Conford, Foley and Halpern. The opinion of the court was delivered by Foley, J.A.D. Halpern, J.c.c. (temporarily assigned) (dissenting).
The defendant was found guilty in the Bergen County Court on the first count of a two-count indictment which charged the common law crime of misconduct in public office. N.J.S. 2 A:85-1. The second count was dismissed on the State's motion at the conclusion of its case.
Briefly stated, the first count alleged that Begyn, as Sanitary Inspector of the Department of Health of the Borough of Fair Lawn, corruptly agreed with Angelo A. Mastrangelo, now deceased, and with Ralph Mastrangelo and
Josephine Mastrangelo, acting for the estate of Angelo A. Mastrangelo, that he would use his influence as a public officer to "take care of and minimize" complaints of the public arising from the performance of a garbage removal contract between Angelo A. Mastrangelo (and subsequent to his death, his estate) and the borough; that he would use his influence to avoid a declaration of default by the borough; that he demanded and received from Ralph and Josephine Mastrangelo sums of money for past, present and future services performed in pursuance of the corrupt agreement.
The sufficiency of these allegations to charge the common law crime of misconduct is beyond debate. In State v. Weleck , 10 N.J. 355, 365 (1952), misconduct in public office was defined as any act or omission in breach of a duty of public concern by one who has accepted public office. The rationale of the Weleck case is that proof of the crime is complete if there is a showing (1) that defendant held a public office and (2) that in his official capacity he corruptly entered an agreement adverse to the public interest. Defendant challenged the sufficiency of the State's proof in both respects enumerated and contends that his motions for a judgment of acquittal should have been granted. As to the interchangeability of the concepts of corruption and willfulness in this connection see State v. Williamson , 54 N.J. Super. 170, 183-184 (App. Div. 1959), affirmed 31 N.J. 16 (1959).
The supporting argument takes two courses. First, it asserted that during the period of time set forth in the indictment defendant did not hold the office of sanitary inspector as charged therein, but was in fact performing the duties of a sanitarian as the result of an unauthorized appointment by the municipal manager, and that this showing was fatal to the State's case. The contention is unrealistic. The defendant openly, notoriously, and for pay, was engaged in the supervision of the performance of the Mastrangelo contract in behalf of the borough and was chargeable as a public officer with misconduct if he willfully failed in
a public trust arising from the performance of the duties he had undertaken. In these circumstances the public interest overrode both the alleged misdesignation in the indictment of Begyn as a sanitary inspector and consideration of the effect of the alleged irregularity attending his appointment as sanitarian upon his status as public officer.
Next it is claimed that there was no evidence from which a corrupt agreement between the Mastrangelos and defendant could be inferred. We disagree. The testimony of Josephine Mastrangelo and Ralph Mastrangelo and Michael Bava, an employee of the Mastrangelos, supplied the following permissible factual hypothesis: in May 1954 Angelo A. Mastrangelo entered a three-year contract with the borough for the collection of garbage. At that time he was associated with his sister Josephine in the garbage disposal business and maintained offices at 756 Fairview Avenue, Fairview, New Jersey. From then until September 14, 1954, when Angelo died, Begyn came to the office about once a month and conferred with him. Upon his death his estate took over the operation of the business and Josephine, holding a 25% interest in the profits, continued in her duties as office manager. About a month or two later Begyn called at the office and told Josephine that her deceased brother "had made a certain promise to him for some special favors he had done and he would like to find out if he could get the promise" that her brother had made to him; and that these "favors" were referable to complaints of the "miserable service" which was being furnished at the time. He then stated that he wanted "about $8,000." Josephine told defendant that the company was in financial difficulties; that there was no money in the estate and that Begyn should "just forget the promise, that would be the best thing to do."
Angelina Mastrangelo, widow of Angelo, had been appointed administratrix of the estate, and her son Ralph was then acting as her representative. At about the same time he visited Josephine, Begyn called upon Ralph and after discussing a few of the garbage problems told Ralph that his father had
made a commitment to him before he had passed away, that he would do something for him as far as the new contract was concerned because Begyn was "assisting their project sanitation-wise, health-wise," and was "minimizing complaints" to the best of his ability. Ralph informed defendant that there was no money in the estate but that he would discuss the matter with the family to see if anything could be done. On at least two occasions between then and April 27, 1955 Begyn renewed his request for money. On the second of these, at a meeting in the Fairview office, Ralph told Begyn that they could not give him any cash "in any way, manner, shape or form"; that financially they weren't able to do anything; but that possibly they would be able to give him a check for $1,000 in a short period of time. Begyn did not like the idea but agreed to accept a check although he preferred cash. On April 27, 1955 the first of 11 checks was given and at Begyn's suggestion Richard Kuhlenkamp was designated as payee. The last of the checks was given in December of 1955 and, in each instance save one, Richard Kuhlenkamp was named payee on Begyn's designation; the other check being made payable to Swiss Pork Store at Begyn's behest. All checks were picked up by Begyn at the Mastrangelo office and he received the proceeds, in sum approximating $2,500. On the recommendation of the Mastrangelo accountant, in order to "avoid suspicion" all checks except that for $1,000 were made in odd amounts. Throughout the entire period of the payment the garbage disposal operation was under severe criticism by the public and the services rendered were the source of continuous complaint. Begyn by his own admission to Bava actively attempted to "minimize" the complaints with the design of preventing them from coming to the attention of his superiors.
The test on a motion of defendant for a judgment of acquittal is whether there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn. State v. Kollarik , 22 N.J. 558, 564 (1956); State
v. Rogers , 19 N.J. 218, 231-232 (1955); State v. Picciotti , 12 N.J. 205 (1953); State v. Bricker , 99 N.J.L. 521 (E. & A. 1924); State v. Fox , 12 N.J. Super. 132 (App. Div. 1951). Plainly, the postulate recited above required the trial court to deny a motion for a judgment of acquittal which was addressed to the first count of the indictment at the end of the State's case, since from it legitimate inferences could be drawn (1) that this public official demanded and received promises of payment of moneys from one having a contract with the borough, as a part and parcel of the agreement to serve the contractor in the "minimizing of complaints," and actually received moneys in pursuance of the promises; and (2) that the agreement and payment were in violation of defendant's public duties and were corrupt in the sense that they had the capacity of depriving the public of the full benefit of his services and of his undivided loyalty to the public welfare.
The defendant did not deny receipt of the checks. His defense was centered entirely in his assertion that the commitment of Angelo A. Mastrangelo was completely voluntary, originated with Mastrangelo, and resulted from the latter's gratitude for work Begyn had been doing after his daily hours of work and on weekends and Sundays, in an effort to get the collections made expeditiously and thereby satisfy the residents. The indications were that this supervision was necessary because the Mastrangelo firm had delegated the performance of the contract to Rotondo and Stamato, other scavengers, who were not doing it efficiently. As a result, residents whose garbage was not picked up would phone Begyn at night to complain. He expressly denied that he had ever requested or demanded money from either Ralph or Josephine Mastrangelo. He testified that Ralph sought him out after his father's death to tell him that payments would be continued as in his father's lifetime. He said the Mastrangelo accountant suggested a "dummy" name on the checks for tax purposes. Obviously, the effect of defendant's testimony was merely to controvert the inferences
to be drawn from the State's proof. A typical case for jury determination was thus presented and the court properly denied the motion for judgment of acquittal ...