In Washington Township, New Jersey, nj.com
- A man who was convicted in 2013 of misappropriating money he was given to pay a family member's mortgage won a partial victory under an appellate court ruling released Thursday [March 9].
Robert Schwartz, 56, of Washington Township, pleaded guilty to a third-degree charge of theft by deception and was sentenced to five years probation and ordered to pay $138,352 in restitution to his sister-in-law, Karen Giosa, and her husband, Frank.
Frank Giosa gave Schwartz [...] $175,000 in 2007 with the understanding that the money would be used to pay the Giosa family's mortgage on their Gloucester Township home.
At some point, he stopped making the mortgage payments, but didn't tell the Giosas. They learned they were in trouble when they received a foreclosure notice in 2009, the family previously said.
Schwartz was indicted on a second-degree theft by deception charge and entered a guilty plea to the third-degree charge in October 2013 as part of a plea agreement.
Seven months after he was sentenced, Schwartz filed a motion to vacate his guilty plea. That motion was rejected. He also filed a motion to vacate his indictment on statute of limitation grounds, which was also rejected.
Schwartz appealed both rulings and appellate judges agreed with him on one -- vacating his guilty plea.
The appellate court found that the trial judge erred in denying the motion to withdraw his guilty plea because the charge of theft by deception requires proof that Schwartz obtained the money "by creating a false impression" of how it would be used.
According to trial testimony, Schwartz began putting money toward mortgage payments, meaning that his initial intention was honorable. It was only later that he began keeping money for himself, according to court testimony.
"Because defendant failed to admit, and the admitted facts failed to show, that he deceived or created a false impression at the time he obtained Giosa's money, he did not give an adequate factual basis for theft by deception," the court found. "If he later formed a criminal intent, and purposely retained the money for himself rather than pay off the mortgage, that might constitute theft by failure to make required disposition of property received ... but that crime was neither admitted nor charged."
As a result, his conviction and sentence are vacated and Schwartz is now permitted to re-plead or take the case to trial.