Defendants Joseph Pagano and William O'Brien move to dismiss the indictment in this matter which charges each of them with a violation of N.J.S.A. 2A:93-6, the bribery statute, and in a second count with conspiracy to commit the crime alleged in the first count. The case against defendant Anthony Carminati has been disposed of in other proceedings so that any reference to defendants herein applies only to the remaining defendants, Pagano and O'Brien.
The State charges that defendants offered $1,000 to Lt. Joseph Delaney of the Bergen County Prosecutor's Office in exchange for confidential information compiled by the New York State Police, specifically a list of names of persons about to be arrested upon the conclusion of a criminal investigation conducted by the New York State Police and the New York Attorney General's Office.
Defendants' first argument for dismissal contends that the indictment fails to allege any attempt to corruptly influence governmental or official conduct. Their conclusion stems from a four-prong argument:
(1) Lt. Delaney was not acting in an official capacity as a police officer of the State of New Jersey;
(2) Defendants did not possess the necessary mens rea , that is, they did not intend to influence a public official;
(3) There was no action by an official, or official action of any department of New Jersey involved;
(4) The sale of information is not encompassed in the bribery statute because the sale of information does not influence official action.
Additionally, defendants argue for a dismissal of the indictment on the ground that there is no allegation that anything was procured from any office or department or subdivision of New Jersey since the information provided by Lt. Delaney was exclusively from the State of New York.
Lastly, defendants challenge the jurisdiction of this court, contending that any crime, if any were committed, occurred in the State of New York and thus may not be tried as a violation of New Jersey law.
For the purpose of their motion defendants admit the truth of the allegations of the indictment except that the offer of $1,000 was made to Lt. Delaney "as a police officer." Their denial that the offer was made to him "as a police officer" is based upon the testimony adduced from Lt. Delaney before the grand jury. They point to page 5 of the transcript:
At one point, in talking to Mr. Carminati, I indicated to him that I had a cousin in New York State and if he could do something for Joey, meaning Joseph Pagano, I'm sure Joe will make it worth your while and with that, we decided, we meaning Carminati and myself, to take a ride and he was going to show me where he eats in one particular restaurant, which was the Four Star Steak House.
While the above quotation is not a model of clarity, it does establish that Lt. Delaney referred to a "cousin" in New York without any other description.
Subsequently, on March 5, 1975, in Englewood Cliffs, Lt. Delaney was introduced to defendants by Carminati. A description of that meeting was contained in the grand jury transcript at page 6:
During that meeting, I was introduced to Joseph Pagano by Anthony Carminati. William O'Brien, Billy "O" as he called him was present at the meeting and Mr. Carminati indicated to Mr. Pagano that I would have some information relative to him and some of his associates regarding a gambling raid that was about to take place in the State of New York involving Mr. Pagano and some of his friends. And that I had a list of the names of the people to be arrested. So, I had a discussion with Pagano and he asked me to see the list and
I showed him the list. He looked over the list, named the people that he knew.
Of course, he was on the list himself, so was William O'Brien. He asked me if he could have a copy of the list and I said that no, I couldn't give him a copy of the list because it was in my handwriting and also the handwriting of the New York State Trooper.
There is nothing in the above-quoted statement to indicate that defendants were advised of Delaney's cousin. It merely states that Delaney would be able to provide some information to them concerning a gambling raid about to take place in New York, and that the list of names contained the handwriting of a New York trooper. Thus, defendants' argument that they thought Delaney was not acting in his official capacity but as a relative of someone in New York must fail. To draw such a conclusion as defendants urge would require the court to infer that Carminati told defendants about Delaney's "cousin." But it is equally inferable that Carminati told defendants of Delaney's official capacity as a police officer. Certainly, the grand jury must have drawn the latter inference. In any event, there is nothing in the grand jury testimony to substantiate defendants' argument of lack of mens rea or that Delaney was acting in a family capacity, particularly when at their meeting there was a reference to a New York trooper but no reference to a cousin.
In connection with their first argument, defendants also contend that the indictment should be dismissed because the offer of money (which is admitted for the purpose of the motion) was not to induce any official action by any official or agency of any government of New Jersey or its subdivisions. Accepting Lt. Delaney as a police officer, defendants contend that the action bargained for, that is, the obtaining and transmittal of information which was obtained by the authorities in New York, is not something that is "connected with or appertaining to" Delaney's position as a police officer of New Jersey. Defendants argue that the decisions in all reported cases establish that the essence of the crime of bribery is the influencing of some official
duty or act, and that the procurement of confidential information, particularly from another state, has nothing whatever to do with the official conduct or act of a New Jersey police officer.
The question is, "what duty connected with or appertaining to" the duties of a New Jersey police officer were influenced by this transaction?
To answer that question the court believes it should be considered from the perspective of whether the police officer could be disciplined or convicted for his actions. From that perspective it is clear to this court that Lt. Delaney could be convicted of misconduct in office.
Misconduct in office is defined as unlawful behavior in relation to official duties by an officer entrusted with the administration of law and justice.
If there were no agreement between the authorities of New York and New Jersey and if Lt. Delaney solicited a New York trooper, even if his cousin, to obtain information and provide him with a list of those to be arrested in New York in exchange for money (which is what appeared to be the case to the defendants herein), then Lt. Delaney would be offering a bribe to the New York ...