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State v. Silverstein

Decided: October 29, 1962.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DAVID SILVERSTEIN, DEFENDANT-RESPONDENT



Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.

Freund

The State appeals from an order of the trial court dismissing an indictment.

On January 25, 1962 the Mercer County grand jury returned an indictment containing two counts charging defendant, David Silverstein, with the common law offense of misconduct in office during his tenure as undersheriff of Mercer County, contrary to the provisions of N.J.S. 2A:85-1.

The first count of the indictment alleges that between April 19, 1957 and September 26, 1958 defendant, being a duly appointed undersheriff of Mercer County, had taken an oath that he would "well and faithfully" execute his office "according to the best of his skill and judgment," but he "unlawfully and willfully" violated his oath and failed to execute his office well and faithfully. Specifically, the indictment states that he permitted one Milton Silverstein to "act as surety for 30 defendants charged with crimes,"

knowing that Milton Silverstein was "not licensed or authorized by the State of New Jersey, the Department of Banking and Insurance, to engage in the bail bond and/or insurance business," and knowing that he (as set forth in the affidavits of justification) did not have sufficient equity in the properties in excess of twice the face amount of the bonds pledged as security. Further, the first count alleges that defendant directed and allowed the affidavits of justification supporting Milton Silverstein's bonds to be falsely filled out with respect to the amount of bail bonds pledged against his properties and that affidavits of justification were accepted by defendant without requiring Milton Silverstein to swear to the truth of their contents.

The second count of the indictment repeats that defendant, during the time specified, was an undersheriff "having the public duty arising out of the office to faithfully execute the said office according to the best of his skill and judgment." It further alleges that defendant was under a duty to refrain from permitting persons not authorized to engage in the bail bond business, to determine that the equitable value of properties pledged exceeded twice the amount of the bonds accepted, to make certain that affidavits of justification of sureties contained complete and truthful answers, and to administer the oath of such sureties. In addition, it alleges that he failed and neglected to carry out those duties in the several respects thereafter set out, which iterate the specific allegations of the first count.

Each count characterized defendant's failure to comply with the oath and duties of his office, as knowing, willful, unlawful, and contrary to N.J.S. 2A:85-1. Each count also refers to a schedule attached to the indictment listing each of the 30 bonds involved and stating the date the bond was issued, its reference number, its face amount, the total of the bonds outstanding, the amount of equity in the real estate pledged by the bondsman, Milton Silverstein, at the time when the bond was given as security, and the equity remaining in the property computed both on the basis that the

equity available must equal the face amount of the bond and on the basis that the equity available must equal twice the face amount of the bond.

Defendant entered a plea of not guilty and moved for a bill of particulars. This motion was later abandoned. Next, a motion was made to dismiss the indictment. In granting the motion, the trial court based its opinion on the failure of the indictment to allege the duty defendant failed to perform, the lack of allegation concerning "corrupt or evil motive," the inadequacy of the offense charged, and the ambiguity of the schedule annexed to the indictment.

Although a motion to quash an indictment is addressed to the discretion of the trial judge, this discretion is to be exercised only "on the clearest and plainest grounds." The indictment should stand unless it is "palpably defective." "Such judicial discretion cannot be arbitrary, vague or fanciful but rather must be governed by and in accord with established principles of law." State v. Bunk , 4 N.J. 482, 485 (1950); State v. Weleck , 10 N.J. 355, 364 (1952). On appeal, the exercise of discretionary authority will not be disturbed unless it has been clearly abused, State v. Bunk, supra , 4 N.J. , at p. 485; State v. Spence , 36 N.J. Super. 314, 318 (App. Div. 1955), certif. denied 19 N.J. 441 (1955). Consequently, on this appeal the central question is whether the trial judge abused his discretion in finding the indictment obviously and palpably defective.

Both counts of the indictment charge the defendant with the common law offense usually referred to as misconduct in office, N.J.S. 2A:85-1. State v. Begyn , 34 N.J. 35, 48-9 (1961); State v. Weleck, supra , 10 N.J. , at pp. 365-6; State v. McFeeley , 136 N.J.L. 102, 107-8 (Sup. Ct. 1947). The offense of misconduct in office is aptly defined by Professor Perkins to be "corrupt misbehavior by an an officer in the exercise of the duties of his office or while acting ...


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