State v. Lavergne

• Decision Date: 07 November 2018
• Docket Number: DOCKET NO. A-3210-14T2
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE LAVERGNE, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE LAVERGNE, Defendant-Appellant.

DOCKET NO. A-3210-14T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued December 21, 2017

November 7, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Simonelli, Haas, and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-11-1840.

Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert Carter Pierce, on the brief).

Evgeniya Sitnikova, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Despite extensive motion practice, both pre- and post-trial, defendant was convicted by a jury of second-degree misapplication of entrusted property, N.J.S.A. 2C:21-15, and fourth-degree contempt, N.J.S.A. 2C:29-9(a), and sentenced to an aggregate term of seven years' imprisonment. The convictions stemmed from defendant, a now disbarred attorney, misappropriating funds entrusted to him as a fiduciary in a probate matter, and failing to comply with court orders directing the distribution of the funds. Specifically, defendant was directed to withhold $200,000 from a $502,193.14 check made payable to defendant's attorney trust account, representing the proceeds of the sale of an estate asset. Instead, defendant misappropriated over $100,000 of those funds.

Defendant now appeals from his convictions and sentence, raising the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE (A) THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO WARRANT A CONVICTION AND, IN THE ALTERNATIVE, (B) THE AMOUNT ALLEGEDLY DIVERTED WAS LESS [THAN] $75,000, WHICH WOULD REDUCE THE CHARGE TO THIRD DEGREE MISAPPLICATION OF ENTRUSTED PROPERTY.¹

POINT II: THE TRIAL COURT DEPRIVED [DEFENDANT] OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION BY TAKING JUDICIAL NOTICE OF JUDGE KILGALLEN'S OCTOBER 6, 2010 AND JUDGE CAVANAGH'S NOVEMBER 4, 2010 ORDER AND ADMITTING THE ORDERS IN EVIDENCE.

POINT III: THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO DISMISS THE INDICTMENT BECAUSE THE MONMOUTH COUNTY GRAND JURY DID NOT HAVE JURISDICTION TO HEAR THE CASE AND RETURN AN INDICTMENT AGAINST [DEFENDANT].

POINT IV: THE PROSECUTOR'S SUMMATION WAS FILLED WITH IMPROPER REMARKS THAT DEPRIVED [DEFENDANT] OF A FAIR TRIAL. (NOT RAISED BELOW)[.]

POINT V: THE TRIAL COURT ERRED BY IMPROPERLY INSTRUCTING THE JURY THAT THE STATE "ASSERTS THE DEFENDANT'S RESPONSIBILITY WAS AS A FIDUCIARY FOR THE ESTATE OF FOWLER," WHEN THE INDICTMENT CHARGED HIM WITH BEING A FIDUCIARY TO RICHARD AND MARY BETH GREENHALGH.

POINT VI: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY, SUA SPONTE, THAT "IT MAY, BUT IS NOT REQUIRED TO, ACCEPT AS ESTABLISHED ANY FACT WHICH HAS BEEN JUDICIALLY NOTICED." (NOT RAISED BELOW)[.]

POINT VII: THE SENTENCE IMPOSED UPON [DEFENDANT] WAS MANIFESTLY EXCESSIVE.

After considering the arguments presented in light of the record and applicable law, we affirm.

I.

We glean the following facts from the trial record, which consisted of numerous documentary exhibits as well as testimony of five State witnesses, a settlement agent for a title insurance company, a partner in a law firm, a clerk from the Monmouth County Surrogate's Office, and two members of the Monmouth County Prosecutor's Office. Defendant neither produced any witnesses nor testified on his own behalf.

On July 6, 2009, Judge Thomas W. Cavanagh, Jr., entered an order approving the sale for $800,000 of the Avon Marina, a waterfront property located in Avon-by-the-Sea. The seller of the property was the Estate of James Fowler (Estate). The Estate was involved in litigation, and defendant was the attorney for the Estate.

In a second July 6, 2009 order prepared by defendant, Judge Cavanagh appointed Connie Fowler-Minck as the permanent Substituted Administrator, C.T.A. of the Last Will and Testament of James Fowler and as the SubstitutedTrustee of the Trust of James Fowler, replacing Mary Beth Greenhalgh.² The second July 2009 order also directed "the moving party" to "escrow the sum of $400,000 from the closing" of the Avon Marina "to pay claims" against the Estate "by the former co-executrix," Mary Beth Greenhalgh, and the former Estate attorney, her father, Richard Greenhalgh. The order also specified that "[t]he money will not be disbursed [with]out another order from the [c]ourt."³

The closing occurred the following day on July 7, 2009. The net proceeds due to the Estate from the $800,000 sale price was $502,193.14, after deductions for mortgage payoff, tax adjustments, and liens. During the closing, the title agency issued two checks to defendant. One check for $502,193.14 was payable to defendant's attorney trust account, and the other check for $25,000 was payable to defendant as compensation for his legal services.

On August 28, 2009, after Richard Greenhalgh filed a motion for attorney fees, Judge Cavanagh entered another order scheduling a plenary hearing for the counsel fee application, and directing Mary Beth Greenhalgh to file a formal claim for commissions, attorney fees, and costs, pursuant to N.J.S.A. 3B:14-24and Rule 4:24-2. The August 2009 order also stated that "[t]he amount being held in Escrow by the attorneys for the Substitute Administrator C.T.A. of the Estate . . . may be reduced to $200,000 with the consent of all interested parties."

On May 13, 2010, Judge Cavanagh entered two companion orders. In one order, Judge Cavanagh awarded Richard Greenhalgh $112,374.44 from the Estate, representing attorney fees and reimbursements for payments made on behalf of the Estate. In the other order, Judge Cavanagh awarded Mary Beth Greenhalgh $17,000 from the Estate, representing commission and costs. When the Estate failed to comply with the May 2010 orders by failing to pay the awards to the Greenhalghs, on August 11, 2010, Parsons and Nardelli, attorneys for the Greenhalghs, filed a motion to enforce litigant's rights under Rule 1:10-3 to compel payment of the awards as directed in the May 2010 orders.

As a result, on September 3, 2010, Judge Cavanagh ordered defendant, "as attorney for the Estate" and "escrow agent," to "pay[,] out of the $200,000 escrow he [was] holding[,] a check to . . . Mary Beth Greenhalgh in the amount of $17,000 and [a check] to . . . Richard B. Greenhalgh" in the amount of $111,928.94.⁴ The order also directed defendant to pay Parsons and Nardelli$3,840 from the escrow account for counsel fees. With interest, the total judgment against the Estate increased to $132,968.94, and, pursuant to the September 3, 2010 order, "all payments" were to be made by defendant "within [ten] days of th[e] order," or the Greenhalghs "may seek relief under [Rule] 1:10-3, to accomplish same." Defendant did not appear at the September 3, 2010 hearing.

At some point, James Nardelli, a partner in Parsons and Nardelli, "became fearful that the money that should have been in the escrow account was not there." Thus, in order "to confirm that there was, in fact, $200,000 to secure the judgment in favor of [their] client[s,]" the firm issued "a subpoena [to TD Bank] for [defendant's] trust account records." Upon receipt of the records, Nardelli learned that the current balance in the account was "approximately $91,000." Nardelli noted "that there were a series of . . . withdrawals" for $500 and $1000 in "cash or checks payable to cash," which "was highly unusual" for an attorney trust account. According to Nardelli, in his twenty years of "managing [his] trust account," he had never made "a cash disbursement" because "[y]ou need to have a record of what you do with your clients' funds."

After receiving defendant's bank records, Nardelli promptly "prepared an order to show cause . . . asking the [c]ourt to immediately restrain any furtherdisbursements from [defendant]'s account and to order that those funds be transferred to . . . [Nardelli's] firm's trust account for the benefit of [the Greenhalghs]." In an order entered on October 6, 2010, Judge Honora O'Brien Kilgallen granted the application, and "restrained" defendant "from making any disbursements, distributions, withdrawals[,] or payments of any kind whatsoever from his attorney trust account maintained at TD Bank . . . until further [o]rder of this [c]ourt." Further, the order "[d]irected" TD Bank "to pay all amounts contained in [defendant's] attorney trust account" to "Parsons and Nardelli Attorney Trust Account" within "[forty-eight] hours . . . to be held in escrow . . . until further [o]rder of this [c]ourt." Additionally, defendant was ordered to appear on October 15, 2010, to "show cause why the temporary relief provided . . . should not be continued and made permanent."

On the October 15, 2010 return date for the order to show cause, defendant failed to appear. However, on October 14, 2010, defendant submitted a certification in opposition to the motion and a request for an adjournment, which was denied. In the certification, defendant conceded "that he was to retain an amount of funds 'sufficient to cover any attorneys fees.'" However, according to the certification, "his client [Connie Fowler-Minck] 'authorized' him to reduce the amount of monies he was holding in escrow, and . . . accepted theresponsibility to replenish the funds or pay any overage in the event they exceeded the required amount." The certification further explained "that the monies in the account now with Mr. Parsons, belong[ed] to...