State v. Lemken

• Decision Date: 31 October 1974
• Citation: 346 A.2d 92,136 N.J.Super. 310
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John J. LEMKEN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 310

136 N.J.Super. 310

346 A.2d 92

STATE of New Jersey, Plaintiff-Respondent, v. John J. LEMKEN, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 15, 1974.

Decided Oct. 31, 1974.

Seymour Margulies, Jersey City, for defendant-appellant (Brigadier & Margulies, Jersey City, attorneys).

Michael A. Graham, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges CARTON, CRANE and KOLE.

PER CURIAM.

Defendant appeals from his convictions for conspiring, with co-defendant John Marinan, to obtain money by false pretenses (N.J.S.A. 2A:98--1(e), (f), 2A:98--2) and the substantive charge of obtaining money by false pretenses (N.J.S.A. 2A:111--1). He was given concurrent suspended sentences of 1 to 2 years to State Prison, fined a total of $2,000 and placed on probation for 2 years. His co-defendant, also convicted, has not appealed.

The offenses of which defendant, an attorney-at-law of this State, was convicted arise from his alleged role, between May 1969 and June 1970, in obtaining some $1,560 from William Topken, the administrator of the estate of Emil Klein, as payment for funeral and burial services which were never provided. During this period defendant held the office of First Assistant Counsel to Hudson County, a part-time position, while his co-defendant Marinan held the position of morgue custodian at Meadowview Hospital, Secaucus, a county institution.

Klein died at Meadowview Hospital on May 22, 1969. On June 9, 1969, Marinan, in his official capacity, had Klein buried at Jersey City Cemetery. The burial was by 'right of burial' at a fee of $45. Klein's body was transported to the cemetery in a station wagon rather than a hearse and there were no pallbearers present at the burial. The casket, a pine box, was valued at $25 to $30. No religious service was provided.

Marinan received two payments aggregating $755 in May and June 1969 for his services. On May 28 he was paid $500 from Klein's Patient Trust Fund maintained by the hospital. On June 12 he received $255 on his voucher to the Hudson County Board of Freeholders.

In addition to these payments Marinan submitted a bill of $2,060 for Klein's funeral. By letter of November 17 1969 Lemken sent this bill of Marinan to William Topken, who had been appointed administrator of Klein's estate. Marinan's bill included large sums for a casket; $275 for cemetery fees; $38 for a hearse; $42 for pallbearers and $25 for 'pastor offering.' Thus, Marinan's bill plainly constituted a false representation.

It is also clear that Marinan, in addition to the moneys from the Patient Trust Fund and the County, received $1,560--$255 in lump sum death benefits from Social Security as approved by Topken and $1,305 paid directly by Topken, the balance claimed to be due on the $2,060 bill. The charges here involved center around the payment of this $1,560 to Marinan by or with the approval of Topken pursuant to the alleged conspiracy and false pretenses.

Defendant first contends that the court should have granted his motion for acquittal at the end of the State's case. His claim is that the evidence then adduced, admittedly circumstantial in nature, would not permit a jury reasonably to infer beyond a reasonable doubt (1) that Lemken was involved with Marinan in a conspiracy knowingly and intentionally to defraud or obtain moneys by false pretenses from Topken, the administrator of Klein's estate, or that, when he transmitted Marinan's bill or information relating thereto to Topken, he had any knowledge as to the falsity of the funeral expenses or moneys due thereon; and (2) that, with respect to the false pretenses count, he either knew the bill or information relating thereto to be false or in any wise intentionally and knowingly aided and abetted in making fraudulent representations to Topken, or that Topken relied on any misrepresentation made by defendant.

In deciding whether the trial court was correct in denying the motion, we of course, take into account only the evidence on the State's case, unaided by what defendant later developed at trial. Applying the standard applicable to this type of motion, R. 3:18--1; State v. Allen, 53 N.J. 250, 250 A.2d 12 (1969); State v. Reyes, 50 N.J. 454, 236 A.2d 385 (1967), we are satisfied that defendant's contention is without merit.

Defendant argues that the circumstantial evidence introduced by the State engendered mere speculation or conjecture as to the foregoing required predicates for guilt. Not so. Where, as here, the proofs at the end of the State's case plainly permitted reasonable inferences by a jury that defendant committed the crimes charged beyond a reasonable doubt, the motion for acquittal was properly denied. See State v. Fiorello, 36 N.J. 80, 174 A.2d 900 (1960), Cert. den. 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d 1524 (1960); State v. Graziani, 60 N.J.Super. 1, 158 A.2d 375 (App.Div.1959), aff'd o.b. 31 N.J. 538, 158 A.2d 330 (1960), Cert. den. 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d 1524 (1960); State v. Yormark, 117 N.J.Super. 315, 284 A.2d 549 (App.Div.1971), certif. den. 60 N.J. 138, 286 A.2d 511 (1972), Cert. den. 407 U.S. 925, 92 S.Ct. 2459, 32 L.Ed.2d 812 (1972); State v. Mayberry, 52 N.J. 413, 437, 245 A.2d 481 (1968); State v. Allen, supra; State v. Zwillman, 112 N.J.Super. 6, 270 A.2d 284 (App.Div.1970).

Defendant erroneously relies on such cases as State v. La Fera, 42 N.J. 97, 199 A.2d 630 (1964); United States v. Bethea, 143 U.S.App.D.C. 68, 442 F.2d 790 (D.C.Cir.1971); United States v. Heithaus, 391 F.2d 810 (3 Cir. 1968); State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972); United States v. Glantzman, 447 F.2d 199 (3 Cir. 1971); and State v. Greco, 29 N.J. 94, 148 A.2d 164 (1958). All of these cases involve factual settings substantially different from the evidence before us.

Giving the State the benefit of all favorable evidence and inferences therefrom, its case rests basically on a series of events and letters that defendant wrote, as county counsel and as a private attorney, relating to Klein, his estate and his funeral expenses, as well as on defendant's relationship with the county hospital and Marinan, its morgue custodian.

Klein died May 22, 1969. Before his June 9 pauper's burial by Marinan, on June 6 Lemken wrote a letter to Klein's sister in West Germany, in which he notified her that Klein had died and had asked the manager of the 'home in which he lived' to have defendant handle his affairs, asked to be appointed administrator of the estate, and stated that 'I have undertaken already to see to it that he has a proper funeral and am sure that there are considerable funds available to be transferred to you after the * * * administration work has been accomplished.' On November 17, 1969, after learning that Topken had been appointed administrator of Klein's estate, defendant wrote a letter to Topken, with his name signed by his secretary, stating the following:

In accordance with our telephone conversation, enclosed herein please find copy of funeral bill as submitted by Marinan Funeral Home.

I felt that since there was considerable funds and since I had written to the sister that I would see to it that he had a decent funeral, I authorized Mr. Marinan to go beyond the monies as set out by the hospital so that the deceased would have a burial in accordance with his means.

The enclosed Marinan bill was for the $2,060 already referred to.

By letter of May 18, 1970 from Lemken to J. Nicholas Suhr, an attorney in Topken's office assigned to the matter, Lemken noted that Marinan's bill for $2,060 had been decreased by credits of $500 (for the payment from Emil Klein's Meadowview Trust Fund) and $255 from Social Security. He asked that payment to the Marinan Funeral Home of the remaining $1,305 be expedited.

The State thus established that Marinan's inflated funeral expense bill was forwarded to Topken, as administrator of Klein's estate, accompanied by a letter over defendant's name, and a later request by defendant for payment. From these circumstances, it may reasonably be concluded beyond a reasonable doubt that defendant and Marinan had agreed to cooperate in actions designed to see that the bill be paid. There is thus no merit to defendant's argument that the State failed to establish a Prima facie case of the existence of an agreement or combination. See State v. Yormark, supra, 117 N.J.Super. at 330, 284 A.2d 549; State v. Louf, supra, 126 N.J.Super. at 339, 314 A.2d 376.

At the end of its case the State's evidence supported an inescapable conclusion that the bill submitted by Marinan through defendant was false. It also supported an inference beyond a reasonable doubt that an illegal purpose--to obtain money by false pretenses from the administrator--was intended by the agreement and that such intention was known by and participated in by defendant. Defendant was a First Assistant County Counsel. He wrote letters, including those referred to, in connection with Klein in both his capacity as such Counsel and as a private attorney. He was performing work relating to the Meadowview Hospital. He was aware of Marinan's capacity as morgue custodian at that county institution. At least two letters over defendant's name vouch for the false bill. The letter to Paula Klein indicated that defendant had arranged for her brother's funeral. The November 17 letter to the administrator stated that defendant authorized a more expensive funeral.

Thus, at the close of the prosecutor's case, there were proofs that defendant had claimed a role for himself in arranging and authorizing a funeral for Klein; that he had no such role; that Marinan's bill for Klein's funeral submitted to the administrator of the estate, falsely alleged provisions for elaborate and expensive services; and that defendant was instrumental in transmitting this false bill to the administrator. This evidence plainly supports an...