SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0472-18T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

EVAN PESCATORE, FRANK 

PESCATORE, and JANICE 

PESCATORE,

Defendants-Respondents.

______________________________

Argued June 4, 2019 – Decided June 26, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment No. 17-04-

0069.

Jennifer E. Kmieciak, Deputy Attorney General, argued 

the cause for appellant (Gurbir S. Grewal, Attorney 

General, attorney; Jennifer E. Kmieciak, of counsel and 

on the brief).

Edward C. Bertucio, Jr. and Jessica A. Wilson argued 

the cause for respondents (Kalavruzos Mumola 

Hartman & Lento LLC, attorneys; Edward C. Bertucio, 

NOT FOR PUBLICATION WITHOUT THE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.
2

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Jr. and William Les Hartman, of counsel and on the 

brief; Jessica Ann Wilson, on the brief).

PER CURIAM

The State appeals from the Law Division's dismissal of an indictment 

charging defendants Evan Pescatore, and his father, Frank Pescatore, with: (1) 

first-degree conspiracy to commit financial facilitation of a criminal activity, 

contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-25; (2) second-degree 

conspiracy to commit theft by deception, contrary to N.J.S.A. 2C:5-2 and 

N.J.S.A. 2C:20-4; (3) second-degree conspiracy to commit insurance fraud, 

contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-4.6; (4) second-degree financial 

facilitation of a criminal activity, contrary to N.J.S.A. 2C:21-25 and N.J.S.A. 

2C:2-6; (5) second-degree insurance fraud, contrary to N.J.S.A. 2C:21-4.6 and 

N.J.S.A. 2C:2-6; and (6) second-degree theft by deception, contrary to N.J.S.A. 

2C:20-4(a) and N.J.S.A. 2C:2-6. In addition to the aforementioned charges, 

Evan was also charged with first-degree financial facilitation of a criminal 

activity, contrary to N.J.S.A. 2C:21-25. Finally, Janice Pescatore, Evan's 

mother, was charged with first-degree conspiracy, contrary to N.J.S.A. 2C:5-2; 

and second-degree financial facilitation of a criminal activity, contrary to 

N.J.S.A. 2C:21-25 and N.J.S.A. 2C:2-6. We reverse and remand for entry of an 

order reinstating the indictment.
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I.

We glean the following facts from the testimony at the April 12, 2017 

grand jury proceeding in this matter. Evan is a licensed insurance intermediary 

in New Jersey. Between 2011 and 2015, he worked as a life insurance agent for 

numerous life insurance companies, including Allianz Life Insurance Company 

(Allianz). During that time period, Evan placed eighteen life insurance policies 

with eight insurance companies involving thirteen insureds.

Detective Natalie Brotherston, a detective with the Division of Criminal 

Justice, Office of the Insurance Fraud Prosecutor, was assigned to investigate 

Evan, Frank, and Janice in April 2012, after receiving a referral from Allianz

reporting that it believed a policy brokered by Evan was "rebated." As 

Brotherston explained, rebating occurs "when something of value is given in 

order to sell a policy that would not have been provided in the policy itself[,] 

. . . [such as] cash, a gift, service, [or] employment." Allianz alleged that an 

insured misrepresented that he was not offered "inducement in the form of free 

insurance," by falsely informing Allianz on the application, as well as in a 

telephonic interview, that he would be paying the premium himself when, in 

fact, a third-party financing company had been arranged to pay the premium.
4

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Brotherston also learned during her investigation that seven other 

insurance companies that issued insurance policies originating with Evan also 

claimed he offered "rebated" policies. After speaking with representatives from 

the eight companies, Brotherston learned that Evan placed eighteen insurance 

policies that contained material misrepresentations regarding how the premiums 

were paid, similar to the false information contained on the Allianz application. 

The insurer representatives advised Brotherston that had they known that the 

eighteen insureds did not intend to pay their own insurance premiums, the

insurers "would have declined to make effective any policies for any of the 

[eighteen] applications for life insurance." 

During her investigation, Brotherston met with twelve of the thirteen 

insureds directly and spoke with the husband of the thirteenth, regarding the 

circumstances surrounding placement of the insurance. The majority of these 

individuals reported that they were acquainted socially with Frank, who 

introduced them to Evan "as his son and a life insurance agent." 

Brotherston testified that "Frank and/or Evan" discussed the opportunity 

to obtain "free" insurance with the proposed insureds, and met with the 

individuals to fill out the life insurance applications. Most of the insureds 

reported to Brotherston that they "never read the applications and merely signed 
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A-0472-18T2

the application where and when Frank and/or Evan . . . instructed him or her to 

do so." 

All of the insureds reported that they did not intend to pay the premiums 

themselves, and a majority of them were told by "Frank and/or Evan" that a 

group of investors would pay their premiums. Further, "a couple" of the insureds 

admitted to Brotherston that "Evan and/or Frank . . . told them to lie to the 

insurance company about who was paying their premiums when . . . contacted 

. . . for a telephone interview . . . ." The insureds also told Brotherston they 

would not have applied for life insurance with "Evan or Frank if they had to pay 

the premiums themselves." 

Brotherston testified that twelve of the insureds referred to Evan and 

Frank collectively. Accordingly, Brotherston stated that she repeatedly 

referenced "Frank and/or Evan," during the grand jury proceedings as they were 

"so entwined in th[e] enterprise."

The insureds also stated that because they were closer in age to Frank and 

knew him first, most contacted him with questions regarding the policies. 

Further, one of the insureds reported to Brotherston that he believed Janice was 

present when he first discussed purchasing a life insurance policy with Evan or 

Frank. 
6

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The documentary evidence presented to the grand jurors included the 

insurance applications that Evan signed which "certif[ied] that the information 

provided by the applicants [was] true and . . . accurately recorded." Frank, who 

was not a licensed insurance producer, did not sign the applications, but as

Brotherston testified, he helped prepare all eighteen applications. 

Brotherston stated that she reviewed each of the eighteen insurance 

applications, and in each application, the prospective insured stated that he or 

she did not intend to finance any of the premium payments through financing or 

loan agreement. Further, in thirteen of the applications, the insureds 

affirmatively stated that no "compensation or other inducement[,] including 

offers or discussions of free insurance had been offered directly or indirectly to 

the applicant to apply for the policy." 

Brotherston informed the grand jurors that despite the aforementioned 

express representations, she discovered that "Evan and/or Frank" arranged for 

the insureds' premiums to be paid by four different third-party lending sources. 

She testified that through a review of the lending sources' and the insureds' bank 

records, and the insureds' insurance files, the Office of the Insurance Fraud 

Prosecutor (OIFP) was able to determine that "the payment for th[e] premium[s] 

directly originated from one of the[] four lending sources." However, the 
7

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insureds made the premium payments from their own accounts, "ma[king] it 

appear that the funds were their own." 

Some of the insureds who were interviewed by Brotherston reported that 

they provided their banking information to "Evan or Frank," and then waited for 

the funds to be transferred to their accounts from the lending source. Thereafter, 

the insureds passed the funds transferred by the third party lending source to the 

insurance company, thereby acting as a "conduit by which money for the 

premium payment goes to the insurance company." 

Once the insurance companies received an application, other necessary 

documentation, and the premium payment, they paid Evan a commission as the

originating insurance agent. Brotherston testified that in general, the greater the 

premium paid to the insurance company, the greater the commission received 

by an insurance agent. The eight insurance companies at issue reported agents, 

like Evan, are paid an initial commission payment of 70% to 120% of the 

policy's first year premium. 

Upon Evan's receipt of the commissions, a portion was "forwarded or 

passed . . . along to the lending source[s]," to pay back the premiums. 

Brotherston testified that Evan had two bank accounts, one of which was jointly 

owned by Janice. Additionally, Janice had three other bank accounts, one of 
8

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which was jointly owned by Frank. In its review of these accounts, the State

traced the flow of commissions from the insurance companies into one of these 

bank accounts, and then back to the lending sources that paid the original 

premium payments. According to Brotherston, the money "was going around in 

a circle." 

An analyst from the OIFP created a diagram shown to the grand jurors 

which detailed how the alleged conspiracy was financed, and profits were 

earned. Brotherston explained that the "left side of the diagram represent[ed]

the circular flow of money from the lending source to the insured to the 

insurance company to Evan . . . and then back to the lending source." The right 

side depicted how profits were made through "hierarchy" commissions. 

Brotherston testified that an insurance agent can have "one or many supervising 

agents assigned to each policy." She explained that commissions were also paid 

out to Evan's hierarchy, or his supervising agents, and that Evan received a 

percentage of those hierarchy commissions. 

Brotherston quantified that Evan earned over $500,000 in commissions, 

and would forward a portion of those commissions to Janice. In support of this 

claim, the grand jurors were presented with checks made out to Janice from Evan 

after Evan received a commission. The checks stated "commission," and some 
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identified the name of a particular insured on the memo line. By the time of the 

grand jury proceeding, only six of the eighteen insurance policies were still in 

effect, two of which were in a grace period due to non-payment of premiums

owed on the policies. 

Defendants moved to dismiss the indictment claiming primarily that the 

State: (1) failed to inform the grand jurors that premium financing is legal in 

New Jersey; and (2) improperly referred to defendants collectively, rather than 

individually. After hearing oral arguments, the court granted the motion in an 

August 24, 2018 order. 

In an accompanying written opinion issued the same day, the court 

concluded that the grand jury "was not presented with a full and accurate picture

of the case against" the defendants. Specifically, the court noted that the "crux" 

of the State's case was based on the notion that "a third party lender is unable to 

finance the premiums for another's insurance." The court determined that "the 

State implied to the grand jury that the process of third party financing was 

illegal," when, in fact, it is not a crime in the State of New Jersey. 

Additionally, the court found troublesome the State's "collective 

presentation of the defendants as a group rather than individuals." The court 

noted that "the State referred collectively to 'Frank and/or Evan Pescatore,' 'Evan 
10 A-0472-18T2

and/or Frank Pescatore,' 'Frank and Evan Pescatore,' or 'Frank or Evan Pescatore' 

as the individuals who committed the crimes." The court also observed that on 

forty-one occasions, the State described all three defendants as "the Pescatores."

Particularly concerning to the court was the State's presentation involving 

Janice, as the court concluded that the State "failed to present a prima facie case 

that Janice . . . had any knowledge of her husband['s] and son's transactions." 

The court stated that "[i]n order to present a prima facie case, the State needs to 

set forth which individual committed which parts of the crime." 

After the court dismissed the indictment, the State filed this appeal in 

which it argues:

POINT I 

THIS COURT SHOULD REVERSE THE MOTION 

COURT'S RULING AND REINSTATE 

INDICTMENT NO. 17-04-00069-S BECAUSE THE 

STATE PRESENTED A PRIMA FACIE CASE IN 

SUPPORT OF ALL EIGHT COUNTS.

POINT II

THE STATE HAD NO OBLIGATION TO INSTRUCT 

THE GRAND JURY THAT THIRD-PARTY 

PREMIUM FINANCING IS NOT A CRIME 

BECAUSE SUCH AN INSTRUCTION WOULD NOT 

HAVE DIRECTLY NEGATED DEFENDANTS' 

GUILT OF THE CRIMES ALLEGED
11 A-0472-18T2

POINT III

THE STATE ESTABLISHED A PRIMA FACIE CASE 

WITH RESPECT TO ALL THREE DEFENDANTS 

FOR THE RELEVANT CHARGES 

II.

"[T]he decision whether to dismiss an indictment lies within the discretion 

of the trial court, and that exercise of discretionary authority ordinarily will not 

be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 

N.J. 216, 229 (1996) (citation omitted). "However, if a trial court's discretionary 

decision is based upon a misconception of the law, a reviewing court owes that 

decision no particular deference." State v. Zembreski, 445 N.J. Super. 412, 424

(App. Div.2016) (quoting State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 

2010)). 

"The grand jury's role is not to weigh evidence presented by each party, 

but rather to investigate potential defendants and decide whether a criminal 

proceeding should be commenced." Hogan, 144 N.J. at 235. Accordingly, a 

prosecutor seeking an indictment is required to "present a prima facie case that 

the accused has committed a crime." Id. at 236. An indictment should not be 

dismissed "as long as 'some evidence' on each of the elements of the offenses is 

presented and there is nothing that detracted from the fairness of the grand jury 
12 A-0472-18T2

proceeding." State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div. 1997). 

Additionally, grand jury proceedings carry a "presumption of validity," as 

prosecutors enjoy "broad discretion in presenting a matter to the grand jury." 

State v. Smith, 269 N.J. Super. 86, 92 (App. Div. 1993).

Prosecutors have a limited duty to present exculpatory evidence to a grand 

jury. Such proofs must be presented if the evidence: (1) "directly negate[s] [the] 

guilt" of the accused; and (2) is "clearly exculpatory." Hogan, 144 N.J. at 237. 

In this regard, "unless the exculpatory evidence at issue squarely refutes an 

element of the crime in question, that evidence is not within the prosecutorial 

duty." Ibid. 

Further, "in determining the sufficiency of the evidence to sustain the 

indictment, every reasonable inference is to be given to the State." State v. N.J. 

Trade Waste Assoc., 96 N.J. 8, 27 (1984). Therefore, "a defendant who 

challenges an indictment must 'demonstrate that evidence is clearly lacking to 

support the charge.'" State v. Graham, 281 N.J. Super. 413, 417 (App. Div. 

1995) (quoting McCrary, 97 N.J. at 142). Applying these guiding principles, we 

conclude that the motion judge mistakenly exercised his discretion by 

dismissing the indictment. 
13 A-0472-18T2

III.

We agree with the State that it was under no obligation to present the grand 

jury with information that third-party financing is legal in New Jersey, as such 

evidence is neither clearly exculpatory, nor does it directly negate any of the 

defendants' guilt. See Hogan, 144 N.J. at 237. Although defendants correctly 

note that under the Insurance Premium Finance Company Act, N.J.S.A. 

17:16D-1- to -16,1financing of insurance premiums is legal in New Jersey, 

contrary to the court's conclusion, the "crux" of the State's case was not 

predicated on the fact that a lender is not permitted to finance an insured's 

premium. 

Rather, the State's theory of the Pescatores' crimes was fairly simple. 

Essentially, the State presented a prima facie case, giving it all reasonable 

inferences, that Evan, with Frank's and Janice's knowledge and participation, 

 

1

 The Act provides in pertinent part that:

[n]o person shall engage in the business of financing 

insurance premiums in this State without first having 

obtained a license as a premium finance company from 

the Commissioner of Banking and Insurance, except 

that any State or national bank authorized to do 

business in this State shall be authorized to transact 

business as a premium finance company, subject to all 

the provisions of this act, except that it shall not be 

required to obtain a license or pay a license fee . . . .

[N.J.S.A. 17:16D-4]
14 A-0472-18T2

placed the eighteen policies for one simple reason – to ensure the receipt of

commissions that would not otherwise have been paid if the insurers had not 

been misled by false, material misstatements of fact concerning the policies. To 

accomplish that goal, the State presented evidence that Evan and/or Frank told 

certain insureds that they would be receiving "free insurance," which Evan then 

falsely stated about when asked by the insurance companies in thirteen of the 

applications. In addition, the evidence before the grand jury showed that Evan

and/or Frank arranged for third-party financing for each insured, lied about that 

fact, and further hid that the policies were being financed by taking secretive 

steps to funnel the third-party payments into the insureds' bank accounts before 

having the insureds pay the premium. 

Thus, defendants' arguments that the State should have informed the grand 

jurors that New Jersey law permits a third-party premium finance company to 

pay a premium on an insured's behalf, and that certain of the insurance 

companies allegedly defrauded actually provide for such financing, misses the 

point for at least two reasons. First, those claims have no effect on the State's 

proofs that Frank and Evan promised "free" life insurance to thirteen insureds, 

without properly disclosing to the insurance companies the third-party financing 

arrangement, and complying with any applicable rules established by the 
15 A-0472-18T2

insurance companies regarding such financing. Second, that New Jersey law 

permits third-party premium financing has no impact on Brotherston's testimony

that, had the eight insurance companies known that the thirteen insureds did not 

intend to pay their own premiums, they would not have issued the policies. 

IV.

We also agree with the State that it established a prima facie case with 

respect to each defendant on all relevant charges, and that the court erred in 

dismissing the indictment based on the State's reference to the defendants 

collectively. We first conclude that the references to "Frank and/or Evan" 

during the grand jury proceeding were appropriate because they were "so 

entwined" in the scheme that the insureds frequently referred to them together 

during their interviews with Brotherston. 

Additionally, with respect to the State's collective references to "the 

Pescatores," we note that Frank and Evan were charged with second-degree 

conspiracy to commit theft by deception, second-degree conspiracy to commit 

insurance fraud, and first-degree conspiracy to commit financial facilitation of 

a criminal activity. Janice was also charged with first-degree conspiracy. 

Pursuant to N.J.S.A. 2C:5-2:
16 A-0472-18T2

A person is guilty of conspiracy with another person or 

persons to commit a crime if with the purpose of 

promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they 

or one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to 

commit such crime; or

(2) Agrees to aid such other person or persons in the 

planning or commission of such crime or of an attempt 

or solicitation to commit such crime.

Accordingly, as the State alleged that defendants were acting collectively to 

engage in a conspiracy to commit various offenses; the State's references to 

defendants together with respect to their joint actions were appropriate, and not 

improper. 

Further, the State presented sufficient evidence to support each of the 

charges against Evan and Frank. As detailed above, the State presented evidence 

at the grand jury proceeding that Evan, a licensed insurance broker, signed the 

eighteen insurance applications, certifying that the information represented 

therein was true and accurate. The State demonstrated that the applications 

contained material misrepresentations regarding whether the premiums would 

be paid by third-party financing, and whether the insureds were offered free 

insurance. The State further presented financial records showing that Evan 
17 A-0472-18T2

received unwarranted commission payments from the insurance companies, and 

then reimbursed the third-party lenders for the premiums. 

Additionally, Brotherston testified that most of the insureds knew Frank 

first, and he introduced them to Evan "as his son and a life insurance agent." 

Brotherston's testimony described Frank's close involvement in preparing the 

insurance applications, and discussing and answering questions about the 

insurance policies with the insureds. Further, the financial records presented by 

the State established that on at least two instances, a third-party lender was 

reimbursed from a bank account jointly owned by Frank and Janice. 

Accordingly we conclude the State presented sufficient evidence to support each 

element of the charges against Evan and Frank of conspiracy, financial 

facilitation of a criminal activity, insurance fraud, and theft by deception.

With respect to Janice's charges, as noted, Brotherston testified that one 

of the insureds reported that he believed that Frank first discussed the 

opportunity to obtain life insurance while "having dinner or at the Pescatore's 

house," while Janice was present. The State also presented financial records 

establishing Janice's receipt of a portion of Evan's commissions, specifically,

checks issued from Evan to Janice. Some of the checks contained the word 

"commissions" and an insured's name. Additional financial records 
18 A-0472-18T2

demonstrated that certain third-party lenders were reimbursed from a bank 

account jointly owned by Evan and Janice, an account jointly owned by Frank 

and Janice, and, in at least one instance, and an account solely owned by Janice. 

As such, the State presented sufficient evidence to support each element of the 

conspiracy and financial facilitation of criminal activity charges against Janice. 2 

To the extent not specifically addressed, defendants' remaining arguments 

are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Reversed and remanded for entry of an order reinstating the indictment 

and for further proceedings consistent with our opinion. We do not retain

jurisdiction.

 

2

 We note that conspiracy may be proven by circumstantial evidence, as "the 

conduct and words of co-conspirators is generally shrouded in 'silence, 

furtiveness and secrecy.'" State v. Samuels, 189 N.J. 236, 246 (2007) (quoting 

State v. Phelps, 96 N.J. 500, 509 (1984)).