STATE OF NEW JERSEY VS. MACAULAY WILLIAMS (15-02-0168, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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 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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0462-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MACAULAY WILLIAMS,
Defendant-Appellant.
________________________
Submitted June 3, 2021 – Decided July 22, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-02-
0168.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Macaulay Williams of third-degree insurance
fraud, N.J.S.A. 2C:21-4.6(a) and (b), and third-degree attempted theft, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:20-4. On August 13, 2018, the trial judge sentenced
defendant to concurrent one-year terms of probation. He appeals his
convictions. We affirm.
The following facts are gleaned from the record. Defendant submitted a
claim to his homeowner's insurance carrier for water damage, which was paid.
The adjuster informed him that the policy would also reimburse him for
additional living expenses (ALE), incurred as a result of displacement while
repairs were being made. After the discussion, defendant emailed the adjuster,
requesting compensation for twenty-one days at $1500 per day, for a total of
$31,500, in ALE.
The adjuster sent defendant the relevant questionnaire. Once completed,
it did not support the claim. The only documentation defendant attached were
photocopies of two checks payable to his former girlfriend, one for $5600, dated
May 6, 2013, and the other for $10,850, dated June 3, 2013.
The State presented a witness from defendant's credit union who testified
that when the checks were written, defendant did not have sufficient funds in his
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account for them to clear. The checks were never cashed. The matter was
referred to the insurer's special investigation unit (SIU).
An SIU investigator testified at trial that she met with defendant's former
girlfriend at her home in Fords. It was raining that day, and since she was not
invited in, she conducted the interview while she stood outside on the porch,
holding an umbrella, while the former girlfriend stood in a doorway. The
interview was not completely recorded, as partway through the device fell to the
ground. The investigator restarted the machine later when she realized it was
not recording. During that interview, the former girlfriend said defendant had
been her fiancé for approximately a year, and that he stayed with her while his
home was being worked on. She alleged that during that time defendant
contributed towards expenses, such as utility bills.
Defense counsel requested the court take judicial notice that it was not
raining on that day in New Brunswick, a town near Fords. The judge refused,
and because of the age of the case, refused to adjourn the trial to allow counsel
the opportunity to obtain weather information for the town of Fords. Counsel
considered the information crucial to impeach the investigator, whom she
characterized as a "liar."
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Because the interview of the former girlfriend did not substantiate
defendant's claim, he was asked by the insurer to submit to an examination under
oath. He refused.
Defendant's former girlfriend was also called as the State's witness. On
the stand, she denied she had ever been engaged to defendant, denied any recall
whatsoever of the interview taking place, and denied recalling the amounts that
defendant may have paid her while he stayed at her home. Despite listening to
the recording, during which she said, among other things, that defendant had
been her fiancé for a year, she insisted she did not recall making the statement
and that it was not true.
At the State's request, the judge conducted a Gross 1 hearing outside the
presence of the jury since the witness claimed she could not remember anything.
Having heard from counsel after some of the former girlfriend's testimony, and
the playing of the two portions of the insurance investigator's recorded
interview, the court found the former girlfriend was a "recanting witness." As
he said, every response out of the witness's mouth was "I don't recall." It was
either "a serious loss of memory or she[ was] feigning the loss of memory . . . ."
The judge included a recanting witness charge with the closing instructions.
1
State v. Gross, 121 N.J. 1 (1990).
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Model Jury Charges (Criminal), "Recanting Witnesses (Substantive)" (approved
Oct. 24, 1994).
During the former girlfriend's examination, the prosecutor asked why she
had not responded to the county prosecutor's requests that she meet with staff to
discuss the investigation, and commented on the fact she retained counsel. She
denied having been contacted by the prosecutor's office, insisting instead that
her law school administrators told her that the county prosecutor was attempting
to reach her. The court sustained defense counsel's objection to questioning
regarding the witness's employment of an attorney.
The judge inadvertently charged the jury incompletely on the offense of
attempted theft by deception. He charged attempt, but not the theft by deception.
He promptly reinstructed the jury, tracking the model jury charge. Model Jury
Charges (Criminal), "Theft by Deception (N.J.S.A. 2C:20-4)" (rev. Apr. 15,
2013). No objection was made.
Defendant moved for a new trial on the basis that the State did not offer
adequate proof to support the charges. Without much explanation, the judge
denied the application.
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By way of pretrial motion, defendant was barred from introducing
evidence regarding the claim for water damage. That claim was not rejected by
the insurer.
Now on appeal, defendant raises the following points:
POINT I
THE DEFENDANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO A FAIR TRIAL AND HIS
FOURTEENTH AMENDMENT RIGHT TO DUE
PROCESS BY THE TRIAL COURT'S PRECLUDING
THE ADMISSION OF CERTAIN EVIDENCE.
POINT II
THE ADMISSION OF IRRELEVANT,
IMMATERIAL AND PREJUDICIAL EVIDENCE
DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT III
ADMISSION OF THE ENTIRE RECORDING OF
[DEFENDANT'S FORMER GIRLFRIEND'S] OUT[-
]OF[-]COURT STATEMENT TO THE INSURANCE
COMPANY AND GIVING A JURY INSTRUCTION
SHE WAS A RECANTING WITNESS OVER THE
DEFENDANT'S OBJECTION WAS ERROR WHICH
DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV
CERTAIN QUESTIONING BY THE PROSECUTOR
WAS GROSSLY IMPROPER AND CONSTITUTED
MISCONDUCT.
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POINT V
THE DENIAL OF DEFENDANT'S NOTICE OF
MOTION FOR NEW TRIAL WAS ERROR.
POINT VI
THE COURT'S JURY CHARGES ON ATTEMPTED
THEFT BY DECEPTION WERE CONFUSING,
CONTRARY AND ERRONEOUS AND DEPRIVED
THE DEFENDANT OF A FAIR TRIAL.
POINT VII
THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL.
I.
Defendant contends he was denied a fair trial and due process by certain
evidentiary rulings. First, he contends the pretrial ruling that only evidence
regarding his ALE claim was admissible was error. Second, he challenges the
court's refusal to take judicial notice of the weather conditions in the adjoining
town, and refusal to grant an adjournment so more precise information could be
obtained.
The judge who denied admission of the property damage claim did so
because it was different in nature from the ALE claim. As he said, this was not
a contract case, but a criminal case, and the jury could be confused by admission
of that evidence because it was irrelevant to the alleged fraud. We review a
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judge's evidentiary rulings for abuse of discretion. State v. Prall, 231 N.J. 567,
580 (2018).
The two claims defendant made to his insurer were quite different in
nature. They required different approval processes. One was readily verified
by the adjuster by a visit to defendant's home. The other required defendant to
complete a questionnaire and document the ALE claim. The information
regarding the water damage claim was neither probative nor material. See State
v. Desir, 245 N.J. 179, 193 (2021) (quoting Pressler & Verniero, Current N.J.
Court Rules, cmt. 3.2 on R. 3:13-3 (2020)). That defendant submitted a
legitimate property claim did not undercut the charge that he attempted to submit
a fraudulent ALE claim. See State v. Williams, 240 N.J. 225, 235 (2019). It
was not an abuse of discretion to deny admission of the evidence.
Defendant also complains that the trial court should have taken judicial
notice of rain conditions the day the investigator claimed she interviewed
defendant's former girlfriend. The interview took place several years before the
case was brought to trial. It is not surprising the judge would not take judicial
notice of the weather conditions in an adjoining town, as the possibility existed
they were simply different. Judicial notice is not taken where the information
is unreliable. Accuracy is a prerequisite for admission. See N.J.R.E. 201. And,
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there was ample time in which to obtain the weather conditions in the town
where the interview took place, as opposed to a nearby community, given the
years the matter was pending.
The failure to adjourn is also subject to abuse of discretion review. State
v. Miller, 216 N.J. 40, 47 (2013). In light of the age of the case, we cannot say
that the judge's refusal to adjourn was an abuse of discretion here. This was
proposed impeachment material. Even if the investigator was wrong, to suggest
the weather conditions alone would make her testimony incredible is not logical.
The interview occurred July 11, 2013, and the trial began May 29, 2018. The
weather conditions, even if the investigator was mistaken, do not impeach the
investigator's credibility, or raise questions about the admissibility of the
recording.
The testimony establishing the checks defendant wrote would not have
been honored because he lacked the funds in his account was not unfairly
prejudicial. The information was highly probative, clearly tending to prove
knowledge and intent. That it was also prejudicial is the unsurprising, incidental
byproduct of highly probative evidence. See State v. Rose, 206 N.J. 141, 164
(2011).
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When defense counsel objected to the line of questioning regarding
whether defendant's former girlfriend hired an attorney, the court sustained the
objection and directed the prosecutor to rephrase the question and refocus on
her refusal to submit to an interview by the prosecutor's office. The questions
regarding her cooperation with the investigation were not unfairly prejudicial.
II.
Defendant also challenges the admission of the investigator's taped
interview. The court relied on the N.J.R.E. 803(a)(1) exception to hearsay,
reasoning that the former girlfriend was a recanting witness and that, therefore,
it was inadmissible. The rule allows admission of hearsay where the statements
are contained in a sound recording, and the declarant's testimony contradicts
such a recording. The declarant must testify and be subject to cross-
examination.
The rule was properly applied in this case, where the former girlfriend
denied any recall in response to virtually every question. A witness's failure to
remember, when the memory failure relates to a recorded statement, allows for
the introduction of the tape. See State v. R.Y., 242 N.J. 48, 70 (2020). Although
the trial judge did not specifically enumerate the Gross factors, he sufficiently
referenced the case and his conclusions regarding the witness. If his failure to
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enumerate each element can even be characterized as error, it was certainly
harmless error, as ultimately his decision is correct. It did not have the clear
capacity to produce an unjust result. See State v. Daniels, 182 N.J. 80, 95 (2004).
The recording, although it contained the former girlfriend's statement that she
and defendant had been engaged for approximately a year, did not include a
statement that she never received the checks that defendant forwarded to the
insurance company.
Insofar as defendant's point on appeal that the judge should not have given
the jury the recanting witness charge, we note that it would have been improper
for the court to fail to give it after admitting the tape. See Gross, 121 N.J. at 16-
17; State v. Mancine, 124 N.J. 232, 255-56 (1991).
III.
A verdict is set aside and a new trial ordered only where failure to do so
results in a manifest injustice. State v. Jackson, 211 N.J. 394, 413 (2012). Under
the facts of this case, this argument is so lacking in merit as to not warrant
discussion in a written opinion. R. 2:11-3(e)(2).
IV.
There is no doubt that the judge charged the jury twice regarding theft by
deception. The judge explained that the error was his inadvertent failure to
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include the entire model charge the first time he read it. The reinstruction
tracked Model Jury Charges (Criminal), "Theft by Deception (N.J.S.A. 2C:20-
4)" (rev. Apr. 15, 2013). Defendant made no objection to the charge, so we
presume it is adequate. See State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.
2010). Jurors are presumed to follow instructions, and nothing in this case,
which has such strong proofs, would cause us to reach a contrary conclusion.
V.
We do not agree that the cumulative errors committed by the court require
reversal. None of the points raised on appeal establish any error.
Affirmed.
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