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Hyland v. Simmons

Decided: August 26, 1977.


Dreier, J.c.c., Temporarily Assigned.


This case presents novel issues respecting the remedies available to representatives of the public against officials alleged to have violated the public trust, here by accepting illicit payments in return for the exercise of corrupt influence in the course of official duties.

The complaint, filed by the Union County Prosecutor and the Attorney General as coplaintiffs, alleged that defendant, while councilman of the Borough of Roselle, "did demand, solicit and receive the sum of $10,000" from individuals acting on behalf of the Jersey Laminating & Finishing Company and its successor, Chelsea Industries, Inc. (hereinafter "Jersey Laminating") in return for the exercise of his influence respecting a zoning variance in which these companies had a direct interest. The payments were allegedly made to defendant in four installments, beginning in December 1968 and ending in April 1969. The relief sought was the imposition of a constructive trust in the amount of the alleged bribes, and punitive damages.

At the trial the principal witnesses against defendant were Miki Berger and Gerald Laurence. Berger was the principal of Jersey Laminating and Laurence was the principal of a contractor which had constructed several buildings for Jersey Laminating, and was to construct a new warehouse if the disputed variance could be obtained. Both freely admitted making the payments to defendant. The money was initially advanced by Laurence to Berger, and was repaid by Berger's

authorization of excessive progress payments on a construction project then underway. Vivid descriptions were given by the two witnesses of three payments made directly to defendant at his dry cleaning establishment, and one payment made by leaving an envelope containing money in the pocket of a jacket delivered personally to defendant ostensibly for cleaning.

The testimony of these witnesses was corrobroated by photostatic copies of certain dated receipts from Berger to Laurence for "loans" in the amount of each payment. Although there were certain discrepancies in the testimony of the two witnesses as to the dates these receipts were given, the overall effect of their testimony was devastating to defendant.

The dates and amounts of the payments were: December 13, 1968, $2,000; March 26, 1969, $3,000; April 3, 1969, $3,000, and April 25 1969, $2,000. Plaintiff introduced for additional corroboration certain bank records of defendant. On January 20, 1969 defendant deposited $1,800 to his business bank account; on April 9, 1969 defendant opened a safe deposit box, and on the latter date he also opened a savings account in the amount of $2,900. This savings account was not disclosed to plaintiff during discovery, nor was the interest from this account reported on defendant's tax returns. There is a further record that six days after the fourth payment, on May 1, 1969, defendant visited the safe deposit box, although, of course, there is no record of what transpired. Also, a few days after a later visit to the safe deposit box, defendant on October 29, 1969 deposited $1,200 in cash into his business bank account. The deposits of $1,800 and $1,200 were by far the largest deposits ever made in defendant's bank account during the period in question. During the jury trial defendant could offer no explanation of either deposit, although, as noted later in this opinion, a fully credible and innocent explanation of the $1,800 deposit was later offered by defendant and accepted by the court.

Defendant denied the occurrences, including all meetings with the witnesses, and presented extensive character evidence

concerning a career of dedicated public service. The court, after receiving an advisory verdict from the jury, the use of which is explained hereafter, entered a compensatory judgment against defendant in the sum of $10,000 and, after taking further testimony, entered a punitive award against defendant in the additional sum of $10,000.

Defendant now moves, first to reopen the judgment (R. 4:49-1), and second, to be relieved from the judgment (R. 4:50-1). The court was urged at oral argument to exercise its prerogative under R. 4:49-1 to "open the judgment if one has been entered, * * * amend findings of facts and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." These motions, therefore, necessitate a brief recitation of certain pretrial and trial dispositions.

On motion of defendant the court struck the Union County Prosecutor as a plaintiff in the action inasmuch as it was clear that he had not pursued the cause (although an assistant prosecutor assisted the Deputy Attorney General throughout the trial). In an action of this type the Attorney General has the inherent authority to maintain the suit as a defender of the public interest. Public Service Coor. Transport v. State , 5 N.J. 196, 208-209 (1950). It cannot be seriously disputed that the public has an interest here which is in need of adequate representation, but the prosecutor was an unnecessary party plaintiff. His presence, however, in no way prejudiced defendant.

Defendant also moved for a dismissal based upon the running of the statute of limitations. Defendant's theory was and is that the conduct attributed to defendant was framed in the language of N.J.S.A. 2A:93-4 and 2A:93-6, and therefore the action was in reality one for a forfeiture, governed by the limitation periods set forth in N.J.S.A. 2A:14-10. This act provides that:

All actions at law brought for any forfeiture upon any penal statute made or to be made, shall be commenced within the ...

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