Kolovsky, Fritz and Crane. The opinion of the court was delivered by Crane, J.A.D. Fritz, J.A.D. (concurring in the result). Kolovsky, P.J.A.D. (dissenting).
Defendant, the building inspector of the Township of Marlboro, appeals from the judgment of conviction entered on a jury verdict finding him guilty of a violation of N.J.S.A. 2A:105-1 -- this State's "extortion statute," State v. Begyn, 34 N.J. 35, 46 (1961) -- for accepting a "Christmas gift" of money (the evidence is in dispute as to whether it was $250 or $150) from U.S. Home Corporation (U.S. Home) or its officers. The sentence imposed was a fine of $750, to be paid within one month.
The indictment on which defendant was brought to trial contained two counts. The first count charged him with the common law crime (N.J.S.A. 2A:85-1) of misconduct in office, alleging that in or about December 1970,
The second count charged a violation of N.J.S.A. 2A:105-1, alleging that in or about December 1970,
The incidents which culminated in the indictment started in December 1970 with the preparation by officers of U.S. Home, then engaged in extensive building operations in several municipalities of this State, including the Township of Marlboro, of a list of persons to whom, and establishments to which, Christmas gifts were to be made.
Although the list was not marked into evidence at defendant's trial, defendant's proffer thereof being rejected by the trial judge, it is part of the record before us because it was before the trial court which denied defendant's pretrial motion to dismiss the indictment on the ground that the State had allegedly unconstitutionally engaged in discriminatory selective prosecution of defendant. Cf. State v. Boncelet, 107 N.J. Super. 444 (App. Div. 1959). Defendant argues, among other things, that the denial of that motion was erroneous.
The list, headed "1970 Xmas," listed a number of officials and employees and offices in seven municipalities, three employees of a bank, two employees of a gas company, three State Police barracks and various other persons who apparently were employees of U.S. Home or its affiliated companies. In some instances the gifts listed were "baskets," in others they were quantities of liquor, and in still others they were sums of money. In the last-mentioned category 3 persons were to be given $25, 18 were to given $50 and 6 were to be given $100. Only in two cases was there to be a gift of money in a greater amount. Defendant Savoie, "building inspector," was to receive $250 and the tax assessor of Marlboro was to receive a "basket" and $500.
The grand jury indicted only Savoie and the Marlboro tax assessor. (We were informed at oral argument that trial
of the indictment against the tax assessor resulted in an acquittal.)
At the trial of defendant Savoie the State's proofs consisted of the testimony of the township's mayor who merely described the offices held by defendant and the duties thereof; that of a Mr. Lambusta and a Mr. Frank, respectively an employee and vice-president in charge of operations of U.S. Home, and that of two state troopers who had interviewed defendant on July 17, 1972.
Lambusta testified that "quite close to Christmas" in December 1970, at the U.S. Home Office, he had been given the list and "a certain amount of money * * * to take care of those on the list." The list had been prepared by officers of U.S. Home after recommendations had been made by superintendents of the company's several projects. He put $250 in cash in an envelope on which he wrote defendant Savoie's name and sealed the envelope. Other envelopes for other recipients were similarly prepared and all were put in piles "for the super to pick it up so he could distribute it for his job." Thereafter the envelope destined for defendant was picked up by another employee of U.S. Home. The witness was not certain whether that employee was a Mr. Mattise or a Mr. Frank.
Frank testified that in December 1970 he obtained from Lambusta the sealed envelope with defendant's name on it; that on a day which could have been "anywhere from a week to a day" before Christmas, as he "was about to deliver [the envelope] to the construction man, [he] happened to run into Mr. Savoie" and gave the envelope to him, indicating to him that "it was a Christmas gift" and wishing him "our Holiday Greetings." Nothing more was said. On cross-examination, Frank testified that the envelope had not been solicited by Savoie; the "gift [was not] in anywise intended to influence [defendant] in the performance of his public duties"; and he, Frank, had always found Savoie to be a "stringent, forthright and honest individual."
The next witness called by the State was Trooper Hallock. On July 17, 1972 he and Sergeant Feldherr had gone to defendant's office in the town hall. They introduced themselves and told defendant that they were investigating his receiving $250 from U.S. Home "around Christmas of 1970." Defendant, after being given the Miranda warnings, expressed a willingness to, and did, answer all the trooper's questions. Although there was no support therefor in the trooper's written report, his testimony and that of Sergeant Feldherr indicated that their "impression" was that at first defendant denied having received any money. According to Feldherr, that "impression" stemmed from the fact that defendant expressed surprise and "appeared to be unaware of what we were talking about momentarily." In any event, defendant speedily acknowledged that he had received "some money," and that while he "wasn't sure of the amount," it "could have been approximately $150."
According to Hallock, defendant "stated that he did not feel it was wrong to take this money * * * that it was a Christmas gift * * * given to him to buy some liquor with"; that he, defendant, "did nothing special for U.S. Home and the gift was in appreciation for good service"; the "good service was not holding U.S. Home up on their building inspections."
After offering the testimony of Sergeant Feldherr, which added nothing of substance to that given by Trooper Hallock, the State rested.
Defendant then moved for judgment of acquittal. The judge granted the motion as to the first count charging misconduct in office, ruling that an "evil" or "criminal" intent was an essential element to be proved by the State "as far as the misconduct [in office charge] [was] concerned," and that the State had not offered any proof evidencing such evil intent "in some fashion" either by way of malfeasance, misfeasance or nonfeasance, so that the "misconduct in office [charge was] not supported by the proofs."
However, the judge denied defendant's motion for acquittal on the second count, ruling that "criminal intent is not an essential element of the statutory crime" of extortion proscribed by N.J.S.A. 2A:105-1.
The trial judge adhered to his determination that criminal intent was not an element of the crime in denying defendant's renewed motion for acquittal after he and three character witnesses had testified,*fn1 in its rulings on defendant's requests to charge and in the charge given to the jury. The judge refused defendant's request that the jury be told that "unless you find beyond a reasonable doubt that defendant committed the unlawful acts which are charged wilfully and knowingly, there must be a verdict of not guilty," and refused to define "wilfully" and "knowingly" for the jury. Further, he ruled that the indictment would not go to the jury so that it would not see "the adverbs knowingly, wilfully and corruptly" set forth in the second count of the indictment -- words which, the judge said, he would not charge because of his opinion that the criminal intent was not an element of the crime.
Defendant first contends that the trial judge committed prejudicial error in refusing to charge that in order to find defendant guilty of extortion they had to find that he made a demand for ...