Insurance fraud applied to theft from annuity State v
CROZIER
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON CROZIER, a/k/a
DOLAN JASON, JASON
DOLAN, JASON LEE DOLAN,
JASON L. GROZIER, and
JASEN L. DOLAN,
Defendant-Appellant.
_____________________________
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
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is 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
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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.
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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.
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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
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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.
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[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
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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).
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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
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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.
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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
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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
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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
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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."
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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
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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.
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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]
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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
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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
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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.
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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)).
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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
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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.
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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
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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.
