                                NOT FOR PUBLICATION WITHOUT THE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-3455-17T3

VINCENT M. RICCORDELLA,

          Appellant,

v.

BOARD OF REVIEW, and
INTERNATIONAL FIDELITY
INSURANCE CO.,

     Respondents.
_____________________________

                    Submitted April 4, 2019 – Decided April 17, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from the Board of Review, Department of
                    Labor and Workforce Development, Docket No.
                    047,455.

                    Vincent M. Riccordella, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Alexis F.
                    Fedorchak, Deputy Attorney General, on the brief).
            Respondent International Fidelity Insurance has not
            filed a brief.

PER CURIAM

      Appellant Vincent Mark Riccordella appeals from the March 23, 2018

final decision of respondent Board of Review (Board) affirming the February 1,

2018 decision of the Appeal Tribunal that appellant was discharged from his

employment as a result of gross misconduct connected with the work, within the

meaning of N.J.S.A. 43:21-5(b), and must refund unemployment benefits he

improperly received in accordance with N.J.S.A. 43:21-16(d). We affirm.

      We derive the following facts from the record. On January 15, 2009,

appellant began his employment with International Fidelity Insurance Company

(IFIC) as a consultant. IFIC permanently hired him on March 30, 2009 as a

Senior Vice President Risk Management, and promoted him to Chief Financial

Officer on July 1, 2009.

      In March 2014, IFIC discovered an accounting irregularity and retained

an accounting firm to conduct a forensic investigation.     The investigation

revealed that appellant had transferred over one million of IFIC's funds to

accounts held in his name and/or the names of companies he solely owned. The

investigation did not reveal any business reason for these transfers or any


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                                      2
legitimate reasons for money to go from IFIC into these accounts. As a result

of the investigation, IFIC terminated appellant on March 28, 2014 for gross

misconduct. Appellant did not return the money he transferred. IFIC filed a

civil action against appellant, which the court dismissed with prejudice after the

parties entered into a confidential settlement agreement.

      On March 30, 2014, appellant filed a claim for unemployment benefits.

The Deputy Assistant Commissioner (Deputy) found appellant was disqualified

for unemployment benefits as of March 23, 2014, because he was discharged for

theft by deception.

      Appellant appealed to the Appeal Tribunal. The Appeal Tribunal held a

hearing on July 17, 2015, at which IFIC failed to appear. The Appeal Tribunal

found appellant was not disqualified under N.J.S.A. 43:21-5(b), nor liable for a

refund of $4452 under N.J.S.A. 43:21-16(d).          IFIC appealed the Appeal

Tribunal's decision to the Board. The Board remanded the matter to the Appeal

Tribunal.

      The Appeal Tribunal held a hearing on March 31, 2016, at which IFIC

presented the facts stated above. Appellant denied he made the transfers. The

Appeal Tribunal thereafter affirmed the Deputy's decision that appellant was




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                                        3
disqualified for unemployment benefits as of March 23, 2014, and held him

liable for a refund of $4452.

      What happened thereafter is set forth in our opinion in Riccordella v.

Board of Review, No. A-4701-15 (App. Div. July 21, 2017), and need not be

repeated here. Ultimately, the Appeal Tribunal held another hearing on January

16, 2018. At the hearing, appellant admitted he transferred over one million of

IFIC's funds into accounts he owned and controlled, but claimed he did so "with

the full knowledge of senior management of the company" and "was authorized

to do whatever [he] needed to do with the money per an investment agreement."

He testified he made the transfers in complicity with senior management in order

to subvert State regulations and avoid the scrutiny of financial regulators so as

not to adversely affect IFIC insurance rates.

      The Appeal Tribunal affirmed the Deputy's decision.           The Appeal

Tribunal rejected appellant's explanation for the transfers and concluded he was

disqualified for benefits under N.J.S.A. 43:21-5(b) because he was discharged

for gross misconduct connected with the work, namely committing an act

punishable under N.J.S.A. 2C:20-3 (theft by unlawful taking or disposition) and

N.J.S.A. 2C:21-4.6 (insurance fraud). The Appeal Tribunal held appellant liable

for a refund of $4452.


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                                        4
      Appellant appealed to the Board. The Board affirmed the Appeal Tribunal

on the record below. This appeal followed.

      On appeal, appellant contends the Board's decision constituted harmful

error because the Appeal Tribunal erroneously relied on N.J.S.A. 2C:21-4.6 with

no support in the record that appellant committed insurance fraud. Appellant

also contends the Board's decision was arbitrary, capricious and unreasonable;

he was denied due process by the Board's bias and prejudice and inclusion of

evidence into the record without his knowledge; and the Board missed the

deadline to submit the statement of items comprising the record.

      Our review of the Board's decision is limited. Brady v. Bd. of Review,

152 N.J. 197, 210 (1997). "[I]n reviewing the factual findings made in an

unemployment compensation proceeding, the test is not whether [we] would

come to the same conclusion if the original determination was [ours] to ma ke,

but rather whether the factfinder could reasonably so conclude upon the proofs."

Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.

1985)). "If the Board's factual findings are supported 'by sufficient credible

evidence, [we] are obliged to accept them.'"     Ibid. (quoting Self v. Bd. of

Review, 91 N.J. 453, 459 (1982)). We also defer to the Board's credibility

findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).


                                                                        A-3455-17T3
                                       5
Unless the Board's action was arbitrary, capricious, or unreasonable, [its] ruling

should not be disturbed." Brady, 152 N.J. at 210. Applying these standards, we

discern no reason to reverse the Board's decision.

      An employee shall be disqualified for benefits:

            For the week in which the individual has been
            suspended or discharged for misconduct connected
            with the work, and for the five weeks which
            immediately follow that week, as determined in each
            case.

                  ....

            If the discharge was for gross misconduct connected
            with the work because of the commission of an act
            punishable as a crime of the first, second, third or fourth
            degree under the "New Jersey Code of Criminal
            Justice," [N.J.S.A. 2C:1-1 to -104-9], the individual
            shall be disqualified in accordance with the
            disqualification prescribed in subsection (a) of this
            section and no benefit rights shall accrue to any
            individual based upon wages from that employer for
            services rendered prior to the day upon which the
            individual was discharged.

            [N.J.S.A. 43:21-5(b).]

      N.J.S.A. 2C:20-3 provides as follows:

            a. Movable property. A person is guilty of theft if he
            unlawfully takes, or exercises unlawful control over,
            movable property of another with purpose to deprive
            him thereof.



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                                        6
            b. Immovable property. A person is guilty of theft if he
            unlawfully transfers any interest in immovable property
            of another with purpose to benefit himself or another
            not entitled thereto.

      That the Appeal Tribunal relied on N.J.S.A. 2C:21-4.6 is no reason to

reverse. There is sufficient credible evidence in the record to support the Board's

determination that appellant was discharged for gross misconduct connected

with the work by committing an act that was punishable under N.J.S.A. 2C:20-

3. The Board accepted the Appeal Tribunal's finding that appellant's explanation

for the transfers was not credible and that credibility determination is entitled to

deference. Logan, 299 N.J. Super. at 348. We are satisfied there is sufficient

competent credible evidence supporting the Board's decision, and the decision

is not arbitrary, capricious or unreasonable.

      To the extent we have not specifically addressed any of appellant's

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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