SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
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.
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.
