State v. Zwillman

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: LANE
• Citation: 270 A.2d 284,112 N.J.Super. 6
• Parties: STATE of New Jersey, Respondent, v. Irving J. ZWILLMAN, Defendant-Appellant.
• Decision Date: 19 October 1970

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112 N.J.Super. 6 270 A.2d 284 STATE of New Jersey, Respondent,
v.
Irving J. ZWILLMAN, Defendant-Appellant. Superior Court of New Jersey,
Appellate Division. Argued Sept. 29, 1970.
Decided Oct. 19, 1970.

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[270 A.2d 286] Justin P. Walder, Newark, for appellant (Schapira, Steiner & Walder, Newark, attorneys, Jeffrey Barton Cahn, Newark, on the brief, Justin P. Walder, Newark, of counsel).

David S. Baime, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, Attorney, David S. Baime, Franklin M. Sachs, Asst. Prosecutors, and John De Cicco, Legal Assistant, on the brief).

Before Judges KILKENNY, HALPERN and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Defendant, an attorney at law of the State of New Jersey, was convicted on three counts of obtaining money by false pretenses from the Maryland Casualty Company in violation of N.J.S.A. 2A:111--1. He was sentenced to 18 months in the Essex County Penitentiary, with six months to be in custody and the balance on probation. The judgment of conviction also ordered defendant to pay fines totaling $6,000 and costs of prosecution of $4,800.

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The basis of the prosecution was that the defendant, acting with Anthony D. Cortese, a claims adjuster and later claims supervisor of the Maryland Casualty Company, submitted claims on behalf of three fictitious persons. The State's case was based almost entirely upon Cortese's testimony. It was contended that the operation was that Cortese would give the defendant a location insured by Maryland Casualty Company. Defendant would then write a letter to the insured on behalf of an alleged client. The claim letter would come to Cortese who would order a physical examination and then settle the claim with the defendant. The defendant submitted reports from a doctor who allegedly treated the claimants and releases allegedly signed by the claimants. The settlement drafts were allegedly endorsed by the claimants and then cashed by defendant acting through another person. Cortese testified that he received 10% Of the settlement drafts.

I

At the oral argument defendant raised the point that there was no evidence to support the prosecution except the testimony of Cortese, a co-conspirator. He argued, therefore, that since the conspiracy was not shown by proof other than from Cortese, the testimony of Cortese out of his presence was not admissible against him, relying upon statements by the court in State v. Boiardo, 111 N.J.Super. 219, 268 A.2d 55 (App.Div.1970), certif. den. 57 N.J. 130, 270 A.2d 33 (1970). The rule as stated in Boiardo is that declarations of a co-conspirator made outside the presence of a defendant are not admissible against the defendant unless there has been sufficient independent proof to show the conspiracy. Defendant misconceives the nature of the testimony given by Cortese. In support of the indictment the State did not rely upon declarations by Cortese made out of the presence of the defendant; rather, [270 A.2d 287] Cortese's testimony was direct evidence of actions and statements of the defendant himself. These statements were part of the continuing transactions in which

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both participated in obtaining monies under false pretenses as charged by the State. State v. Jackson, 43 N.J. 148, 155--156, 203 A.2d 1 (1964). An accused may be convicted solely on the uncorroborated testimony of an accomplice. State v. Begyn, 34 N.J. 35, 54, 167 A.2d 161 (1961). There is no substance in this point. II

The denial of a motion for a judgment of acquittal at the end of the State's case and of a motion for a judgment of acquittal notwithstanding the verdict of the jury is alleged to have been error.

The basis of this argument is that since Cortese had authority to settle the claims made by the defendant on behalf of the three alleged injured persons and since there was no reliance by Cortese upon anything done or said by the defendant there could be no reliance by Maryland Casualty Company and the defendant could not be found guilty of obtaining money by false pretenses in violation of N.J.S.A. 2A:111--1. The argument urged that if, in fact, any crime was committed, it was embezzlement by Cortese.

Reliance by the aggrieved party, Maryland Casualty Company, is a necessary element of the offense charged. The extent of reliance, however, need not be great. A single misrepresentation which induces the defrauded party to part with his money is sufficient to support an indictment for a violation of N.J.S.A. 2A:111--1. State v. Allen, 53 N.J. 250, 250 A.2d 12 (1969); State v. Lamoreaux, 13 N.J.Super. 99, 80 A.2d 213 (App.Div.1951).

It may well be that Cortese was guilty of embezzlement from his employer but that does not prevent the State from charging the defendant with violations of N.J.S.A. 2A:111--1. In conspiring with the defendant Cortese was not furthering the interests of his employer. He connived with the defendant in submitting false information to the insurance company on the basis of which the defendant received monies from the insurance company. Both defendant

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and Cortese could have been found guilty of obtaining money under false pretenses or could have been indicted and found guilty of embezzlement (Zwillman as an aider and abettor) under the proofs adduced by the State. Cf. State v. Drake, 79 N.J.Super. 458, 191 A.2d 802 (App.Div.1963); State v. Urie, 92 Idaho 71, 437 P.2d 24 (Sup.Ct.1968); People v. Zimmer, 23 Cal.App.2d 581, 73 P.2d 923 (Ct.App.1937). III

Defendant objected to the court's charge on the ground that the jury was not sufficiently instructed as to the necessity and requisites of a finding of reliance by the insurance company upon false representations made by the defendant.

The jury was specifically instructed that it was necessary 'that the State show in each case that the defendant did deceive the Maryland Casualty Company which must have believed and relied on the defendant's representations to be true.'

We have reviewed the entire charge and find that it adequately instructed the jury of the necessity of a finding of reliance by the Maryland Casualty Company upon a false representation submitted by the defendant in each of the three charges.

IV

The court permitted cross-examination of the defendant as to his compliance or lack of compliance with the rules of court requiring attorneys to keep trustee accounts and certain records. R. 1:21--6, formerly R.R. 1:12--5. The evidence showed that the defendant did not deposit the settlement drafts in any trustee account. Rather the drafts were cashed and the proceeds allegedly disbursed to the claimants and the defendant. No receipt was taken from [270 A.2d 288] the claimants by the defendant. The evidence was admitted to show the intent of the defendant to defraud. In the charge to the jury the court made it very clear that if the jury found a violation

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by the defendant, such finding should be considered 'as a circumstance going to establish the defendant's intent to violate the law of either false pretense and/or conspiracy if, in fact, you find that such deviations have been proven beyond a reasonable doubt.'

The evidence was properly admitted. State v. Then, 118 N.J.L. 31, 190 A. 495 (Sup.Ct.1937), aff'd o.b. 119 N.J.L. 429, 196 A. 740 (E. & A. 1938); Cf. State v. Fisher, 96 N.J.L. 5, 114 A. 247 (Sup.Ct.1921). We find no error.

V

After the defendant had taken the stand he was served with a subpoena Duces tecum to produce in court certain of his files. Defendant argues that his Fourth and Fifth Amendment rights were violated by the refusal of the trial court to quash the subpoena.

Evidence Rule 25(d) states that 'the accused in a criminal action who voluntarily testifies in the action upon the merits does not have the privilege to refuse to disclose in that action any material relevant to any issue therein.' Defendant, therefore, cannot argue a violation of his Fifth Amendment rights. Ziegler v. United States, 174 F.2d 439 (9 Cir. 1949), cert. den. 338 U.S. 822, 70 S.Ct. 68, 94 L.Ed. 499 (1949).

Defendant argues that the subpoena was unreasonable because it was served on him late Sunday night, calling upon him to produce certain files Monday morning. The subpoena was served at approximately 10 o'clock Sunday evening and required the defendant to produce files on 11 claims together with his ledger books for 1967--68, cash book stubs for 1967--68, and Lawyers Diary for the years 1966, 1967 and 1968.

On the motion to quash the subpoena the trial court in denying the motion indicated that the subpoena might have been unreasonable because of the shortness of time which it gave the defendant to search for the records. We agree with the trial court that in that respect to was unreasonable. The

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trial court, however, accorded the defendant additional time within which to search for the files. We find no prejudicial error. VI

The jury retired on December 23, 1969 at 5:34 P.M. They returned at 8:30 P.M. with the following question:

Is it a lawyer's responsibility to determine the truthfulness of a claim in a negligence case or does his responsibility lie in only representing his client to the best of his knowledge?

The court answered the question as follows:

A lawyer's duty is, of course, the interest of his client in the maintenance of his client's rights and claims and the exertion of his utmost skill and learning to that end except that in so doing he shall not violate any of the laws. The presentation of a client's claim must be performed within and not without the bounds of law. The office of an attorney does...