Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.
Defendant is a policeman of the City of Asbury Park. He was heretofore granted leave by this court to appeal from an order of the Monmouth County Court denying motions to quash two indictments found against him for misconduct in office. In indictment No. 62-58 he is charged alone; in indictment No. 64-58, with another police officer, Peter Montano.
Indictment No. 62-58 is in five counts. In each of them it is stated that defendant was a police officer of the City of Asbury Park and that the acts charged were in violation of his duty as such officer. The acts alleged may be summarized in their essentials as follows, omitting considerable evidential detail improperly included therein: (1) he confessed
to another named police officer the facts that he had bought a boat with $500 stolen by him from parking meters of the city and that he had accumulated $30,000 in moneys stolen from such parking meters; (2) he attempted to obtain possession of a set of keys for the parking meters from the office of the city manager of the city at 10:50 o'clock at night on a date specified; that when discovered there by another named police officer he told him that if he could get the keys he "would be in," assertedly meaning he would be able to steal money from the meters; (3) he solicited a named meter collector of the city to steal money from the parking meters and to turn it over to defendant; (4) he solicited a named special officer and meter collector for the city to steal cans of money from the parking meters and to dump them in automobiles of certain police officers, promising to arrange that the said collector would not be followed on his rounds by the police; and he solicited the said collector to "make money with" the defendant by misappropriation of parking meter moneys; (5) he solicited a named parking meter repairman of the city to tamper with the meter boxes so that the latter might steal money therefrom, offered to show the repairman how to tamper for that purpose, and informed him that he would arrange to have the change taken by the repairman converted into bills of currency.
Defendant's basic attack upon this indictment is that it does not specify the prescribed duties of his office alleged to have been violated and that the acts specified do not relate to any official duty resting upon him and therefore amount to no more than private misconduct, if anything, not official misconduct indictable as such.
The indictments before us concededly intend to charge the common-law crime of misconduct in office, constituted a misdemeanor under the general provisions of N.J.S. 2 A:85-1, which is the statute asserted in the indictments to have been violated. The Supreme Court has approved the definition of the crime found in 1 Burdick, Law of
Crime (1946), § 272, p. 387 (State v. Weleck , 10 N.J. 355, 365 (1952)), as follows:
"'By "misconduct in office," or "official misconduct," is not meant misconduct, criminal or otherwise, which is committed by a person who happens to be a public officer, but which is not connected with his official duties. Such conduct is sometimes called private misconduct to distinguish it from official misconduct. * * *
"Misconduct in office," or "official misconduct," means, therefore, any unlawful behavior in relation to official duties by an officer intrusted in any way with the administration of law and justice, or, as otherwise defined, any act or omission in breach of a duty of public concern, by one who has accepted public office.'"
The court went on to say (10 N.J. , at p. 366):
"It is essential, therefore, that an indictment for misconduct in office allege both a prescribed duty of the office and ...