                        NOT FOR PUBLICATION WITHOUT THE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-5494-13T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANNA N. TALIAFERRO,

     Defendant-Appellant.
_____________________________

              Argued May 10, 2017 – Decided July 18, 2017

              Before Judges Lihotz, Hoffman and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              10-12-0179.

              Frank M. Gennaro, Designated Counsel, argued
              the cause for appellant (Joseph E. Krakora,
              Public Defender, attorney; Mr. Gennaro, on the
              brief).

              Brian Uzdavinis, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Mr.
              Uzdavinis, of counsel and on the brief).

PER CURIAM

        Defendant Anna Taliaferro appeals from the May 15, 2014

judgment of conviction, after a jury found her guilty of second-
degree     official    misconduct,    N.J.S.A.    2C:30-2;     second-degree

pattern of official misconduct, N.J.S.A. 2C:30-7(a); second-degree

theft by deception, N.J.S.A. 2C:20-4; third-degree tampering with

public records or information, N.J.S.A. 2C:28-7; third-degree

forgery,    N.J.S.A.    2C:22-1;   and    second-degree   misconduct     by   a

corporate     official,    N.J.S.A.       2C:21-9(c).     We    affirm    the

conviction, however, we remand for re-sentencing consistent with

this opinion.

     Defendant worked in the Paterson School District (District)

from 1970 until 2007.      In 1974, defendant became Paterson's Title

One parent coordinator. Title One is a federal program "to provide

all children significant opportunity to receive a fair, equitable,

and high-quality education and to close educational achievement

gaps," 20 U.S.C.A. § 6301, and provides federal grants to state

educational agencies for this purpose.           20 U.S.C.A. § 6311.     Each

school receiving grant money was required, among other things, to

"convene an annual meeting . . . , to which all parents of

participating children shall be invited and encouraged to attend,

to inform parents of their school's participation . . . and to

explain the requirements of [Title One] and the right of the

parents to be involved."      20 U.S.C.A. § 6318(c)(1).

     Defendant's implementation of these mandated annual meetings

using Title One grant money through the Parent Resource Center

                                      2                              A-5494-13T2
(PRC) is the focus of this case.             Defendant was the District-wide

parent coordinator, and eventually Supervisor for the PRC, whose

responsibilities        included    participating        and    assisting         in   all

school-related parenting activities on a District, state, and

national level.

     In    the     1980s,   defendant       helped    create         the    New    Jersey

Association      for    Parent     Coordinators        (NJAPC),        a    non-profit

corporation with goals mirroring those of the PRC, and eventually

became the president of the entity.                  The NJAPC started holding

conferences in the 1990s, and defendant used her District office

to plan and organize the conferences for parents and NJAPC during

work hours.      The purpose and objectives of the NJAPC and PRC were

similar.

     The primary function of the NJAPC was to plan and host the

annual    parent    conferences      with    the   New   Jersey        Department        of

Education    (NJDOE).        The    NJAPC    organized         the    annual       parent

conferences using Title One grant money from school districts,

including the District.           The NJAPC operated out of the PRC office

and funded itself through fees collected for the conferences.

     Defendant retained decision-making authority for both the

NJAPC and the PRC.        As president of the NJAPC, defendant presided

over, organized, and ran the NJAPC during regular business hours

using    District      offices,    employees,      equipment,         and   resources.

                                         3                                        A-5494-13T2
District employees prepared for the annual parent conferences at

defendant's behest during District work hours.            District email

addresses,     telephones,   and   fax    numbers    appeared   on     NJAPC

letterheads.

      The NJAPC set the parent conference fees and charged the

school   districts,    including   the    District,    for   each     parent

participating in the annual conferences.            The conferences were

held at a hotel, and attendee costs included registration fees,

lodging fees, and meal fees. In her capacity as parent coordinator

for the PRC, defendant was the liaison between the District and

the NJAPC, and she provided the District's initial funding approval

for money to be disbursed to her in her other role at the NJAPC.

      District officials were aware of the arrangement, at least

in   part,   and   offered   oversight,   which     defendant   considered

sanctioned her conduct.       Defendant's supervisor at the District

was aware of defendant's dual roles for the PRC and NJAPC.             Other

witnesses from the District and NJDOE were aware defendant was

associated with the NJAPC.         Defendant asserts every District

superintendent, to whom she reported, was aware of her affiliation

with the NJAPC and her role as president of the NJAPC was prominent

on conference programs.      Some District and NJDOE officials knew

of and even encouraged NJAPC's use of the District's office and

equipment.

                                    4                                A-5494-13T2
     However,     some   District    officials   involved   in   approving

funding and overseeing defendant in her capacity as a PRC parent

coordinator were     unaware of overcharges by the NJAPC.               Some

officials were unaware the NJAPC was using District offices,

employees, equipment, and resources.

     Between 2003 and 2007, the NJAPC received over $1.4 million

with approximately $655,000 coming from the District.            One of the

allegations leveled against defendant is the NJAPC overcharged the

District    by   $191,885.21   and   defendant   personally      benefitted

therefrom. According to District officials, any overage or surplus

in charges to the District should have resulted in a credit or

refund to the District. Defendant denied submitting false purchase

orders and insisted the NJAPC purchase orders were accurate.

     Of particular concern were payments made to defendant's son,

Thomas Taliaferro (Thomas), for providing information technology

services.    He received a monthly salary for those services.              He

also provided technology services at each of the annual conferences

for additional stipends of up to $18,000.         Testimony elicited at

trial stated Thomas performed minimal work for the PRC or NJAPC

despite using District offices for personal use.

     Both defendant and Thomas used debit cards to draw from the

NJAPC corporate account.       The majority of Thomas's withdrawals

were for uses in Virginia, where he lived as a musician.             Thomas

                                      5                             A-5494-13T2
made purchases and cash withdrawals using NJAPC cards for hundreds

of thousands of dollars between 2003 and 2007, and funded the

construction of a recording studio in Virginia Beach. Transactions

were   made    at    electronics     stores,   car    rentals,    hotels,    and

restaurants.        He also used the NJAPC tax identification number to

make purchases free of sales tax.            Thomas also received $127,000

in checks and wire transfers from the corporate account.

       In addition to using debit cards for personal use, defendant

received four checks from the NJAPC totaling $30,378.                 In 2007,

defendant     directed    Shalimar    Williams,      an   NJAPC   employee   not

authorized to execute checks, to write out a check for $25,000 and

sign it as NJAPC's treasurer, Joann Williams-Harris, the only

other NJAPC official authorized to execute checks.

       The School Ethics Act, N.J.S.A. 18A:12-21 to -34, required

defendant to fill out a School Ethics Commission Personal/Relative

and Financial Disclosure Form for District employees each year.

See also N.J.S.A. 18A:12-26.            The forms require disclosure of

various   financial      interests    from   the   previous   calendar    year,

including any source of personal income received by defendant or

an immediate family member in excess of $2,000, or compensation

for a financial interest held by defendant, relative, or any

business that was party to a contract with the District.                     The

forms require disclosure of fees, expenses, or reimbursements of

                                        6                               A-5494-13T2
aggregate amounts over $250 received by District employees.                 From

2003 to 2007, defendant made no disclosures on behalf of herself

or Thomas.    Defendant reported the $25,000 check as income on her

tax returns but did not list it in the disclosure forms.

      Based on the foregoing, a December 13, 2010 indictment charged

defendant with various crimes between February 13, 2003, and July

6,   2007.    Count   one   alleged        defendant   engaged   in    official

misconduct:    by   not   disclosing       her   employment   and     financial

interest in the NJAPC in her annual ethics disclosures; creating

the false impression the NJAPC was an entity with which she or a

relative had no financial or personal involvement; hiring the

NJAPC as an outside vendor for the annual parent conferences;

utilizing District employees and equipment on behalf of the NJAPC;

overcharging the District through the NJAPC; and directing a

District employee to forge a check in excess of $200.                 Count two

alleged defendant engaged in a pattern of official misconduct by

committing two or more acts of official misconduct.

      Count three alleged defendant committed theft by deception

by obtaining $102,226.811 from the District by overcharging the

District for the parent conferences and tampering with public

records or information by making false entries in government


1
   This amount was subsequently amended to $191,885.21 and is not
disputed by defendant.

                                       7                                A-5494-13T2
documents or records.           Count four charged defendant with forgery

for presenting a check for $25,000 knowing it was not authorized

and the signature was forged.              The final count charged defendant

committed misconduct by a corporate official for using the NJAPC

to further defendant's criminal objectives and derive a benefit

in excess of $75,000.

       Defendant moved to dismiss the indictment on September 26,

2013.        The motion was denied and trial was conducted between

October 2, 2013 and December 26, 2013.

       On November 19, 2013, defendant moved for acquittal based on

the State's failure to present sufficient evidence and convict.

The judge issued a preliminary denial of the motion but did not

provide a statement of reasons for his denial until after the jury

verdict.       The jury found defendant guilty on all seven counts on

December 26, 2013.

       On May 15, 2014, the trial judge sentenced defendant to a

term    of    five   years    in   state    prison    on   each   count,     to   run

concurrent,        with    five-year   period   of    parole   ineligibility        on

counts       one   through    three,   two-year      parole    period   of    parole

ineligibility on counts four and five, and flat sentences on counts

six and seven.            On June 5, 2014, the judge granted defendant's

motion for bail pending appeal.

       On appeal, defendant raises the following arguments:

                                           8                                 A-5494-13T2
POINT I
DEFENDANT WAS ENTITLED TO JUDGMENTS OF
ACQUITTAL ON EACH OF THE COUNTS IN THE
INDICTMENT.

     A. THEFT BY DECEPTION.

     B. OFFICIAL MISCONDUCT.

     C. TAMPERING WITH PUBLIC RECORDS.

     D. FORGERY.

     E. MISCONDUCT BY A CORPORATE
     OFFICIAL.

POINT II
THE JURY CONSIDERED ACTS OUTSIDE THE STATUTE
OF LIMITATIONS ON THE OFFICIAL MISCONDUCT,
PATTERN OF OFFICIAL MISCONDUCT, AND THEFT BY
DECEPTION COUNTS.

POINT III
THE JURY'S VERDICT CANNOT SUPPORT A CONVICTION
FOR A PATTERN OF MISCONDUCT.

POINT IV
THE JURY INSTRUCTIONS AND VERDICT SHEET WERE
INADEQUATE, CONFUSING AND MISLEADING.

POINT V
THE TRIAL COURT ADMITTED IMPROPER LAY OPINION
TESTIMONY ON THE ULTIMATE FACTUAL ISSUE.

POINT VI
THE TRIAL COURT     ADMITTED   IMPROPER   "OTHER
CRIMES" EVIDENCE.

POINT VII
THE TRIAL COURT'S REFUSAL TO DOWNGRADE THE
CONVICTIONS AND WAIVE THE PERIOD OF PAROLE
INELIGIBILITY WERE AN ABUSE OF DISCRETION;
COUNTS THREE THROUGH SIX SHOULD HAVE BEEN
MERGED;   AND  RESTITUTION WAS   IMPROPERLY
IMPOSED.

                       9                           A-5494-13T2
                                    I.

     Turning   to   defendant's    first     argument,   we   address   the

applicable standard of review.           Rule 3:18-1 provides defendants

with a mechanism for seeking a judgment of acquittal at the close

of the State's case.     The standard governing such motions is set

forth in State v. D.A., 191 N.J. 158, 163 (2007):

          On a motion for judgment of acquittal, the
          governing test is:     whether the evidence
          viewed in its entirety, and giving the State
          the benefit of all of its favorable testimony
          and all of the favorable inferences which can
          reasonably be drawn therefrom, is such that a
          jury could properly find beyond a reasonable
          doubt that the defendant was guilty of the
          crime charged.

          [(citing State v. Reyes, 50 N.J. 454, 458-59
          (1967)).]

     Our review of a trial court's denial of a motion for acquittal

is "limited and     deferential[,]" and is governed by the same

standard as the trial court.       State v. Reddish, 181 N.J. 553, 620

(2004).

     Defendant challenges her conviction based on the judge's

denial of her motion for acquittal.         On January 2, 2014, following

defendant's conviction, the judge offered his reasoned denial of

defendant's    motion   applying    the    Reyes   standard   viewing   the

evidence in its entirety, and giving the State "the benefit of all




                                    10                             A-5494-13T2
its favorable testimony and . . . inferences which reasonably

could be drawn therefrom."    See Reyes, supra, 50 N.J. at 458-59.

     The heart of defendant's challenge to her conviction for

theft by deception is the lack of evidence of an agreement stating

the District promised to pay only NJAPC's actual costs to conduct

the conferences, and conversely, the lack of evidence of an

obligation to refund overpayments.    Relying on the Reyes standard,

the judge found ample evidence to support a conviction for the

offense.

     A person may be convicted of theft by deception if he or she

purposely

            [c]reates or reinforces a false impression,
            including false impressions as to law, value,
            intention or other state of mind, and
            including, but not limited to, a false
            impression that the person is soliciting or
            collecting funds for a charitable purpose; but
            deception as to a person's intention to
            perform a promise shall not be inferred from
            the fact alone that he [or she] did not
            subsequently perform the promise[.]

            [N.J.S.A. 2C:20-4(a).]

Theft by deception "occurs where one obtains the property of

another by purposely creating a false impression."           State v.

Krueger, 241 N.J. Super. 244, 249 (App. Div. 1990) (quoting State

v. Talley, 184 N.J. Super. 167, 169 (App. Div. 1982), rev'd on

other grounds, 94 N.J. 385, 388 (1983)).


                                 11                           A-5494-13T2
     Viewing the State's evidence in a favorable light, the proofs

demonstrated defendant oversaw both the NJAPC and the PRC, and the

NJAPC   charged   the    PRC   more    than    it    needed    to    pay     for   the

conferences.      Defendant and Thomas derived a benefit through

personal receipt of NJAPC monies.              Defendant provides no legal

support for the contention an agreement between the parties (or

lack thereof) would nullify the State's ability to satisfy the

elements of theft by deception.                Whether defendant purposely

overcharged the District is a question of fact for the jury.                       The

existence, or non-existence, of a refund agreement or policy is

not a legal bar to conviction.                Moreover, testimony from the

various    District     officials     asserted      overcharges      paid    by    the

District   should     have   resulted    in   a     credit    or    refund    to   the

District, as outlined in the District's policy's and purchasing

procedures and the employee handbook.               The District's failure to

prevent defendant from retaining fees not spent on conference

bills does not sanction the conduct.

     Defendant's argument with respect to official misconduct2

focuses on her state of mind.           She denies taking action she knew

to be unauthorized; the District acquiesced in her conduct and


2
    Defendant was acquitted on the allegation in count one that
she committed official misconduct by "[d]irecting a subordinate
[District] employee to forge the signature of another employee on
[a] NJAPC check[.]"

                                       12                                     A-5494-13T2
should have advised her she was engaging in criminal wrongdoing

subject to charges.       We reject defendant's argument.

     Four elements must be demonstrated:

          (1) defendant was a 'public servant' within
          the meaning of the statute, (2) who, with the
          purpose to obtain a benefit or deprive another
          of a benefit, (3) committed an act relating
          to but constituting an unauthorized exercise
          of her office, (4) knowing that such act was
          unauthorized or that she was committing such
          act in an unauthorized manner."

          [State v. Saavedra, 222 N.J. 39, 58 (2015)
          (citing State v. Thompson, 402 N.J. Super.
          177, 191-92 (App. Div. 2008)).]

See also N.J.S.A. 2C:30-2.

     Here, the State's theory was two-fold:                   first, defendant

appropriated District funds to which she was not entitled by

overcharging, using District resources, and second, she ignored

the obligation to refund overcharges.             Defendant argues she was

unaware the NJAPC was not entitled to amass a profit from sums the

District paid, and she did not know she had an obligation to refund

overcharges.         Hence,   there   are   elements     of   misfeasance    and

nonfeasance.

     There     was     sufficient     evidence    to     demonstrate      active

misfeasance     because,      among     other    things,      defendant     made

misrepresentations       on    her    school    ethics    disclosure      forms,




                                       13                              A-5494-13T2
overcharged the District on behalf of the NJAPC (and derived a

benefit therefrom), and misused District employees and resources.

     In order to convict a person of official misconduct by

nonfeasance, the duty to act must be "so clear that the public

servant is on notice as to the standards that he must meet."               Ibid.

(citing State v. Hinds, 143 N.J. 540, 545-46 (1996)).               Such notice

must be clear so as to avoid prosecuting public officials for a

"mere breach of good judgment."             Hinds, supra, 143 N.J. at 546

(citing    Cannel,   New    Jersey   Criminal        Code   Annotated,   cmt.   on

N.J.S.A. 2C:3-2).

     There was also sufficient evidence to demonstrate defendant's

misconduct by nonfeasance because she did not refund overcharges

to the District.        Defendant's argument no one at the District

imposed an affirmative obligation to refund overcharges is belied

by the policies and procedures set out in the employee handbook.

District    officials      were   aware    of   and    encouraged   defendant's

participation in the NJAPC, but some District officials were not

aware how defendant's participation in the PRC and NJAPC benefitted

defendant and Thomas, or the extent to which she was using District

resources.     Defendant's        knowledge     of    her   own   wrongdoing    is

corroborated by evidence showing she and Thomas used Title One

grant money for personal use.



                                      14                                 A-5494-13T2
      In light of the foregoing considerations and viewed in a

favorable light, the evidence put forth by the State was sufficient

to lead to a conviction.               There was at least a scintilla of

evidence in existence which, when viewed in a light favorable to

the State, set forth a prima facie cause for conviction.                           See

State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000)

(quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div.

1974), certif. denied, 67 N.J. 72 (1975)).

      Defendant    asserts       she    is    arguably    responsible       only   for

ethical violations not criminal conduct.                  In State v. Thompson,

we   overturned    criminal       liability      for     conduct     that   violated

conflict   of    interest    laws,      N.J.S.A.      52:13D-23,     because    those

ethical    violations      did    not       provide    sufficient     notice       such

misconduct would lead to a criminal conviction.                     402 N.J. Super.

177, 197-204 (App. Div. 2008).                 We reasoned while a criminal

prosecution could not arise based on a violation of certain ethical

rules   alone,    we    recognized      a    person    could   be    convicted      for

acceptance of a benefit for violating an official duty defined by

ethical rules.         Id. at 201.      Here, defendant's conduct exceeded

mere ethical transgression because she personally profited from

misapplication of public funds, among other things.                         Defendant

offers no authority for the proposition either NJAPC or she were



                                         15                                   A-5494-13T2
personally entitled to retain public funds collected and not used

to pay for conferences.

     Finally, we reject defendant's argument she did not hide her

affiliation with the NJAPC and that the State alleged she "hid"

her affiliation.    Her leadership of the NJAPC was not the issue.

The indictment alleges she hid her financial interest in the NJAPC.

     With respect to tampering with public records, defendant

contends she did not knowingly include false information on the

financial     disclosure    statements.       She   again   asserts    her

affiliation with the NJAPC was not hidden.

     Pursuant to N.J.S.A. 2C:28-7(a)(1), a person tampers with

public records or information if he or she "[k]nowingly makes a

false entry in, or false alteration of, any record, document or

thing belonging to, or received or kept by, the government for

information or record, or required by law to be kept by other for

information of the government."           Here, defendant oversaw the

preparation    of   and    presented    the   District   with   financial

disclosure forms and purchase orders.           Both sets of documents

contained false information.      The forms were regularly exchanged

between the District and defendant, either in her capacity as a

PRC Supervisor or as president of the NJAPC.

     Defendant argues she should have been acquitted of forgery

because she was entitled to compensation for years of service even

                                   16                             A-5494-13T2
though the NJAPC was a non-profit corporation.         She further

contends no one was defrauded or injured and the check was a

genuine instrument to pay her $25,000, which was legal for NJAPC

to do.

     Defendant misconstrues the alleged offense.   A person commits

an act of forgery when he or she, "with purpose to defraud or

injure anyone, or with knowledge that he [or she] is facilitating

a fraud or injury to be perpetrated by anyone, . . . [a]lters or

changes any writing of another without his [or her] authorization."

N.J.S.A. 2C:21-1(a)(1).

     When viewed in a light favorable to the State, the evidence

showed defendant instructed an NJAPC official who had no check-

writing authority to execute a check to defendant using the

signature of another individual without that individual's consent

or knowledge.    Defendant's argument "no one was defrauded or

injured" fails as testimony revealed she directed payment to

herself and benefitted from sums of grant money otherwise earmarked

for Title One objectives.

     Finally, defendant repeats many of the reasons given above

to assert the State failed to prove misconduct by a corporate

official.   An individual may be convicted of misconduct by a

corporate official if the individual "purposely or knowingly uses,

controls or operates a corporation for the furtherance or promotion

                               17                           A-5494-13T2
of any criminal object."        N.J.S.A. 2C:21-9(c).            We disagree with

defendant for the same reasons discussed above.                   Defendant was

president of the NJAPC who maintained total control over its

operation.

                                      II.

     Defendant's    next   argument        concerns   the   timeframe       of   the

indictment,   which   is   a    question     of   law.      "A    trial   court's

'interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference.'"

State v. Twiggs, 445 N.J. Super. 23, 28 (App. Div. 2016) (quoting

State v. Pomianek, 221 N.J. 66, 80 (2015)).               Where a trial court

"resolve[s]   an   issue   of   law   in     construing     a    statute,     [its]

determinations are reviewed de novo."             In re Expungement Petition

of J.S., 223 N.J. 54, 72 (2015) (citing State v. J.D., 211 N.J.

344, 354 (2012)); see also State v. Cagno, 211 N.J. 488, 505-06

(2012) (citing State v. Hupka, 203 N.J. 222, 231 (2010)), cert.

denied, 568 U.S. 1104, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).

     Defendant argues we should reverse her conviction on counts

one through three because the jury considered acts outside the

applicable statutes of limitations on those counts.                 We disagree.

     The first three counts of the indictment allege defendant

committed acts constituting official misconduct between February

13, 2003, to July 6, 2007. N.J.S.A. 2C:1-6(b)(3) provides a seven-

                                      18                                    A-5494-13T2
year     limitation    period      for    official         misconduct,    while    the

remaining counts are subject to a five-year limitation, pursuant

to N.J.S.A. 2C:1-6(b)(1).           The State presented evidence outside

the seven-year period, and defendant objected during trial.                        The

judge     overruled     the    objections          concluding      the   statute     of

limitations on official misconduct does not toll until the official

leaves public office.

       "An offense is committed when every element of the offense

occurs    or    'at   the   time   when    the      course    of   conduct    or   the

defendant's complicity therein was terminated [when it] plainly

appears' that the Legislature intended to prohibit a continuing

course of conduct."           State v. Diorio, 216 N.J. 598, 613 (2014)

(quoting N.J.S.A. 2C:1-6(c)).                 A continuing offense "involves

conduct spanning an extended period of time and generates harm

that continues uninterrupted until the course of conduct ceases."

Id. at 614 (citing State v. Ireland, 126 N.J.L. 444, 445 (1941)).

Theft by deception can be a "complex scheme involving many persons

or businesses and play out over the course of many days, weeks,

months,    or   even   years."       Id.      at    618.      Similarly,     official

misconduct may be considered a continuing offense for "as long as

[the public official] is in office" and is able to "use his [or

her] influence" to achieve the criminal purpose.                         Id. at 617.

Thus, when there is a continuing offense, the applicable statute

                                         19                                   A-5494-13T2
of limitations period only begins to run when the course of conduct

is complete.

     Defendant argues State v. Childs, 242 N.J. Super. 121 (App.

Div.),    certif.   denied,   127    N.J.    321   (1990),    stands    for    the

proposition that the aggregation of thefts is a question for the

jury, and each conference was a separate event.                 In Childs, we

found "theft by deception is a continuing offense for purposes of

the statute of limitations when the defendant is engaged in a

continuing    scheme   or   course   of     behavior   to    obtain    funds    by

deception."    Diorio, supra, 216 N.J. at 616 (citing Childs, supra,

242 N.J. Super. at 131).       Additionally, "the finder of fact must

first determine whether the thefts are constituent parts of a

single scheme or course of conduct" before aggregating "the amount

involved in two or more thefts."            Childs, supra, 242 N.J. Super.

at 131.

     Here, defendant's statute of limitations objections were

questions of law determined by the judge, but the underlying facts

in dispute were questions for the jury.             The jury found beyond a

reasonable doubt defendant committed the crimes enumerated in

counts one through three and her actions between 2003 and 2007

"constitute[d] one continuous scheme or course of conduct (as

opposed to separate incidents)."            Thus, we agree with the trial

judge defendant's maintenance of public office and continuing

                                     20                                  A-5494-13T2
course of conduct tolled the applicable repose statutes, because

defendant engaged in a pattern of continuing conduct through the

timeframe in the indictment.

                                   III.

       Defendant argues the trial judge erred by instructing the

jury if it found defendant guilty of two or more of the acts

enumerated in count one,3 then the jury must find her guilty on

count two.    Relying on State v. Quezada, 403 N.J. Super. 277 (App.

Div.   2008),   defendant    contends       because   she   was   convicted    of

official misconduct, only one act was committed, and therefore,

there was no pattern.

       Defendant did not object to the jury charge or verdict sheet

at the time of trial.       Defendant is therefore barred from raising

jury charge issues, because "no party may urge as error any portion

of the charge to the jury or omissions therefrom unless objections

are    made   thereto   before   the    jury    retires     to    consider    its



3
     Count one alleges defendant engaged in official misconduct
through the following acts: failing to list her employment and
financial interest in the NJAPC in her annual ethics disclosures;
creating the false impression that the NJAPC was a separate
business entity with no financial or personal involvement by
defendant or a relative; hiring the NJAPC as an outside vendor for
the annual parent conferences, which were funded with Title One
grant monies; utilizing District employees and equipment on behalf
of the NJAPC; improperly charging the District through the NJAPC;
and directing a District employee to forge a check in excess of
$200.

                                       21                               A-5494-13T2
verdict[.]"       R.    1:7-2.     The     failure   to   object    raises   the

presumption that these instructions were adequate.                    State v.

Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citing State v.

Macon, 57 N.J. 325, 333 (1971)), certif. denied, 177 N.J. 572

(2003).   Thus, the plain error standards applies.                 See State v.

Vallejo, 198 N.J. 122, 140 (2009) (quoting State v. Burns, 192

N.J. 312, 341 (2007)).

      Here, unlike in Quezada, defendant was not charged with

multiple counts of official misconduct, only one count of official

misconduct with multiple instances of misconduct contained within,

and one count of pattern of misconduct.              Because the jury found

defendant committed more than two of the acts from count one,

defendant could also be convicted of count two.                We reject the

argument defendant was punished twice for the same offense, and

based on our review of the record, we find no plain error in the

instruction.

                                      IV.

      Defendant argues the jury instructions and verdict sheet for

official misconduct were inadequate, confusing, and misleading

because the judge "refus[ed] to instruct the jury as to the defense

of mistake of fact or law," or "that, for purposes of official

misconduct, an act cannot be unauthorized if permitted by policy

or   practice."        Defendant   contends    the   instructions     regarding

                                      22                                A-5494-13T2
certain ethical standards was misleading and the verdict sheet was

inadequate because it did not require the jury to find whether an

unauthorized act resulted in a benefit to her or to Thomas.

      When a claim of error is made on appeal for an unchallenged

jury charge, it will be considered plain error if it "prejudicially

affect[s] the substantial rights of the defendant."                 State v.

R.B., 183 N.J. 308, 321-22 (2005) (quoting State v. Hock, 54 N.J.

526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26

L. Ed. 2d 797 (1970)).

      Here, the judge charged the jury regarding defendant's state

of   mind   at   the   time   she   committed   the   crimes   in   a    manner

inconsistent with the model jury charges, see Model Jury Charge

(Criminal), "Ignorance or Mistake" (May 7, 2007).              Defendant is

correct the judge erred holding defendant did not provide proper

notice, pursuant to Rule 3:12-1, of the defense of ignorance or

mistake as to a matter of fact or law, N.J.S.A. 2C:2-4(a), because

such notice is only required if a defense asserted to N.J.S.A.

2C:2-4(c) is raised.      R. 3:12-1.       However, the error is harmless.

      The judge declined to include language in the charge that an

act is "not unauthorized" if permitted "by policy or practice."

Considering the totality of the entire charge, the jury was not

"misinformed as to the controlling law."              See R.B., supra, 183

N.J. at 324. The jury heard testimony about the District policies,

                                      23                                A-5494-13T2
as   well     as   contradicting   testimony    regarding    defendant's      and

District's actual practices and the NJAPC's actual practices.                 The

jury was free to consider such testimony in reaching a verdict.

       Finally, we reject defendant's argument the verdict sheet was

misleading because it did not specifically identify who benefitted

from   defendant's      misconduct.     The    verdict    sheet   tracked     the

language of the official misconduct statute and only required a

finding the misconduct was carried out "with purpose to obtain a

benefit for [defendant] or another."           N.J.S.A. 2C:30-2.     Extensive

testimony demonstrated the benefits defendant and Thomas received

from NJAPC's overcharging the District.             The verdict sheets are

clear and understandable, and based on the testimony presented,

the jury could reach a verdict without confusion.                    Moreover,

defendant did not object.

                                      V.

       Defendant argues the judge admitted lay testimony in the

absence of expert testimony on a critical factual issue.                      She

argues the judge improperly allowed multiple witnesses to give

testimony regarding whether defendant had a duty to refund money.

We disagree.

       "[A]    trial   court's   evidentiary    rulings     are   'entitled    to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment.'"             State v. Brown, 170 N.J.

                                      24                               A-5494-13T2
138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)).   We do not substitute our own judgment for that of the

trial court, unless "the trial court's ruling was so wide of the

mark that a manifest denial of justice resulted."           Ibid. (quoting

Marrero, supra, 148 N.J. at 484).         We do not accord deference to

the trial judge's legal conclusions.        State v. Nantambu, 221 N.J.

390, 402 (2015).    "To the extent [a] defendant's argument . . .

raises a question of law, . . . our review is de novo and plenary."

State v. J.D., 211 N.J. 344, 354 (2012).

     Pursuant to N.J.R.E. 702, "[i]f scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training,

or education may testify thereto in the form of an opinion or

otherwise."     Expert   opinion   must   be   based   on   facts   or   data

"perceived by or made known to the expert at or before the

hearing." N.J.R.E. 703. The facts or data "need not be admissible

in evidence" if it is "of a type reasonably relied upon by experts"

in the relevant field.    Ibid.    Error in the admission of evidence

is not harmful if the defendant's fundamental rights were not

impaired and the cumulative evidence against the defendant enjoys

great weight.   State v. Soto, 340 N.J. Super. 47, 65 (App. Div.),

certif. denied, 170 N.J. 209 (2001).

                                   25                               A-5494-13T2
     The State elicited testimony from District officials about

their knowledge of defendant's role with the NJAPC and the NJAPC's

overcharging   of   the    District,       including   testimony   regarding

policies and procedures within the District's employee handbook

and the impropriety of operating a corporation using District

offices,   equipment      and    resources    on   District   hours.       When

questioning a business administrator regarding the District's

policy for recovery of overcharges, the following exchange took

place:

           Prosecutor:          [A]nd now per the [District's]
                                policy, if a purchase order is
                                approved, [the District] will
                                be the vendor.   And then the
                                [District] later finds out
                                that the actual cost was less
                                than what [the District] paid
                                to the vendor.        Per the
                                [District's] policies, what
                                does —

           Counsel:             [I am] going to object.

                . . . .

           Counsel:             Your [h]onor, she asked him to
                                speculate and asked him to give
                                — he assumes there is a policy.
                                That [has not] been testified
                                to up to this point.

           The court:           Well, I [do not] know it asked
                                for speculation; and I [do not]
                                know that it asked for an
                                opinion.



                                      26                               A-5494-13T2
                       [There is] really only one of
                       two answers.    I guess there
                       could be more. But either the
                       [answer   is]  going   to   be
                       ["]well, we let them keep the
                       money because it was our
                       mistake and, you know; or [it
                       is] going to be no, if we paid
                       someone and they paid less, we
                       would expect a refund.["]

                       I [do not] think that [that is]
                       something that is beyond the
                       ken of a juror.     I [do not]
                       think it calls for expert
                       opinion. I [do not] think [it
                       is] speculating.

                       I think [it is] pretty basic to
                       the business world at all
                       levels    that    if    someone
                       overpays for something, they
                       feel they want a refund.      I
                       [cannot]    think    of    many
                       examples where that [does not]
                       happen.

The judge held a hearing outside the presence of the jury to

determine whether the answer was admissible, and permitted the

witness to answer:

         Prosecutor:   Mr. Assara, per the school
                       district's policy, what if a
                       purchase order is approved,
                       [the    District]   pays    the
                       vendor, and then the school
                       district later found out that
                       the actual cost was less than
                       what [the District] paid to the
                       vendor? What would the school
                       district expect the vendor to
                       do?


                             27                          A-5494-13T2
            Witness:          Refund the overpayment.

     Another District business administrator testified no overt

agreement existed permitting the NJAPC to retain overages, and

proffered what the District's response would have been had it

known there were overcharges.       Defendant objected, and the judge

overruled   the   objection     because    the   District's    response     to

overcharges was supported by previous testimony about its purchase

manual.

     Defendant argues these witnesses offered expert opinions.

The witnesses did not offer opinions as to defendant's innocence

or guilt and both witnesses' testimony related to their normal

business practices or to previous testimony.         Their testimony was

therefore   within     the   permissible   scope   and   did   not   include

technical or speculative testimony outside the ken of the average

juror. Townsend v. Pierre, 221 N.J. 36, 53 (2015); State v. Kelly,

97 N.J. 178, 208 (1984).         We discern no abuse of the court's

discretion.

                                         VI.

     Defendant argues the judge erred by admitting evidence of

other crimes, contrary to N.J.R.E. 404(b), without applying the

four-part test promulgated in State v. Cofield, 127 N.J. 328

(1992).   In particular, defendant argues the judge should not have



                                    28                               A-5494-13T2
admitted evidence of Thomas's expenditures or evidence of the

monies paid to the NJAPC by other unnamed school districts.

     Defendant did not object at trial, and the issue is therefore

subject to a plain error analysis.         See R. 2:10-2.          Because we

view the evidence of Thomas's use of NJAPC funds for personal

reasons   and   the   NJAPC's    overcharging    of   other   districts      as

intrinsic   evidence   "exempt    from   the    strictures    of   [N.J.R.E.]

404(b)," we need not reach defendant's Cofield arguments.                  See

State v. Rose, 206 N.J. 141, 177 (2011).

     Generally, "evidence of other crimes, wrongs, or acts is not

admissible to prove the disposition of a person in order to show

that such person acted in conformity therewith."         N.J.R.E. 404(b).

In order to admit such evidence "for other purposes," such evidence

is limited as "proof of motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake or accident when

such matters are relevant to a material issue in dispute."              Ibid.

The admissibility of evidence pursuant to N.J.R.E. 404(b) is

subject to the four-part Cofield test.           Cofield, supra, 127 N.J.

at 338.

     However, where evidence "is intrinsic to the charged crime

. . . even if it constitutes evidence of uncharged misconduct that

would normally fall under [N.J.R.E.] 404(b)[,]" such evidence is

not subject to the Cofield test "because it is not 'evidence of

                                    29                                A-5494-13T2
other crimes, wrongs, or acts.'"             Rose, supra, 206 N.J. at 177.

The key distinction between intrinsic evidence and evidence that

is otherwise subject to an N.J.R.E. 404(b) analysis turns on

whether such evidence is of other crimes.              Id. at 179.      Borrowing

from the Third Circuit, our Supreme Court has identified two types

of intrinsic evidence subject only to a relevancy analysis pursuant

to N.J.R.E. 403 and not 404(b):

          we . . . reserve the "intrinsic" label for two
          narrow categories of evidence.          First,
          evidence is intrinsic if it "directly proves"
          the charged offense.    This gives effect to
          [N.J.R.E.] 404(b)'s applicability only to
          evidence of "other crimes, wrongs, or acts."
          If uncharged misconduct directly proves the
          charged offense, it is not evidence of some
          "other" crime.      Second, "uncharged acts
          performed contemporaneously with the charged
          crime may be termed intrinsic if they
          facilitate the commission of the charged
          crime." But all else must be analyzed under
          [N.J.R.E.] 404(b).

          [Id. at 180 (quoting United States v. Green,
          617 F.3d 233, 248-49 (3d Cir.), cert. denied,
          562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d
          234 (2010)).]

     Defendant     correctly    notes      she   was   not   charged     for   any

impropriety     regarding    other    school     districts   or   for   Thomas's

purchases, and no Cofield analysis was used before the subject

evidence was permitted. However, no Cofield analysis was necessary

because   the     evidence     was      of     "uncharged     acts      performed

contemporaneously    with    the     charged     crime"   because    those     acts

                                      30                                  A-5494-13T2
"facilitate[d] the commission of the charged crime."         Ibid.   The

overcharges and Thomas's personal expenditures were inextricably

linked to defendant's overall scheme to defraud the District and

other school districts. The evidence was intrinsic to a continuing

scheme by defendant to accumulate money in an NJAPC account and

convert it for personal use by defendant and her son.4

                                  VII.

     Defendant   raises   three    sentencing   arguments:    (1)    the

convictions on counts one and two should have been downgraded, and

the parole disqualifiers on those counts should have been waived;

(2) counts three through six should have been merged with counts

one and two because the offenses in those counts constituted the

basis of the official misconduct; and (3) no restitution should


4
   Even under a Cofield analysis, no reversal is warranted because
the proffered "other crimes" evidence was: (1) "admissible as
relevant to a material issue[,]" namely, defendant's actions in
her capacity as NJAPC President and supervisor of the annual parent
conference preparations; (2) "similar in kind and reasonably close
in time to the offense charged[,]" as any overcharges to other
districts were contemporaneous with overcharges to the District,
and Thomas's personal use of the NJAPC accounts included use of
other district's money; (3) "clear and convincing[,]" given the
extensive testimony and financial proofs presented to the jury;
and (4) permissible pursuant to N.J.R.E. 403, specifically, its
"probative value . . . [was] not . . . outweighed by [any] apparent
prejudice." See Cofield, supra, 206 N.J. at 159-60. As noted by
the State, the "uncharged" misconduct "tend[ed] to established the
existence of a larger continuing plan or scheme," and the "vast
extent of defendant's [alleged] deceptive theft over several
years." See N.J.R.E. 404(b).


                                  31                            A-5494-13T2
have been ordered.   We agree counts three through six should have

merged with counts one and two for sentencing and a restitution

hearing should have been conducted.

     "Appellate review of a sentence is restricted to whether the

determination of the sentencing factors was appropriate, whether

the determination was supported by competent evidence in the

record, and whether the sentence is so unreasonable that it shocks

the judicial conscience."    State v. Paduani, 307 N.J. Super. 134,

148 (App. Div.) (citing State v. O'Donnell, 117 N.J. 210, 215-16,

(1989)), certif. denied, 153 N.J. 216 (1998); State v. Roth, 95

N.J. 334, 364-65 (1984); State v. Bull, 268 N.J. Super. 504, 508-

09 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).

     First,   the    judge   declined   to    downgrade   defendant's

convictions and sentence her in the third-degree range, finding

the aggravating and mitigating factors were in equipoise and

defendant's case was not idiosyncratic.      See State v. Jarbath, 114

N.J. 394, 413 (1989) (noting instances where "the character and

condition of the defendant are so idiosyncratic that incarceration

or extended imprisonment for the purposes of general deterrence

is not warranted"); N.J.S.A. 2C:44-1(f)(2) (allowing sentencing

courts to downgrade convictions for sentencing purposes where the

court is clearly convinced the mitigating factors outweigh the

aggravating factors and where the interest of justice so demands).

                                 32                            A-5494-13T2
     In particular, the judge found aggravating factors four,

nine, ten, and eleven, pursuant to N.J.S.A. 2C:44-1(a).                 The judge

applied mitigating factors five, seven, ten, and eleven, pursuant

to N.J.S.A. 2C:44-1(b).           Applying mitigating factor five, the

judge criticized the District at length for its lack of oversight.

Given the balance of the aggravating and mitigating factors, the

judge sentenced defendant at the lowest possible range for her

convictions on counts one and two.                   The judge engaged in a

satisfactory     analysis   of    the   applicable      facts     and   found   the

aggravating    and   mitigating     factors     in     balance.      The   judge's

sentences on counts one and two were "grounded in competent,

reasonably credible evidence."               Roth, supra, 95 N.J. at 363.

Moreover,   he    applied   the    correct     legal    analysis     pursuant     to

N.J.S.A. 2C:44-1(f)(2), Jarbath, and State v. Rice, 425 N.J. Super.

375, 389 (App. Div.), certif. denied, 212 N.J. 431 (2012).                        We

discern no clear error of judgment that would shock the judicial

conscience.      Roth, supra, 95 N.J. at 364.

     Although the judge did not abuse his discretion in his

sentencing analyses, we agree counts three through six should have

merged with count one.       In Quezada, the defendant firefighter was

convicted of official misconduct and setting false fire alarms.

Quezada, supra, 402 N.J. Super. at 287-88.              We found merger of the

defendant's      false   alarm    convictions    with     the     conviction    for

                                        33                                 A-5494-13T2
official   misconduct   was    appropriate    because    the   false    alarms

constituted official misconduct.          Id. at 290.

     The merger of offenses requires a double-jeopardy analysis.

Id. at 287-88; see State v. Miles, __ N.J. __ (2017) ("We now join

the majority of jurisdictions in returning to the Blockburger

same-elements   test    as    the    sole   test   for   determining       what

constitutes the 'same offense' for purposes of double jeopardy.").

This analysis requires two steps, and "[t]he first step requires

the court to consider whether the legislature intended to impose

multiple punishments."       Id. at 288.

           If, however, the legislative intent to allow
           multiple punishment is not clear, the Court
           must then apply the test articulated in
           Blockburger v. United States, 284 U.S. 299,
           52 S. Ct. 180, 76 L. Ed. 306 (1932), to
           determine    whether   the     defendant    is
           unconstitutionally   faced    with    multiple
           punishment for the "same" offense.

           [Ibid. (citations omitted).]

Here, the offenses in counts three through six constituted the

official misconduct charge.         These offenses should have merged.

     Finally, defendant contends restitution was improper because

the judge determined defendant was unable to pay a fine, and no

restitution hearing took place.             We agree, and remand for a

restitution hearing.




                                     34                                A-5494-13T2
      N.J.S.A. 2C:44-2 provides a defendant can be required to pay

restitution if "the victim . . . suffered a loss" and "[t]he

defendant is able to pay."              A sentencing judge has "considerable

discretion" when determining whether a defendant has the present

or future ability to pay.           State v. Scribner, 298 N.J. Super. 366,

371   (App.   Div.    1997).        The    judge    must    "explain    the      reasons

underlying     the    sentence,         including     the     decision      to     order

restitution, the amount of the restitution, and its payment terms."

Ibid. (citing State v. Newman, 132 N.J. 159, 1164-64 (1993)).

"[T]here must be an explicit consideration of defendant's ability

to pay."      Ibid. (citing State v. Corpi, 297 N.J. Super. 86, 93

(App. Div. 1997)).

      Here, the judge found defendant did not have the ability to

pay a fine but granted restitution without a hearing based on the

State's    proofs    at    trial.         Because    the    ability    to   pay     is   a

prerequisite to imposing restitution under N.J.S.A. 2C:44-2, and

the judge found defendant could not pay a fine, the trial judge's

imposition of over $190,000 in restitution is incongruous.                            For

this reason, we remand for a restitution hearing.

      Affirmed   in       part,   and     remanded    for    re-sentencing        and    a

restitution hearing.




                                           35                                    A-5494-13T2
