STATE OF NEW JERSEY v. DAN FLAHERTY (2013)

Following a two-witness bench trial, defendant Dan Flaherty was convicted of theft by failure to make required disposition of property received, N.J.S.A. 2C:20–9.¹  He appeals from the August 5, 2011 judgment of conviction, raising the following contentions for our review:

POINT I:  THE EVIDENCE, EVEN WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO THE STATE, DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THAT FLAHERTY COMMITTED THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF PROPERTY RECEIVED, IN VIOLATION OF N.J.S.A. 2C:20–9.   THEREFORE, THE TRIAL COURT ERRED IN DENYING FLAHERTY'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT II:  THE TRIAL COURT'S FINDING OF GUILT CANNOT STAND BECAUSE IT WAS BASED ON A MISCONCEPTION OF THE APPLICABLE LAW.

Our review of the record convinces us that these arguments are not persuasive.   Accordingly, we affirm.

Flaherty, a self-described carpenter, entered into a written agreement with Karen Tankha for the outside repair of her residence, calling for the installation of vinyl soffits and capping of exterior trim along the eaves.   In furtherance of the contract, Tankha gave Flaherty a check for $1250, which represented one-half of the total contract price.   The check was cashed on December 23, 2009, yet Flaherty failed and refused to do any of the work that he had promised, and neglected —— over an extended period of time —— to keep Tankha informed of when he would actually perform the contract.   After enduring several months of delay and disinformation, Tankha wrote to Flaherty, demanding the return of her deposit.   She heard nothing from him, and did not receive a refund of the deposit.   Flaherty was indicted on November 17, 2010.

Flaherty testified that after receiving the deposit, he “got a few sections of soffit which went under the eaves,” but took no further action in furtherance of the agreement.   He explained that another customer had failed to pay him for a deck installation, which caused him financial difficulties.   Furthermore, he “just didn't have a chance to get to [the job],” and did not attempt to “give [Tankha] the money back.”

The trial judge initially denied Flaherty's motion for an acquittal at the close of the State's case.   R. 3:18–1.   After reciting the elements of N.J.S.A. 2C:20–9, and noting the State's obligation to demonstrate that Flaherty “purposely dealt with the property as his own,” the judge concluded, “certainly from the acts of [Flaherty], [he is] not returning phone calls and so forth, the ․ burden of proof has been met at this stage that [Flaherty] purposely failed to make the required disposition.”

At the conclusion of the trial, the judge made findings concerning the credibility of Tankha and Flaherty.   He stated, “[n]ow, as far as the testimony is concerned, I found Ms. Tankha to be very credible.   And Mr. Flaherty to be mostly credible.”   The judge went on to recite the details of the making of the contract, the exchanged promises, the taking of the deposit, and the inability of Tankha to either receive assurances as to when the contract would be completed or receive a refund.   After noting that civil remedies were available for Tankha's grievances, the judge concluded that the State had, nevertheless, proven all of the elements of N.J.S.A. 2C:20–9 beyond a reasonable doubt.

Among other things, the judge found that Flaherty was required “to make specific payment or other disposition from the property itself or its proceeds,” and he had not done so upon Tankha's request.   Furthermore, Flaherty “purposely dealt with the property as if it [were] his own” by depositing the funds “into his own account.   It was used.   It wasn't segregated out.”   Lastly, the judge held that Flaherty “did not make the required disposition,” noting that Flaherty “didn't do anything with regard to it.”

Based upon the judge's analysis of the trial proofs, he found Flaherty guilty.   The probationary sentence, restitution, and appropriate fees and penalties were imposed.   This appeal followed.

The statute defining theft by failure to make required disposition of property received, provides in pertinent part:

A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition.

[N.J.S.A. 2C:20–9.]

Giving the State the benefit of all of the favorable inferences that reasonably could be drawn from the trial evidence, there was more than sufficient proof on which a trier of fact could have convicted Flaherty.   See State v. Brown, 80 N.J. 587, 591 (1979).   Since the trial judge believed Tankha's testimony, his findings that Flaherty induced Tankha to advance the deposit for labor and materials that Flaherty did not deliver and for which he did not provide a refund are fully sustainable.

All that is required is proof that Flaherty used the property as his own and failed to make the required payment or distribution.  N.J.S.A. 2C:20–9;  State v. Damiano, 322 N.J.Super. 22, 41 (App.Div.1999) (“The heart of the N.J.S.A. 2C:20–9 crime is the actor purposely obtaining or retaining property subject to either an agreement or a known legal obligation to make a specified payment or disposition but then ‘deal[ing] with the property obtained as his own and fail[ing] to make the required payment or disposition.’ ”) (alteration in original), certif. denied, 163 N.J. 396 (2000);  State v. Dandy, 243 N.J.Super. 62, 64–65 (App.Div.1990) (Under N.J.S.A. 2C:20–9, “the initial taking [of the property] is authorized but at a later time a theft occurs when the property is converted to the possessor's own use.”);   see also State v. Kelly, 204 N.J.Super. 283, 287 (App.Div.1985).   There was no error committed by the Law Division in its analysis of the law or the entry of the judgment of conviction.

Affirmed.

FOOTNOTES

FN1. Flaherty was sentenced to a two-year term of probation and ordered to pay $1250 in restitution..  FN1. Flaherty was sentenced to a two-year term of probation and ordered to pay $1250 in restitution.

PER CURIAM