly capable of
producing an unjust result." R. 2:10-2.
Here, we find no plain error. Read in context, the prosecutor's remarks
were directed at the victim involved in this case. J.B. was in her eighties when
defendant stole from her. The assistant prosecutor properly commented on the
age and vulnerability of the victim. The references to "the elderly" were not
made in the context of a general argument about protecting the elderly as a class.
C. Restitution
Finally, defendant argues that the matter should be remanded for a
restitution hearing. In imposing restitution, the court did not hold a restitution
hearing. The State concedes that this matter should be remanded for a hearing
on the ability of defendant to pay restitution. We direct that the matter be
remanded for a full restitution hearing. At the hearing, the issues of the amount
of restitution and defendant's ability to pay should be addressed.
A-4992-16T4
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Restitution "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[.]"). 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, 132 N.J. at 173. If there is a
good-faith dispute over the amount of loss or defendant's ability to pay, the court
is required to conduct a restitution hearing to resolve those issues. N.J.S.A.
2C:44-2(c); State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994).
Here, as noted, the sentencing court did not conduct a restitution hearing.
Accordingly, we vacate the amount of restitution and remand for a hearing to
determine the amount of restitution and defendant's ability to pay.
The conviction is affirmed, we remand for a restitution hearing. We do
not retain jurisdiction.
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