State v. Moore

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: BOTTER
• Citation: State v. Moore, 158 N.J.Super. 68, 385 A.2d 867 (N.J. Super. App. Div. 1978)
• Decision Date: 29 March 1978
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Louis MOORE, Defendant-Appellant.

Page 68

158 N.J.Super. 68

385 A.2d 867

STATE of New Jersey, Plaintiff-Respondent, v. Louis MOORE, Defendant-Appellant.

Superior Court of New Jersey,Appellate Division.

Submitted Oct. 3, 1977.

Decided March 29, 1978.

Stanley C. Van Ness, Public Defender, for appellant (Robert A. Elkinson, designated counsel, Irvington, of counsel and on the brief).

Joseph P. Lordi, Essex County Prosecutor, for respondent (Kenneth P. Ply, Asst. Prosecutor, of counsel and on the brief).

Before Judges FRITZ, BOTTER and ARD.

The opinion of the court was delivered by

BOTTER, J. A. D.

In a nonjury trial defendant was convicted of obtaining unemployment compensation by false representations and the failure to disclose facts which he had the duty to disclose, contrary to N.J.S.A. 2A:111-2. A suspended jail sentence and probation were imposed and defendant was ordered to make restitution of $1,440 in monthly installments. On this appeal defendant contends that his conviction should be reversed because only incompetent hearsay evidence was introduced by the State to prove that defendant was actually employed during the periods for which he had claimed unemployment benefits. Defendant also contends that he cannot be convicted of violating N.J.S.A. 2A:111-2 without proof of a specific intent to defraud.

The indictment charged that defendant, in support of his claim for unemployment insurance benefits, falsely represented that he was unemployed from June 1972 to November 1972 when, in fact, he was employed during that time period by Barrett & Co., Inc. (Barrett). The State introduced certain records pertaining to defendant's claim for benefits, including claim forms specifying defendant's periods of alleged employment and unemployment. Checks for benefits paid to defendant and endorsed by him were also placed in evidence. Above defendant's endorsement on each check was a certification that he was unemployed during the period represented by the check.

To prove that defendant was employed during relevant periods of time, Exhibits S-27 and S-28 were introduced in evidence over defendant's objection. S-27 was a form used by the Division of Unemployment Benefits in a fraud investigation. See N.J.A.C. 12:17-9.4(c). It showed, among other things, claimant's alleged employer and his earnings between June 1972 and December 1972. This form, and form S-28 which showed what was done during the investigation, were prepared by Gerald D. Robertson, an Unemployment Insurance Claims Investigator for the New Jersey Department of Labor and Industry. He testified that he visited Barrett in February 1973 and examined payroll records and time cards showing defendant's employment and earnings for the period in question. He was assisted by Marilyn Asts, Barrett's head bookkeeper and office manager. Barrett's records showed defendant had received wages between June 1972 and December 1972. These records were copied by Robertson and recorded on S-27, which was signed by Barrett's representative as well as Robertson.

According to the testimony, Barrett's records showed that defendant worked "less than a full week" at times and at other times "almost a complete week" between June and December 15, 1972, and his earnings during that time (exclusive of the week beginning July 1, 1972, for which he received vacation pay of $128) were as follows:

     Week ending            Week ending
                ---------------------  ----------------------
                     June 9   $272.20  September 22   $123.68
                     July 21  $105.98  September 29   $146.52
                     July 28  $146.14    October 6    $178.67
                   August 4   $106.80    October 13   $ 82.94
                   August 11  $124.00    October 20   $116.63
                   August 18  $ 88.94    October 27   $107.80
                   August 25  $114.54   November 3    $161.78
                September 1   $135.57   November 10   $221.57
                September 8   $138.24   November 24   $241.33
                September 15  $144.32   December 1    $289.00
                

Defendant testified that he had worked for Barrett but was laid off, and so he applied for unemployment benefits. He said he was called back to work two or three times and worked for two or three days until he was laid off again. He claims that each time he went to pick up his unemployment check he reported that he had gone back to work at Barrett on a part-time basis. He testified that Barrett's manager had told him that he could draw unemployment benefits if he worked less than 32 hours a week. He admitted that he thought "they should have cut" his benefits for the weeks that he worked part time, "but they didn't cut me."

The trial judge found that defendant may have felt he was entitled to unemployment benefits and, as such, did not have a conscious intent to cheat. But he also found that defendant knowingly concealed from clerks at the Unemployment Compensation office that he was employed and "positively represented that he was not employed." The trial judge concluded that a sufficient showing had been made to establish a violation of N.J.S.A. 2A:111-2. For reasons which will be stated later in this opinion, we are satisfied that the findings on the issue of intent are sufficient to support a conviction under this statute.

I

Defendant contends that the admission of S-27 and S-28 did not conform to our Rules of Evidence and that his Sixth Amendment right of confrontation was violated when proof that he was working was based exclusively on these records. But for exhibits S-27 and S-28 defendant's motion for judgment of acquittal should have been granted at the conclusion of the State's case.

For some purposes S-27 and S-28 may be considered business records of Robertson's own employer, admissible pursuant to Evid.R. 63(13), see Schneiderman v. Strelecki, 107 N.J.Super. 113, 118-119, 257 A.2d 130 (App.Div.), certif. den. 55 N.J. 163, 259 A.2d 915 (1969); Brown v. Mortimer, 100 N.J.Super. 395, 403-404, 242 A.2d 26 (App.Div.1968); cf. Fagan v. Newark, 78 N.J.Super. 294, 188 A.2d 427 (App.Div.1963); but cf. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1942); and they may also be viewed as reports of a public official admissible under Evid.R. 63(15). Cf. State v. McGeary, 129 N.J.Super. 219, 322 A.2d 830 (App.Div.1974). However, problems are raised by the use of records or reports compiled by government agents in the course of an investigation for purposes of criminal prosecution. See United States v. Oates, 560 F.2d 45 (2 Cir. 1977); United States v. Ware, 247 F.2d 698, 700 (7 Cir. 1957); Hartzog v. United States, 217 F.2d 706 (4 Cir. 1954); Olender v. United States, 210 F.2d 795 (9 Cir. 1954). These problems, generated when an investigator's motives and conclusions may be questioned, are minimized in the case at hand since S-27 was offered merely for the purpose of reflecting the contents of Barrett's payroll records and time cards. Cf. Zacher v. United States, 227 F.2d 219, 227-228 (8 Cir. 1955), cert. den. 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 858 (1956); United States v. Mortimer, 118 F.2d 266 (2 Cir.), cert. den. 314 U.S. 616, 62 S.Ct. 58, 86 L.Ed. 496 (1941). We need not decide the troubling question of the admissibility of a report made by an agent investigating a possible violation of the law administered by that agency. Whether or not such a report is admissible as a business record or report of a government official under Evid.R. 63(13) or (15), in this case S-27 may constitute the best available secondary evidence of Barrett's payroll records. Therefore, we prefer to decide whether Barrett's original payroll records would have been admissible as proof of defendant's employment during the periods in question and whether S-27 was admissible under Evid.R. 70 in place of the original records. See Pierce v. State, 42 Ala.App. 53, 151 So.2d 793 (Ct.App.1963).

It appears that the trial judge did not approach the issue in this fashion. The trial judge admitted S-27 as a report of a public official of an event observed by him which "was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement" within the meaning of Evid.R. 63(15). Defense counsel conceded that Robertson, the investigator, was a public official as the term is used in Evid.R. 63(15), but he contended that the included hearsay rule (Evid.R. 66) was not satisfied because "there had been no testimony from any representative of Barrett Company or any individual to authenticate the authenticity of those records" or to testify to the accuracy of the records kept by Barrett. To this the trial judge responded that if Barrett's "record itself were here, I would permit it under 63(13)."

We can understand why the trial judge assumed that payroll records and time cards are records kept in the ordinary course of business. Every employer must keep true and accurate employment records, open to inspection and copying by a representative of the Division of Unemployment and Temporary Disability Insurance (Unemployment Division). N.J.S.A. 43:21-11(g); N.J.A.C. 12:16-5.1, 5.2 and 5.4. The evidence showed that Robertson examined the original records in the presence of Barrett's representative; that he copied the data shown on S-27 from those records, and that both he and Barrett's representative signed the report in certification of its accuracy. Robertson also testified, without objection, that the "payroll records and time cards" which he examined "were those maintained by Barrett & Company in the ordinary business as an ordinary business record." However, this testimony was given after S-27 and S-28 had been admitted in evidence over defense counsel's objection. Because Robertson's competence to give such testimony was not established, and because there was no testimony by anyone connected with Barrett that the original payroll records were, in fact, compiled and kept in the ordinary course of business, we conclude that the conditions of admissibility for such records under Evid.R. 63(13) were not satisfied.

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