Sullivan, Kolovsky and Carton. Carton, J.A.D. (dissenting).
Defendant appeals from his conviction on the first count of a three count indictment charging him with misconduct in office. He was found not guilty on the second count and the third count was dismissed at the end of the State's case.
Defendant was an inspector in the Division of Motor Vehicles assigned to administer examinations to applicants for a New Jersey driver's license. He was stationed at the Rahway Driver Qualification Center.
The first count of the indictment charged defendant with a violation of N.J.S.A. 39:3-10 in that he unlawfully, willfully, knowingly and corruptly approved the qualifications of one Ismael Arocho as an applicant for a New Jersey driver's license knowing full well that the said applicant did not possess such qualifications and, in reliance thereon, the Division of Motor Vehicles issued a New Jersey driver's license to the said applicant.
The State's evidence showed that defendant had signed the driver's permit of Arocho indicating that he corrected Arocho's written examination paper, administered a vision test and a driving test to Arocho, and had passed him on all three tests as qualified. On the basis of defendant's signatures
on the permit, an approved application card was issued to Arocho on which he obtained a driver's license.
Arocho testified through an interpreter that he went to the Rahway testing center in the company of one Pepe Suarez. There they met Raoul Martinez who took Arocho to the building in the testing center and made a sign in the direction of defendant. Arocho went in the building, obtained an examination paper which contained questions on both sides written in English. He wrote his name and address on the paper and made some scribble marks on the front side of the paper. He testified that he could neither read nor write English. He turned his examination paper in to defendant who then administered a vision test. Arocho testified that he looked at the chart and "Well I read A, B, C, nothing more." (There was evidence that the letters on the chart were not in alphabetical order.) Arocho's permit shows that defendant signed as to both tests on the same date.
At a later date Arocho, in the company of Martinez, returned for his driving test. Again Martinez motioned to Arocho "that that was the fellow who was going to give me the driver's test" but Arocho became afraid and did not take the test. Martinez then took Arocho's permit and went inside the building. When Martinez returned he gave Arocho an approved application card which Arocho signed, mailed with the necessary fee and received back his driver's license.
The State's evidence showed that an approved application card would not issue unless an inspector had signed the applicant's permit showing he had taken and passed all three tests. Arocho's original permit, on file in the Division of Motor Vehicles, showed that defendant signed for all three tests.
Defendant argues that the conviction cannot stand because the State failed to prove that the alleged wrongful acts were committed in bad faith. It is further argued that there was no proof of corrupt behavior as alleged in the indictment.
We find no merit in these contentions. Our review of the record satisfies us that the State produced substantial
credible evidence from which the jury could have found defendant guilty of the charge contained in Count 1 beyond a reasonable doubt. The evidence was more than adequate to support a finding of the requisite criminal intent. State v. Begyn, 34 N.J. 35 (1961); State v. Jefferson, 88 N.J.L. 447 (Sup. Ct. 1916), affirmed 90 N.J.L. 507 (E. & A. 1917).
Defendant's remaining point requires some discussion. At the trial, Arocho testified that he had paid $80 to Pepe Suarez and that Suarez, in his presence, had given the money to Martinez.
Suarez testified that he brought Arocho to Rahway outside the testing center and introduced him to Martinez and gave Martinez the money which Arocho had given him.
When Arocho first testified about the payment of money, counsel for defendant objected to such testimony and moved for a mistrial since it was not shown that the money had passed to the defendant. The State conceded that it did not have any direct evidence that defendant was involved in the money transaction but argued that the factual circumstances were such that it could be inferred. The trial court held that the evidence could not be used to show that defendant received any of the money but was admissible to prove the intent of defendant through his relationship with Martinez. The jury was instructed as follows:
"All right, Ladies and Gentlemen, before continuing with the testimony, just prior to our adjournment, the State introduced certain testimony through the witness Ismael Arocho, to the effect that Mr. Arocho paid, or turned over eighty dollars to an individual identified in the courtroom as Pepe, and that Pepe, in the presence of Mr. Arocho, turned over the money to a man by the name of Martinez. There is no question at this posture of the case that Mr. McKinlay was not present at the time this occurred.
Neither the witness nor the State alleges that McKinlay had any knowledge of this monetary transaction.
I charge you in the strongest terms possible that under no circumstances, based on the facts presented, may you infer that the defendant, Mr. McKinlay, either knew of this monetary transaction or participated in any way in the transaction. You may not infer that Mr. McKinlay received any of the moneys that Mr. Arocho stated he turned over to Pepe and that Pepe turned over to Mr. Martinez.
There is no evidence in this case for you to reach such a conclusion, directly or inferentially. The evidence cannot be considered by the Jury as direct evidence of Mr. McKinlay receiving any of these moneys or circumstantial evidence of Mr. McKinlay receiving any of these moneys.
Based on the testimony so far adduced by the State, you must, as a matter of law, conclude that Mr. McKinlay did not receive any of this money. Criminal intent is an essential element of the crime charged against the defendant, Mr. McKinlay.
I will outline in detail to you the law that governs in this case, but in explaining to you the narrow purpose for which the testimony concerning the payment of the eighty dollars was allowed into evidence, it is necessary to now explain to you that phase of the law. The State must prove beyond a reasonable doubt, not only that the defendant as a public officer did not perform the duties of his office, but also that he failed to perform his duties willfully or intentionally. The proofs must support the conclusion that the acts allegged [sic] were done with evil motive or in bad faith or not honestly. The evidence of payment to Martinez is offered only to show the posture or position of Martinez in this case. Thus, if you accept the testimony that Mr. Martinez took this money with an evil motive to assist Mr. Arocho to obtain his driver's license without passing the required test, you may ...