State v. Weir, DOCKET NO. A-5937-17T4

CourtNew Jersey Superior Court — Appellate Division
Writing for the CourtPER CURIAM
PartiesSTATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS WEIR, Defendant-Appellant.
Docket NumberDOCKET NO. A-5937-17T4
Decision Date12 May 2020

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
THOMAS WEIR, Defendant-Appellant.

DOCKET NO. A-5937-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued December 19, 2019
May 12, 2020


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Alvarez and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 14-04-0277.

Kalman Harris Geist argued the cause for appellant.

Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ali Y. Ozbek, of counsel and on the brief).

PER CURIAM

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A jury convicted defendant Thomas Weir of third-degree theft by deception,1 N.J.S.A. 2C:20-4(a) (count one); third-degree money laundering, N.J.S.A. 2C:21-25(a)(b)(1) and (2) (count two); failure to pay New Jersey state income tax, N.J.S.A. 54:52-9 (count three); and filing a false New Jersey income tax return, N.J.S.A. 54:52-10 (count four). On July 16, 2018, the trial judge imposed two and one-half years of probation on the theft by deception charge, to be served concurrently to equivalent terms of probation on counts three and four. He also imposed, as required by statute, a consecutive two and one-half year term of probation on the money laundering conviction. See N.J.S.A. 2C:21-27(c). Finally, the judge imposed a $75,000 fine and $75,000 in restitution payable from defendant's 401k, after deducting $2500 already paid to the victim, for a total of $148,030 due within forty-five days. We affirm.

Pre-trial, and during the trial, defendant moved to dismiss the indictment on the basis of alleged prejudicial errors; while testifying before the grand jury, the victim mentioned that the thefts stopped when defendant was briefly incarcerated, and resumed when he was released. We more fully describe the exchange in the relevant sections. Defendant further argued that since the State

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had not preserved access to text messages on his cell phone, which he claimed would have been exculpatory, dismissal was required. We detail the circumstances more fully below.

At trial, the victim, who began a stone fabrication and installation business in around 2002, testified he hired defendant to act as his bookkeeper/accountant. The two men had known each other for over thirty years. The victim had not completed high school, and was unfamiliar with the records that needed to be maintained for operational reasons and for the filing of tax returns. Thus, he hired defendant to work for him part-time to maintain the books.

As the years passed, defendant's responsibilities grew. He made bank deposits, answered phones, assisted customers, calculated and disbursed payroll, paid monthly bills, maintained business records, wrote all the business checks for the victim's signature, and prepared business tax returns. Only defendant had operated the company computer, which sat on his desk, and which the victim did not access until after his departure. In the morning, defendant would text the victim about the status of the business's bank account, and whether outstanding receivables needed to be collected so business bills could be paid.

The victim did not review his bank statements until 2013, shortly after he terminated defendant's services due to an unrelated disagreement. The victim

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then realized that defendant had made frequent unauthorized payments to himself from the accounts, at times almost daily. These included transactions such as the purchase of $2470 worth of food from an upscale restaurant near the office, travel two or three times a year to the Dominican Republic, withdrawal of cash, and payment of incidental expenses while traveling. Defendant at one point obtained a cash advance using his own credit, and had the business reimburse him. Upon discovering the transactions, the victim filed a civil case against defendant, as well as against the business's bank, demanding $500,000 in damages, and lodged formal criminal charges against defendant.

Detective Tamara L. MacDonald of the Passaic County Prosecutor's Office's Financial Crimes Unit testified, offering her analysis of the business bank statements and other documents. Defendant maintained Chase credit card accounts with Continental Airlines, paid by electronic transfers from the business. Defendant made withdrawals from business funds to pay utilities at his second home in upstate New York, and gasoline expenses for his personal vehicle. He also bought candy and miscellaneous merchandise while on trips to New York City, in addition to making purchases at various retail outlets and restaurants with business funds. Defendant transferred funds from the company

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account to his personal accounts from 2008 to 2013. MacDonald did not preserve the drafts of her final report.

Bruce Stuck, a supervisory special agent at the New Jersey Department of Treasury, Division of Taxation, Office of Criminal Investigation, also testified at trial. Defendant owed taxes on $194,029.14 in unreported income from 2008 to 2012. By the State's calculations, defendant transferred a total of $211,097.95 from the business to various accounts in his name between 2008 and 2013.

Defendant testified to the contrary. He claimed all electronic transfers were valid reimbursements for purchases he made for the business and for the victim personally. Defendant presented evidence of his purchase—using his own credit card—of a computer and printer on November 12, 2003, for which he was reimbursed, to establish a course of conduct. He also presented proof of a $3500 loan he had made to the victim in 2005. Defendant alleged the victim enjoyed a lavish lifestyle, funded through the business, and that the company was in dire financial straits because of the victim's excessive spending.

Defendant claimed that he constantly communicated with the victim, including daily text messages, and that the text messages would have supported his version of the facts. When his expert attempted to retrieve text messages from a cell phone the prosecutor's office had seized, the phone was locked.

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Defendant said those text messages would have corroborated his testimony that all transfers and cash advances were authorized by the victim.

Defendant also claimed he logged each purchase in a green notebook, which contained a list of the expenditures, with dates, that would have further corroborated his testimony. He said he kept the notebook in the right bottom drawer of his desk at the office, but that when his attorney attempted to retrieve it, the victim denied it ever existed.

The victim did not dispute that at times he reimbursed defendant for purchases. He testified the expenses were minor, and the reimbursements all in cash. The sums never exceeded $100.

The prosecutor's cross-examination of defendant included questions about his previous employment with another company. He said "[d]idn't the principals get into trouble? Did you hear that?" Defense counsel objected, and the judge sustained the objection. He immediately instructed the jury that they must not include any portion of the testimony in their deliberations.

Defendant asked the judge to charge that unless the jury found defendant guilty of theft by deception, it had to acquit him of money laundering. The judge refused, as the offenses had different elements independent of each other. He instructed the jury in accord with model instructions. See Model Jury Charge

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(Criminal), "Theft by Deception" (rev. Apr. 15, 2013); Model Jury Charge (Criminal), "Financial Facilitation of Criminal Activity" (approved Jan. 2019).

While deliberating, the jury asked the court, "[c]an the defendant be guilty of money laundering while be[ing] innocent of theft by deception?" In response, the judge reinstructed, again tracking the model charges, on theft by deception and money laundering. Defense counsel renewed his request that the jury be charged that money laundering and theft by deception were interdependent, which was denied.

Defense counsel further argued that the tax evasion count could not be considered by the jury if they acquitted defendant of theft by deception, and also requested that they be instructed accordingly. The judge denied this request as well.

After four days of deliberations, the jury sent a note asking "[w]hat if we cannot come to an agreement?" Some jurors indicated that continuing deliberations was difficult because they were no longer being paid. The judge asked the panel to serve an additional day and offered to call their employers.

Defense counsel moved for a mistrial on the basis that the jury was deadlocked. Because the hotly contested trial had spanned six days, the judge elected to give the model jury charge on further jury deliberations. See Model

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Jury Charges (Criminal), "Judge's Instructions on Further Jury Deliberations" (approved Jan. 2013). The jury resumed deliberations and reached the verdict of guilty as to all counts on the same day.

At sentencing, the State contended the victim's losses totaled $211,097.95, the total transfers from the business bank accounts to defendant's various personal accounts. In light of the jury finding that the theft did not exceed $75,000, crediting defendant for the $2500 payment he made in the civil suit, the judge capped the restitution figure at $72,500.

On appeal, defendant raises the following points of error:

POINT I
THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE INSINUATED WITHOUT ANY GOOD FAITH BASIS WHATSOEVER THAT DEFENDANT HAD ENGAGED IN BAD ACTS IN A FORMER COMPANY WHERE HE HAD BEEN EMPLOYED AS THE COMPTROLLER AND WHERE THE PRINCIPALS GOT INTO TROUBLE SHORTLY AFTER HE HAD LEFT THE COMPANY.

POINT II
THE DEFENSE MOTION FOR A
...

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