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State v. Cohen

Decided: March 7, 1960.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
HAROLD COHEN, DEFENDANT-RESPONDENT



On appeal from Superior Court, Appellate Division, whose opinion is reported in 56 N.J. Super. 509.

For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Burling, J. Weintraub, C.J. (concurring). Weintraub, C.J., concurring in result.

Burling

[32 NJ Page 3] Defendant was indicted by the Monmouth County Grand Jury for misconduct in office committed while he was a police officer of the City of Asbury Park. Two indictments were returned against defendant, one charging him as the sole accused and the other charging him and another police officer as co-defendants. Motions to dismiss both indictments were filed by defendant and denied by the Monmouth County Court. The Superior Court, Appellate Division, upon granting an appeal from these orders, reversed the trial court and dismissed the indictments as to defendant. 56 N.J. Super. 509 (App. Div. 1959). The appellant requested this court to grant certification to review the dismissal insofar as it related to the indictment which charged

defendant alone, which petition was granted. 31 N.J. 80 (1959).

The indictment which is the subject of this appeal is in five counts. In each, the defendant is alleged to have been a duly appointed and authorized police officer of the City of Asbury Park at the time of the occurrences alleged. The first count charges that the defendant "did willfully and unlawfully and in violation of his duty as a police officer * * * evilly and corruptly inform, confess and say" to a named police officer that he, the defendant, had purchased a boat for $500 with money stolen from the city's parking meters, that he had stolen from the parking meters as much as $200 in a single day and on one occasion was in fear of being apprehended with that sum on his person, and that he had been able to accumulate $30,000 in money stolen from parking meters. The second count states that defendant "willfully and unlawfully and in violation of his duty as a police officer" attempted to take a set of keys for the parking meters from the desk of a city official, saying to another police officer who came upon him in this act that "if I can only find that City Manager's office open to get a set of those keys, I would be in." The third count charges that defendant "willfully and unlawfully and in violation of his duty as a police officer * * * evilly and corruptly did solicit" a named special officer and parking meter collector to steal from the meters and to divide the booty with defendant. The fourth count repeats the portion of the third count quoted above, then charges defendant with attempting to persuade a named special officer and parking meter collector to steal from the meters and to place coin boxes from the meters in the automobile of unnamed police officers which would be driven past the collector while he was servicing the meters and, in exchange, the unnamed officers would cease following the meter collector while he made his rounds. The fifth count, after repeating the portion of the third count quoted above, charges that defendant suggested to a named parking meter repairman that he steal from the

collections of the meters and that, if he should do so, defendant knew a person who would convert the stolen coins into paper currency.

The trial court refused to dismiss any portion of the above indictment, but the Superior Court, Appellate Division, reversed this determination and ordered the entire indictment dismissed, holding that an indictment charging official misconduct must contain the duty or duties allegedly violated by the accused and that the indictment in question revealed "a patent failure * * * to allege the prescribed duties of defendant's office allegedly violated * * *." In addition to this issue, the defendant contends that the indictment fails to charge him with a crime. There are, therefore, two questions presented for our determination: first, whether an indictment for official misconduct must state the prescribed duties allegedly violated in greater detail than the instant indictment's charge that the acts complained of were done by defendant "in violation of his duty as a police officer"; and second, whether the indictment in any of its counts charges a crime against defendant.

The indictment states merely that the defendant violated his duty as a police officer by certain specified acts. Defendant asserts that this language fails to describe with sufficient particularity the prescribed duties the violation of which forms the basis of the crime charged against him. Frequently indictments for official misconduct set forth specific duties allegedly violated by the defendant. See, e.g., State v. Castle, 75 N.J.L. 187 (Sup. Ct. 1907). Defendant derives his argument that this practice is in conformance with a mandatory rule of law from State v. Weleck, 10 N.J. 355 (1952), where it was said that

"It is essential * * * that an indictment for misconduct in office allege both a prescribed duty of the office and facts constituting a breach thereof."

In that case, it was argued that an indictment for official misconduct was defective for failing to cite the source of

duties allegedly violated. After making the statement quoted above, the opinion states:

"The prescribed duties of an office are nothing more nor less than the duties cast by law on the incumbent of the office. Duties may be imposed by law on the holder of an office in several ways: (1) they may be prescribed by some special or private law, such as official action of a township committee * * * or a provision of a municipal charter * * * (2) they may be imposed by a general act of the Legislature * * * or (3) they may arise out of the very nature of the office itself * * *. In those instances where the duties are prescribed by some special or private law, the indictment must show the source of the duties, but where the duties are imposed by a general statute or arise out of the very nature of an office, the source of the duty need not be alleged in the indictment for the courts will take judicial notice of such duties, * * *." (Emphasis supplied) 10 N.J., at page 366.

The defendant argues that the italicized phrase refers to the source of the prescribed duties, not the duties themselves, and hence is not inconsistent with his position. We believe, however, that the rationale of the rule stated above in Weleck applies to the duties as well as their sources and that the emphasized phrase in the above question from Weleck is an express recognition of this rule.

After making the statement that "an indictment for misconduct in office [must] allege both a prescribed duty of the office and facts constituting a breach thereof," the Weleck opinion states that "the defendant contends that the indictment here is deficient in both respects." Then the discussion continues with a consideration of the necessity that an indictment cite the source of the duty and concludes with the statement that "the courts will take judicial notice of such duties" where they arose out of the nature of the office or a general statute. There is no inconsistency in the Weleck case, and the reason for the apparent confusion between the duties and their sources is that, for purposes of allegation in an indictment for official misconduct, the duties and their source are considered as one, and there is no requirement that the allegedly violated duties of the office be expounded

in detail unless the source of the duties must be cited in the indictment. In State v. Winne, 12 N.J. 152, 179 (1953) a problem similar to that raised here was considered, concerning which it was said:

"The defendant argues that each count alleges merely naked conclusions of a vague and broad duty to use 'all proper, reasonable and effective means and all lawful means' to suppress a particular gambling house, as well as a vague and indefinite breach of duty in that the defendant 'unlawfully and wilfully did neglect and omit to perform the said public duties' and 'did neglect, fail and omit to use and exercise' all proper, reasonable, effective and diligent means for 'the detection, arrest, indictment and conviction' of those maintaining each such house. We have said that where the duty arose from some special or private law the indictment must reveal the source, but where the duty was imposed by a general statute or by the nature of the office it was unnecessary to set forth the source since the court will take judicial notice of the duties. State v. Weleck, supra. Each count uses the language of R.S. 2:182-5, supra, in charging defendant with the duty of 'detection, arrest, indictment and conviction' of violators of the gambling laws. When the defendant's duties as county ...


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