Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.s.c.
Between 1968 and 1971 the City of Wildwood had a commission form of government with three commissioners: defendant Joseph A. Furey, who was and is a physician, Wilbur Ostrander and Charles Masciarella, who was also Wildwood's mayor. Three indictments, the essential details of which are hereinafter stated, were returned against defendant.
Indictment No. 432-71 charged that defendant and Masciarella, together with one Nicholas Viscomi, conspired to purchase, obtain and act upon the granting of amusement games licenses for their personal gain.
Indictment No. 433-71 charged that defendant and Masciarella conspired with Viscomi to misuse their authority to alter an ordinance to increase the number of auction licenses in Wildwood from three to four and to offer $1,000 to Ostrander to act favorably upon such alteration, for their personal gain.
Indictment No. 434-71 charged defendant in three counts with misconduct in office in voting for and approving amusement games licenses in which he had an undisclosed interest, for his personal gain.
Defendant was tried alone and convicted by a jury of all charges except those alleged in the second and third counts of indictment No. 434-71, which were dismissed at the end of the State's case. He was sentenced to a term of one to two years, which was suspended, and fined $1,000.
Defendant appeals, asserting a number of grounds for reversal.
We first consider defendant's contention that the trial court erred in not granting his motions for acquittal on indictment Nos. 432 and 434*fn1 on the ground they charge no crime. The defense that an indictment fails to charge an offense may only be raised by motion either before trial or within ten days after a verdict of guilty, or within such further time as the court may fix during such ten-day period, or on appeal, and shall not be considered during trial. R. 3:10-3. The record does not disclose that the motions to which defendant refers were made within one of the time periods specified in the foregoing rule. However, since the sufficiency of the two indictments is raised on appeal, we deem it appropriate to review the contentions.
Indictment No. 434 is predicated on N.J.S.A. 2A:85-1, which denominates all offenses of an indictable nature at common law, not otherwise expressly referred to therein, as misdemeanors. This has been held to include misconduct in office. State v. Begyn, 34 N.J. 35 (1961); State v. Seaman, 114 N.J. Super. 19, 31 (App. Div. 1971), certif. den. 58 N.J. 594, cert. den. 404 U.S. 1015, 92 S. Ct. 674, 30 L. Ed. 2d 662 (1972); State v. Silverstein, 76 N.J. Super. 536, 540 (App. Div. 1962), aff'd 41 N.J. 203 (1963).
Misconduct in office means "any act or omission in breach of a duty of public concern, by one who has accepted
public office." 1 Burdick, Law of Crime (1946), § 272 at 387, quoted in State v. Weleck, 10 N.J. 355, 365 (1952). It has also been defined as "the violation of a prescribed duty to the public * * * for which the offender may be indicted at common law." State v. Startup, 39 N.J.L. 423, 425 (Sup. Ct. 1877); State v. McFeeley, 136 N.J.L. 102, 107 (Sup. Ct. 1947). It is essential, said the court in Weleck, supra, at 10 N.J. 366, that an indictment for misconduct in office allege both a prescribed duty of the office and facts constituting a breach thereof. Such duties are those that are cast by law on the incumbent of the office. They may be imposed by some special or private law or by a general act of the Legislature, or they may arise out of the very nature of the office itself. Where they arise out of the very nature of the office, the source of the duty need not be alleged in the indictment, for the courts will take judicial notice of such duties. Weleck, at 366.
Upon analysis, it is evident that the first count*fn2 of No. 434 charges the offense of misconduct in office. It alleges as follows:
(1) Continuously, between May 2, 1968 and July 15, 1970, defendant was a commissioner and the Director ...