Goldmann, Leonard and Mountain. The opinion of the court was delivered by Leonard, J.A.D.
The Essex County grand jury returned four indictments against defendant charging him with the following: (1) No. 863 -- five counts of misconduct in office (N.J.S.A. 2A:85-1); (2) No. 864 -- conspiracy with one Stanley Broskie to violate the statutes prohibiting misconduct in office and extortion (N.J.S.A. 2A:98-1); (3) No. 865 -- five counts of bribery (N.J.S.A. 2A:85-1) and (4) No. 866 -- five counts of extortion (N.J.S.A. 2A:105-1).
Following a jury trial defendant was convicted of all offenses except the bribery charge which was dismissed by
the trial court at the end of the State's case. Defendant received a total sentence of 1-3 years in State Prison and a fine of $5000.
Defendant, a certified public accountant since 1928 and an attorney since 1934, was appointed in 1937 to the State Board of Certified Public Accountants (State Board). He became its secretary in 1938 and served in that position until 1968.
The State Board was responsible for preparing, administering and grading the C.P.A. examinations. See N.J.S.A. 45:2A-1 et seq. Although the American Institute of Certified Public Accountants actually prepared the examinations and preliminarily graded the papers, its marks were purely advisory, final responsibility for grades resting with the State Board. N.J.S.A. 45:2A-7. The grades determined by the Institute usually were accepted in the first instance by the State Board and it notified candidates that they passed or failed. However, the grades of a number of those who failed would be reviewed by the State Board and in some cases the Institute grades were changed. The authority for reviewing and regrading these papers was delegated to defendant, he having exclusive jurisdiction and discretion in this respect.
The present charges stem from defendant's alleged improper conduct with regard to his regrading of the examination papers of Francis Cerny, Robert Pacca, George VanHook, Sol Glick, Sidney Stern and Gerrold Berr. Each of these individuals had been students in a cram or review course conducted by Stanley Broskie, a C.P.A. with offices in East Orange, New Jersey. Likewise, each had failed all or parts of the C.P.A. examination. (The examination consisted of four sections: Law, auditing, theory and problems.)
The State contended that each of the named candidates was approached by Broskie who told them that their papers would be regraded if they would pay him a certain sum of money and take an additional sum to defendant at his office.
They were to talk to defendant generally about accounting, the examination and their personal situation, then hand him an envelope, usually containing $1000 in small bills. This money was to be for either "his favorite charity" or the Joseph J. Seaman Scholarship Fund, the latter being a fund which defendant had begun (but did not administer) with the proceeds of a testimonial dinner previously given in his honor by the New Jersey Society of C.P.A.'s. No receipts were ever issued for these "contributions."
Incidentally, Broskie was indicted on the conspiracy, bribery and extortion charges along with defendant, but pleaded guilty to the conspiracy charge before defendant's trial began and fined $1000. The other charges were held open.
Robert Pacca (listed as a co-conspirator on the conspiracy indictment, but not included as a defendant) testified that he had taken the C.P.A. examination on several occasions from November 1963 to May 1967 but never passed any of the four portions. After taking Broskie's cram course, Pacca took the November 1967 examination. Before the grades were officially announced, Broskie called Pacca to tell him he had passed two parts. Pacca then went to see Broskie, and Broskie told him he "could get [him] passed" on the other portions of the examination if Pacca were willing to "make a contribution to the scholarship fund" at a total cost of $1500. Pacca agreed to the scheme about ten days later. Approximately one month thereafter Pacca received a letter from the State Board saying he had passed all four parts of the examination. A week later, at Broskie's direction, he brought Broskie an envelope with $500 in cash and then made an appointment to see Seaman, went to his office in Perth Amboy and left $1000 in small bills on his desk. Seaman did not open the envelope in Pacca's presence, give him a receipt, or send a letter of acknowledgment, as he promised he would. Pacca did not deduct the $1000 as a contribution to charity on his income tax return.
On cross-examination Pacca admitted he knew the State Board had the right to regrade the examination papers. He also said that he asked Broskie if he could pay him by check, but Broskie emphasized he should bring cash.
Similar testimony was adduced as to Francis Cerny, George VanHook, Gerrold Berr and Sol Glick, four other co-conspirators listed in the conspiracy indictment, and as to Sidney Stern, all five previously unsuccessful examination candidates. Cerny testified that he had originally brought Broskie envelopes with blank checks. Broskie said they were unacceptable so Cerny cashed the checks and gave both Broskie and Seaman cash in envelopes. VanHook said that when he went to Seaman he gave him the envelope, saying, "I want to contribute the money to the scholarship fund." Berr said Broskie told him, "It will cost you two big ones." Glick told Seaman the money was "for [his] favorite charity." Stern said Seaman picked up his envelope and began, on his own, telling Stern about the laudable aims of the scholarship fund. None of these men was given a receipt for his contribution and none took the contribution as a deduction on his income tax return.
John Kortbawi, an agent for Internal Revenue Service, testified that after he had taken the fourth part of the examination -- he had earlier passed the first three parts -- he received a letter from Broskie requesting an appointment. When Kortbawi got to Broskie's office, Broskie told him he "didn't quite make it." Kortbawi told Broskie he was an I.R.S. agent, to which Broskie replied, "Wow, you're hot stuff. If I had known that, I wouldn't have called you." However, after ascertaining that Kortbawi did want to become certified, Broskie said, "If I'm going to give you something that you are going to have to pay for, you are going to have to get something back in exchange for it. * * * [Y]ou're a big boy. You know what the ...