Conford, Handler and Meanor. The opinion of the court was delivered by Handler, J.A.D.
[127 NJSuper Page 440] In each of these consolidated cases it is contended that the trial court erroneously instructed the jury with respect to the requisite mental state required as an element of the crime charged under N.J.S.A. 2A:135-3. In the case in which both John and Paul Hanly are defendants (A-896-72), they were found guilty of the first count of a six-count indictment. The gravamen of the first count was that John Hanly, while holding the county office of Superintendent of the B.S. Pollak Hospital, and defendant Paul Hanly, knowingly and willfully obtained and assisted
in obtaining approximately $6,002.21 for Paul Hanly and one Ruby Lee McLeod, which moneys were not lawfully and justly due these individuals in that no services were rendered by them to or for the hospital. The remaining counts of the indictment similarly charged defendant John Hanly and his wife Virginia Hanly with obtaining county moneys for Hanly and other named individuals, which moneys were not lawfully and justly due because no services were furnished the hospital in exchange for these payments. The jury acquitted Virginia Hanly on these remaining charges but was unable to reach a verdict with respect to her husband. In the companion case (A-1719-72) it was charged in two counts that John Hanly, while holding the same office knowingly and willfully obtained for one Teresa Monti approximately $6,276.01 and for one Rose Alviani approximately $5,211.86, in county funds, which were not lawfully and justly due these persons because neither had rendered services to or on behalf of the hospital. Hanly was convicted on both counts under this indictment.
The crime involved in both cases is set forth in N.J.S.A. 2A:135-3, viz :
Any person holding a public office, position or employment of this State or of a county, municipality, or school district, who willfully and knowingly obtains, or counsels, aids, assists, or procures in obtaining for any other person from the State, or from any such county, municipality, or school district, any money, notes, bonds, scrip, securities or other thing of value not lawfully and justly due to such person holding a public office, position or employment of this State or of a county, municipality, or school district or such other person at the time of obtaining the same, is guilty of a high misdemeanor.
In the case involving both Hanlys (A-896-72) the State presented evidence that Mrs. McLeod never set foot in the State of New Jersey and never worked for Pollak Hospital. The State showed that Mrs. McLeod, who resided in Florida, worked for Paul J. Hanly, Sr. as a domestic in his home at
Bal Harbor, Florida, for part of the time that she was on the payroll of Pollak Hospital and received payroll checks of the hospital. Testimony was also elicited with regard to the issuance of the checks for these persons and the procedures involving certification by John Hanly of "payroll exception sheets" which were used at the inception, termination, time of salary increment or time of absence of any of the employees. The defense adduced evidence to establish the good character of the defendants and to establish facts showing the past practice with respect to the use of domestics by super-intendents of Pollak Hospital.
The other case involved payments made to Rose Alviani and Teresa Monti for "no show" jobs at Pollak Hospital. Much the same testimony as was introduced in the first case with regard to payroll procedures, the payroll exception sheet and authorizations of John K. Hanly was introduced at this trial. Teresa Monti, who had, prior to the time that this trial took place, pleaded guilty to a violation of N.J.S.A. 2A:135-3, testified for the State.
In the trial of A-1719-72 the judge instructed the jury as follows:
You will note that the statute requires that the person charged with the crime willfully and knowingly obtained or aided or assisted in obtaining the moneys for this other person from the County of Hudson. By knowingly and willfully, those two elements, the law requires that the intent - - - that the defendant intended to act as is charged. In other words, he must do so intentionally. You must determine whether the acts were performed with full knowledge of the facts in a conscious or purposeful manner without legal justification or excuse and that the acts, for example, were not the result of negligence, mistake or inadvertence, because that would be just the opposite of knowledge and willfulness. In other words, if the defendant did what was charged as the result of negligence, mistake or inadvertence, he could not be guilty under this statute. He must do it with knowledge, and he must do it willfully and it must have been performed by him with his free and untrammeled will.
Now, once it is shown that the defendant John Hanly, and shown beyond a reasonable doubt, intended to act in a manner which is proscribed by the statute, it is immaterial that he did not believe that his conduct violated the law, nor is it essential for the State in
this case to prove that the defendant had a corrupt motive or that he profited personally. So long as he violated the statute knowingly and willfully, he's guilty of the offense.
Therefore, to summarize, the State must prove beyond a reasonable doubt in order to secure a conviction as to the first count (1) that Teresa Monte obtained the salary from Hudson County without performing any work therefor; (2) that the defendant John Hanly, as Superintendent of the hospital, obtained, or aided or assisted in obtaining for her the moneys from the County which were not due her; and (3) that he did so knowingly and willfully. As to the second count, the State must prove the same elements beyond a reasonable doubt so far as they pertain to Rose Alviani. And unless the State proves each of these elements which I have just outlined for you as the particular charge under Count 1 and Count 2, the defendant would be entitled to a verdict of not guilty.
It is contended that this instruction and that given in the other case, were defective in that they omitted as an essential element for the commission of the crime, "specific intent," "consciousness of wrongdoing" or the "corrupt intent to violate the law." Defendants in A-896-72, for example, argue that "[t]he statute clearly requires consciousness on the part of the defendant that the moneys he obtained were not lawfully and justly due. This is just another way of saying that the defendant acted with consciousness and knowledge that his acts were in violation of the law and done in bad faith." (Emphasis added). Defendant in the other case states essentially the same point, i.e., "[The court's charge] eliminates from the jury's consideration the crucial issue of whether defendant Hanly knew that the payments were not lawful, or whether his participation was in any way corrupt or done in bad faith with consciousness that such action constituted a violation of the criminal law." His contentions in this respect are reflected in specific requests to charge, offered at the trial, to the effect that a defendant "would not be guilty of the criminal offense * * * ...