Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, March 22, 2020

In the Matter of Registrant H.D.; In the Matter of Registrant J.M. (082254)(Essex County, Salem County & Statewide) (A-73/74-18; 082739)

Under the plain language of subsection (f), the fifteen-year period during which an eligible registrant must remain offense-free to qualify for registration relief commences upon his or her conviction or release from confinement for the sex offense that gave rise to his or her registration requirement.

State v. Orlando Trinidad A-65-18

The trial court erred by admitting both prejudicial testimony and, separately, lay opinion testimony as to defendant’s guilt. Yet, the evidence against Trinidad was overwhelming, and any error was therefore harmless. There was no error in the sentencing of defendant or the denial of his motion for a judgment of acquittal.

Monday, March 16, 2020


The court addressed two issues of first impression in New Jersey: (1) whether the swabbing of a defendant's hands for gunshot residue (GSR) constitutes a search under applicable constitutional doctrines, and if so, (2) whether such a search is valid under the search incident to arrest exception to the warrant requirement. The court held that the swabbing of a defendant's hands for GSR is a search under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution because it intruded upon a reasonable expectation of privacy. Balancing the intrusion of GSR testing on an individual's privacy against promoting vital governmental interests, the court further concluded that if an individual is lawfully arrested and in police custody, a delayed search of the arrestee's person for GSR evidence after the arrestee is transported to police headquarters is constitutionally permissible under the search incident to arrest exception as long as the delay itself and the scope of the search are objectively reasonable. In this case, given the existence of probable cause, the timeline, location, and limited intrusion involved in the testing, as well as the ready destructibility of GSR evidence, the court was satisfied that the search was objectively reasonable in time and scope to pass constitutional muster. Accordingly, the court reversed the Law Division's order suppressing the GSR evidence and remanded for further proceedings.


A jury found defendant Kyle P. Brown guilty of third-degree arson, N.J.S.A. 2C:17-1(b), and second-degree causing or risking widespread injury or damage, N.J.S.A. 2C:17-2(a)(1), as a result of setting fire to, and causing an explosion of, his parked car in a sparsely-filled parking lot adjacent to his apartment building in the early morning hours.
The court holds the trial judge did not err in denying defendant's motion for acquittal of third-degree arson and second-degree causing or risking widespread injury or damage because there was sufficient evidence to establish that he caused a fire and explosion as set forth in N.J.S.A. 2C:17-1(b), and an explosion as set forth in N.J.S.A. 2C:17-2(a)(1).
In the unpublished portion of this opinion, the court affirms the trial judge's ruling on all other issues.

Sunday, March 08, 2020


In February 2017, defendant was charged with the crime of possession with intent to distribute marijuana in a quantity greater than twenty-five pounds and was released on home arrest with electronic monitoring (PML3+EM). On December 17, 2018, defendant entered a guilty plea to count one of the indictment, as amended to a second-degree offense. In consideration for the guilty plea, the State agreed to recommend a maximum sentence of a five-year state prison term. Defendant requested an extended sentencing date to “put his life in order” before commencing the custodial term. The court set April 5, 2019, as the sentence date and, in its discretion, continued defendant on pretrial release.
Defendant retained new counsel and on June 10, 2019, present counsel for defendant filed a motion to withdraw the guilty plea, requesting that the sentence be adjourned and that he continue free on pretrial release, pending the return of the motion. Defendant argued that pursuant to the Criminal Justice Reform Act (CJR), N.J.S.A. 2A:162-15 to -26, he was entitled to remain on release until sentencing or the resolution of the motion to vacate the plea. The court denied the request to remain free, holding that CJR did not vest defendant with any substantive or procedural grounds to remain free on pretrial release after entering a plea of guilty. Instead, in its discretion, the court remanded defendant pending same.
The matter presents the novel issue as to whether a defendant is entitled to continue pretrial release pursuant to CJR.


Defendant argued that unused prior service credits could be applied to reduce the period of mandatory parole supervision imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court held that prior service credits could not be applied to reduce the period of parole supervision required under NERA.

State v. Jerome Shaw, Jr. A-59-18

Thursday, March 05, 2020

Roadside statements inadmissible were improper roadside stop State v. Alessi,

Roadside statements inadmissible were improper roadside stop 
State v. Alessi,
 (A-41/42-17)   Decided January 27, 2020 
TIMPONE, J., writing for the Court.
The Court considers whether the police may pull over a driver for questioning in furtherance of an investigation without reasonable suspicion that she committed a crime or traffic violation. 
In 2011, defendant Donna Alessi began dating Philip Izzo, a construction official for Raritan Township who supervised the construction staff, including Mark Fornaciari. Fornaciari filed a whistleblower claim, naming Izzo as a defendant. In preparing his defense, Izzo took Fornaciari’s personnel file and stored it in his truck. In 2013, the relationship between defendant and Izzo ended. One night in June 2013, Izzo went to a bar in Hillsborough Township. Defendant saw Izzo, went to the parking lot, entered his truck, and removed some of her personal items as well as the personnel file, which she mailed to Fornaciari. The package wound up at the construction office because of an issue with the address, and the police were called. They determined through post office surveillance footage that defendant had mailed the package. 
Detective Benedict Donaruma made several attempts to contact defendant: he called and left voicemails, and he left his business card in her door. On another day, he knocked at defendant’s door and, seeing a woman in her home, called out to her. He later testified that all of these methods of initiating contact generally lead to responses. On the day when Donaruma saw the woman in defendant’s home, he waited to see if she would leave. After a couple of minutes, he spotted defendant’s vehicle on a local road. Though Donaruma did not observe her commit a traffic violation, he pulled behind her in his marked patrol car and activated the overhead lights. When defendant stopped, he approached her car and said he wanted to discuss his investigation. Over the course of the questioning, Donaruma informed defendant multiple times that she was free to leave. 
According to Donaruma, defendant initially denied involvement but then admitted she sent the package at the behest of her then-boyfriend Izzo in an effort to get Fornaciari and another person in trouble with the Township. Defendant conceded she and Izzo drafted the letter enclosed in the package together, and she intentionally listed the wrong return address so the package would end up with the Township. 

Police arrested Izzo on charges of official misconduct and misapplication of entrusted property. Upon arrest, Izzo gave a statement claiming the personnel file had been stolen out of his truck at the bar. Defendant later gave another statement in the presence of her attorney, which was later played at her trial. In it, defendant indicated that, by the time she mailed the package, she was no longer dating Izzo. She asserted she had permission to enter Izzo’s truck and remove her personal effects, and that she accidentally grabbed the personnel file. Upon realizing her mistake, she decided to send it back to Fornaciari to spite Izzo and help with the lawsuit. 
Defendant was arrested and charged with false reporting, hindering apprehension, and burglary. She moved to suppress her roadside statement based on a violation of the Fifth Amendment. The court denied her motion and admitted the statement at trial. A jury found defendant guilty on all three counts. 
The Appellate Division reversed her convictions, holding that the roadside stop was unconstitutional. Following a motion for reconsideration, the Appellate Division changed course as to the burglary conviction, determining that there was clear evidence that defendant entered Izzo’s truck without permission and removed the personnel file. 
Both sides sought certification. The Court granted defendant’s petition, “limited to the issue of whether the burglary conviction also should have been reversed due to the admission of defendant’s incriminating roadside statement, which influenced the jury’s determination as to defendant’s credibility.” 232 N.J. 289 (2018). The Court also granted the State’s cross-petition in full. 232 N.J. 293 (2018). Following oral argument, the Court retained jurisdiction but remanded the case, directing the trial “court to make a record and findings of fact and law on whether the officer’s stop of defendant’s vehicle was constitutional.” ___ N.J.___ (2018). The judge concluded that “the stop and resultant seizure [were] unconstitutional.” 
HELD: The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hindering apprehension and false reporting. Because defendant’s roadside statement permeated the trial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well. 
1. Courts evaluate the totality of the circumstances to determine whether an officer had a reasonable suspicion that justified an investigatory stop. The Court reviews cases in which it has determined the constitutionality of a stop where the officer’s suspicion was not based on an observed traffic violation and notes that those decisions reveal a highly fact-intensive inquiry. 
2. Based solely on the knowledge available to Donaruma at the time he pulled defendant over, he could not have reasonably suspected defendant participated in a crime. Donaruma testified on remand that defendant was not the target of his investigation or even a suspect at the time he stopped her. Donaruma stopped defendant to develop his investigation into Izzo. From an objective perspective, defendant’s actions on the post office surveillance footage were not reasonably more consistent with guilt than innocence. That defendant did not respond to the officers’ calls or visits does not alter that conclusion; as the trial judge noted, there was no testimony that Donaruma became suspicious due to defendant’s elusive behavior. A law enforcement officer cannot use an automobile stop merely for the purpose of a police interview and without observing a traffic violation or having a reasonable suspicion of other criminal activity. Because the stop in this case was unconstitutional, the Court does not address defendant’s additional argument that the scope of the stop was unreasonable.   
3. Courts will not exclude evidence sufficiently attenuated from the taint of an unconstitutional stop. The Court reviews the three factors in an attenuation analysis and determines defendant’s statement to Donaruma was not so attenuated from the initial stop as to avoid application of the exclusionary rule. Without that statement, defendant’s convictions for false reporting and hindering apprehension cannot stand. 
4. Finally, the Court reviews the application of defendant’s roadside statement to her burglary charge. Defendant’s guilt hinged on whether she had permission to enter Izzo’s truck. If the jury believed defendant’s version of events over Izzo’s, then it would not have found defendant guilty of burglary. Yet, this was unlikely in light of the State’s exploitation of contradictions between defendant’s roadside statement and the statement she gave later, with counsel present. Additional facts in the record support defendant’s claim that she had permission to enter the truck, and Izzo had his own credibility issues. Had the trial court initially excluded defendant’s roadside statement, defendant’s credibility would have remained intact because the State would never have had the opportunity to highlight the falsehoods she told Donaruma. The admission of the roadside statement was “clearly capable of producing an unjust result,” R. 2:10-2, because there is reasonable doubt as to whether the jury would have found defendant guilty of burglary in its absence. The Court does not pass judgment on the merits of whether defendant burgled Izzo’s truck. 
The judgment of the Appellate Division reversing defendant’s convictions of hindering apprehension and false reporting is AFFIRMED, defendant’s conviction for burglary is REVERSED, and the matter is REMANDED. 

Sunday, March 01, 2020

STATE OF NEW JERSEY VS. TEVIN M. FIGARO STATE OF NEW JERSEY VS. ANTHONY J. GREEN STATE OF NEW JERSEY VS. ABE HAROLD (17-05-0465, 17-10-0945, 17-10-0961, 19-03-0275, 19-04-0318, AND 16-09-0824, CUMBERLAND COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5654-18T4/A-0854-19T4/A-1287-19T4)

The court granted defendants leave to appeal from orders that denied their request to declare they were not statutorily ineligible for Drug Court and to process their applications. The judge accepted that recent revisions to the Drug Court Manual (the 2019 Manual ) preserved two "tracks" for entry into the program: one, pursuant to special probation, N.J.S.A. 2C:35-14; and a second, as a general condition of probation, N.J.S.A. 2C:45-1. See, e.g., State v. Meyer, 192 N.J. 421 (2007).
Defendants were not eligible for special probation, because they faced current charges that were not "subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility[.]" N.J.S.A. 2C:35-14(a). Additionally, defendants were previously convicted of crimes that made them ineligible pursuant to N.J.S.A. 2C:35-14(a)(6), (7). The judge accepted the State's argument that although there were two tracks for entry into Drug Court, the 2019 Manual created one uniform standard for eligibility under both tracks, specifically, that an applicant was legally ineligible if he failed to meet the criteria in N.J.S.A. 2C:35-14.
The Court reversed, concluding that the full text of the 2019 Manual did not support the State's interpretation, which was contrary to the clear intention, both legislatively and administratively, to broaden eligibility for Drug Court.


Defendant appealed from a judgment of conviction after a jury convicted him of murder, arguing he was denied the right to a jury of his peers
During the voir dire, after an African American male juror was found acceptable to the court and seated in the jury box, the prosecutor performed acriminal background check on the juror and discovered someone with the same name had an outstanding municipal warrant. Without explanation to or from the juror, the trial judge granted the State's motion to remove the juror for cause so he could be arrested outside the presence of other jurors. Defendant argued the exclusion of the juror was racially motivated
The court reverses because the judge did not question the juror himself to ascertain the accuracy of the State's representation and the judge should have addressed defendant's objection under a Batson/Gilmore analysis.


Defendant Frank Campione, a licensed physician assistant, who was federally registered to prescribe opioid medications, was indicted on charges of the unlawful practice of medicine, distribution of a controlled dangerous substance to patients, and possession of prohibited weapons. The State alleged that Campione misrepresented himself as a physician to patients, improperly wrote prescriptions in non-traditional settings, such as vehicles and restaurants, and wrote prescriptions for opioid medications that were not medically necessary. Defendant Howard Katz, a licensed physician who agreed to serve as Campione's supervising physician, was charged with unlawful practice of medicine.
Defendants' motion to dismiss the entire indictment was granted by the motion court. The motion court also granted defendants' motion for discovery of the identity, opinions, and reports of the experts consulted by the State post-dismissal of the indictment.
The court affirmed the dismissal of all charges against Katz. The State presented no evidence to the grand jury that Katz participated in Campione's alleged acts of improperly holding himself out as a physician to patients.
The court also affirmed the dismissal of the counts alleging the unlawful practice of medicine based on Campione's alleged failure to practice under the direct supervision of a physician and failure to provide notice of his employment to the State Board of Medical Examiners. Such conduct involves professional misconduct punishable by civil penalties, not criminal acts.
Similarly, the court affirmed the dismissal of the count charging defendants with conspiring to commit the unlawful practice of medicine. Because Campione was a licensed physician assistant who was registered to prescribe opioid medications and Katz was a licensed physician, violating the Physician Assistant Licensing Act (PALA), N.J.S.A. 45:9-27.10 to .28, is professional misconduct punishable by civil penalties, not criminal conduct under our Criminal Code. Thus, conspiring to violate PALA is not a crime
The court reversed the dismissal of the weapons counts because the State was not precluded from introducing evidence of the possession of the prohibited weapons in a subsequent grand jury proceeding that was not introduced during the first presentment.
The court also reversed the order compelling the State to provide postdismissal discovery of the State's experts. Because the indictment was dismissed in its entirety, the criminal action was no longer pending.Accordingly, the discovery afforded under Rule 3:13-3(b)(1) does not apply even though defendant Campione still faced a civil forfeiture action and administrative disciplinary proceedings brought by the Board of Medical Examiners.

STATE v BELLAMY (A-2959-17T4)

Defendant, while incarcerated for a parole violation, was arrested for a homicide he committed while on parole. After defendant completed his parole violation sentence, he remained in jail awaiting resolution of the homicide charges. He thereafter entered a guilty plea to the homicide charges. At sentencing, the trial court, following the holding in State v. Black, 153 N.J. 438 (1998), awarded defendant eighty-six days of jail credits for the period from the day he completed his parole violation sentence to the day of sentencing.
Defendant acknowledged that if Black applies, the trial court awarded the correct number of jail credits. He argued, however, that the holding in Black was effectively overruled by the Court in State v. Hernandez, 208 N.J. 24 (2011), and as a result, he is entitled to 1149 days of jail credits for the period from the day he was arrested on the homicide charge to the day of sentencing.
The court rejected defendant's argument, noting that Hernandez concerns circumstances unlike those in Black and that in Hernandez, the Court discussed its holding in Black at length without stating it was departing from that holding. In addition, the court reviewed a number of precedents cited by defendant applying the holding in Hernandez but found all inapposite to the circumstances addressed in Black. In the absence of a Supreme Court decision overruling its prior decision, the court declined to stray from the unequivocal holding in Black and affirmed the award of jail credits.


The court considered whether the omission of one of the Miranda warnings during custodial interrogation adequately conveys the substance of the warnings and concluded it did not, notwithstanding the fact that defendant continuously interrupted the administration of the warnings. Acknowledging out-of-state authority holding that a suspect may waive Miranda warnings by interrupting their delivery, the court concluded that the suspect's interruption of the warnings does not discharge law enforcement of their duty to deliver them. Finding that the erroneous introduction of the partially unwarned statements was not harmless error, the court reversed defendant's conviction, which followed a bifurcated jury trial, and vacated his guilty plea on the weapons offense. Relying on United States v. Patane, 542 U.S. 630 (2004), however, the court rejected defendant's contention that suppression of the weapon was mandated as a remedy for the Miranda violation despite the fact that the weapon was seized as a result of a search warrant based on the statements.

Saturday, February 22, 2020

Endangering child not eligible for expungement here IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF A.T.

Endangering child not eligible for expungement here 


                Argued October 10, 2019 – Decided January 8, 2020

                Before Judges Suter and DeAlmeida.

                On appeal from the Superior Court of New Jersey, Law
                Division, Ocean County. 
                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0509-18T2
                            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.
       A.T. appeals the order denying expungement of his conviction for third

degree endangering the welfare of a child,  N.J.S.A. 2C:24-4(a). In State v. N.T.,
 ___ N.J. Super. ___ (App. Div. 2019) (slip op. at 7-10), we recently held that an

offense under N.J.S.A. 2C:24-4(a)—even if nonsexual in nature—could not be

expunged. Defendant's appeal raises the same legal issue raised in N.T. We

find N.T.'s analysis is persuasive.1 The plain language of the expungement

statute,  N.J.S.A. 2C:52-2(b), precludes expungement of a conviction under

 N.J.S.A. 2C:24-4(a). We affirm the trial court's August 27, 2018 order.

      Petitioner was arrested in 2003 and charged with "luring, enticing a child

by various means,"  N.J.S.A. 2C:13-6; aggravated sexual assault,  N.J.S.A.

2C:14-2(a)(2); endangering the welfare of a child,  N.J.S.A. 2C:24-4(a); and

conspiracy to commit aggravated sexual assault,  N.J.S.A. 2C:5-2. Petitioner

pleaded guilty to the child endangerment count for serving alcohol to a minor

and was sentenced to three years' probation, fines and penalties. The other

charges were dismissed.

      Petitioner also was arrested in 2003 for simple assault causing bodily

injury,  N.J.S.A. 2C:12-1(a)(1). Petitioner pleaded guilty to the amended charge

of violating a borough ordinance and was fined.

  We are not bound by the opinion of another panel of the Appellate Division.
See Brundage v. Estate of Carambio,  394 N.J. Super. 292, 298 n.4 (App. Div.
2007), rev'd on other grounds,  195 N.J. 575, 593 (2008).
       Petitioner filed a petition in 2017 to expunge both of these convictions. It

was amended to include a guilty plea in 2007 to violation of a local loitering

ordinance.     The prosecutor opposed petitioner's expungement application,

arguing the conviction for child endangerment under  N.J.S.A. 2C:24-4(a) could

not be expunged. The petition was denied on August 27, 2018, and later, under

Rule 2:5-1(b), the court amplified its reasons.

      On appeal, petitioner raises the following argument:

              THE    PETITION    FOR     EXPUNGEMENT.
              2016 AMENDMENT TO  N.J.S.A. 2C:52-2 DID NOT

      "The Legislature's intent is the paramount goal when interpreting a statute

and, generally, the best indicator of that intent is the statutory language."

DiProspero v. Penn,  183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano,  177 N.J. 250, 280 (2003)). We are not to "rewrite a plainly-written enactment of the

Legislature [or] presume that the Legislature intended something other than that

expressed by way of the plain language." O'Connell v. State,  171 N.J. 484, 488

(2002).      We cannot add qualifications the legislature did not include.

DiProspero,  183 N.J. at 492 (citing Craster v. Bd. of Comm'rs,  9 N.J. 225, 230

 (1952)). We review this issue de novo because it raises an issue of statutory

interpretation. Beim v. Hulfish,  216 N.J. 484, 497 (2014).

      The expungement statute 2 prohibits the expungement of certain


               Records of conviction for the following crimes
               specified in the New Jersey Code of Criminal Justice
               shall not be subject to expungement . . . subsection a.
               of N.J.S.2C:24-4 (Endangering the welfare of a child
               by engaging in sexual conduct which would impair or
               debauch the morals of the child, or causing the child
               other harm); paragraph (4) of subsection b. of
               N.J.S.2C:24-4 (Photographing or filming a child in a
               prohibited sexual act or for portrayal in a sexually
               suggestive manner); paragraph (3) of subsection b. of
               N.J.S.2C:24-4 (Causing or permitting a child to engage
               in a prohibited sexual act or the simulation of an act, or
               to be portrayed in a sexually suggestive manner);
               subparagraph (a) of paragraph (5) of subsection b. of
               N.J.S.2C:24-4 (Distributing, possessing with intent to
               distribute or using a file-sharing program to store items
               depicting the sexual exploitation or abuse of a child);
               subparagraph (b) of paragraph (5) of subsection b. of
               N.J.S.2C:24-4 (Possessing or viewing items depicting
               the sexual exploitation or abuse of a child) . . . .

               [ N.J.S.A. 2C:52-2(b) (emphasis added).]

      Petitioner's conviction under  N.J.S.A. 2C:24-4(a) cannot be expunged

under this statute. First, the expungement statute enumerates subsection "a" as

   The expungement statute's recent amendment did not change the language
relevant to this appeal. See L. 2019, c. 269.
 one of the offenses that cannot be expunged.        Next, the language in the

parenthetical that follows the statutory citation includes conduct "causing the

child other harm" without making any reference in that phrase to sexual conduct.

A court is not to "presume that the Legislature intended something other than

what it expressed in plain words." In re Plan for Abolition of the Council on

Affordable Hous.,  214 N.J. 444, 468 (2013). Where there is no ambiguity in the

language of a statute, as is the case here, "a court's task is complete." Ibid.

Petitioner was convicted under  N.J.S.A. 2C:24-4(a) and a conviction under that

statute can not be expunged.

      Petitioner contends this result was not the intent of the Legislature. He

argues that reference in the parenthetical to "causing the child other harm" was

limited to other harm caused by sexual conduct. In N.T., we explained:

            [t]he phrases "who engages in sexual conduct which
            would impair or debauch the morals of a child" and
            "who causes the child harm that would make the child
            an abused or neglected child" are separated by a comma
            and the word "or" indicates they are disjunctive and
            refer to a list of two distinct harms.

            [N.T., ___ N.J. Super. ___ (slip op. at 8).]

Thus, we rejected petitioner's construction of the parenthetical.

       Petitioner argues that the expungement statute has always allowed the

expungement of convictions for non-sexual harms. Petitioner cites to the statute

before it was amended in 2016 as evidence of this intent.

      Specifically, in 2004, when petitioner pleaded guilty, and until 2016, the

statute provided:

             Records of conviction for the following crimes
             specified in the New Jersey Code of Criminal Justice
             shall not be subject to expungement . . . section 2C:24-
             4a. (Endangering the welfare of a child by engaging in
             sexual conduct which would impair or debauch the
             morals of the child)[.]

             [ N.J.S.A. 2C:52-2(b) (1994).]

It did not include reference to "other harms." The language "causing the child

other harm" was added in 2016. The committee statement accompanying the

bill provided the purpose of the amendment was to "update, using the accepted

current citation format, the statutory citations for the list of criminal convictions

that are not subject to expungement; such updating does not add any additional

crimes to this list[.]" Statement of the Senate Judiciary Comm. to A. 206, 471,

1663, 2879, 3060, and 3108 (May 7, 2015). Because the original parenthetical

only referenced sexual conduct, petitioner argues the Legislature did not intend

to expand the list of prohibited crimes when it amended the statute in 2016 to

add "other harm" that was not sexual in nature.

       We rejected a similar argument in In re Expungement of W.S.,  367 N.J.

Super. 307, 312-13 (App. Div. 2004). W.S. concerned N.J.S.A. 2C:52-2(b)'s list

of non-expungable offenses, specifically a conviction under "section 2C:14-2

(Aggravated Sexual Assault). . . ."         Id. at 310.   The statute prohibited

expungement under  N.J.S.A. 2C:14-2 without making a distinction between

different degrees of the offense. It was the parenthetical that followed the

statutory citation that gave rise to the question about the scope of the statute's

prohibition. The issue in W.S. was "whether the parenthetical reference to

'aggravated sexual assault' following 'section 2C:14–2' in N.J.S.A. 2C:52–2(b)

limit[ed] the violations of N.J.S.A. 2C:14–2 that [were] not subject to

expungement to aggravated sexual assaults or [was it] simply an incomplete

description of the offenses proscribed by N.J.S.A. 2C:14–2." Id. at 311. In

W.S., we held the parenthetical that followed the statutory citation was "simply

an incomplete and thus inaccurate description of this offense that does not limit

the scope of the prohibition against expungement." Id. at 312-13.

      Here, the expungement statute unequivocally states that offenses under

subsection "a" of  N.J.S.A. 2C:24-4 cannot be expunged.           In 2004, when

petitioner pleaded guilty, paragraph "a" of the child endangerment statute


             Any person having a legal duty for the care of a child
            or who has assumed responsibility for the care of a
            child who engages in sexual conduct which would
            impair or debauch the morals of the child, or who
            causes the child harm that would make the child an
            abused or neglected child as defined in R.S.9:6-1,
            R.S.9:6-3 and P.L.1974, c. 119, s.1 (C.9:6-8.21) is
            guilty of a crime of the second degree. Any other
            person who engages in conduct or who causes harm as
            described in this subsection to a child under the age of
            [sixteen] is guilty of a crime of the third degree.

            [ N.J.S.A. 2C:24-4(a) (2001) (emphasis added).]

At least since 1979, the statute has included reference in subsection "a" to "harm

that would make the child an abused or neglected child." L. 1979, c. 178, §46.

In 2013, the statute was amended.        N.J.S.A. 2C:24-4(a)(1) now addresses

"sexual conduct which would impair or debauch the morals of the child."

N.J.S.A. 2C: 24-4(a)(2) addresses "harm that would make the child an abused

or neglected child as defined in [specific sections of Title Nine]." Had the

legislature intended to limit the expungement statute to sexual offenses only, it

could have said so in the 2016 amendments because by then  N.J.S.A. 2C:24-4(a)

had been amended to create subsections (a)(1) and (a)(2). We observed in N.T.

that "[t]he Legislature did not do so. We infer, through well-established law,

that the omission was intentional." N.T., ___ N.J. Super. ___ (slip op. at 9)

(citing Ryan v. Renny,  203 N.J. 37, 58, (2010)).

       We conclude that the expungement statute's parenthetical prior to 2016

was not intended to limit the scope of the prohibition against expungement to

sexual conduct only. To read the expungement statute otherwise would be to

limit the legislature's inclusion of subsection "a" to just a portion of that statute,

despite the Legislature's longstanding inclusion in  N.J.S.A. 2C:24-4(a) of sexual

and non-sexual offenses.


No expungement for knowingly leaving scene of accident here RECORD IMPOUNDE IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF H.M.S

No expungement for knowingly leaving scene of accident here  RECORD IMPOUNDE

                Submitted December 9, 2019 – Decided January 30, 2020

                Before Judges Sumners and Geiger.

                On appeal from the Superior Court of New Jersey, Law
                Division, Passaic County, Docket No. EXP-435-18.
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3493-18T1
                            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.

On October 22, 2001, defendant H.M.S. pled guilty to death by auto, N.J.S.A. 2C:11-5; knowingly leaving the scene of a motor vehicle accident resulting in death, N.J.S.A. 2C:11-5.1; and hindering apprehension, N.J.S.A. 2C:29-(b)(1).1 She was later sentenced to an aggregate prison term of five years and ordered to pay monetary fines. H.M.S. was released from prison on March 24, 2006. After completing her parole, she satisfied all her fines by February 24, 2009. Almost ten years later, in September 2018, H.M.S. petitioned the trial court to expunge her criminal record. The State opposed expungement of her conviction for knowingly leaving the scene of a motor vehicle accident resulting in death, arguing the offense did not qualify for expungement under N.J.S.A. 2C:52-2(b). The trial court disagreed, and on April 3, 2019, ordered expungement of all H.M.S.'s convictions for reasons set forth in its oral decision. The State appeals, reiterating its contention that under N.J.S.A. 2C:52-2(b), a conviction for knowingly leaving the scene of a motor vehicle accident resulting in death is ineligible for expungement.2 We agree and reverse the court order expunging H.M.S.'s conviction for that offense. 1 The charges of third-degree aggravated assault, N.J.S.A. 2C:12-1(b) (7), and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1), were dismissed in accordance with the plea agreement. 2 Although the State's notice of appeal references an appeal of the April 3, 2019 order, its merits brief only challenges the order's expungement of H.M.S.'s conviction for knowingly leaving the scene of a motor vehicle accident resulting in death. Accordingly, our decision is confined to that provision of the order. A-3493-18T1 2 I The Legislature's stated purpose in enacting N.J.S.A. 2C:52-2 was to provid[e] relief to the reformed offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby persistent violators of the law or those who associate themselves with continuing criminal activity have a regular means of expunging their police and criminal records. [N.J.S.A. 2C:52-32.] The statute "serves 'to eliminate the collateral consequences imposed upon otherwise law-abiding citizens who have had a minor brush with the criminal justice system.'" In re Expungement of J.S., 223 N.J. 54, 66 (2015) (quoting In re Kollman, 210 N.J. 557, 568 (2012)). "The Legislature intended the statute to 'provid[e] relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity[.]'" Id. (alterations in original). That said, N.J.S.A. 2C:52-2 provides certain crimes are barred from expungement. Relevant to this appeal, the statute's plain language states the following offenses are excepted from being expunged: . . . Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: N.J.S.[A.] 2C:11- 1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.[A.] 2C:11-5 and strict liability A-3493-18T1 3 vehicular homicide as specified in section 1 of P.L.2017, c.165 (C.2C:11-5.3); . . . [ N.J.S.A. 2C:52-2(b) (emphasis added).] The court, however, decided not to apply the statute's plain language that a conviction for an N.J.S.A. 2C:11-1 to -6 offense, in particular H.M.S.'s conviction for N.J.S.A. 2C:11-5.1, was not eligible to be expunged. In its oral decision, the court stated the "single and most compelling argument" to allow expungement for knowingly leaving the scene of a motor vehicle accident resulting in death is that the offense is similar to leaving the scene of a boating accident resulting in death, N.J.S.A. 2C:11-5.2, which can be expunged under N.J.S.A. 2C:52-2b. The court determined the only difference between the accident-related offenses is one involves a motor vehicle and the other involves a boat. And since both offenses have virtually identical mens rea and elements, the court ruled it "can't see anything other than . . . –– just a straight up omission on the part of the Legislature in that regard." Treating the offenses differently for purposes of expungement, would be unfair and a denial of equal protection under the law, according to the court. The court further relied on State v. Valentin, 105 N.J. 14 (1987) (citing State v. Carbone, 38 N.J. 19 (1962)), for the proposition that while the facts relating to the two offenses are different, "[m]ore than one reasonable A-3493-18T1 4 interpretation could be made from statutory language and construction is drawn against the State for . . . vagueness in the statute has to favor the defendant against the State in this regard." The court compared the remedy for vagueness in Valentin to "the absence of defect in excluding[,] or should [it] say[,] not specifically including [N.J.S.A. 2C:11-5.1] in the proof of homicide offenses for which expungement can be pursued." The court rejected the State's argument that the omission of N.J.S.A. 2C:11-5.1 from the offenses that can be expunged under N.J.S.A. 2C:52-2(b) was a deliberate decision by the Legislature and not an oversight, even though the court realized the legislative history was silent on the issue. II We begin our analysis of the court's ruling by recognizing certain significant principles. In determining the interpretation of a statute, our review is de novo. State v. Frank, 445 N.J. Super. 98, 105 (App. Div. 2016). It is well settled that a primary purpose of "statutory interpretation is to determine and 'effectuate the Legislature's intent.'" State v. Rivastineo, 447 N.J. Super. 526, 529 (App. Div. 2016) (quoting State v. Shelley, 205 N.J. 320, 323 (2011)). We start with considering "the plain 'language of the statute, giving the terms used therein their ordinary and accepted meaning.'" Ibid. And where "the A-3493-18T1 5 Legislature's chosen words lead to one clear and unambiguous result, the interpretive process comes to a close, without the need to consider extrinsic aids." Ibid. Hence, "[c]ourts may not rewrite a plainly written law or presume that the Legislature intended something other than what it expressed in plain words." In re Plan for Abolition of the Council on Affordable Hous., 214 N.J. 444, 468 (2013). "If the language of a statute is clear, a court's task is complete." Ibid. Applying these principles, we agree with the State that N.J.S.A. 2C:11- 5.1, knowingly leaving the scene of a motor vehicle accident resulting in death, is ineligible for expungement under N.J.S.A. 2C:52-2(b) due to the plain language of the statute which provides no exception allowing for expungement of a conviction for violating N.J.S.A. 2C:11-5.1. Contrary to the court's determination that the Legislature "omitted" N.J.S.A. 2C:11-5.1 from the expungement exceptions for criminal homicide statutes, the Legislature amended N.J.S.A. 2C:52-2(b) in: (1) 2010 to "broaden opportunities for expungement" as discussed in Kollman, 210 N.J. at 562; and (2) 2017 to create a new offense for strict liability for vehicular homicide in the Criminal Homicide section of the Code, N.J.S.A. 2C:11-5.3, and then, N.J.S.A. 2C:52-2(b) to include an exception for expungement for the new offense. A-3493-18T1 6 Considering the Legislature is fully cognizant of its statutes, State v. Wright, 107 N.J. 488, 502 (1987) (citing Brewer v. Porch, 53 N.J. 167, 174 (1969)), we see no sound reason to conclude it "omitted" or forgot to include an exception to allow a conviction for N.J.S.A. 2C:11-5.1 to be eligible for expungement. In fact, given the statute's stated expungement bar for N.J.S.A. 2C:11-1 to -6 (Criminal Homicide) offenses except for N.J.S.A. 2C:11-5 and 2C:11-5.3, we find it illogical that the Legislature unintentionally omitted N.J.S.A. 2C:11-5.1 and -5.2, offenses which fall in sequence between the two excepted statutes. Further, we reject H.M.S.'s argument that the parenthetical of "Criminal Homicide" describing N.J.S.A. 2C:11-1 to -6 in N.J.S.A. 2C:52-2(b) is not expressive as to whether N.J.S.A. 2C:11-5.1 is expungable. N.J.S.A. 2C:11-1 to -6 is titled the chapter of the Code on 'Criminal Homicide,' with the parenthetical merely reciting the chapter name to which N.J.S.A. 2C:11-5.1 is included. This follows suit with the remaining citations in N.J.S.A. 2C:52-(b), as we recognized in In re Petition for Expungement of W.S., 367 N.J. Super. 307, 309 (App. Div. 2004), where the parenthetical for 'aggravated sexual assault' in the statute was inclusive of the lesser offenses of sexual assault in the statute because the parenthetical was "descriptive only." Accordingly, we agree with the State's reliance on W.S., where we stated: A-3493-18T1 7 when the Legislature intended to exclude a lesser degree of one of these enumerated offenses from the prohibition against expungement it directly expressed that intent by specifically 'except[ing] death by auto as specified in section 2C:11-5' from the prohibition against expungement. In sum, subject to one limited, specifically stated exception, N.J.S.A. 2C:52-2(b) prohibits the expungement of any conviction for homicide, . . . .3 [Id. at 313 (alteration in original).] Last, we find no merit to H.M.S.'s argument that interpreting the plain language of N.J.S.A. 2C:52-2(b) to deny expungement of the offense of knowingly leaving the scene of a motor vehicle accident resulting in death leads to an absurd result. We see no reason to conclude this is an absurd result given our Legislature's clearly stated public policy decision not to allow the offense to be expunged. See Tasca v. Bd. of Trs., Police & Firemen's Ret. Sys., 458 N.J. Super. 47 (App. Div. 2019) ( holding we only look outside the plain language of a statute if "it [is] ambiguous . . . or leads to an absurd result," quoting Tumpson v. Farina, 218 N.J. 450, 467-68 (2014)). Moreover, we find nothing in the statute's legislative history to support the court's order. 3 When W.S. was decided, N.J.S.A. 2C:52-2(b) did not contain the provision for "the strict crime as strict liability vehicular homicide as specified in [N.J.S. 2C:11-5.3,]" because it was amended in 2017 to include that language. Thus, only N.J.S.A. 2C:11-5 could be used as an example of a specified exception. A-3493-18T1 8 Reversed.

Insurance fraud applied to theft from annuity State v CROZIER

Insurance fraud applied to theft from annuity State v CROZIER





                   Argued January 6, 2020 – Decided February 4, 2020

                   Before Judges Sabatino, Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Indictment No. 14-04-0042.

                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2520-17T4
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is pos ted 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.

PER CURIAM Defendant Jason Crozier appeals from a jury conviction and sentence for second-degree insurance fraud, N.J.S.A. 2C:21-4.6(a) (count one), third-degree attempted theft by deception, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4 (count two), and fourth-degree identity theft, N.J.S.A. 2C:21-17(a) (count three). We affirm the convictions and remand to merge counts two and three into count one. I. On November 13, 2012, Barbara Day signed a durable power of attorney granting her sister, Patricia Dolan, authority to act on her behalf. Day suffered from Parkinson's disease which rendered her with a diminished mental capacity that prevented her from handling her financial affairs and being able to competently testify in judicial proceedings. In December 2012, Dolan removed Day from Andover Nursing Home and began caring for her in Dolan's home in Vernon. At that time, Dolan's son— defendant—also resided with Dolan. Day owned her own home in Hamburg. Dolan sought to fix the home, because it was in disrepair, and rent it out. In order to finance the work, Dolan contacted Betty Willis, Day's Prudential insurance agent, concerning Day's A-2520-17T4 2 investments. Day's investments included a fixed rate annuity and a whole life insurance policy with Prudential. After Dolan provided Willis with her power of attorney, Willis suggested a withdrawal from Day's life insurance dividends because it would be nontaxable. Acting on Willis' advice, Dolan contacted the Prudential home office to withdraw funds from Day's whole life insurance policy. On February 22, 2013, Prudential prepared and mailed a type-written withdrawal form for Day's life insurance policy in the amount of $5000. Dolan received the form, had Day sign it, and submitted it to Prudential. On February 27, 2013, Day and Dolan, as power of attorney, indorsed the $5000 disbursement check issued by Prudential. The funds were used to repair Day's house. On April 5, 2013, defendant posed as Day when partially filling-out and signing a withdrawal form for Day's annuity in the amount of $5500. The withdrawal form also included a request to change Day's address to Dolan's address in Vernon and named defendant as a contingent beneficiary. 1 1 Day had previously named two friends as the beneficiaries of the annuity. The record is not clear, but sometime before defendant sent the withdrawal form Dolan became the primary beneficiary on the annuity. A-2520-17T4 3 Defendant subsequently called Prudential six times during the first twelve days of April 2013, impersonating Day each time. On April 4, prior to filling out the withdrawal form, defendant spoke with Prudential representative Joanna Mafaro and inquired about where to send the withdrawal forms and how much money was in Day's annuity. Following this, on April 9, he spoke to Prudential representative Christine Policasio to ask whether Prudential had received the withdrawal forms; defendant also changed Day's former telephone number to the landline at Dolan's residence. Defendant then confirmed that he "withheld ten percent of the taxes" for the withdrawal to avoid a tax penalty. On April 11, defendant spoke to Prudential representative Ryan 2 to ask if Prudential had received the withdrawal forms and to inquire as to whether Day's home address was changed to Dolan's address. During a second call that same day, defendant confirmed to Prudential representative Rich De SanMartino that he was "changing the beneficiary" on the annuity to himself, while still posing as Day. On April 12, defendant spoke to Prudential representative Janae Ryzack to determine if he had successfully changed Day's address. After Ryzack informed defendant that the "system ha[d] frozen," he became noticeably 2 The representative's last name is inaudible on the recording. A-2520-17T4 4 agitated. The call ended with Ryzack assuring defendant that she would call back "to confirm the address change." Later that same day, defendant called Prudential representative Leslie McDuffy. When defendant asked to speak to a supervisor, McDuffy placed him on hold and contacted Mary Alice Lynn. While speaking with Lynn, McDuffy stated that "this clearly sounds like a man. He keeps saying he's a woman. I don’t know." Lynn then told McDuffy that an internal alert was placed on Day's annuity account stating, "that the son is calling trying to change the address and process a withdrawal." Lynn then spoke with defendant and at this point the transcript ends. Subsequently, Dolan's power of attorney was faxed to Prudential on June 11, 2013. However, Prudential issued the check for $5500. Unbeknownst to defendant, on April 11, 2013, the Prudential Special Investigation's Unit became involved after being alerted by the Annuity Business Unit. Day and Dolan were interviewed during its investigation. After hearing the six recordings of the calls placed to Prudential, Dolan identified the caller as her son, defendant. Prudential referred the case to the State for prosecution. On March 19, 2014, Detectives Wendy Berg and Matthew Armstrong from the Division of A-2520-17T4 5 Criminal Justice interviewed Dolan under oath. Dolan confirmed that she was the only person with power of attorney over Day's assets. Berg showed Dolan the withdrawal forms defendant sent to Prudential. Berg pointed out that Dolan was listed as the primary beneficiary, which Dolan acknowledged as correct, and that defendant was added as contingent beneficiary.3 The forms also included Day's signature, approving defendant as a contingent beneficiary, which was witnessed by defendant's girlfriend. Dolan stated that "[h]e had said to me that if I die, there has to be a second beneficiary. No, I never filled that out." Berg then asked Dolan if Day's signature looked authentic, to which Dolan replied, "I'm not sure about that. It does but it doesn’t, you know what I mean?" Berg then showed Dolan the request to withdraw $5500 from Day's annuity. Berg asked Dolan if "there [would] have been any reason that your sister would have tried to withdraw this amount out of her account," Dolan replied, "No." Dolan then re-confirmed that it was defendant's voice on each of the six calls placed to Prudential. Finally, Dolan stated that she "never gave 3 During the interview, Berg mistakenly used the term "contingent power of attorney," when she clearly meant to say, "contingent beneficiary." This became relevant at trial as to whether Dolan understood Berg's questioning. A-2520-17T4 6 [defendant] permission to even attempt" to withdraw the $5500 and, to her knowledge, neither did Day. On April 24, 2014, a State Grand Jury returned an indictment charging defendant with second-degree insurance fraud, third-degree attempted theft by deception, and fourth-degree identity theft. The case proceeded to a jury trial. During trial, the State called Dolan. Dolan confirmed that she was interviewed under oath by Berg and Armstrong on March 19, 2014. However, on the stand Dolan claimed that Berg had "confused" her by referencing the beneficiary change form as a "contingent power of attorney." Dolan further claimed that she did not understand which time period Berg was inquiring about. Instead, Dolan testified that she told Berg that she did not give defendant permission to request the $5500 annuity withdrawal because Dolan thought Berg was talking about a withdrawal defendant had attempted to make in 2014, not April 2013. Dolan also claimed that she personally and as power of attorney wanted defendant to be named as a contingent beneficiary on the annuity. Moreover, Dolan testified that she wanted Day's address and telephone number changed on the annuity records at Prudential. She then claimed that she had asked defendant to make the $5500 withdrawal from Day's annuity and to make the phone calls A-2520-17T4 7 to Prudential to follow up on whether the company had received the withdrawal forms and other changes. Dolan explained that she instructed defendant to handle these changes with Prudential because she got "very nervous" and she did not "know how to handle it." Accordingly, Dolan asserted that defendant was acting on her behalf when corresponding with Prudential. Dolan also testified that she was present while defendant made some of the calls, but not present for others. 4 The court conducted a Gross5 hearing under N.J.R.E. 104 because Dolan's trial testimony conflicted with her prior sworn statement to Berg and Armstrong. The prosecutor and defense counsel discussed and agreed upon specific redactions to Dolan's March 19, 2014 interview on the record. The redacted transcript was then admitted into evidence. After the State rested, defendant moved for a judgment of acquittal. The trial court denied the motion. Defendant first called Willis, Day's Prudential insurance agent. Willis testified that, at Dolan's request, she filled out a portion of the annuity withdrawal form by writing in Day's name, annuity account number, and social 4 Dolan claimed that she can be heard on one of the recordings. 5 State v. Gross, 121 N.J. 1 (1990). A-2520-17T4 8 security number; she also testified that she changed Day's address to Dolan's address. Willis then stated that she was the person who completed the top portion of the beneficiary change form detailing the owner information but did not include who the beneficiary would be changed to. Willis testified she did not fill in the $5500 amount ultimately requested by defendant and that defendant called her to check the status of the requests, stating that he was calling "for his mother because she was at work." Willis explained she could not give defendant this information and referred him to the Prudential "home office" number. Defendant next called Berg. She testified that, during her prior interview with Dolan, she misspoke by referring to the contingent beneficiary change form as a "contingent power of attorney." Instead, she meant to say "beneficiary." Berg acknowledged that she did not correct her mistake during the interview and that Dolan may have been confused by the incorrect references to the withdrawal form. During summation, the prosecutor commented on Dolan's in-court testimony, namely, that she instructed defendant to call Prudential. The prosecutor framed the issue as "whether or not the defendant had permission to make those calls." Immediately after, he stated, "frankly [it] doesn't matter. A-2520-17T4 9 There's no such thing as permission." Defense counsel did not object to these remarks. A unanimous jury found defendant guilty of all three counts. Defendant was sentenced to a five-year prison term on count one, a concurrent three-year term on count two, and a concurrent eighteen-month term on count three. This appeal followed. Defendant raises the following issues on appeal: POINT I THE TRIAL COURT ERRED IN ADMITTING THE BULK OF PATRICIA DOLAN'S PRIOR STATEMENT BECAUSE IT CONTAINED SUBSTANTIAL MATERIAL THAT EITHER WAS NOT INCONSISTENT WITH HER IN-COURT TESTIMONY, AND THEREFORE HEARSAY, OR WAS SPECULATIVE. (partially raised below) A. The Statements Admitted. B. Because Only a Small Portion of the Statement Was Actually Contradictory, the Balance Should Have Been Excluded as Hearsay. i. Patricia's Statements. ii. Detective Berg's Statements. C. Even if the Statement Were Not Hearsay, Much of It Was Speculative, Providing Independent Grounds for Exclusion. A-2520-17T4 10 D. Because the Content of the Inadmissible Hearsay and Speculation Featured Prominently in the State's Case Theory and Directly Countered the Defense's, Its Admission Was Clearly Capable of Producing an Unjust Result. POINT II THE ALLEGED MISREPRESENTATIONS DID NOT AND WERE NOT REASONABLY LIKELY TO ENCOURAGE PRUDENTIAL TO DISBURSE FUNDS. RATHER, ANY MISREPRESENTATIONS MADE DISBURSEMENT LESS LIKELY AND SO WERE NOT MATERIAL WITHIN THE MEANING OF N.J.S.A. 2C:21-4.6(a). THE TRIAL JUDGE'S DECISION NOT TO ENTER A JUDGMENT OF ACQUIT[T]AL WAS THEREFORE ERROR. (partially raised below) A. The Purpose of the Calls – to Request Mailing Instructions and to Update Contact Information – Would Not Have Made the Grant of a Withdrawal Request More Likely. B. In the Alternative, the Opening of a Fraud Investigation and Referral to Law Enforcement by Prudential as a Result of Obvious Falsity of the Statements at Issue Shows That the Misrepresentations Did Not Encourage Disbursement. C. If a Misrepresentation Does Not Encourage the Remit of Funds, It Should Not Be Considered Material. POINT III THE PROSECUTOR'S STATEMENT IN CLOSING THAT WHETHER MR. CROZIER ACTED WITH PERMISSION WAS IRRELEVANT MISLED THE A-2520-17T4 11 JURY AS TO THE LEGAL STANDARD. EVEN IF PERMISSION WERE NOT RELEVANT TO INSURANCE FRAUD, IT IS RELEVANT TO THE CHARGES OF ATTEMPTED THEFT BY DECEPTION AND IDENTITY THEFT BECAUSE EACH REQUIRES PROOF THAT THE DEFENDANT'S PURPOSE WAS TO ACQUIRE PROPERTY OR BENEFITS. BECAUSE THIS STATEMENT, COMBINED WITH THE COURT'S FAILURE TO TAILOR THE JURY CHARGE TO ACCOMMODATE THE DEFENSE THEORY, PRESENTED A REAL RISK OF PREJUDICE, THE CONVICTIONS MUST BE REVERSED. (Not raised below) A. The Prosecutor's Statement of Law Was Inaccurate and Improperly Denigrated the Defense. B. The Comment, Combined with the Judge's Failure Either to Issue a Curative Instruction or to Tailor the Jury Instructions to Allow the Jury to Assess the Defense, Deprived Mr. Crozier of a Fair Trial. POINT IV COUNTS TWO (ATTEMPTED THEFT BY DECEPTION) AND THREE (IDENTITY THEFT) SHOULD HAVE MERGED INTO COUNT ONE (INSURANCE FRAUD). (Not raised below). II. Defendant argues that the court committed plain error by admitting the redacted transcript of Dolan's interview with Berg into evidence. He contends: (1) many of Dolan's statements were consistent with her in-court testimony and A-2520-17T4 12 would not be admissible under N.J.R.E. 803(a)(1); (2) Berg's assertions in the transcript were inadmissible hearsay; (3) "[t]he recapitulation of Detective Berg's assertions could no doubt have swayed the jury's assessment," due to her position as a law enforcement officer, citing Neno v. Clinton, 167 N.J. 573, 586 (2001); (4) "the admission of these assertions needed to be accompanied by a limiting instruction, informing the jury that while [Dolan's] statements could be considered for their truth, Detective Berg's could not since they were not prior inconsistent statements within" the scope of N.J.R.E. 803(a)(1); (5) many statements by Dolan lacked personal knowledge, as required by N.J.R.E. 602, 701, and 702, thus making them speculative; and (6) it was error to admit Dolan's statement that "[i]f [Day] did sign it, they probably told her it was entirely something different," because "[h]earing [his] own mother speculate that he had tricked his aunt into signing something could well have swayed the jury against her in-court testimony that he was acting in the family's interest"; and (7) the evidence against defendant was not overwhelming. Defendant also explains his trial strategy "turned on the assertion that he acted with [Dolan's] permission and was not fraudulent in attempting to facilitate the disbursement of [Day's] funds." Conversely, defendant frames the State's argument as "he was guilty because he did not act with [Day's A-2520-17T4 13 permission]," as opposed to Dolan's. Moreover, defendant contends Day was not called to testify for understandable reasons. "In her absence, no one could testify with certainty whether she and [defendant] had ever spoken. Yet, by improperly introducing the speculative sections of [Dolan's prior interview transcript], the State elicited precisely that testimony." We review the admission of the redacted interview for plain error. See State v. Macon, 57 N.J. 325, 337 (1971) (plain error means error that is "clearly capable of producing an unjust result" (quoting R. 2:10-2)). "Plain error is a high bar and constitutes 'error not properly preserved for appeal but of a magnitude dictating appellate consideration.'" State v. Santamaria, 236 N.J. 390, 404 (2019) (quoting State v. Bueso, 225 N.J. 193, 202 (2016)). Here, after the trial court conducted a Gross hearing and found Dolan's testimony to be inconsistent with her prior recorded interview by police, defendant reached an agreement with the State and consented to the admission of the redacted interview transcript without playing the tape recording. Indeed, defense counsel stated, "I don't think it's disputed that Mrs. Dolan recanted a portion of her statement. Pursuant to State v. Gross her recorded statement was admissible as substantive evidence." A-2520-17T4 14 Defendant's position on appeal invokes the doctrine of invited error. "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996). We find the doctrine applicable here. Thus, defendant "may not invoke the plain error rule" when he "endorses the action taken." Venuto v. Lubik Oldsmobile, Inc., 70 N.J. Super. 221, 229 (App. Div. 1961) (citing Schult v. H. & C. Realty Corp., 53 N.J. Super. 128, 136 (App. Div. 1958)). We therefore reject defendant's argument. In addition, the trial court instructed the jury that the redacted transcript of Dolan's interview "is in evidence for a limited purpose, and that limited purpose is to whatever degree you determine in your jury deliberations, to whatever extent you believe it may affect or impact your assessment or evaluation of that witness's credibility. That is the sole purpose of that document." Following closing arguments, the judge reiterated the limited purpose of the redacted interview: Again, during the course of the trial I have ruled that certain evidence may be used only for a limited purpose. At the close of the trial certain documents were admitted into evidence. In particular, a transcript of a statement made by Patricia Dolan redacted, as noted earlier, has been admitted into evidence. But you A-2520-17T4 15 may only consider that statement -- that statement in your jury deliberations only to the extent that it may impact, if at all, your assessment of the credibility of that witness, and for no other purpose. Moreover, the court abided by factors one through six and nine through fourteen outlined in Gross, 121 N.J. at 110, by further instructing the jury: Evidence has been presented in the case showing that at a prior time Patricia Dolan, a witness called by the State, has said something or has failed to say something which is inconsistent with the witness's testimony at the trial. You may consider this evidence along with all the other evidence in the case. In deciding whether any such statement, if made, is credible, you should consider any relevant factors including Patricia Dolan's connection to and interest in the matter reported in her prior statement; the person or persons to whom she gave the statement; the place and occasion for giving the statement; whether Patricia Dolan was then in custody or otherwise the target of an investigation; the physical and mental condition of Patricia Dolan at the time; the presence or absence of other persons; the presence or absence and the nature of any interrogation; whether the sound recording contains all, or only a portion or a summary, of what Patricia Dolan said; the presence or absence of any motive to fabricate; the presence or absence of any explicit or implicit pressures, inducement, or coercion for making the statement; whether the use to which the authorities would put the statement was apparent or made known to Patricia Dolan; the inherent believability or lack of believability of the statement; whether the witness, Patricia Dolan, was confused, or whether she was misinformed as to certain facts during the course of her interview. A-2520-17T4 16 We discern no abuse of discretion by the trial court, much less plain error. Defendant's remaining arguments pertaining to admission of the redacted interview are of insufficient merit to warrant further discussion. R. 2:11-3(e)(2). III. Defendant argues the judge erred by denying his motion for judgment of acquittal as to the charge of insurance fraud. He contends that: (1) this case involves "an annuity rather than a false application for or claim against a typical insurance policy"; (2) he only asked Prudential for "basic information," such as "how could a form be sent in and [whether] Prudential [had] received it," which were not false statements of material fact; (3) by simply updating the contact information on the account he did not make a material misrepresentation within the meaning of N.J.S.A. 2C:21-4.6(a) since "there is no evidence that a change of address would encourage Prudential to make a payment"; (4) because his statement that he was Day was "obviously untrue," it was unreasonable for Prudential to rely upon it, citing State v. Goodwin, 224 N.J. 102 (2016); and (5) the legislative intent of N.J.S.A. 2C:21-4.6 and the inclusion of the de minimus provision in N.J.S.A. 2C:21-4.6(g) demonstrate "if a false statement, on its own strength, does not at least move the needle toward the wrongful distribution of a benefit, it is not the target of the statute." Accordingly, "[defendant 's] A-2520-17T4 17 statements over the phone, which neither requested nor operated in favor of a payment, did not have a societal cost, and did not harm either the policy holder or the insurance company. . . . Therefore, they cannot coherently be said to have been the target of the statute." These arguments are procedurally barred pursuant to Rule 2:10-1. Defendant essentially argues that the trial evidence did not show, beyond a reasonable doubt, that his actions violated the insurance fraud statute. This constitutes a weight-of-the-evidence argument. An appellate court will "not consider a weight-of-the-evidence argument on appeal unless the appellant moved in the trial court for a new trial on that ground." State v. Fierro, 438 N.J. Super. 517, 530 (App. Div. 2015) (citing R. 2:10-1); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). For sake of completeness, we will address the issue. Defendant's argument is substantively without merit. Insurance fraud is committed when a defendant "knowingly makes . . . a false, fictitious, fraudulent, or misleading statement of material fact in . . . any . . . claim . . . [made] orally . . . in connection with . . . a claim for payment . . . from an insurance company." N.J.S.A. 2C:21-4.6(a). The Legislature has defined "insurance company" as a corporation formed for the purpose of making any A-2520-17T4 18 kind or insurance or "to grant, purchase or dispose of annuities." N.J.S.A. 17:17- 1(c). Accordingly, the insurance fraud statute applies to annuities. The insurance fraud charge against defendant is based upon him (1) filing the withdrawal form for $5500 in Day's name; (2) making himself the contingent beneficiary of Day's annuity; (3) changing her address; and (4) calling Prudential, while posing as Day, in reference to the withdrawal forms. The central premise of defendant's argument is that his statements to Prudential were not material because Prudential knew he was not Day and his statements did not convince Prudential to disburse the $5500. However, the statute makes clear that it also covers false claims. Here, defendant's statements to Prudential while posing as Day constituted false statements of material fact under the statute. This conclusion is supported by Goodwin. There, the Court found that N.J.S.A. 2C:21-4.6(a) "contains no language stating that criminal liability is dependent on an insurance company actually relying on a false statement and suffering a loss. Rather, the statute merely requires the knowing submission of a false or fraudulent statement of material fact for criminal liability to attach." Goodwin, 224 N.J. at 111 (citation omitted). The Court also determined that the Legislature's A-2520-17T4 19 objectives strongly suggest that [it] did not intend a crabbed definition of the term "false statement of material fact"—one that would limit the scope of criminal prosecutions to only those cases in which a fraudster succeeded in inducing an insurance company to pay a false claim but not to those cases in which the fraudster was caught beforehand. [Id. at 114.] Additionally, the Court explained that "[t]he de minimis provision acts as a safety valve, permitting dismissal of a charge that is too trivial to warrant prosecution." Id. at 115. However, "[a] fraudulent reimbursement claim seeking more than $6000 for damage to a vehicle is not a trivial infraction." Ibid. The Court ultimately held that "a rational jury was free to conclude that defendant's knowingly made false statements could have reasonably affected [the insurance provider]'s decision whether to pay the claim." Id. at 117. Here, defendant's false statements and fraudulent withdrawal forms were aimed at deceiving Prudential in order to improperly receive disbursement of $5500 from Day's annuity. While Prudential did not ultimately disburse the funds to defendant, the statute does not require the State to show reliance on the part of the insurance company. Id. at 111. Finally, a $5500 false claim is not a "trivial infraction" excused by the statute's de minimis provision. See id. at 115. A-2520-17T4 20 IV. We next address defendant's argument that the prosecutor made improper statements during his closing argument and the trial court erred by failing to give a curative instruction. Defendant claims the following statements by the prosecutor were improper: The only disagreement [between the State's and defendant's arguments] seems to be about whether or not the defendant had permission to make those calls, which frankly doesn't matter. There's no such thing as permission. An individual can't give another person permission to make a withdrawal from another's annuity, you have to have Power of Attorney. Defendant contends that if he had permission from Dolan to contact Prudential it would defeat the mens rea element of the offenses. More specifically, defendant argues the prosecutor's statements were "particularly problematic" because attempted theft by deception and identity theft both "explicitly require proof that a defendant intends to secure themselves a benefit." We recognize that "[p]rosecutors may not make inaccurate factual or legal assertions during summation, and they must confine their remarks to evidence revealed during trial, and reasonable inferences to be drawn from the evidence." State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003) (citing State v. Smith, 167 N.J. 158, 178 (2001)). A-2520-17T4 21 Our Supreme Court has stated: Reversal is justified when the prosecutor does not abide by the above strictures, and the conduct was "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (quotations omitted). In determining whether a prosecutor's comments meet the "so egregious" standard, a reviewing court must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 576 (citation omitted). [State v. Echols, 199 N.J. 344, 360 (2009).] Applying these principles to the prosecutor's statements, we do not find the prosecutor's comments were so egregious that defendant was deprived of a fair trial. No objection was made to the prosecutor's comments. The trial court advised the jury in both the preliminary instructions and the final jury charge that comments by the attorneys were not evidence and are not controlling. The court also instructed the jury to follow its instructions as to the law to be applied. Additionally, and contrary to defendant's argument, the court did provide a jury charge that was tailored to the defense's theory of the case. Although the A-2520-17T4 22 court did not explicitly comment on whether Dolan gave defendant permission to contact Prudential, it was implied in the jury charge. On the stand, Dolan claimed that she was confused about the dates that Berg said defendant was attempting to withdraw funds from, and make changes to, the annuity. She explained that this was why she initially told Berg that she did not give permission to defendant to contact Prudential when, in fact, she did. Accordingly, the court instructed the jury to consider whether Dolan was "confused" when making her prior statement; this gave credence to the defense's theory that Dolan provided defendant with permission to contact Prudential. Notably, when questioned by the court regarding the proposed jury charges, defense counsel stated, "I have no other additions, corrections, or modifications. We have reviewed it extensively this morning and have I think made all the appropriate corrections that need to be made." Given these facts, we are unpersuaded that the prosecutor's comments and the failure to provide further jury instructions deprived defendant of a fair trial. V. Finally, defendant contends that his convictions for attempted theft by deception and identity theft should be merged into his conviction for insurance fraud. We agree. A-2520-17T4 23 A defendant may not be convicted of more than one offense if "[o]ne offense is included in the other." N.J.S.A. 2C:1-8(a)(1). An offense is included in another if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the" other offense. N.J.S.A. 2C:1– 8(d)(1). Our Supreme Court has explained that the preferred and more flexible standard adopted in State v. Davis, 68 N.J. 69, 81 (1975) entails: analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. [State v. Hill, 182 N.J. 532, 543 (2005) (quoting State v. Diaz, 144 N.J. 628, 638 (1996)).] Applying those factors to the evidence demonstrates that counts two and three should be merged into count one for sentencing purposes. Defendant's actions were part of a single scheme or episode. Each offense occurred at the same time and location. They each involved filling out and submitting the same withdrawal forms and impersonating Day during the same six phone calls to Prudential, with the intent to improperly withdraw funds from her annuity. The same evidence was necessary to prove each count. Because "the evidence relied A-2520-17T4 24 upon by the State to support the . . . convictions was identical[,] [m]erger is required." State v. Streater, 233 N.J. Super. 537, (App. Div. 1989) (citations omitted). Accordingly, we remand the matter to the trial court for entry of an amended judgment of conviction that merges the convictions for attempted theft by deception (count two) and identity theft (count three) into the conviction for insurance fraud (count one). In all other respects, the judgment is affirmed. Affirmed in part and remanded in part. We do not retain jurisdiction.