State v. Schultz

• Decision Date: 02 December 1976
• Citation: 367 A.2d 423,71 N.J. 590
• Parties: STATE of New Jersey, Plaintiff-Respondent-Cross-Appellant, v. Frank SCHULTZ, Defendant-Appellant-Cross-Respondent.
• Court: New Jersey Supreme Court

Page 590

71 N.J. 590

367 A.2d 423

STATE of New Jersey, Plaintiff-Respondent-Cross-Appellant, v. Frank SCHULTZ, Defendant-Appellant-Cross-Respondent.

Supreme Court of New Jersey.

Argued Sept. 14, 1976.

Decided Dec. 2, 1976.

Harvey Weissbard, Montclair, for defendant-appellant-cross-respondent (Russell & McAlevy, Jersey City, attorneys).

David S. Baime, Deputy Atty. Gen., for plaintiff-respondent-cross-appellant (William F. Hyland, Atty. Gen., attorney; Barbara Ann Villano, Deputy Atty. Gen., of counsel and on the brief).

The opinion of the court was delivered by

CONFORD, P.J.A.D., Temporarily Assigned.

Defendant, a Jersey City patrolman at the time of the events here of concern, was convicted of violation of the forgery statute, N.J.S.A. 2A:109--1, and of misconduct in office. The Appellate Division in an unreported opinion affirmed the conviction for misconduct, but reversed that for forgery holding the motion for acquittal on that charge should have been granted. Defendant had also been indicted for conspiracy to violate N.J.S.A. 2A:135--3 (public employees unlawfully obtaining state or municipal funds) and for a substantive offense under the same statute, but was acquitted of those charges at the same trial. One of the alleged coconspirators, Kelly, a patrolman, was tried with defendant and was acquitted of conspiracy and the underlying substantive offense as well as of misconduct in office. The other alleged coconspirator, Phillip Verga, an employee in the Violations Bureau of the Jersey City Municipal Court, had his charges severed for trial.

The case is here on grant of certification on petitions of both defendant and the State. 69 N.J. 79, 351 A.2d 7 (1975).

At the trial the State offered proof of the following facts. In October 1971 a parking ticket for a fire hydrant violation in Jersey City was issued to a vehicle owned by one Whritenour. In December 1971 his fiancee, Cathy Colfax, mailed the ticket with a $30 check to the Municipal Court; this was intended to pay the stated fine of $25 and a $5 late fee (the fine for this category of violation had been reduced to $10 in March 1971 but the city was still using the obsolete ticket forms stating the higher fine of $25).

Around the begining of January 1972 defendant came into possession of the Colfax check which had been returned to the Violations Bureau by the drawee bank for insufficient funds. The only explanation of record for that possession was the testimony of defendant and a statement given by him to the prosecutor. That testimony is recounted hereinafter. Defendant at the time was precinct clerk for the Seventh Police Precinct, at whose headquarters building the Violations Bureau and a municipal courtroom were also coincidentally situated. As precinct clerk defendant was an administrative assistant to the precinct captain. While his duties brought him into contact with the Municipal Court and Violations Bureau, he had no responsibilities in either body, particularly in respect of collection or payment of traffic or parking violations. Nevertheless, the defendant would occasionally obtain reductions in parking penalties for friends and fellow officers through intercession by cooperative personnel in the Violations Bureau who would go before the sitting judge for this purpose.

Defendant's testimonial explanation of his coming into possession of the Colfax check, also in substance set forth in a statement by defendant to the prosecutor offered into evidence by the State, was as follows. One day around Christmas 1971 another patrolman, Lombardi, handed defendant four traffic tickets (two for parking offenses and two late notices) and a check for $30 payable to the Municipal Court, requesting defendant to 'get a price' (reduction) on the tickets. Defendant approached Phillip Verga, a Violations Bureau employee (severed for trial, as noted above), who took the tickets and check. Several hours later Verga told defendant the fines had been reduced to a total of $23, and he handed over the $7 difference in cash. Defendant sent that money to Lombardi. Some time later, Verga told defendant that the check had 'bounced' and returned it to him with a demand for satisfaction therefor. This turned out to be the Colfax check. Lombardi then supplied defendant with the Colfax address, and defendant thereupon dispatched co-defendant Kelly and Patrolman Binaski, who inferentialy deemed themselves subject to his orders for routine errands, to the Colfax home with instructions to return the defaulted check to her and obtain a valid one in its place. As confirmed by the testimony of Binaski and Miss Colfax, this mission was accomplished. Miss Colfax was instructed that a warrant for her arrest would issue if she did not produce a new $30 check. In accordance with defendant's previous instructions, Binaski placed the replacement check, being for $30 and payable to Municipal Court, in an envelope, and deposited it in defendant's desk drawer. Coincidentally, Lombardi died that day, a fact defendant learned the next day.

Defendant testified he saw the check in his desk the next day. When Verga asked for it that afternoon defendant could not find it, but because 'Phil had to balance his accounts' defendant took $30 in cash out of his own pocket and gave it to him. (Verga was not produced as a witness by either side).

Subsequently defendant discovered the missing check. He wanted to be reimbursed for the $30 he had advanced. Yet he felt he could not bring the check to Verga because 'he would have thought something certainly wrong * * *'; he did not know Miss Colfax; and Lombardi was dead. So he endorsed a random name from a newspaper story, 'Michael Arnold', on the back of the check and asked co-defendant Kelly to have it cashed at the nearby bar of an acquaintance, one Lupi, who had cashed personal checks for Kelly previously. Kelly brought the check to Lupi and asked him to cash it as a favor for defendant. When Lupi asked whether the check was 'all right' Kelly told him that 'Frank said don't worry about it, he'll take care of it.' Thereupon Lupi cashed the check and stamped the endorsement 'Bergen Bar' on its back. Kelly brought the defendant the money. ¹ The check was apparently paid by the drawee bank.

The State proved that the back of the filed fire hydrant ticket ('white' copy here involved bore notations indicating a guilty plea, a fine of three dollars and an endorsed handwritten initial 'J', which ordinarily would signify that Municipal Judge Joseph S. E. Verga had fixed the fine. The judge testified, however, that neither the 'J' nor the other notations on the ticket were in his handwriting. He further stated that only a judge can reduce or 'downgrade' a stated penalty on a parking ticket; that such reductions are sometimes granted on an appearance and extenuating explanation by one other than the offender; and that no one outside the staff of the Violations Bureau is ever permitted access to the filed or 'white' copy of a ticket. The Violations Bureau and the Municipal Court judges process about 200,000 traffic tickets a year.

The Chief Violations Clerk of the Violations Bureau identified a register tape of fines paid into Municipal Court on January 10, 1972, which indicated that three dollars was paid as a court-ordered fine for the parking ticket here involved.

I

We deal first with the State's objection to the acquittal ordered by the Appellate Division on the forgery count. The statute (N.J.S.A. 2A:109--1(a).) reads as follows:

Any person who, with intent to prejudice, injure, damage or defraud any other person:

a. Falsely makes, alters, forges or counterfeits any record or other authentic matter of a public nature or character, or any printed or written instrument or indorsement, acceptance, transfer or assignment thereof;

Is guilty of a high misdemeanor.

The reasoning of the Appellate Division in reversing the conviction on the forgery count was the following:

The statutory offense of forgery as it exists in this State is addressed to the 'fraudulent making of a writing which if genuine would, or on its face might be, of some legal effect upon the rights of others * * *' State v. Ruggiero, 43 N.J.Super. 156, 159 (128 A.2d 7) (App.Div.1956), aff'd. o.b. 25 N.J. 292 (1957); State v. Gledhill, --- N.J. --- (dec. June 10, 1975) (67 N.J. 565, 572 (342 A.2d 161)). The gist of the offense is the creation of the appearance or illusion of genuineness. State v. Berko, 75 N.J.Super. 283, 290 (183 A.2d 118) (App.Div.1962). Here the use of the fictitious name Michael Arnold was worthless. it did not have any legal effect upon the apparent negotiability of the instrument. The check itself was genuine; the endorsement of the fictitious name was an immaterial addition of no legal significance.

Carr v. United States, 278 F.2d 702 (6 Cir. 1960). We deem of no significance the fact that the check for some unexplained reason was in fact paid by the drawee bank. In view of our holding we need not discuss defendant's arguments relating to the court's instructions to the jury on the subject of forgery.

We believe the focus of the foregoing excerpt on the legal immateriality of the fictitious writing on the check unduly constricts the incriminating intent of the statute. In the Ruggiero, case, quoted by the Appellate Division, Judge Jayne, in language adopted by this Court in affirming, went beyond the customary definitions of forgery as a false writing, made fraudulently, 'which if genuine Would operate as the foundation of another's liability or the evidence of his right.' (emphasis added). 3 Underhill, Criminal Evidence (5th ed. 1957) § 770, p. 1769. Cf. State v. Gledhill, 67 N.J. 565, 572, 342 A.2d 161 (1975). The offense is committed, under Ruggiero, where the false writing 'if genuine would, Or on its face might be, of some legal effect upon the rights of others * * *' (emphasis added) (43 N.J.Super. at 159, 128 A.2d at 9).

It is our view,...