STATE , v. PETER G. REPOLI,

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3817-10T3

STATE ,

v.

PETER G. REPOLI,

________________________________________________________

Submitted May 1, 2012 – Decided July 10, 2012

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-2065.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Peter G. Repoli was convicted of the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3, a lesser-included offense of criminal restraint, N.J.S.A. 2C:13-2. The judge also found defendant guilty of possession of drug paraphernalia,N.J.S.A. 2C:36-2, a disorderly persons offense. The judge subsequently sentenced defendant to 364 days in the county jail on the false imprisonment conviction and imposed a concurrent six-month sentence to the county jail on the drug paraphernalia conviction. Appropriate fines and penalties were also imposed.

Before us, defendant raises the following arguments:

POINT I: THE TRIAL COURT ERRED BY PERMITTING THE STATE TO PRESENT TESTIMONY THAT A SEARCH WARRANT WAS ISSUED TO SEARCH THE DEFENDANT'S HOME FOR EVIDENCE OF CRIMINAL ACTIVITY. (Not Raised Below)

POINT II: THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY, SUA SPONTE, WITH A LIMITING INSTRUCTION CONCERNING THE SEARCH WARRANT TESTIMONY. (Not Raised Below)

POINT III: THE TRIAL COURT ERRED BY NOT STRIKING THE TESTIMONY OF DETECTIVE FUNK THAT THE POLICE MAY HAVE OBTAINED MR. REPOLI'S PHOTOGRAPH BY INSERTING HIS STATE IDENTIFICATION NUMBER INTO THE POLICE COMPUTER AND ALSO BY NOT PROVIDING AN ADEQUATE JURY INSTRUCTION. (Partially Raised Below)

POINT IV: DETECTIVE FUNK WAS NOT QUALIFIED AS AN EXPERT. THEREFORE, HIS OPINION THAT THE GLASS PIPES, BRILLO SUBSTANCE AND NAIL WAS DRUG PARAPHERNALIA WAS INADMISSIBLE IN VIOLATION OF N.J.R.E. 702. (Not Raised Below)

POINT V: MR. REPOLI WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S (A) FAILURE TO OBJECT TO THE SEARCH WARRANT TESTIMONY; (B) FAILURE TO SEEK A CURATIVE INSTRUCTION CONCERNING THE SEARCH WARRANT; (C) FAILURE TO MOVE TO STRIKE THE "STATE IDENTIFICATION NUMBER" TESTIMONY; AND (D) FAILURE TO OBJECT TO DETECTIVE FUNK'S EXPERT TESTIMONY. (Not Raised Below)

POINT VI: THE TRIAL COURT'S IMPOSITION OF A FOURTH DEGREE CONVICTION FOR FALSE IMPRISONMNET, N.J.S.A. 2C:13-3, WAS AN ILLEGAL SENTENCE AS FALSE IMPRISONMENT IS A DISORDERLY PERSONS OFFENSE. (Not Raised Below)

The State concedes that the sentence imposed for false imprisonment was illegal and a remand is necessary. We have considered the remaining arguments in light of the record and applicable legal standards. We affirm.

At approximately 6:00 a.m. on the morning of March 20, 2009, Ervin Gamez was walking down Henry Street in Orange when a man approached and offered to pay Gamez to repair a door frame. At trial, Gamez identified defendant as that person. Gamez further testified that defendant grabbed his upper right arm and pushed him into a waiting taxi. While in the taxi, defendant gave Gamez business cards with his name and address and told Gamez that he was an attorney.

The two men rode in the taxi to defendant's apartment. Gamez observed the broken door frame and asked defendant for tools to make the repairs. Gamez refused to enter the apartment, but defendant grabbed his upper right arm and pushed him inside. Defendant told Gamez to sit down and began smoking a white substance he had pulled from a small bag.

Defendant then asked Gamez to remove his clothes. Gamez became suspicious and asked if he could use the bathroom, hoping, unsuccessfully, to find an escape route out of the apartment. Defendant realized Gamez was attempting to flee and ordered him sit down near a table. Defendant pulled a small, black handgun from a garbage bag and placed it on the table within reach.

Defendant lay down on a bed and again ordered Gamez to remove his clothes and join him. Gamez took off his jacket and left it on the chair in an attempt to gain defendant's trust. Gamez then quickly ran to the door, down the stairs and out of the apartment building.

Gamez used the phone in a laundromat near defendant's apartment to call his brother and uncle. When they arrived, the three men went to the West Orange Police Station. Gamez described the events and took the police officers to defendant's apartment building. When they arrived, Gamez's jacket was hanging on the front door of the building. Gamez returned to the West Orange Police Station where he was presented with a photographic array of six pictures. Gamez identified defendant from the array. Gamez also gave defendant's business cards to the officers.

Defendant was arrested later that day. The police obtained a search warrant and seized from defendant's apartment various items alleged to be narcotic paraphernalia. No handgun was recovered.

Defendant did not testify and called no witnesses in his defense.

In Points I and II, defendant argues that references to the search warrant by the prosecutor in his opening, and during the testimony of Detective Brian Funk, deprived him of a fair trial, and that the judge should have sua sponte issued a curative instruction to the jury. Because defendant lodged no objection at trial and never requested such an instruction, we consider the contentions under the plain error standard. SeeR. 2:10-2 "[a]ny error or omission shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result").

During his opening statement, the prosecutor told the jury that "the officers did their investigation, eventually obtaining a search warrant . . . ." He continued by stating the search warrant was executed and certain evidence was seized. During Detective Funk's testimony, the prosecutor asked a series of questions referencing the search warrant. Additionally, Funk testified that he was "the affiant" on the warrant and fellow officers secured defendant's apartment "until the warrant was signed by the judge."

Defendant argues that based upon our holdings in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J.Super. 137 (App. Div. 1999), these references to the search warrant were highly prejudicial and require reversal. We disagree.

In State v. McDonough, 337 N.J. Super. 27, 32 (App. Div.), certif. denied, 169 N.J. 605 (2001), the defendant made a similar argument. However, we rejected the contention, noting that "the evidence of the warrants in Milton and Alvarez not only indicated that a judge had found sufficient basis to justify their issuance, but also implied that the State had presented evidence to the judge that was not introduced at trial which indicated that the defendant was likely to be in possession of contraband." Id. at 34. Instead, we concluded that the case was controlled by Statev. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997), where the Court held "that the jury does not have to be 'shielded from knowledge that . . . warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt.'" Id. at 35 (quoting Marshall, supra, 148 N.J. at 240).

In this case, although the search warrant was referenced repeatedly, there was nothing suggesting evidence was supplied to the judge issuing the warrant that was not presented to the jury. Indeed, following Gamez's testimony in which he detailed the information he supplied to the police, Funk testified as to how the investigation unfolded thereafter. Therefore, it was logical for the jury to have concluded that a search warrant for defendant's apartment was issued based upon, and only upon, the information Gamez directly provided to the police.

Defendant also argues that the judge committed plain error by not providing the jury with a limiting charge regarding these references to the search warrant. In light of the above, we conclude the argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

In Points III and IV, defendant contends that other aspects of Funk's testimony require reversal. We consider them seriatim.

During direct examination, the prosecutor asked Funk:

Q. And during the course of the investigation, did you have the opportunity to prepare photographs for viewing by Ervin Gamez?

A. Yes.

Q. Could you just go through briefly your process in doing so?

A. Um, the West Orange Police Department utilizes a computer-generated program, where we input a suspect's state identification or his last name.

Defendant objected and at sidebar claimed the testimony regarding a "state identification number" meant "somebody spent time in prison." The judge suggested that the prosecutor pose leading questions to Funk, and he would provide the jury with a curative instruction. Defense counsel stated, "That's appropriate."

The prosecutor then asked:

Q. As a result of your search, . . . you came across a photo of [defendant], correct?

A. Yes.

Q. And what did you do with that photo?

A. We found five similar fillers. And the victim was shown six photographs in which he positively identified [defendant] as the suspect.

The judge immediately instructed the jury that "law enforcement comes into contact with photos of people for all kinds of reasons . . . totally unrelated to criminal activity. So, you're not to infer from the fact that the police had a photograph of defendant as proof that he's involved in criminal activity or that he committed the crimes charged." There was no objection. The judge gave a similar charge in his final instructions to the jury.

After identifying the glass pipe and other things seized from defendant's apartment, Funk confirmed that "based on [his] training and experience, those items [we]re items that could be used to smoke narcotics[.]" Funk further identified a Brillo-like substance as being "used as a filter when ingesting crack cocaine." No objection was made at trial.

Defendant now argues that Funk's testimony regarding "a suspect's state identification" was improper because it suggested to the jury that he had a prior criminal record and the judge's curative instruction was inadequate. Defendant also contends that Funk was neither qualified as an expert nor "asked a proper hypothetical question" regarding the items seized from his apartment.

The arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add the following brief comments.

In our view, the judge properly instructed the jury regarding defendant's photograph and its appearance in the photographic array shown to Gamez. Absent any proof to the contrary, we presume the jury fully complied with his instructions. State v. Nelson, 173 N.J. 417, 447 (2002).

We reject the State's contention that Funk's testimony regarding the pipes and other evidence seized was proper lay opinion. See N.J.R.E.701. As the Court recently said, if based upon his perception, a lay witness is permitted to "give an opinion on matters of common knowledge and observation." State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)). Whether Brillo can be used as a filter to smoke crack cocaine is a matter beyond the ken of a juror's common knowledge.

However, any error was harmless beyond a reasonable doubt. The jury was not asked to consider defendant's guilt regarding the charge of possession of narcotics paraphernalia. Moreover, defendant has not argued that the evidence somehow prejudicially tainted the jury's proper consideration of the actual counts in the indictment for which it rendered verdicts.

Defendant argues trial counsel provided ineffective assistance by failing to object to: the search warrant testimony, or seek a curative instruction; Funk's testimony regarding the "state identification number; and Funk's opinions regarding the narcotics paraphernalia. Again, we disagree.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington,466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "must show that . . . counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct.at 2064, 80 L. Ed. 2d at 693). A defendant must show by "a reasonable probability" that the deficient performance affected the outcome. Fritz,supra, 105 N.J. at 58.

Routinely, our consideration of claims of ineffective assistance of counsel is postponed until a petition for post-conviction relief is filed "because the facts often lie outside the trial record and because the attorney's testimony may be required." State v. Preciose, 129 N.J. 451, 462 (1992). This is not such a case.

As noted, the bases for defendant's ineffective assistance of counsel claim all relate to issues raised in his other points on appeal. None of them have merit. Therefore, even if trial counsel was deficient, and he was not, there was no "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

Lastly, the State concedes that the sentence of 364 days on the conviction for false imprisonment is illegal because the maximum term of imprisonment for a disorderly-persons offense is six months. See N.J.S.A. 2C:43-8. The State suggests that we remand the matter so the judge may enter an amended judgment of conviction imposing a six-month term. However, defendant correctly points out that the amended judgment of conviction should also reflect that defendant was convicted of a disorderly persons offense, not a crime. See N.J.S.A. 2C:1-4(b) ("Disorderly persons offenses . . . are not crimes within the meaning of the Constitution of this State. . . . Conviction of such offenses shall not give rise to any disability or legal disadvantage based on conviction of a crime.").

The matter is remanded to the trial judge for entry of an amended judgment of conviction reflecting defendant's conviction of the disorderly persons offense of false imprisonment. N.J.S.A. 2C:13-3. The judge shall also re-sentence defendant to a sentence permitted under our Criminal Code for such an offense.

Defendant's conviction is affirmed. The matter is remanded for re-sentencing and entry of an amended judgment of conviction. We do not retain jurisdiction.

State v. Williams

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6103-09T4

STATE 

v.

QUADIR WILLIAMS,

___________________________

July 12, 2012

Submitted June 20, 2012 – Decided

Before Judges A. A. Rodríguez and Reisner.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-01-00116.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Quadir Williams, was convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7 and 2C:35-5a; and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). After appropriate merger of the possessory offenses, Judge Ernest M. Caposela granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, and imposed a ten-year term with a five-year parole disqualifier. The judge also imposed a concurrent eighteen-month term on the resisting arrest conviction.

Only one witness testified, City of Paterson Police Department Officer Edwin Morillo. He was called by the State as a fact witness. According to Morillo, on August 8, 2008, at 11:00 a.m., he and his partner Sal Macolino were investigating in plain clothes and driving an unmarked police vehicle. The focus of their investigation was a 249-unit apartment building on East 19th Street. After several minutes, Morillo and his partner saw two men, subsequently identified as defendant and co-defendant, Gyasi Allen, exiting the apartment building. Defendant and Allen walked up and down the street for ten to twenty minutes, then they crossed the street and paced back and forth along a fence bordering an empty parking lot. Defendant and Allen looked down at the ground. Defendant bent down and picked up a small black plastic bag. While defendant was holding the black bag in his hand, he and Allen walked to an empty adjacent building. Defendant placed the black bag beneath a fence at the corner of the vacant structure.

Suspecting criminal activity, Morillo and Macolino went to the back of the apartment building, just in case defendant and Allen ran inside. The officers went out the front of the apartment building. Defendant and Allen remained standing in front of the building. The plastic bag was six to eight feet away from them. The officers casually exited, with their police badges around their necks and holding police radios. Defendant and Allen saw them and ran away in different directions.

Morillo chased defendant, shouting at him to stop. Defendant continued running. Defendant reached into his pocket, took items out, and threw them on the ground as he ran. Morillo saw that one of the items was a small white object. Morillo tackled defendant and subdued him. As he took defendant to a police vehicle, Morillo retraced the path of the chase and recovered the items defendant had thrown on the ground, i.e., money and a deck of heroin containing eight glassine envelopes.

Following a search of defendant, Morillo found $7,695 in his possession. Morillo returned to the apartment building to meet Macolino, then went to the fence where defendant had been seen placing the black bag. The officer retrieved the bag there, which contained fifty-three glassine envelopes of heroin.¹ Defendant and Allen were arrested and later indicted. Defendant was tried by himself. He presented a defense but no witnesses.

On cross-examination, defense counsel asked Morillo several questions regarding knowledge about the process of selling illicit narcotics. These questions asked Morillo to draw upon his expertise as a police officer. The following exchange is illustrative. Defense counsel cross-examined Morillo on his expertise about scenarios that the officer had encountered with respect to street sales of narcotics:

[DEFENSE COUNSEL]: At other times, you have seen situations where it's like an open bazaar. Cars are pulling up, people are running out to the street, they're talking – the – the guy on the street talking to the – to the driver or passenger of the car, correct?

[MORILLO]: It – in – every case is different – every case is different and –

Q. I'm – I'm trying to draw on your nine years of experience –

A. Yes.

Q. -- so that we can perhaps tell this jury what it is that you look for when you are conducting a surveillance.

A. Sure.

Q. So, on other occasions in this very location you have seen cars pulling up and people that you suspect to be drug dealers going up and actually servicing the car, correct?

A. Yes.

Q. It's like – it's like – it's almost like the drive-in, right?

A. Pretty much so, yes.

Q. You know like a bellhop.

A. That's right. Yes, sir.

Q. Okay. They come out. They come right up to the car. The person in the car gives them money, the person on the street gives him drugs, correct?

A. Yes.

Q. It's a very quick transaction, correct?

A. Yes.

Q. It's one that to the untrained eye it just might be a dude on the street talking to a person in a car, correct?

A. Yes, sir.

Q. But to your trained eye it is something that you look at and you say whoa, drug deal just happened. Yes?

A. Not specifically. It's other characteristics, other conducts that we look at.

Q. Okay.

A. So, it's not just doing that. It's all these things –

Q. You also at times look for people that are on the street that are openly flagging people down, hailing, or – a while back they used to yell, "Yo – Yo" right?

A. They – they still use it.

Over defense counsel's objection, the judge ruled that such questions opened the door for the State to question Morillo regarding general characteristics of drug dealers based on his expertise.

On appeal, defendant contends:

THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN ALLOWING THE STATE'S WITNESS TO GIVE EXPANSIVE EXPERT TESTIMONY THAT WAS NOT WARRANTED BY DEFENDANT'S CROSS-EXAMINATION. [U.S. CONST.], AMENDS. VI, XIV; [N.J. CONST.] (1947), ART 1, PARS. 9, 10.

Specifically, defendant argues that his cross-examination of Morillo did not warrant the State to elicit expert testimony on re-direct, and such expert testimony "was improper because its subject matter was not beyond the ken of an average juror." We are not persuaded.

Clearly, during cross-examination, defense counsel was not asking Morillo to testify about facts, i.e., events that he observed or things that he heard, or anything perceived with the human senses. Rather, he asked the witness to interpret his observations in this case, based on the officer's experience as a narcotics police officer. In short, defense counsel turned a fact witness into an expert witness for purposes of cross-examination. Having done so, defense counsel cannot complain when the Assistant Prosecutor also asks questions of Morillo, which draw upon the officer's experience as well as his sensory perceptions. We note that on direct examination, the Assistant Prosecutor asked only fact questions. We perceive no basis for a reversal.

Pursuant to N.J.R.E. 702, a person who possesses "knowledge, skill, experience training or education" may qualify as an expert and give expert testimony, if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue." See State v. Reeds, 197 N.J. 280, 291 (2009). Here, an adverse party asked Morillo expert testimony questions regarding his investigation. This is permissible. "The average juror does not understand how drug operations are conducted on the streets." State v. Cannon, 271 N.J. Super. 391, 396 (App. Div. 1994).

Defense counsel was seeking to impeach Morillo's credibility with the officer's special knowledge and training. Therefore, defendant cannot now complain that Morillo's expert testimony was inadmissible. Defendant sought such testimony, thus waiving any objection to admissibility.

Subsequent questions to Morillo by the Assistant Prosecutor covered the same areas as the cross-examination. The State did not seek new, substantive expert testimony from Morillo.

Defendant also contends that:

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

We disagree.

Defendant was twenty-seven-years old at the time sentence was imposed. He has a history of six indictable and two disorderly persons convictions, and seven juvenile delinquency adjudications. Defendant has served custodial terms as a juvenile and as an adult.

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that the defendant will commit another offense; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; (9) the need for deterring the defendant and others from violating the law.

The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (11) the imprisonment of the defendant would entail excessive hardship to himself or his dependents.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v.Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v.O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

1 At trial, the parties stipulated to the admission of the State Police laboratory results for chemical analysis of the glassine bags. The substance in the bag was .36 grams of heroin.

STATE v. JOYCE A. CAPPELLO

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3601-10T4

STATE

v.

JOYCE A. CAPPELLO,

_________________________________

July 11, 2012

Submitted June 6, 2012 - Decided

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 10-04-0263.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joyce A. Cappello appeals her conviction for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1), as well as the resulting aggregate sentence of three years of probation and restitution in the amount of $13,331.90. We reverse the conviction for receiving stolen property, and vacate the related sentence. We affirm the conviction and sentence for resisting arrest.

I.

We discern the following facts and procedural history from the record on appeal.

In 2007, Cappello posted her resume on a career website. In response, she received an email from someone calling himself George Hilbert. He represented himself as affiliated with MCM Group (MCM), a company located in Washington, D.C. Hilbert told her about a job as a penny shares manager. Hilbert told her that the job would require her to open a bank account, which need not be a business account. MCM would then transfer funds to her account and instruct her how to transfer the funds to others. Cappello would receive a percentage for each transaction she facilitated. She understood she would earn about $3,000 per month.

Cappello received and signed a confidentiality agreement. In contrast to the duties described during email exchanges, the terms of the confidentiality agreement outlined duties that included "consulting potential investors about our investment program" and "processing orders."

Cappello opened a personal account in her own name at a local bank. However, rather than using her own address, she used the business and residential addresses of a friend.

Cappello completed four transactions for MCM. Between November 18, and December 7, 2007, someone made three electronic transfers into Cappello's account: (1) $2,870.30 on November 14, (2) $3,820.60 on November 20, and (3) $8,000 on November 28. At the direction of MCM, Cappello issued four checks drawn on her account to payees located in Moldova. Those checks, signed by Cappello, were issued as follows: (1) $2,726.30 on November 17, (2) $3,514.16 on November 24, (3) $3,492 on December 3, and (4) $3,600 on December 1. Cappello's bank subsequently became suspicious of the transfers and froze her account.

In November 2007, East Greenwich Township Police Department Sergeant Charles Barone received a telephone call from Wachovia Bank (Wachovia) concerning unauthorized transactions in which funds had been transferred from the account of one of its customers without authorization. Wachovia had determined that those funds wound up in Cappello's account.

Barone went to the business address Cappello had given her bank when she opened the account. It belonged to a commercial business with which Cappello had no affiliation. He next went to the residential address Cappello provided to the bank, which was her friend's residence.

Barone eventually ascertained Cappello's address in Gibbstown. In the early morning of June 12, 2008, he went to Cappello's home accompanied by other members of the East Greenwich Police. After Barone knocked on the door and she opened it, Barone informed her "that [he] had a warrant for her arrest" and that she was under arrest.

According to Barone, Cappello reacted angrily, mentioning something "about another case that she was involved in that she thought [he] was there for." Barone testified that she yelled at the officers, saying they did not have the authority to be there. Cappello demanded to see the arrest warrant. Barone sent another officer to retrieve it.

Barone told Cappello to put on her shoes. She did not comply. She picked up a large bag and "attempted to push past" Barone toward the front door. In the process, she bumped into the right side of Barone's body with the left side of her body. Barone responded by attempting to handcuff her, but Cappello pulled away. While she continued to struggle with Barone, the other officers returned and assisted Barone in handcuffing her.

In April 2010, Cappello was indicted for third-degree receiving stolen property and third-degree resisting arrest with the use or threat of physical force or violence, contrary to N.J.S.A. 2C:29-2(a)(3)(a). She was tried before a jury over three days in October 2010. The jury found Cappello guilty of receiving stolen property. It convicted her of the lesser-included disorderly persons offense of resisting arrest, which did not require proof that the defendant used or threatened to use force.

On December 17, the trial judge sentenced Cappello to probation for three years for the receiving charge and a concurrent probationary term of one year for resisting arrest. She was also ordered to pay $13,331.90 in restitution, as well as applicable fines and penalties. This appeal followed.

II.

Cappello raises the following issues on appeal:

POINT I: THE JURY'S GUILTY VERDICT AS TO COUNT 1 OF THE INDICTMENT, RECEIVING STOLEN PROPERTY WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II: THE TRIAL COURT ERRED IN ELICITING IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTIMONY ABOUT MS. CAPPELLO'S PURPORTED OTHER BAD ACTS (NOT RAISED BELOW).

POINT III: THE TRIAL COURT ERRED IN ADMITTING TESTIMONY ABOUT THE FACT THAT MS. CAPPELLO WAS CHARGED ON A WARRANT, AS OPPOSED TO A SUMMONS.

POINT IV: PROSECUTORIAL MISCONDUCT OF THE PROSECUTOR IN OPENING AND CLOSING ARGUMENT DEPRIVED MS. CAPPELLO OF A FAIR TRIAL (NOT RAISED BELOW).

POINT V: CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT VI: THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MS. CAPPELLO (NOT RAISED BELOW).

POINT VII: THE TRIAL COURT ERRED IN IMPOSING $13,331.90 IN RESTITUTION (NOT RAISED BELOW).

A.

We turn first to Cappello's argument that her conviction was against the weight of the evidence.¹

We apply the same standard as the trial judge in determining whether he erred in denying Cappello's motion for acquittal at the end of the State's case. State v. Moffa, 42 N.J. 258, 263 (1964) (citing State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L.Ed.2d 396 (1962)). A trial judge must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1.

More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing Fiorello, supra, 36 N.J. at 90-91).]

On a motion for a new trial, a trial judge cannot "set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. In determining whether a miscarriage of justice occurred, we defer to the trial court on matters not transmitted by the record, such as credibility, demeanor, and the feel of the case. State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002). Conclusions of law, however, are reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v.Brown, 118 N.J. 595, 604 (1990).

N.J.S.A. 2C:20-7(a) defines a receiver of stolen property as one who "knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. . . . 'Receiving' means acquiring possession, control or title, or lending on the security of the property." The statute creates a presumption of the "requisite knowledge or belief" for a person who

(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

(2) Has received stolen property in another transaction within the year preceding the transaction charged; or

(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it; or

(4) Is found in possession of two or more defaced access devices.

[N.J.S.A. 2C:20-7(b).]

Cappello argues that the State did not present any evidence to show that she knew the victim's account had been unlawfully accessed. In essence, she argues the State failed to present evidence of the requisite knowledge that the funds were stolen.

There was more than enough evidence in the record from which a jury could find beyond a reasonable doubt that the funds transferred to Cappello's account had been stolen. There was also more than enough evidence to demonstrate that Cappello knew or believed that she was engaged in some sort of criminal activity. Nevertheless, we are constrained to find that there was no factual basis for a finding, beyond a reasonable doubt, that Cappello knew or believed that the funds had been stolen, which is the key element of the offense for which she was convicted.

Funds are fungible. This is not a case in which a defendant is reselling automobiles, works of art, or other items under suspicious circumstances, in which there would be a strong inference, especially from repeated transactions, that the defendant knew or believed the items were stolen. See N.J.S.A. 2C:20-7(b).

The State produced no evidence that Cappello actually knew the source of the funds. The facts that she was engaging in conduct inconsistent with the written terms of her employment, could not contact her "employer" directly, opened a personal rather than a business account, gave false addresses to the bank, and sent the money out of the country simply do not support a finding, beyond a reasonable doubt, that the funds were or probably were stolen. The funds could just as easily have been the proceeds of other illegal activities, such as the sale of illegal drugs or illegal gambling, or efforts to avoid taxes or laws concerning the transfer of funds out of the country. Under the facts of this case, the conclusion that the funds were stolen, although in fact accurate, is, in terms of Cappello’s knowledge of that fact, necessarily based on speculation rather than proof beyond a reasonable doubt.

During her interrogation by Barone, Cappello told him that "everyone kept telling [her] that [she was] money laundering and that what [she] was doing was illegal sending money overseas." In her own testimony at trial, she explained that statement as follows:

I had two people say you better watch, that could be money laundering. I'm like how would I know that and how do I ask an employer that. Where are you getting your money from to pay me?

I just don't know of anybody who would do that. If I'm wrong, I'm more naïve than I thought. I mean I have no way of knowing that.

Money laundering, unlike receiving stolen property, does not of necessity involve the receipt of stolen funds. In fact, a defendant charged with that offense does not even need to know the source of the funds or the precise nature of the criminal activity involved. N.J.S.A.2C:21-25 provides, in pertinent part, as follows: "A person is guilty of a crime if the person: a. transports or possesses property known or which a reasonable person would believe to be derived from criminal activity."² N.J.S.A. 2C:21-25(d) provides that "property is known to be derived from criminal activity if the person knows that the property involved represents proceeds from some form, though not necessarily which form, of criminal activity."

We assume, without deciding, that the facts adduced at Cappello's trial would support a conviction for money laundering. They do not, however, support a conviction for receiving stolen property, for the reasons outlined above. Consequently, the trial judge should have granted the motion for a judgment of acquittal and we must reverse the conviction.

B.

We turn next to the conviction for resisting arrest. Although Cappello has alleged several trial errors, most of them are not directly applicable to the resisting charge. To the extent they are, we find them to be without merit and not warranting extended discussion in a written opinion.³ R.2:11-3(e)(2). The jury carefully considered the facts and the law with respect to the resisting charge and found Cappello guilty of a lesser-included disorderly persons offense, rather than the third-degree crime with which she had been charged.

C.

Because we have reversed the conviction for receiving stolen property, we need not reach the issues presented with respect to the sentence related to it, which included the issue of restitution. The one-year period of probation for resisting arrest has not been challenged on appeal.

III.

For the reasons stated above, we reverse Cappello's conviction for receiving stolen property and vacate the sentence associated with that offense, including the restitution requirement. We remand to the Law Division for correction of the judgment of conviction.

Reversed in part, affirmed in part, and remanded.

1 Cappello moved for a judgments of acquittal at the close of the State's case and prior to closing arguments. Both motions were denied. At the sentencing hearing, but prior to the imposition of sentence being issued, Cappello moved for judgment notwithstanding the verdict and for a judgment of acquittal. Those motions were also denied. Consequently, she preserved her "against the weight of the evidence" argument for appeal. R. 2:10-1.

2 We note that, in contrast to the receiving statute’s requirement that the defendant knew or believed the funds were stolen, the State need only prove that "a reasonable person would believe" that the funds laundered by the defendant were derived from criminal activity. The assistant prosecutor in this case argued to the jury that Cappello "should have known" that the funds were stolen, which is a clear misstatement of the law.

3 We should not be understood to suggest that each of those issues would be without merit as to the conviction for receiving stolen property. We do not need to reach them because we reverse that conviction for different reasons and there can be no retrial.