Opinion
DOCKET NO. A-3411-13T4
08-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MYEISHA D. WYATT, a/k/a MYEISHA DAWN WYATT, and MYEISHA DAWN GREENWOOD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-05-0426. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Myeisha D. Wyatt, was convicted, following a jury trial, of fourth-degree theft by deception, N.J.S.A. 2C:20-4, and was sentenced to five years' probation and ninety days in Union County Jail. The trial court also ordered her to provide restitution in the amount of $7000 to the Division of Social Services. She appeals and argues as follows:
POINT I - THE COURT'S FAILURE TO GIVE A CLAIM-OF-RIGHT CHARGE AT THE DEFENDANT'S REQUEST WAS ERROR WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.For the reasons that follow, we affirm the conviction, vacate the restitution order, and remand for further proceedings consistent with this opinion.
POINT II - THE DENIAL OF DEFENDANT'S REQUEST TO TESTIFY IN SURREBUTTAL WAS ERROR WHICH DEPRIVED HER OF A FAIR TRIAL.
POINT III - THE ORDER FOR RESTITUTION WHICH EXCEEDED THE JURY VERDICT AND WAS ENTERED WITHOUT A HEARING OR CONSIDERATION OF DEFENDANT'S ABILITY TO PAY MUST BE VACATED (NOT RAISED BELOW).
A.
The facts that follow are drawn from the trial record.
Defendant is a thirty-one-year-old mother of four children, and she occasionally applied for welfare benefits starting in 2004. On July 23, 2007, she applied to the Union County Division of Social Services (Division) for food stamps, temporary assistance for needy families (TANF), and Medicaid. At that time, she was living with her children in Plainfield.
On the date of her application, defendant was interviewed by a Division caseworker and reported that she was seeking welfare for herself and the children, that the children were in her custody, and that she did not have any resources. The caseworker explained that as a condition of receiving benefits, defendant had a continuing obligation to report all changes to the Division, including variations in household income, marital status, or number of children. She also explained that the failure to report such changes could result in overpayment, which the applicant would have to return to the Division.
In September 2007, after defendant started receiving welfare benefits, she was investigated by the Division of Youth and Family Services (DYFS), which obtained a court order in October 2007 removing the children from her care and custody and placing them with her grandmother. Thereafter, DYFS paid benefits to the grandmother, which included a monthly stipend, Medicaid coverage, and other services. The grandmother subsequently retained custody of the children, and although the court never terminated defendant's parental rights to the children, she never regained their care or custody.
DYFS is currently known as the Division of Child Protection and Permanency.
Despite the removal of her children, defendant continued to receive benefits from the Division at the same level she had prior to the order of removal, and she never notified the Division of the change in the size of her household. In fact, on May 19 and September 5, 2008, she recertified to the Division the accuracy of her prior application, and each time acknowledged her continuing obligation to report changes in her circumstances to the Division.
On March 23, 2011, a Welfare Fraud Investigator contacted defendant and stated that he had reason to believe that defendant's children were living separately, and that she was overpaid $8100 in welfare benefits. Defendant admitted that her children were living with her grandmother since October 25, 2007, but refused to sign a repayment agreement, claiming she had given the Division benefits to her grandmother for the children's care.
On May 31, 2012, a grand jury returned an indictment charging defendant with a single count of third-degree theft by deception, contrary to N.J.S.A. 2C:20-4. At trial, the State offered evidence that defendant was not entitled to any TANF benefits after DYFS removed the children from her household, resulting in an overpayment of $3719.80. Similarly, the State offered evidence that defendant received an overpayment of $4456.16 in food stamps. Thus, the total overpayment to defendant was $8175.96.
At trial, defendant testified that she was aware that DYFS had not terminated her parental rights, and that she believed she was obligated to provide for her children. Further, she stated that the children depended on her for food, Medicaid, and cash, despite the fact that they did not live with her, and that she used the benefits for the children and for herself. The grandmother also testified that defendant used the benefits for the children.
Defendant further testified that the Division approved her for benefits under its "special victims" program and, consequently, was not required to recertify her application. Following defendant's case, the State was permitted to call a rebuttal witness, who claimed that she had no Division records supporting defendant's claim that she had been approved for the "special victims" program.
The trial judge denied defendant's request to testify in surrebuttal, explaining that the State's rebuttal witness had been brief, and that defendant's prior testimony had been "exhaustive." In addition, the judge denied defendant's request that the jury charge include a "claim of right" defense, but he did charge the jury on the defense of mistake.
Following trial, the jury returned a verdict finding defendant guilty of the lesser charge of fourth-degree theft by deception of between $200 and $500. Thereafter, the judge imposed the sentence, and this appeal followed.
B.
We address defendant's arguments on appeal in the same order in which they are raised in her brief. Initially, defendant argues that the trial judge erred by not charging the jury on her "claim of right" defense. She avers that the trial record — which included her testimony that the children were her dependents, and that she utilized the benefits from the Division to provide care and support for her children — clearly supported the affirmative defense of claim of right, and that the judge's mistake-of-fact charge was insufficient because claim of right, unlike mistake of fact, places an additional burden on the State of disproving the defense.
At the outset, we observe that "clear and correct jury instructions are essential for a fair trial" because the charge "is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Koskovich, 168 N.J. 448, 507-08 (2001); see also State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007).
Jury charges must provide "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). This means that the instructions must include "a plain and clear exposition of the issues" and "should cover all essentials." Id. at 288.
New Jersey has long recognized a claim-of-right defense. State v. Mejia, 141 N.J. 475, 497 (1995), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). Our Code of Criminal Justice (Code) explicitly codifies this defense, stating that it is an affirmative defense to theft that the defendant "[a]cted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did." N.J.S.A. 2C:20-2(c)(2); see also Model Jury Charge (Criminal), "Claim of Right Defense to Theft Offenses" (1996) (claim of right is a defense to prosecution for theft offenses). "An honest claim is one that is genuinely, though not necessarily correctly, believed by the defendant." Model Jury Charge, "Claim of Right," supra.
Therefore, "[t]he Code adopts the position that a genuine belief in one's legal right shall in all cases be a defense to theft." State v. Saavedra, 222 N.J. 39, 76 (2015) (quoting Mejia, supra, 141 N.J. at 497). Moreover, "[t]he defense is not restricted to cases in which the defendant asserts a belief that the property at issue is his or her own." Ibid. (citing State v. Ippolito, 287 N.J. Super. 375, 381 (App. Div.), certif. denied, 144 N.J. 585 (1996)).
The Supreme Court has recognized that there are distinctions between defenses, and it loosely categorizes them as a justification, excuse, failure of proof, or public policy. See State v. Breakiron, 108 N.J. 591, 604 (1987). As an affirmative defense, a claim of right is a justification, not a failure of proof, defense. Saavedra, supra, 222 N.J. at 76. This means the defense "goes beyond" simply negating an element of a theft charge. Ibid. (quoting Ippolito, supra, 287 N.J. Super. at 381).
In addition, where the trial record includes evidence sufficient to support this defense, the State must bear the burden of proving beyond a reasonable doubt that the defendant did not act pursuant to a claim of right. N.J.S.A. 2C:1-13(a); see also State v. Galiyano, 178 N.J. Super. 393, 397 (App. Div.), certif. denied, 87 N.J. 424 (1981); but cf. N.J.S.A. 2C:1-13(b) (State need not disprove affirmative defense unless there is evidence supporting it). However, the charge is not required, and the State does not have any burden to disprove the defense, if there are insufficient facts in the record to support it. Ippolito, supra, 287 N.J. Super. at 382 n.1.
By contrast, a mistake of fact or law is not a "true defense," but an attack "on the prosecution's ability to prove the requisite mental state of the crime charged." State v. Wickliff, 378 N.J. Super. 328, 334 (App. Div. 2005). Thus, mistake of fact or law is a failure of proof defense. State v. R.T., 411 N.J. Super. 35, 61-62 (App. Div. 2009), aff'd, 205 N.J. 493 (2011).
"Mistake," in relevant part, is defined in N.J.S.A. 2C:2-4a:
a. Ignorance or mistake as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:
(1) It negatives the culpable mental state required to establish the offense; or
(2) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
[N.J.S.A. 2C:2-4a(1)-(2).]
The Court has found that mistake, as a separate concept, is:
[T]echnically unnecessary, because "[it] simply confirm[s that n]o person may be convicted of an offense unless each element . . . is proven beyond a reasonable doubt. If the defendant's ignorance or mistake makes proof of a required culpability element impossible, the prosecution will necessarily fail in its proof of the offense."
[State v. Pena, 178 N.J. 297, 306 (2004) (second and third alterations in original) (quoting State v. Sexton, 160 N.J. 93, 100 (1999)).]Therefore, the mistake of fact or law defense does not require the prosecution to specifically disprove beyond a reasonable doubt a defendant's mistaken belief. Sexton, supra, 160 N.J. at 107.
To summarize, the State always bears the burden of proof to prove each element of an offense beyond a reasonable doubt. N.J.S.A. 2C:1-13(a); see also Galiyano, supra, 178 N.J. Super. at 397. The State must also disprove an affirmative defense such as a claim of right when there is evidence supporting it. N.J.S.A. 2C:1-13(b)(1); see also Model Jury Charge, "Claim of Right," supra. Accordingly, the State has the burden of demonstrating that defendant did not act pursuant to a claim of right. Ippolito, supra, 287 N.J. Super. at 382 n.1.
While the trial record in this case may be read to support a claim of right — defendant testified that she believed she had an obligation to use the benefits for her children, which, in turn, supports an inference she genuinely believed that she had a legal right to the Division benefits — and it would have been better practice for the trial judge to have given the charge, our inquiry is not complete because we must examine whether the omission was harmless error.
Defendant's testimony and evidence at trial, and defense counsel's summation, strongly support a defense of mistake. During summation, defense counsel repeatedly referred to defendant's belief as an honest mistake, and asked the jury whether "it [was] so unreasonable that [defendant] believed that [she was] entitled to collect these benefits and give them to her children." The trial judge subsequently charged the jury on the defense of mistake.
In delivering the charge, the judge explained:
In this case, defendant contends that she is not guilty of the offense charged because she mistakenly believed that she had the right to receive the benefits in question from [the Division]. If you find that the defendant held this belief, then she could not have acted with the state of mind that the State is required to prove beyond a reasonable doubt.
If you find that the State has failed to prove beyond a reasonable doubt the defendant did not believe that she had the right to receive the benefits in question, then you must find her not guilty of the offense. However, if you find that the State has proven beyond a reasonable doubt that the defendant did not act under this belief, you must find that this — and you find that the State has proven all the elements of the offense beyond a reasonable doubt, then you must find her guilty of the offense.
Reasonably read, this charge closely tracks the law governing a claim of right. Moreover, as we have noted, defendant testified at trial that she believed that she was entitled to receive the TANF benefits and food stamps as the children were her dependents, even though they were living elsewhere. Also, defense counsel emphasized defendant's claim-of-right theory in his opening statement and summation.
In State v. Bzura, 261 N.J. Super. 602, 616-17 (App. Div.), certif. denied, 133 N.J. 443 (1993), we affirmed the defendant's conviction for theft by deception in the absence of a specific jury charge concerning claim of right. We held that the defendant was not prejudiced by the failure to administer such a charge as the trial court's instructions explicitly addressed the defense's claim-of-right theory. Ibid.
The defendant in Bzura was a lawyer charged with theft by deception, who misappropriated money that a client paid him for legal services that he never performed. Id. at 606-07. He claimed that he either performed the services or honestly believed that the retainer agreement gave him a right to the money. Id. at 616-17. Both the court in its jury charges, and defense counsel in summation, addressed the defendant's claim-of-right theory. Ibid. We held that the defendant was not prejudiced by the omission:
Although the trial court did not give a claim of right instruction, it informed the jury that "defendant, of course, . . . contends he is not guilty because he either
performed services or they were estimated bills pursuant to an agreement." Later the court explained that while the State's theory was that defendant promised his client that he would pursue the litigation against DuPont, the defendant's theory was "that that was not the agreement, that there was a separate agreement that he would not do so until he received a retainer for $10,000." Furthermore, defense counsel emphasized in his summation that defendant honestly believed that he could dispose of the client's funds as he did pursuant to the retainer agreement. Given the obvious defense theory and the language addressing the defense theory in the jury instructions, defendant was not prejudiced by the court's failure to give an explicit claim of right instruction.
[Ibid.]
The State argues that, as in Bzura, the jury in this case was exposed to the claim-of-right defense indirectly: first, by defendant's testimony; second, by defense counsel's summation; and third, by the mistake-of-fact charge. We agree. At trial, defendant testified in terms that indicated an honest belief in her right to the Division benefits. Moreover, during summation, defense counsel explained that defendant honestly believed that she was entitled to collect the benefits and give them to her children.
For example, defendant testified that "I was definitely entitled to the benefits."
Given the obvious defense theory and the language addressing that theory in the jury instructions, defendant was not prejudiced by the trial court's failure to administer a specific claim-of-right charge, and the failure to administer one was harmless error. See R. 2:10-2 (appellate courts shall disregard any error or omission unless it is clearly capable of producing an unjust result).
Defendant also argues that after the State presented its rebuttal witness, the court improvidently denied her request to testify in surrebuttal. We examine this argument under an abuse of discretion standard. See Homann v. Torchinsky, 296 N.J. Super. 326, 340 (App. Div.) (quoting Moksvold v. Meyers, 130 N.J. Super. 481, 484 (App. Div. 1974)) ("[T]he procedural conduct of a trial rests in the sound discretion of the trial judge and . . . no reversal will follow except for an abuse of that discretion."), certif. denied, 149 N.J. 141 (1997).
Rebuttal evidence is generally limited to contradicting newly introduced subjects elicited on direct or cross-examination from defense witnesses. State v. Cook, 330 N.J. Super. 395, 418 (App. Div.) (citing State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970)), certif. denied, 165 N.J. 486 (2000). Similarly, new subjects that arise during rebuttal can create the need for surrebuttal. See State v. Dayton, 292 N.J. Super. 76, 88-92 (App. Div. 1996).
Nonetheless, determining what is proper rebuttal evidence and whether it should be admitted is well within the trial court's discretion. State v. Conyers, 58 N.J. 123, 135 (1971) (citing State v. Balles, 47 N.J. 331, 343 (1966), cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967)). "[T]he exercise of that discretion will not be disturbed in the absence of gross abuse." Balles, supra, 47 N.J. at 343 (quoting State v. DeRocco, 53 N.J. Super. 316, 323 (App. Div. 1959)).
Defendant argues that surrebuttal is warranted either when the rebuttal testimony raises a new issue, or when the proffered surrebuttal testimony is capable of discrediting the rebuttal testimony without being tangential. United States v. Moody, 903 F.2d 321, 331 (5th Cir. 1990). Defendant also cites State v. Friedman, 98 N.J.L. 577 (E. & A. 1923), for the proposition that a defendant has a right to surrebuttal when attempting to clarify the State's rebuttal. Friedman involved a State witness testifying on rebuttal because the State failed to elicit the information on redirect examination and was clarifying the witness' earlier testimony from the State's case-in-chief. Id. at 577. The court concluded that it was not reversible error because the defendant had the opportunity for surrebuttal. Ibid. Thus, according to Friedman, defendant's "right" to surrebuttal is limited to circumstances where the State presents testimony that it should have elicited on redirect examination.
Defendant further cites Dayton to support her argument that the court's refusal to allow her surrebuttal was an abuse of discretion. In that case, we concluded that there was prejudice to the defendant because on rebuttal the State's witnesses introduced new facts, which the defendant could not rebut. Dayton, supra, 292 N.J. Super. at 92. Those new facts introduced the existence of another witness at the scene of the arrest and also created an inference that the defendant recently fabricated part of his story. Id. at 79.
Defendant argues that the State's rebuttal witness presented "new testimony," which she had the right to rebut. We disagree. The rebuttal testimony did not introduce any new topics of evidence, but merely rebutted defendant's claims that she had been given permission to retain the Division's benefits as a special victim. Accordingly, the rebuttal addressed a topic already addressed by defendant. Unlike Dayton, the testimony did not introduce potential new witnesses, nor suggest that defendant had fabricated evidence. Thus, the trial judge did not abuse his discretion in refusing defendant's proffer of surrebuttal testimony.
Defendant finally argues that the trial judge erred in denying her request for a restitution hearing. We agree. The Code provides that restitution may be ordered as part of a sentence for a criminal offense. N.J.S.A. 2C:43-3. However, the amount of restitution generally should not exceed the victim's loss. Ibid. Before imposing restitution, a court must make certain findings pursuant to N.J.S.A. 2C:44-2(a)-(c) and state those findings and its reasons on the record. State v. Harris, 70 N.J. 586, 599 (1976) ("Due process is satisfied by affording the defendant a hearing on the amount of restitution . . . and where there is a factual basis in the record to support the court's determination of the amount of restitution."); State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.) (requirement of statement of reasons applies to restitution), certif. denied, 138 N.J. 265 (1994); State v. Paladino, 203 N.J. Super. 537, 547 (1985) (imposition of restitution requires at least a summary hearing).
The State concedes that this case should be remanded for a hearing to determine defendant's ability to pay the restitution. --------
Restitution may be imposed only when there is a "victim" who suffered a "loss" that resulted from the defendant's actions. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-2 (2014). In determining the amount and manner of payment of restitution, "the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2(c)(2).
In this case, the trial judge ordered defendant to pay $7000 in restitution to the Division without an ability-to-pay hearing. In addition, he ordered restitution in an amount that far exceeded the Division's loss as determined by the jury verdict. See N.J.S.A. 2C:43-3 (restitution shall not exceed the victim's loss); State v. Martinez, 392 N.J. Super. 307, 317 (App. Div. 2007) (N.J.S.A. 2C:43-3 caps restitution at the full amount of the victim's loss). Therefore, we vacate the restitution order entered by the trial judge and remand for a hearing on the amount of the loss, including defendant's ability to pay, and for entry of an appropriate order.
Affirmed in part, reversed and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION