State v. Eisemann

1

STATE OF NEW JERSEY, Plaintiff-Appellant, v. OSHER EISEMANN, Defendant-Responden

Nos. A-0186-22, A-0187-22

Superior Court of New Jersey, Appellate Division

May 26, 2023

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.

Argued April 25, 2023

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No 18-04-0059.

Lauren Bonfiglio, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney Lauren Bonfiglio, of counsel and on the briefs).

Lee D Vartan, argued the cause for respondent (Chiesa Shahinian &Giantomasi PC, attorneys; Lee D. Vartan and Melissa F. Wernick, on the brief).

Before Judges Sumners, Geiger and Susswein.

PER CURIAM.

Tried by a jury, defendant Osher Eisemann was found guilty of second-degree financial facilitation of criminal activity (money laundering) and second-degree misconduct by a corporate official. The offenses arose from his role as Executive Director of the School for Children with Hidden Intelligence (SCHI or school) and President of the Board of Trustees of Services for Hidden Intelligence, LLC (the foundation), SCHI's fundraising organization. He was found not guilty of first-degree corruption of public resources, second-degree theft by unlawful taking, and second-degree misapplication of entrusted property and property of government. He was sentenced to two consecutive thirty-day jail terms and two consecutive one-year probationary terms. The foundation was charged with the same offenses as defendant but was found not guilty of all charges.

Defendant appealed the conviction, while the State appealed the sentence. In an unpublished decision, we affirmed defendant's conviction but remanded for resentencing before a different judge because the trial judge did not comply with our sentencing guidelines. State v Eisemann, No. A-3781-18 (App. Div. Dec. 31, 2020) (slip op. at 49), certif. denied, 246 N.J. 147 (2021).

Prior to resentencing, defendant filed a motion for a new trial based upon newly discovered evidence - a statement by Rochel Janowski, one of the foundation's bookkeepers, concerning the school's QuickBooks account entry she made that formed the basis of his conviction. In opposing the motion, the State produced, "Exhibit F," an audit trail of the school's QuickBooks account the State prepared a year prior to trial, showing that "rochel," Janowski's username, was the person who made the QuickBooks entry in question. Defendant had not previously seen Exhibit F because the State did not produce it in discovery. Over five months later, defendant responded with another motion for a new trial, this time arguing the State's failure to disclose Exhibit F prior to trial constituted prosecutorial misconduct in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963).

The State successfully moved to have the trial judge recuse himself from considering the new trial motions. A different judge (motion judge) granted defendant a new trial based on the newly discovered evidence and because of the Brady violation. The motion judge denied the State's motion to stay the trial.

We granted the State's motion for leave to appeal the order granting defendant a new trial. We also granted the State's motion to stay the trial.^[1]

Before us, the State contends in a single point:

THE JUDGE ERRONEOUSLY ORDERED A NEW TRIAL.

A. The identity of defendant's bookkeeper is not newly discovered evidence.

B. The State had no obligation to disclose the identity of defendant's bookkeeper and information in his own records.

Having considered the parties' arguments and applicable law, we affirm because the motion judge did not abuse his discretion in granting defendant a new trial.

I.

The trial testimony disclosed the following financial transactions and ensuing investigation relevant to this appeal.

On March 13, 2015, defendant purchased two cashier's checks using funds from the school's bank account totaling $230,000. A $30,000 check^[2] made payable to defendant was deposited in his personal checking account, which he shared with his wife. A second check in the amount of $200,000 was issued in mid-March to GZYD, a company owned by Jonathan Rubin, which made loans to individuals in the Lakewood community. Defendant told Rubin he was concerned that his loan to a third party would not get repaid without engaging in litigation, so he asked Rubin to act as a nominee for the loan, making the loan from the check he issued to GZYD. Rubin had previously done similar transactions with other individuals.

Accordingly, Rubin issued a check on March 19, for $200,000 from GZYD to TAZ Apparel (TAZ), the entity to which defendant wished to loan money. TAZ, a defunct online clothing company, was owned by Aaron Gottlieb and defendant, and defendant had loaned money to the company in the past. Gottlieb deposited the check from Rubin and, at defendant's instruction, wrote a check to defendant for $200,000. Defendant deposited Gottlieb's check into his personal bank account, and then wired $200,000 from that account to SCHI.

At the time of these transactions, Ahuva Gruen was business manager and head bookkeeper of SCHI. The foundation's SCHI QuickBooks account showed that on March 18, Gruen recorded the $200,000 defendant withdrew on March 13 as a debit to an account entitled "O. Eise Loan: Gemach GYZD" (the Gemach GYZD account). Gruen did not respond to a subpoena to testify before the grand jury and was not called as a witness at trial.

When the $200,000 was wired to the school on March 25, its QuickBooks account showed someone with the username "rochel" credited the funds to an account entitled "O. Eise Loan:osher 022" (the "Osher 022 account"). The entry was made May 20.

On June 29, law enforcement officers obtained warrants to search the foundation's records. Monmouth County Prosecutor's Office Detective Thomas Page had begun investigating SCHI earlier that year concerning an alleged misuse of public funds for non-school related purposes. Page concluded improper expenditures were made from SCHI's bank account, where tuition money from the Lakewood Board of Education, intended for Lakewood students attending the school, was deposited. He did not closely consider other SCHI accounts and conceded, despite the school's receipt of substantial private donations, he had "no idea" how much money came into the school from those sources. Even though Page characterized the $200,000 at issue in this appeal as defendant's debt payment to the foundation or SCHI, the State provided no evidence of any debt.

The Prosecutor's Office's Financial Crimes Bureau Deputy Chief of Detectives William Fredrick testified regarding a compilation of QuickBooks information and S-90, an audit trail he created by electronically manipulating the school's QuickBooks records, showing withdrawal of $200,000 from the school's account and that "admin." (Gruen) had entered the transaction in QuickBooks. Defendant objected to Fredrick testifying about S-90 on the grounds that he was not an expert in accounting software and did not create the QuickBooks records, but the trial court overruled the objection. Significantly, Fredrick never discussed Exhibit F-a document that was created a year prior to trial that the State failed to produce in discovery-which was the second half of the audit trail establishing that "rochel" and not "admin." had entered the return of the $200,000 to the Osher 022 account.

With respect to the return of the $200,000 withdrawn from the school's bank account, Fredrick, who was not an accountant, testified:

So, the only other transaction that was-that occurred within the general ledgers or that we saw within the general ledgers was when the $200,000 came back from Osher 022, the personal bank account of [defendant] and [his wife]. When that money came back into the school, it was reflected . . . at the school level . . . as a reduction to the S-2000 SCHI loan account and an increase to [defendant's personal account]. At the foundation level, the accounting in the general ledger reflected a decrease in the SCHI loan account and a decrease to the Osher-loan payable OIZ loan, Osher 022 general ledger account.

Fredrick further stated the $200,000 deposited to the school's account, "decreased the Osher 022 account," thereby decreasing a loan defendant owed to SCHI.

Through Fredrick's cross-examination, defendant introduced a certification by certified public accountant Phillip A. Stern, stating that a financial audit of the foundation revealed, that as of June 30, 2014, the foundation owed defendant $321,750, and as of June 30, 2015, the foundation owed him $351,750. As of 2021, the debt SCHI owed to defendant was over $300,000 and was not repaid, according to Stern.

Ari Ehrlich, Controller and Chief Financial Officer for both SCHI and the foundation, testified for both the State and defendant, stating the school's records prior to June 2016 were inaccurate and there were material mistakes in the QuickBooks records.

Eli Leshkowitz, a lawyer and forensic accountant, testified the school's QuickBooks accounts were "completely unreliable" with respect to tracking the flow of money between the school and the foundation. Regarding the alleged theft of public funds, Leshkowitz found the school always had sufficient private funds to cover the transactions questioned by the State. According to Leshkowitz, it was necessary to look at all school and foundation accounts to determine whether private donations or public funds were used...