State v. Joseph Diorio (069597)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Joseph Diorio (A-110-11) (069597)

Argued May 13, 2013 -- Decided February 12, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers whether the State brought indictments for money laundering and theft by
deception prior to expiration of the five-year statute of limitations and determines whether the two offenses are
continuing offenses.

In March 1999, defendant Joseph Diorio started a wholesale produce company with David Menadier and
Michael Fava. Menadier, who had no prior experience in the industry, was listed as the company’s president,
director and sole shareholder. Diorio and Menadier formed a C-corporation, trading as Packed Fresh Produce, Inc.
(PFP), opened a bank account, and obtained the required license from the USDA. Diorio provided start-up funds
from his personal business accounts. In June 1999, Diorio or Fava contacted the Produce Reporting Company
(PRC), which issues the Blue Book, a directory of produce companies and their credit ratings, and told it that PFP
possessed financial assets almost $100,000 higher than its actual assets. Based in part on this information, the
October 1999 Blue Book listed PFP with a favorable rating. In accordance with customary industry practice, PFP
then began ordering small amounts of produce from various suppliers on credit.

Although Diorio and Fava mixed PFP’s operations and finances with their separate businesses, PFP
initially made prompt payments and paid over the average price for produce, thereby quickly improving its credit
rating and reputation. As companies increased their credit line with PFP, it increased the cost and volume of its
orders. PFP then began to miss payments and write bad checks. On January 12, 2000, PFP placed its last order, and
its bank account was closed in January 2000 due to uncollected funds. Diorio and Menadier opened a new account
at another bank and made deposits until February 4, 2001. Around that time, PFP entered into settlement
negotiations with several creditors. In March 2000, Diorio gave Menadier $45,000 to satisfy one of the debts. On
March 17, Menadier deposited the cash in his personal checking account and obtained a cashier’s check for the
settlement payment. By April 2000, the USDA had suspended PFP’s license for failure to pay its suppliers, and
several creditors had filed a civil suit in federal district court.

On February 1, 2005, a Monmouth County Grand Jury returned an indictment charging Diorio and Fava
with numerous crimes. Diorio moved to dismiss the indictment, arguing that several of the charges, including
second-degree theft by deception and first-degree money laundering, were barred by the statute of limitations.
N.J.S.A. 2C:1-6(c). Relying in part on the fact that N.J.S.A. 2C:20-2(b)(4) expressly authorizes the aggregation of
separate losses to grade the offense, the trial court determined that theft by deception may be classified as a
continuing offense when multiple acts of theft are part of a common scheme. The court also concluded that money
laundering is a continuing offense, noting that N.J.S.A. 2C:21-27 also permits aggregation. It determined that PFP’s
final act of business occurred when funds derived from the scheme were used in the March 2000 settlement. Diorio
was found guilty and sentenced to a seven-year prison term for theft by deception and a consecutive fifteen-year
term for money laundering, with a five-year period of parole ineligibility.

Diorio appealed, arguing that his prosecution for theft by deception was barred because the five-year
limitations period on the theft by deception charge commenced on January 12, 2000. He also contended that the
trial court erroneously relied on transactions that do not constitute money laundering. In a published opinion, State
v. Diorio, 422 N.J. Super. 445 (App. Div. 2011), the Appellate Division affirmed the conviction, concluding that the
last theft was not completed until sometime in February 2000, when PFP breached its contractual agreement to pay
for the produce it purchased in January. The panel also determined that the post-February 1, 2000, transactions
involving PFP’s bank accounts were part of the overall money laundering scheme and that the settlement money was
evidence of it. The Court granted certification. 210 N.J. 217 (2012).

1
HELD: For purposes of the statute of limitations, when a defendant engages in a scheme to obtain the property of
another by deception, theft by deception is a continuing offense. If the scheme involves the promise to pay at a later

date, the limitations period does not commence until the day after payment is due. Money laundering is a
continuous offense only when there is evidence of successive acts that facilitate the common scheme to defraud.
Applying these principles here, the statute of limitations on the theft by deception charge expired prior to return of
the indictment, thereby barring Diorio’s prosecution for that offense. In contrast, the money laundering charge was
timely since the relevant transactions occurred within five years before the indictment was filed.

1. The criminal statute of limitations, which is an absolute bar to prosecution, balances the right of the public to
have those who commit crimes charged, tried and sanctioned with the right of the defendant to a prompt
prosecution. With certain exceptions, prosecution for an offense must commence within five years after
commission. N.J.S.A. 2C:1-6(b)(1). An offense is committed once every element of the crime occurs or when the
criminal course of conduct ceases, and the limitations time period commences on the day after commission of the
offense. N.J.S.A. 2C:1-6(c). (pp. 18-19)

2. Continuing offenses involve conduct spanning an extended period of time and generating harm that continues
uninterrupted until the course of conduct ceases. Unless the Legislature explicitly declares an offense continuous,
there is a presumption against it. However, when an offense involves a common scheme of ongoing conduct and,
under the relevant statute, the amounts involved can be aggregated to form a single offense, the Legislature
generally considers the offense continuous. (pp. 19-23)

3. Although the theft by deception statute permits aggregation to determine the grade of the offense, the Legislature
has not expressly declared theft by deception a continuing offense. Nevertheless, it has been found to be a
continuing offense when the defendant is engaged in a scheme to obtain funds by deception. Here, Diorio
implemented a scheme that was dependent on a series of actions designed to create the impression that PFP was a
legitimate business. When, like Diorio, a defendant engages in a scheme to obtain the property of another by
deception, that conduct is a continuous offense for purposes of the statute of limitations. Although a majority of
jurisdictions have held that the statute of limitations for comparable theft offenses begins to run at the time of the
receipt of property, when the scheme involves the purchase and delivery of a product followed by payment at a later
date, the last act of theft by deception occurred when the obligation to pay was breached. Thus, the limitations
period begins to run on the day following the date payment is due. (pp. 23-32)

4. The offense of money laundering involves an underlying criminal activity that generates property which is then
either used to facilitate criminal activity or is “washed.” As with theft by deception, the amounts involved in money
laundering transactions conducted pursuant to one scheme may be aggregated to determine the degree of the offense.
Federal law is split on whether money laundering is a continuing offense, but the broad scope of the New Jersey
statute, N.J.S.A. 2C:21-25, supports the conclusion that money laundering is a continuous offense only when the
record contains evidence of successive acts that facilitate and promote a common scheme to defraud. (pp. 32-37)

5. With respect to the question of whether the indictment against Diorio was filed within five years of commission
of the last element of each offense, the Court agrees with the Appellate Division that the last act of theft occurred
when PFP breached its contractual agreement to pay. Since there was no evidence establishing payment terms for
the produce shipped on January 12, 2000, the Court assumes that, in accordance with federal regulations, payment
was due ten days after receipt and acceptance. Allowing five days for transit, payment was due on January 27,
2000, rendering that the date of the last constituent theft. The limitations period began to run on January 28 and
expired before the indictment was returned on February 1, 2005. Therefore, Diorio’s prosecution for theft by
deception is barred. As for the money laundering offense, the evidence reveals an on-going scheme to defraud
creditors and hide the proceeds. The Court concludes that the $45,000 cash transaction in March 2000 between
Diorio and Menadier facilitated that criminal activity because it enabled Diorio to retain a portion of the profits from
the scheme. Since the transaction occurred within five years before the indictment was filed, the money laundering
charge was timely. (pp. 37-42)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART.

2
 CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.

3
 SUPREME COURT OF NEW JERSEY
A-110 September Term 2011
069597

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH DIORIO,

Defendant-Appellant.

Argued May 13, 2013 – Decided February 12, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 422 N.J. Super. 455 (2011).

Anil K. Arora argued the cause for appellant
(Mr. Arora, attorney; Mr. Arora and Jeffrey
M. Zajac, on the briefs).

Frank J. Ducoat argued the cause for
respondent (Jeffrey S. Chiesa, Attorney
General of New Jersey, attorney).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

In 1999, Joseph Diorio and two others conceived and

executed a “bust-out” financial scheme by creating a business

for the purpose of defrauding creditors. In a bust-out scheme,

a company is formed and establishes a credit line presenting

itself to the business community as a reputable company.

Initially, it places small orders with suppliers. As it

establishes a favorable payment history, the company’s credit

1
limit is increased. Once the company’s suppliers are satisfied

that the company has established a reputation for prompt

payment, the volume of orders increases in size and cost. Once

the goods are received, the company sells them but does not pay

the supplier. The company stalls suppliers as long as possible

before it declares bankruptcy or simply disappears, leaving

suppliers unpaid.

Diorio and two others formed a corporation to distribute

fresh produce. Defendant leased warehouse space with no

refrigeration, obtained a license from the United States

Department of Agriculture (USDA), and submitted information to

obtain a credit rating. Then the business placed its first

orders. Consistent with the basic parameters of a bust-out

scheme, small orders were placed for fresh produce, and payment

was made promptly. Once the business established its

reliability with suppliers, the size of the orders increased,

and payments to suppliers slowed and then stopped altogether.

Meanwhile, every shipment of produce immediately left the

company’s warehouse and was transported to one of the warehouses

operated by defendant and a co-defendant, who commingled the

produce with their stock and sold it to their customers.

The scheme organized and implemented by defendant placed

its first order in late August 1999 and its last order in mid-

January 2000. An indictment was returned on February 1, 2005.

2
The statute of limitations for the charged offenses is five

years.

This appeal concerns whether the State returned the

indictment on the money laundering and theft by deception

charges before expiration of the five-year statute of

limitations. Central to this issue is whether these offenses

are continuing offenses because the statute of limitations on

such an offense does not begin to run until the prohibited

conduct ceases. We must also determine whether the limitations

period for the theft by deception charge runs from receipt and

acceptance of the last shipment of goods or the date on which

payment was due.

We hold that both offenses are continuing offenses. We

also hold that when property has been obtained by a deceptive

transaction that includes the extension of credit, the crime of

theft by deception is not complete until payment has not been

made in accordance with the agreement. Here, payment for the

final shipment was not made in accordance with the purchase

agreement, more than five years before return of the indictment,

thus barring the indictment for theft by deception. We,

therefore, affirm in part and reverse in part the judgment of

the Appellate Division.

I.

3
 Defendant Joseph Diorio owned several food industry

companies in New Jersey, including Paterson Vending and

Catering, Inc. and Victorian Coffee Systems. In March 1999,

defendant approached a friend, David Menadier, and a business

acquaintance, Michael Fava, about starting a wholesale produce

company. Although Menadier had no prior experience in the

produce industry, defendant proposed that Menadier be listed as

the company’s president, director and sole shareholder because

defendant had previously sold a produce company and was bound by

a non-compete provision. Defendant proposed that Fava would be

a silent partner responsible for brokerage of the produce

because Fava had over thirty years of experience in the produce

industry and owned two produce companies, Knowles Brokerage Inc.

(KBI) and M. Fava, Inc. (M. Fava). Defendant informed Menadier

and Fava that he would act as a “silent partner” and a

“financial backer.” Menadier and Fava agreed to defendant’s

business proposal and the three began to take steps to establish

the produce business.

Using the proceeds from defendant’s other business bank

accounts, defendant provided funds to Menadier to incorporate

the produce company. In April 1999, defendant selected a non-

refrigerated warehouse in Lodi to receive produce and instructed

Menadier to sign a one-year lease. Defendant also advised and

assisted Menadier in taking other steps to establish a wholesale

4
produce business, such as forming a C-corporation with the State

of New Jersey under the name All Statewide Produce, Inc.,

trading as Packed Fresh Produce, Inc. (PFP), obtaining a

Perishable Agricultural Commodities Act (PACA) license, as

required by 7 U.S.C.A. § 499c, from the USDA, and opening a

mailbox account and a PFP business bank account. Menadier also

changed the address on his driver’s license to match the mailbox

address.

In June 1999, a person representing himself as Menadier

contacted the Produce Reporting Company (PRC), which issues the

Blue Book, a directory and reference guide on produce companies

and their credit ratings. The Blue Book is a vital publication

in the produce industry, so much so that it is referred to as

“the Bible” by industry insiders. Either Fava or defendant,

posing as Menadier, repeatedly provided PRC false information

about PFP’s operations and finances, including that PFP operated

a refrigerated warehouse, sold approximately 250 truckloads of

produce per year to chain stores and to other wholesale markets,

and possessed financial assets nearly $100,000 higher than its

actual assets. Defendant also submitted fabricated financial

statements to PRC, purportedly prepared by an accounting firm.

Based upon this false information, the October 1999 edition of

the Blue Book listed PFP with a favorable credit rating.

5
 Supported by a favorable Blue Book credit rating, PFP began

to order small amounts of produce from various suppliers on

credit, as is customary for wholesalers in the produce industry.

From the inception of PFP, the corporation’s operations and

finances were commingled with Fava’s and defendant’s separate

businesses. Fava mixed PFP’s produce with produce from his

family produce companies, sold the produce as a product of his

family companies and received checks payable to his family

companies in payment for the commingled produce. Fava endorsed

some of these checks to be made payable to defendant’s separate

businesses. Defendant then deposited the checks into his

separate company accounts and withdrew some of the cash to be

deposited into PFP’s bank account.

Due to its initial prompt payments and willingness to pay

more than the average price of produce, PFP quickly improved its

credit rating and gained a favorable reputation in the produce

industry. As companies increased their credit line with PFP, it

dramatically increased the total cost and volume of its orders.

Almost immediately after its credit line increased, PFP began to

miss payments to its suppliers and wrote several checks that

were returned for insufficient funds.

By January 2000, six suppliers were still shipping produce

to PFP. Representatives of two of the suppliers, Tanimura &

Antle, Inc. (Tanimura & Antle) and Tanimura Distributing

6
(Tanimura), testified at trial. Carolyn Silva, the credit

manager for Tanimura & Antle, testified that she imposed a

payment term of ten days when she first authorized credit in

October 1999. Initially, PFP paid within fifteen days. In

December 1999, PFP increased the number and volume of its orders

significantly and Silva began to notice slower and slower

payments. Silva testified that PFP payments were “kind of

sliding to 20 or 22 days.” She also received checks that were

returned for insufficient funds. The last shipment from

Tanimura & Antle to PFP was on January 5. The payment term,

however, remained ten days from receipt of the produce. The

invoice for the January shipment provided that payment was due

from PFP ten days after receipt of the produce. Allowing five

days for shipment, payment was due on or before January 20,

2000. PFP did not pay this invoice and Tanimura & Antle

rebuffed PFP’s further orders. At that time, PFP owed Tanimura

and Antle $496,818.60 for produce shipped to it.

Christopher Tagami, a sales manager for Tanimura, testified

that his company sold produce to PFP between October 1999 and

January 4, 2000. For the first month that Tanimura did business

with PFP, the payment term was thirty days. PFP met this term

and started to increase the number and volume of orders. When

payment slowed, Tagami reduced the payment period from thirty

days to fourteen days from the date of receipt of the produce.

7
The last invoice to PFP from Tanimura was dated January 4, 2000,

but Tagami testified that payment was due on January 18, 2000

because the product had shipped before the date of the invoice.

PFP did not pay this invoice, Tanimura placed a hold on its

account, and the company rebuffed further attempts by PFP to

order produce.

An exhibit marked in evidence, S-4, lists two orders from

PFP on January 11, 2000, and January 12, 2000, to Andrew Smith

Company and Pacific Gold Farms, Inc., respectively.1 According

to industry norms, payment was due within ten days of receipt, 7

C.F.R. § 46.2(aa)(5). Allowing for five days for delivery,

payment was due to Andrew Smith Company on or before January 26,

2000, and to Pacific Gold Farms on or before January 27, 2000.

The spring 2000 issue of the Blue Book gave PFP the lowest

possible credit rating. Additionally, PFP’s business account

with the Bank of New York was closed in January 2000 due to

uncollected funds. Defendant and Menadier immediately opened a

new PFP business account at Fleet Bank, which named Menadier as

the corporate president. Menadier transferred funds from the

Bank of New York account and made deposits into the Fleet Bank

account until February 4, 2001.

1
Fava testified that a cash deposit into the PFP business
account occurred on January 18, 2000, and PFP ordered produce
after that date. He was unable to identify any order after that
date. Exhibit S-4, which lists PFP suppliers and dates of
orders, reveals no order after January 12, 2000.
8
 Fava, who pled guilty to one count of money laundering and

one count of witness tampering, explained the disposition of the

produce ordered by PFP and of the proceeds from the sale of PFP

produce. He dispatched one of his employees to run the Lodi

warehouse and transferred a forklift from either M. Fava or KBI,

the two produce companies with which he was involved. On

delivery to the Lodi warehouse, PFP produce was commingled with

shipments of produce from M. Fava or KBI to their customers.

When the M. Fava or KBI customers paid, Fava deposited the

checks in the M. Fava or KBI accounts or sent checks to

defendant. Some of the checks sent to defendant were endorsed

by him to a company owned and operated by him. Occasionally,

Fava performed a rough estimate of the amount of PFP produce

sold to his customers through M. Fava or KBI, withdrew enough

cash from those accounts to pay some PFP expenses, and deposited

cash in the PFP business account. Fava further testified that

defendant also made cash deposits into the PFP business account.

The last deposit of cash into the PFP business account occurred

on January 18, 2000, although M. Fava or KBI received at least

one payment from a customer in early March 2000.

As payments to the suppliers slowed or stopped, suppliers

filed suit to collect the sums due. PFP, represented by Fava’s

attorney, entered into negotiations to settle its debts with

several creditors. Of particular relevance to this appeal is a

9
debt settlement with creditor H.R. Bushman and Son (Bushman), in

which defendant gave Menadier $45,000 in cash to satisfy an

$85,279.35 debt. On March 17, 2000, Menadier deposited the cash

into his personal checking account, obtained a cashier’s check

for the same amount payable to the attorney’s trust account, and

gave the check to the attorney.

The USDA began investigating reparation complaints against

PFP and, by April 2000, suspended PFP’s PACA license for failure

to pay its produce suppliers. In addition, several of PFP’s

creditors filed a civil suit against PFP in federal district

court in New Jersey, seeking a preliminary injunction to freeze

PFP’s assets and claiming a loss of $1,701,438.80 among fourteen

creditors. See Tanimura & Antle, Inc. v. Packed Fresh Produce,

Inc., 222 F.3d 132, 140-41 (3d Cir. 2000) (directing entry of

preliminary injunction to halt dissipation of trust assets).

In response to one of the pending civil actions, Fava

fabricated a corporate ledger of invoices, packing slips, and

credit balances, and both defendant and Fava prepared Menadier

for depositions. Defendant and Fava aggressively instructed

Menadier to keep their names out of the litigation.

Accordingly, Menadier made untruthful statements at depositions

in July 2000 and November 2001. In January 2001, Menadier,

representing PFP, entered into a civil consent judgment for $1.7

10
million with Menadier assuming personal responsibility for half

of the judgment amount.

II.

Following an investigation by several federal agencies,

including the Federal Bureau of Investigation and the United

States Postal Inspection Service, Menadier entered a plea of

guilty to money laundering and perjury. Then, on February 1,

2005, a Monmouth County Grand Jury returned a six-count

indictment charging defendant and co-defendant Fava with first-

degree conspiracy to promote or facilitate the crimes of theft

by deception, money laundering, misconduct by a corporate

official, and witness tampering, N.J.S.A. 2C:5-2, N.J.S.A.

2C:20-4, N.J.S.A. 2C:21-25, N.J.S.A. 2C:21-9, and N.J.S.A.

2C:28-5 (count one); second-degree theft by deception, N.J.S.A.

2C:20-1, N.J.S.A. 2C:20-2b(4), and N.J.S.A. 2C:2-6 (count two);

first-degree money laundering, N.J.S.A. 2C:21-25b, N.J.S.A.

2C:21-8.1b, and N.J.S.A. 2C:2-6 (count three); second-degree

misconduct by a corporate official, N.J.S.A. 2C:21-9c and

N.J.S.A. 2C:2-6 (count four); and second-degree witness

tampering, N.J.S.A. 2C:28-5a(1) and N.J.S.A. 2C:2-6 (count six).2

Menadier was not named in the indictment as a co-conspirator.

After the indictment, Fava pled guilty to first-degree

money laundering and third-degree witness tampering. Both

2
Only Fava was charged in count five with witness tampering.
11
Menadier and Fava agreed to testify at defendant’s trial, which

occurred between January 15 and February 21, 2008.

Following the return of the indictment and the entry of a

guilty plea by co-defendant Fava, defendant filed a motion to

dismiss the indictment. Defendant argued that the conspiracy,

theft by deception, money laundering, and misconduct by a

corporate official charges were barred by the statute of

limitations. The trial judge held that the indictment had been

returned within the five-year limitations period imposed by

N.J.S.A. 2C:1-6c. The judge concluded that theft by deception

may be classified as a continuing offense when multiple acts of

theft are part of a common scheme. Furthermore, the trial court

reasoned that N.J.S.A. 2C:20-2b(4) supported classification of

theft by deception as a continuing offense by expressly

authorizing the aggregation of the separate losses to grade the

offense. Finally, the trial judge determined that the scheme

commenced in summer 1999 and continued through spring 2000 as

defendants made several attempts to disguise their fraudulent

activities.

Addressing the money laundering charge, the trial judge

also concluded that the offense should be considered a

continuing offense. Once again, he relied on the statutory

authority to aggregate the amounts of separate transactions to

determine the grade of the offense, see N.J.S.A. 2C:21-27. The

12
trial judge also determined that the business operations of PFP

continued after receipt of the last produce shipment on January

12, 2000. The trial judge specifically identified the use of

funds derived from the scheme in March 2000 to fund the

settlement of a civil action filed against PFP.

Defendant renewed this motion at the close of the State’s

case. The trial court denied the motion.3 The jury found

defendant guilty of the remaining charges. On June 6, 2008, the

trial court denied defendant’s motion for a judgment of

acquittal on count three (first-degree money laundering) and a

new trial on the remaining counts of the indictment. The trial

court also denied the State’s motion to sentence defendant to an

extended term as a persistent offender. The trial court merged

count one with counts two, three, and four, and imposed a seven-

year prison term for second-degree theft by deception (count

two); a consecutive fifteen-year term with five years of parole

ineligibility for first-degree money laundering (count three);

and a concurrent seven-year term for second-degree misconduct by

a corporate official (count four). Appropriate statutory

penalties and assessments were also imposed, and defendant was

ordered to pay restitution in the amount of $1,983,281.60.

III.

3
The trial court granted defendant’s motion to dismiss the
conspiracy to promote or facilitate the witness tampering charge
in count one and the witness tampering charge in count six.
13
 Defendant appealed to the Appellate Division. He argued

that the theft by deception charge was barred by the five-year

statute of limitations because PFP received the last shipment of

produce on January 12, 2000, more than five years prior to the

February 1, 2005 indictment. Defendant further argued that the

money laundering charge was barred by the five-year statute of

limitations because the court improperly relied on transactions

that do not constitute money laundering.4

In a published opinion, the Appellate Division affirmed

defendant’s conviction. State v. Diorio, 422 N.J. Super. 445

(App. Div. 2011). The appellate panel rejected defendant’s

argument that the theft by deception charge was barred by the

statute of limitations. Id. at 458-59. The panel relied on the

dissent in Ex parte Rosborough, 909 So. 2d 772, 776 (Ala. 2004)

(Nabers, C.J., dissenting) and determined that the last theft

was not completed until sometime in February 2000, when PFP

breached its contractual agreement to pay for the produce it

4
Defendant also maintained that the State refused to honor his
oral plea agreement, thereby violating his right to due process.
Defendant also contended the trial court erred in not holding a
hearing to reconstruct the proffer sessions, the trial court
erred in denying his motion for a new trial because the jury
instructions violated Rule 3:7-2, and that the trial court erred
in denying his motion for an acquittal on the money laundering
charge. The panel determined that no plea agreement was entered
into in this case, sufficient credible evidence supported the
trial court’s decision to deny the motion to reconstruct the
proffer sessions, and that defendant’s remaining arguments were
without merit. This appeal is limited to whether the indictment
was returned within the statute of limitations.
14
purchased in January. Diorio, supra, 422 N.J. Super. at 458-59.

The panel also rejected defendant’s argument that the money

laundering charge was barred by the five-year statute of

limitations, finding that the transactions in PFP’s bank

accounts after February 1, 2000, facilitated or promoted the

bust-out scheme; and further that the $45,000 in cash that

defendant paid to Menadier to settle the Bushman lawsuit in

March 2000 was evidence of money laundering occurring within the

statute of limitations. Id. at 459. This Court granted

defendant’s petition for certification. 210 N.J. 217 (2012).

IV.

A.

Defendant contends that a finding by this Court that theft

by deception, N.J.S.A. 2C:20-4, is a continuing offense “would

do violence” to the legislative purposes behind the statute.

Applying the two-part test identified in Toussie v. United

States, 397 U.S. 112, 115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156,

161 (1970) to identify a continuing offense, defendant argues

that the offense does not qualify as a continuing offense

because the Legislature has not expressly stated that theft by

deception is a continuing offense and the nature of the offense

focuses on single acts rather than a scheme.

Defendant further argues that, if this Court were to hold

that the continuing offense doctrine applies, the statute of

15
limitations began to run as of January 12, 2000, when PFP

received the last shipment of produce, and receipt of the

produce was the last act constituting a theft. According to

defendant, any deceptive act after January 12, 2000, is

irrelevant because PFP did not obtain any further property after

this date.

Defendant next contends that money laundering is not a

continuing offense because neither the language, meaning, nor

legislative history of N.J.S.A. 2C:21-25 reveals it to be a

continuing offense, and nothing inherent in the statute itself

makes the conduct continuing in nature. Defendant asserts that

a deposit made by Menadier in March 2000 into his personal bank

account represents money that had been illegally acquired months

earlier and does not extend the statute of limitations.

Defendant further argues that this deposit does not constitute

an act of money laundering because it did not involve a deposit

into a PFP bank account.

B.

The State responds that the language of the theft by

deception statute, N.J.S.A. 2C:20-4, manifests a legislative

intent to prohibit continuing conduct because two elements of

the crime, deception and exercise of control over property of

another, involve conduct that can extend beyond isolated events.

The State emphasizes that the authority to aggregate the amounts

16
obtained from separate thefts provides further evidence of

legislative intent.

The State next argues that if this Court holds that

N.J.S.A. 2C:20-4 is a continuing offense, the indictment was

timely filed. The State asserts that defendant’s deceptive

course of conduct continued until January 2001, almost four

years before the return of the indictment. The State refers to

the transfer of funds for two debt settlements: (1) the $45,000

cash transfer from defendant to Menadier’s personal bank account

in March 2000 for the Bushman settlement; and (2) a January 2001

cashier’s check to a law firm as part of a separate debt

settlement. The State also asserts that the Appellate Division

correctly determined the last theft was not completed until

sometime in February 2000 when PFP breached its contractual

agreement to pay for the produce it purchased in January.

As to the money laundering offense, the State contends that

given the broad reach of the statute, N.J.S.A. 2C:21-25b(1), as

well as the ability to aggregate the amounts involved in the

transactions conducted pursuant to a scheme or course of

conduct, a legislative purpose exists to prohibit a continuing

course of conduct. The State asserts that two money laundering

transactions occurred within the five-year statute of

limitations period. The State highlights the March 17, 2000

deposit of $45,000 in Menadier’s personal account for the

17
Bushman settlement and the February 4, 2000 deposit of $5,639.81

into PFP’s Fleet Bank account which was later transferred to an

attorney trust account to settle other PFP debts.

V.

A criminal statute of limitations is designed to protect

individuals from charges when the basic facts have become

obscured by time. Toussie, supra, 397 U.S. at 114-15, 90 S. Ct.

at 858, 25 L. Ed. 2d at 161; State v. Zarinsky, 75 N.J. 101, 106

(1977). A statute of limitations balances the right of the

public to have persons who commit criminal offenses charged,

tried and sanctioned with the right of the defendant to a prompt

prosecution. Zarinsky, supra, 75 N.J. at 106-07.

The Legislature has determined that some offenses are so

heinous and the effect on society so severe that the offender

may be charged at any time. To that end, the Legislature has

declared that prosecution for murder, N.J.S.A. 2C:11-3;

manslaughter, N.J.S.A. 2C:11-4; and sexual assault, N.J.S.A.

2C:38-1 to -5, may be commenced at any time. Except for

bribery, N.J.S.A. 2C:27-2; compounding, N.J.S.A. 2C:29-4;

official misconduct, N.J.S.A. 2C:20-2; and speculating or

wagering on official action or information, N.J.S.A. 2C:30-3; or

the conspiracy to commit any of these offenses, all of which

must be commenced within seven years after the commission of the

offense, N.J.S.A. 2C:1-6b(3), a prosecution for a crime must be

18
commenced within five years after it is committed, N.J.S.A.

2C:1-6b(1). 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. N.J.S.A. 2C:1-6c. The time commences to run

on the day after the offense is committed, except in

circumstances not implicated in this appeal. Ibid.

The statute of limitations for a criminal offense is an

absolute bar to prosecution. State v. Short, 131 N.J. 47, 55

(1993). Therefore, if the charges are not filed within five

years from the day after the offense is committed, any

prosecution is barred. See Zarinsky, supra, 75 N.J. at 107.

In this appeal, we must determine whether the indictment

was filed within five years of the commission of the charged

offenses: theft by deception and money laundering. According to

the record, defendant ordered produce, diverted the produce to

another distributor, sold the produce but failed to pay the

suppliers. Although preparatory steps commenced in March 1999,

the many instances of receipt and acceptance of produce and

failure to pay commenced in October 1999 and continued through

January 2000. Fava and defendant deposited cash into the PFP

account in March 2000 and defendant provided $45,000 in cash to

Menadier to settle a lawsuit on March 17, 2000. The indictment

19
was returned on February 1, 2005. Our determination whether the

indictment was timely requires us to consider whether the

charged offenses are continuing offenses and, if so, when the

last act of the continuing offense occurred.

A criminal offense is often classified as either a discrete

act or a continuing offense. “A discrete act” is one that

occurs at a single point in time. State v. Williams, 129 N.J.

Super. 84, 86 (App. Div. 1974), rev’d on other grounds, 68 N.J.

54 (1975). Robbery is such an offense. A continuing offense

involves conduct spanning an extended period of time and

generates harm that continues uninterrupted until the course of

conduct ceases. State v. Ireland, 126 N.J.L. 444, 445 (Sup. Ct.

1941), appeal dismissed, 127 N.J.L. 558 (E. & A. 1942). For

example, possession of a controlled substance is considered a

continuous offense. No New Jersey case holds that separate days

of continuous criminal possession will support separate

convictions. Cannel, New Jersey Criminal Code Annotated,

comment 8 on N.J.S.A. 2C:1-8 (2013); see also United States v.

Fleischli, 305 F.3d 643, 658 (7th Cir. 2002) (holding that

possession of firearm is considered continuing offense which

ceases only when possession stops), cert. denied, 538 U.S. 1001,

123 S. Ct. 1923, 155 L. Ed. 2d 828 (2003). On the other hand,

separate instances of possession of a banned substance are

discrete acts. Williams, supra, 129 N.J. Super. at 86.

20
Kidnapping is considered a continuing offense because the risk

of harm to the victim persists until safe release. United

States v. Garcia, 854 F.2d 340, 343-44 (9th Cir. 1988), cert.

denied, 490 U.S. 1094, 109 S. Ct. 2439, 104 L. Ed. 2d 995

(1989).

In Toussie, supra, 397 U.S. at 114-16, 90 S. Ct. at 860-61,

25 L. Ed. 2d at 161-62, the Supreme Court declared that the

doctrine of continuing offenses should be applied only in

limited circumstances. An offense should not be considered a

continuing offense “unless the explicit language of the

substantive offense compels such a conclusion, or the nature of

the crime involved is such that Congress must assuredly have

intended that it be treated as a continuing one.” Ibid.

The New Jersey Code of Criminal Justice (Code) “establishes

a presumption against finding that an offense is a continuous

one.” II The New Jersey Penal Code, Final Report of the N.J.

Criminal Law Revision Commission § 2C:1-6 commentary 2 at 15

(1971) (hereinafter Final Report). However, the Code expressly

recognizes the existence of continuing offenses, N.J.S.A. 2C:1-

6c, and the Law Revision Commission declared that “[t]o the

extent that a given offense does in fact proscribe a continuing

course of conduct, no violence is done to the statute of

limitations.” Id. at 16.

21
 This Court has addressed continuing offenses in the context

of an official misconduct charge and an attempted extortion

charge. State v. Weleck, 10 N.J. 355 (1952). Weleck pre-dates

not only the Code but also Toussie, but remains relevant to our

inquiry because it is the only opinion by this Court addressing

continuing offenses. Moreover, although Toussie is persuasive

authority and widely accepted, it is not binding authority as it

governs only federal criminal prosecutions based on federal law.

In Weleck, the Court recognized that “[a]n indictment for

misconduct in office may allege a series of acts spread across a

considerable period of time . . . . If any of the acts fall

within the two years next preceding the return of the

indictment, prosecution is not barred by the statute of

limitations.” Id. at 374 (citations omitted). Therefore, when

the borough attorney demanded money and entered into an illegal

agreement with a private citizen, those acts “constituted a

breach of [the defendant’s] duties [as borough attorney] and the

breach continued so long as the defendant held office and

persisted in his efforts to obtain the money from [the private

citizen].” Ibid.

On the other hand, the Court held that the charges of

attempted extortion and extortion cannot be considered

continuing offenses. Id. at 374. Rather, the offense of

extortion is complete with the taking and the offense of

22
attempted extortion is complete with the demand for payment not

due to the defendant. Id. at 375. Each demand for payment not

due to the public official is a separate offense. Ibid.

Consistent with Toussie, Weleck, and N.J.S.A. 2C:1-6c, our task

then is to determine whether the Legislature explicitly declared

these offenses as continuing offenses or the nature of either

offense is one that the Legislature must have intended that it

be treated in this manner.

A.

We first assess whether N.J.S.A. 2C:20-4 is a continuing

offense for the purpose of the statute of limitations.

A person is guilty of theft if he purposely
obtains property of another by deception. A
person deceives if he purposely:

a. Creates 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 did not subsequently
perform the promise;

b. Prevents another from acquiring
information which would affect his judgment
of a transaction; or

c. Fails to correct a false impression which
the deceiver previously created or
reinforced, or which the deceiver knows to
be influencing another to whom he stands in
a fiduciary or confidential relationship.

23
 [N.J.S.A. 2C:20-4.]

“Amounts involved in thefts . . . committed pursuant to one

scheme or course of conduct, whether from the same person or

several persons, may be aggregated in determining the grade of

offense.” N.J.S.A. 2C:20-2b(4) (emphasis added). See Cannel,

supra, comment 3 on N.J.S.A. 2C:20-4 (noting that aggregation

premised on continuing nature of illegal conduct).

This Court has never addressed whether theft by deception

is a continuing offense so that the statute of limitations

commences to run only when the course of conduct is complete.

In State v. Childs, 242 N.J. Super. 121, 134 (App. Div.),

certif. denied, 127 N.J. 321 (1990), and State v. Jurcsek, 247

N.J. Super. 102, 110 (App. Div.), certif. denied, 126 N.J. 333

(1991), the Appellate Division determined that 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. In Childs,

supra, the defendant raised cash for his corporation by making

false representations to induce investors to lend money in

exchange for unsecured corporate notes that had no value. 242

N.J. Super. at 125-27. In Jurcsek, supra, the defendant

implemented a fraudulent scheme to obtain bank funds in the form

of student loans on a recurring basis. 247 N.J. Super. at 110;

accord State v. Tyson, 200 N.J. Super. 137, 139 (Law Div. 1984)

24
(receipt of three forms of public financial assistance based on

periodic certifications over nine years is continuing offense).

Based on these cases, the Appellate Division recently concluded

that our “[c]ourts have found a plain appearance that the

Legislature intended to prohibit a continuing course of conduct

in situations involving a common scheme of ongoing conduct and

where, by the terms of the statute prohibiting the conduct, the

amounts involved can be aggregated to form a single offense.”

State v. Coven, 405 N.J. Super. 266, 276 (App. Div. 2009).

In the typical case, the offense is complete as soon as

every element of the offense occurs. Several discrete acts of

theft by deception would not be a continuing offense because the

harm caused by each theft would cease upon completion of each

offense. On the other hand, if “the crime is not exhausted for

purposes of the statute of limitations[,] as long as the

proscribed course of conduct continues,” it is a continuing

offense. Toussie, supra, 397 U.S. at 124, 90 S. Ct. at 865, 25

L. Ed. 2d at 167 (White, J., dissenting). Thus, the offense of

official misconduct premised on an agreement between a borough

attorney and a private citizen for the attorney to use his

influence to guide legislative action for the benefit of the

private citizen is a continuing offense. Weleck, supra, 10 N.J.

at 374. This is so because the public official can influence

the legislative business of the borough for the benefit of a

25
party other than the public entity as long as he is in office

and the matter is before the governing body. By contrast, the

offense of extortion is complete when money is demanded and

taken. Id. at 375.

We discern from these cases the need to scrutinize the

statute to determine the conduct that is prohibited. We do so

because the Legislature has not expressly stated that theft by

deception is a continuing offense as it has done in N.J.S.A.

2C:20-8c (connecting or causing to be connected a device to

obtain gas, electric or water without payment) or N.J.S.A.

2C:20-8d (tampers with devices that record electric usage).5

N.J.S.A. 2C:20-4 also does not contain language describing the

circumstances when a litany of single offenses might constitute

a continuing offense. Furthermore, the Legislature has declared

that the various theft offenses addressed in Chapter 20,

N.J.S.A. 2C:20-1 to -38 are generally single offenses. N.J.S.A.

2C:20-2a. Nevertheless, the Legislature has declared that the

amounts involved in thefts may be aggregated to determine the

grade of the offense when the thefts are part of “one scheme or

course of conduct, whether from the same person or several

persons.” N.J.S.A. 2C:20-2b(4). This approach undoubtedly

5
The Legislature amended each statute in 1985 to expressly
provide that each was a continuing offense, L. 1985, c. 20, § 1,
following an Appellate Division opinion holding to the contrary.
State v. Insabella, 190 N.J. Super. 544, 553-54 (App. Div.
1983).
26
reflects recognition by the Legislature that theft by deception

is not always an isolated event but may actually be a complex

scheme involving many persons or businesses and play out over

the course of many days, weeks, months, or even years.

We hold that the scheme devised and implemented by

defendant comprised a continuing offense. In reaching this

conclusion, we are mindful that a continuing offense is not the

norm. Although most theft by deception offenses are not

continuing offenses, here, the scheme developed and implemented

by defendant never contemplated a single act of theft by

deception. Rather, the scheme depended on a series of actions

to create the impression that PFP was a legitimate business

engaged in the wholesale distribution of fresh produce and had

the ability to pay its financial obligations in a timely manner

as required by federal law. Having created the impression of a

legitimate and financially responsible produce business, it

initiated a course of conduct that did not cease until suppliers

refused to provide any more produce. It placed multiple orders

from fourteen wholesalers. Those wholesalers shipped produce

under the impression, carefully cultivated by defendant, that

they would be paid. Rather, defendant shipped the produce from

the PFP warehouse to produce businesses he and co-defendant Fava

controlled almost as fast as it arrived. Defendant commingled

and sold the produce ordered by PFP with the produce purchased

27
by companies owned or controlled by co-defendant Fava. Little

of the sums realized from the sale of PFP-acquired produce was

ever returned to PFP’s accounts and ultimately to the fourteen

produce suppliers. Their losses exceeded $1.7 million.

Here, defendant devised and orchestrated a single scheme to

defraud several businesses. The evidence adduced at trial

demonstrates that every act taken by defendant and his business

associates was to further the single scheme that produced on-

going harm to a targeted group of victims. We, therefore, hold

that when a defendant engages in a course of conduct or single

scheme to obtain property of another by deception from one or

several persons, that conduct is a continuous offense for

purposes of the statute of limitations.

Having determined that the conduct devised by defendant

qualifies as a continuing offense, we must determine when the

last constituent act occurred. That inquiry in this case

requires us to determine whether the last act is the receipt and

acceptance of the produce or the failure to pay for the produce.

A person cannot be convicted of theft by deception unless

he has obtained the property of another by purposely creating a

false impression. N.J.S.A. 2C:20-4; see also State v. Mejia,

141 N.J. 475, 495 (1995) (holding that for act to constitute

theft, stolen property must “belong to another”), overruled on

other grounds by State v. Cooper, 151 N.J. 326, 378 (1997). The

28
term “obtain” is defined as a transfer of a legal interest in

the property. N.J.S.A. 2C:20-1f. The term “property” and

“property of another” are defined broadly to include “anything

of value.” N.J.S.A. 2C:20-1h. Thus, a builder who induced

lenders to give him money based on false impressions which the

builder created was guilty of theft by deception and the offense

was complete when he received the funds which would not have

been advanced but for his falsification of documents. State v.

Rodgers, 230 N.J. Super. 593, 601-02 (App. Div.), certif.

denied, 117 N.J. 54 (1989). Based on these principles,

defendant contends he obtained the property of another when he

received the produce for suppliers on credit, and the last

shipment arrived on January 12, 2000. Therefore, the indictment

is not timely. The State responds that the last act occurred

when PFP failed to pay for the produce in accordance with the

purchase agreement for the last shipments and that the record

reveals that payment for the final shipments was not due until

after February 1, 2000.

The majority of jurisdictions that have addressed this

issue have held that the statute of limitations for comparable

theft offenses begins to run at the time of the receipt of

property. William A. Harrington, When statute of limitations

begins to run against criminal prosecution for embezzlement,

fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689, 694

29
(2009) (noting that in most cases involving prosecutions for

crimes of theft involving fraud, “the limitation period was held

to begin when the misappropriation or misuse of funds or

property by the accused took place”). Although a minority of

jurisdictions hold that the statute of limitations begins to run

when the victim becomes aware of the fraud, see Harrington,

supra, 77 A.L.R.3d at 712 (discussing cases “holding that

statute begins to run on occurrence of event after

misappropriation of funds or property”), this theory is

inconsistent with our Code. Our “Code is drafted on the theory

that it is ordinarily desirable to start the running of the

period of limitation at the time when a crime is committed

rather than at the time the offense is detected or the offender

discovered.” Final Report, supra, § 2C:1-6 commentary 2 at 14.

Here, the Appellate Division held that the last act

occurred when PFP breached its contractual obligation to pay for

the produce. Diorio, supra, 422 N.J. Super. at 459. The

appellate court relied on a dissent in Rosborough, supra, 909

So. 2d at 776-78. Ibid. In Rosborough, the Supreme Court of

Alabama held that any deceptive acts subsequent to the taking of

the property did not constitute theft by deception, id. at 775-

76, and concluded that the limitation period began to run when

Rosborough obtained funds for an investment that contemplated

30
monthly interest payments and a return of principal after five

years, id. at 776.

In his dissenting opinion,6 Chief Justice Nabers agreed with

the majority that a deception must logically precede obtainment

of the property in a theft by deception offense. Id. at 776-77

(Nabers, C.J., dissenting). However, the justice noted that the

case involved “a theft conceived and carried out through a

contract, which by its terms continued beyond the theft and

provided cover for Rosborough’s deception.” Id. at 779.

Focusing on the terms of the contract, Chief Justice Nabers

noted:

I would hold that in a theft-by-deception
case where property is obtained pursuant to
a continuing and deceptive scheme set forth
in a contract crafted to effectuate the
transfer of the property and to cover up the
theft through means [statutorily] defined as
“deception[,]” . . . the statute of
limitations does not begin to run until the
thief has completed his “final act” of
performance under the contract.

[Ibid. (internal citations omitted).]

Applying this “final act” theory, Chief Justice Nabers concluded

that the statute of limitations began to run when Rosborough

made his last deceptive payment. Ibid.

6
Three other justices also dissented writing separate opinions.
Each agreed that the last act that triggered the statute of
limitations was the failure to make an interest payment as
prescribed in the agreement. Id. at 779-82.
31
 The reasoning of the Rosborough dissent is sound when the

scheme involves the purchase and delivery of a product followed

by payment at a later date. In other words, the property

supplied on credit has not been stolen until a defendant does

not pay for it in accordance with the terms of the credit

agreement. We hold, therefore, that when property is

transferred from one to another on a promise to pay at a

designated later date, the person supplying that product has not

been harmed until the date for payment has passed. The statute

of limitations commences to run the day following the date

payment is due.

B.

We next consider whether N.J.S.A. 2C:21-25b is a continuing

offense for the purposes of the statute of limitations.

The money laundering statute provides that a person is

guilty of the crime if he:

engages in a transaction involving property
known or which a reasonable person would
believe to be derived from criminal activity

(1) with the intent to facilitate or promote
the criminal activity; or

(2) knowing that the transaction is designed
in whole or in part:

(a) to conceal or disguise the nature,
location, source, ownership or control of
the property derived from criminal activity;
or

32
 (b) to avoid a transaction reporting
requirement under the laws of this State or
any other state or of the United States.

[N.J.S.A. 2C:21-25b.]

For a transaction to constitute an act of money laundering, the

property involved in the transaction must have been derived from

criminal activity. Cannel, supra, comment on N.J.S.A. 2C:21-23

(noting that money laundering statute is intended to “punish[]

any possession of property known to be derived from criminal

activity”). “Thus, the statute requires two ‘transactions,’ (1)

the underlying criminal activity generating the property, and

(2) the money-laundering transaction where that property is

either (a) used to facilitate or promote criminal activity, or

(b) concealed, or ‘washed.’” State v. Harris, 373 N.J. Super.

253, 266 (App. Div. 2004), certif. denied, 183 N.J. 257 (2005).

Similar to the theft by deception offense, the “[a]mounts

involved in transactions conducted pursuant to one scheme or

course of conduct may be aggregated in determining the degree of

the offense.” N.J.S.A. 2C:21-27(a). As we noted previously,

offenses that allow for aggregation of amounts in determining

the degree of the offense are considered continuing offenses.

See Coven, supra, 405 N.J. Super. at 276.

We note that federal law appears divided on whether money

laundering under 18 U.S.C.A. § 1956 is a continuing offense.

The United States Court of Appeals for the Second Circuit adopts

33
a presumption that “criminal charges may aggregate multiple

individual actions that otherwise could be charged as discrete

offenses as long as all of the actions are part of a ‘single

scheme.’” United States v. Moloney, 287 F.3d 236, 240 (2d

Cir.), cert. denied, 537 U.S. 951, 123 S. Ct. 416, 154 L. Ed. 2d

297 (2002). Other federal courts have held that money

laundering is not a continuing offense and that each money

laundering transaction is a separate violation of the money

laundering statute. See, e.g., United States v. Majors, 196

F.3d 1206, 1212 n.14 (11th Cir. 1999) (rejecting presumption in

favor of allowing common scheme to be treated as part of single

offense), cert. denied, 529 U.S. 1137, 120 S. Ct. 2022, 146 L.

Ed. 2d 969 (2000); United States v. Kramer, 73 F.3d 1067, 1072

(11th Cir. 1996) (finding that statutory language and

legislative history of 18 U.S.C.A. § 1956(a)(2) indicates each

transaction constitutes separate offense). A federal district

court judge in New Jersey has also held that “[e]ach money

laundering transaction constitutes a separate violation” of the

federal money laundering statute. United States v. Blackwell,

954 F. Supp. 944, 956 (D.N.J. 1997).

The New Jersey money laundering statute, N.J.S.A. 2C:21-

25b, has been read broadly. In Harris, supra, the Appellate

Division, as a matter of first impression, considered whether

stolen funds that were not laundered so as to disguise the

34
illicit source could be considered an act of money laundering.

373 N.J. Super. at 256. The defendant argued “that illegitimate

money cannot be considered laundered unless it is generated in a

distinct transaction separate from the laundering transaction.”

Id. at 261. The court, noting the broad scope of the money

laundering statute, rejected this argument and held that money

laundering encompasses “any possession of property known to be

derived from criminal activity with the intention to promote

further criminal activity.” Id. at 256. In its analysis, the

court noted the Legislature’s intent to dissuade and prohibit

“‘money laundering conduct in any form.’” Id. at 264 (quoting

Assembly Judiciary, Law and Public Safety Committee, Statement

to Assembly Bill No. 889 (June 13, 1994) (hereinafter Assembly

Statement No. 889)). The court noted that N.J.S.A. 2C:21-25 is

not narrowly confined to the sanitization of illicit funds but

that the statute also contains a “facilitation or promotion

prong.” Id. at 266. The appellate court then reviewed the

evidence that revealed the defendant’s active participation in

the fraudulent scheme and her receipt of the fraudulent gains.

Id. at 266-67. Specifically, the appellate panel found that the

defendant used the illicit funds to purchase property, secure

fraudulent mortgages, and write checks. Ibid.

The Appellate Division also rejected the defendant’s

argument that a specific crime must underlie the money

35
laundering offense. Id. at 267. The panel noted that the “New

Jersey statute does not require that a particular crime be set

in motion. Any ‘criminal activity’ will suffice.” Ibid.

(citing State v. One 1994 Ford Thunderbird, 349 N.J. Super. 352,

373 (App. Div. 2002)). Thus, the court held that an

“independent predicate offense is not necessary to the

prosecution of the promotion prong of New Jersey’s money

laundering statute. Proceeds of a criminal activity may be

derived from an already completed offense or a completed phase

of an ongoing offense.” Ibid. (citing United States v. Conley,

37 F.3d 970, 980 (3d Cir. 1994)). Finally, the court noted that

the proceeds from the earlier fraud do not have to promote the

subsequent fraud in order to constitute money laundering. Id.

at 269 (citing United States v. Paramo, 998 F.2d 1212, 1215-16

(3d Cir. 1993) (holding that “past, future or ongoing fraud” may

all “suffice as the unlawful activity promoted”), cert. denied,

510 U.S. 1121, 114 S. Ct. 1076, 127 L. Ed. 2d 393 (1994)).

The broad scope of the money laundering statute, as well as

the legislative intent to “stop the conversion of ill-gotten

criminal profits” and to impose criminal sanctions “to deter and

punish those who are converting the illegal profits, those who

are providing a method of hiding the true source of the funds,

and those who facilitate such activities,” N.J.S.A. 2C:21-23e

(discussing public policy of money laundering statute), has been

36
noted. The Assembly Judiciary, Law and Public Safety Committee

also noted the broad reach of the statute as it is “designed to

confront the [financial facilitation of criminal activity] by

prohibiting money laundering conduct in any form [and]

increasing criminal penalties by allowing treble damages to be

assessed by a sentencing court.” Assembly Statement No. 889,

supra. Commentators have further acknowledged the broad scope

of the money laundering statute. See James B. Johnston,

Article: An Examination of New Jersey’s Money Laundering

Statutes, 30 Seton Hall Legis. J. 1, 20 (2005). The broad scope

of the statute supports the proposition that money laundering

may be a continuing offense when there are successive acts that

promote, facilitate, and further a common scheme to disguise the

illicit source of funds. We, therefore, conclude that the

charge of money laundering is a continuing offense for the

purposes of the statute of limitations but only when the record

contains evidence of successive acts that facilitate and promote

the common scheme to defraud.

VI.

Applying these principles, we now turn to the specific

charges against defendant: theft by deception and money

laundering. We must determine whether the indictment was

returned within five years of commission of the last element of

each offense.

37
 A.

To determine whether the theft by deception charge was

timely filed, we must establish the date of the last constituent

theft that was committed as part of defendant’s bust-out scheme.

The parties and the Appellate Division disagree as to when the

last theft occurred for the purposes of the statute of

limitations. Defendant argues that the last theft occurred on

January 12, 2000, when PFP received its last produce shipment.7

The State argues that the theft continued so long as defendant

engaged in deceptive conduct that allowed defendant to retain

control over PFP’s profits, which continued until January 2001.

The appellate panel rejected both of these arguments and

determined that the last act of theft occurred in February 2000,

when defendant breached his contractual agreement to pay PFP’s

creditors within thirty days of receipt of the produce ordered

in January 2000. Diorio, supra, 422 N.J. Super. at 458-59

(citing Rosborough, supra, 909 So. 2d at 776).

In resolving the timeliness of the indictment, we must

recognize that the interstate purchase and shipment of produce

is highly regulated. Those who engage in the interstate sale of

fresh produce as a commission merchant, dealer or broker are

required not only to obtain a license, 7 U.S.C.A. § 499c(a), but

7
Defendant implicitly, if not explicitly, has rejected Fava’s
testimony that PFP ordered produce after January 18, 2000, the
date he deposited some cash in the PFP business account.
38
also to refrain from unfair conduct, including the failure or

refusal to “make full payment promptly” for any transaction, 7

U.S.C.A. § 499b(4). Failure to make full payment promptly by a

broker is defined as failure to pay within ten days of

acceptance of the produce, 7 C.F.R. § 46.2(aa)(5), unless the

parties have agreed in writing in advance of the transaction to

different payment terms, 7 C.F.R. § 46.2(aa)(11).

The Appellate Division correctly determined that the last

act of theft occurred when defendant breached his contractual

agreement to pay creditors in accordance with the agreed payment

terms for produce received. The evidence adduced at trial

reveals that the scheme implemented by defendant ceased when

suppliers refused to accept orders due to the non-payment of

their accounts. The appellate panel identified thirty days as

the time within which payment was due for the last shipment of

produce. The record, however, does not support that payment

term. Rather, one supplier testified that its payment terms

were ten days; another testified its payment terms were fourteen

days. The State did not establish the payment terms for the

produce shipped on January 11 or 12, 2000. Having no evidence

of a written agreement varying the prescribed payment term, we

must assume that payment was due from PFP ten days after receipt

and acceptance of the produce. 7 C.F.R. § 46.2(aa)(5). The

39
record contains evidence that produce shipments normally took

four to five days to reach PFP.

Our review of the record indicates that the last shipment

from a supplier to PFP occurred on January 12, 2000. Assuming

five days transit, payment was due on January 27, 2000. PFP did

not make this payment. For purposes of the statute of

limitations, the failure to pay for the final shipment by

January 27, 2000, is the last constituent theft. We therefore

conclude that the statute of limitations on the theft by

deception offense expired before the indictment was returned on

February 1, 2005, and that the prosecution of defendant for that

offense is accordingly barred.

B.

We next consider whether the money laundering charge was

timely filed. The State presented evidence of two transactions

that occurred after February 1, 2000: (1) a deposit of $5,639.81

into PFP’s Fleet Bank account on February 4, 2000; and (2) the

transfer of $45,000 in cash in March 2000 from defendant to

Menadier’s personal bank account for the Bushman settlement.

Defendant contends that neither of these transactions

facilitated or promoted the criminal activity of theft by

deception because the last theft occurred in January 2000.

Defendant argues that a transaction facilitating a theft must

logically occur prior to the actual theft. The State responds

40
that both transactions constitute an act of money laundering

because they promoted defendant’s criminal enterprise by

settling the debts incurred from the bust-out scheme.

We conclude that the $45,000 cash transaction in March 2000

between defendant and Menadier is a transaction facilitating or

promoting the criminal activity. N.J.S.A. 2C:21-25b(1). This

cash transaction, deposited into Menadier’s personal bank

account and then subsequently withdrawn in order to obtain a

cashier’s check to pay a settlement to satisfy an $85,279.35

debt to Bushman, enabled defendant to retain a portion of the

profits from the bust-out scheme. Finally, we reject

defendant’s argument that each transaction must involve monies

derived from a predicate offense that has already occurred.

Harris, supra, 373 N.J. Super. at 267. Here, the evidence

reveals a unitary and on-going scheme to defraud creditors and

to hide the proceeds of the scheme. Because these transactions

occurred within five years before the indictment was filed, the

money laundering charge was timely filed.

VII.

We need not dwell long on defendant’s final argument: that

his motion for a new trial should have been granted because the

trial judge violated Rule 3:7-3 and denied defendant’s right to

procedural due process when the judge identified Menadier in the

jury instructions as the previously unnamed co-conspirator. The

41
testimony adduced at trial established that the bust-out scheme

had three participants, defendant, Fava, and Menadier. In

addition, Menadier testified at trial and was subject to

extensive cross-examination by defendant. Defendant could have

suffered no prejudice from this portion of the jury instruction.

VIII.

The judgment of the Appellate Division is affirmed in part,

and reversed in part.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUDGE CUFF’s opinion.

42
 SUPREME COURT OF NEW JERSEY

NO. A-110 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH DIORIO,

Defendant-Appellant.

DECIDED February 12, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

AFFIRM IN
CHECKLIST PART/REVERSE IN
PART
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6

1