On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Clifford and Handler. For affirmance -- Justices Sullivan, Pashman and Schreiber. The opinion of the court was delivered by Handler, J. Pashman, J., dissenting. Justice Sullivan and Justice Schreiber join in this opinion.
This is an appeal from criminal convictions of conspiracy and other crimes based upon the misconduct of public officials while in office. At the trial the judge submitted to the jury special interrogatories relating to the applicability of the statute of limitations as a bar to the criminal prosecution. The jury was directed to respond to these interrogatories before it was asked to deliberate upon its general verdict and without being fully instructed with respect to the law applicable to the criminal charges. We must determine whether this procedure constituted reversible error.
On September 19, 1974, appellants Van Wettering and Haussmann, together with Simon, were indicted for conspiracy to receive money unlawfully for performing official duties and to commit misconduct in office in violation of N.J.S.A. 2A:98-1, as well as for the substantive crimes which were the objects of the conspiracy, N.J.S.A. 2A:105-1 and N.J.S.A. 2A:85-1. The jury found each defendant guilty on all counts. The Appellate Division, in an unpublished opinion, affirmed their convictions.
Defendants Van Wettering and Haussmann were charged as former public officials of the Borough of Little Ferry, New Jersey, having served as members of the municipal governing body and the planning board for varying periods from 1963 to 1969. They and other unindicted co-conspirators
were accused of participating in a scheme to coerce property owners and contractors into making illegal payments to members of the governing body and planning board in order to gain approval of construction projects and zoning changes. This conspiratorial scheme was pursued throughout the years they were in office.
The testimony of the State's witnesses indicated that these payments were made to Ferdinand Heinige, the mayor of Little Ferry, and Edward Gorleski, the borough's building inspector. Where a payment had been so arranged, Heinige would inform the planning board that a "deal" had been consummated and the proposed project would be approved. The monies collected by Heinige were accumulated in a safe at his home and distributed later to the planning board members as well as to certain members of the governing body.
The statute of limitations applicable to all counts upon which defendants were tried provides that an indictment must be returned within five years of the commission of an offense. N.J.S.A. 2A:159-2. The indictment was lodged against defendants on September 19, 1974. It therefore was necessary for the State to prove that the substantive crimes, the illegal receipt of monies and misconduct in office, had been committed within five years of the indictment, in other words, after September 19, 1969. Further, in order to prevail on the conspiracy charge, the State had to show that an overt act in furtherance of the conspiracy was committed within the same period of limitations. Only one of the 61 overt acts listed in the indictment was alleged to have occurred within this period, this, a payment by Heinige to defendants and others "on or about December 19, 1969".
A sharp fact issue arose as to whether payments were made to defendants in December 1969 and, if so, whether they were criminal in nature and in furtherance of the conspiracy charged in the indictment. It was conceded that the money used for these payments came from one of three sources, (1) payments made by one Vecchiotti to Heinige and Gorleski for approval of a proposed garden apartments development
known as Ledgewood Terrace, (2) the proceeds of a deal referred to as the Catherine Gardens or Swagger-Heinige transaction, or (3) "whatever else was left over" from past illegal payments to Heinige after distributions had been made to municipal officials in prior years.
Van Wettering and Haussmann contended that they had no knowledge of and played no part in the Swagger-Heinige transaction. That deal, they asserted, involved a completely separate conspiracy between defendant Simon and Heinige and three other individuals and therefore any payment by Heinige of monies derived from that transaction could not be deemed an overt act in furtherance of any conspiracy in which Van Wettering and Haussmann might have participated. This contention posed an intricate statute of limitations problem. Since the only overt act alleged to have occurred within the period of limitations was the payment of Heinige to various individuals in December 1969, if the source of such payment was the Swagger-Heinige transaction and that transaction was not part of the conspiracy with which defendants were charged, the conspiracy, and possibly the substantive charges against defendants, would be time-barred.
The trial judge sought to simplify the jury's consideration of these issues. The court informed all counsel at the close of the State's case of his proposal to employ a "bifurcate[d]" verdict procedure when the trial was at end. The judge explained that he would first submit to the jury special interrogatories dealing with the issues raised by the statute of limitations and then, if the jurors, through their answers to the interrogatories, determined that there occurred within the period of limitations an overt act in furtherance of a criminal conspiracy involving defendants, he would submit the case to the jury for deliberations upon a general verdict. Following this explanation, counsel for Simon characterized the proposed procedure "very fair", counsel for Van Wettering remarked that he did not "have any problem with that", and counsel for Haussmann said nothing.
After the defense had rested, the trial judge exhibited to counsel the special interrogatories which he proposed to submit to the jury. Those interrogatories read as follows:
I. Do you find unanimously and beyond a reasonable doubt
(a) that a distribution of money was made to any or all of the defendants, namely, ROBERT SIMON, ROBERT VAN WETTERING and FRANK P. HAUSSMANN, by FRED HEINIGE in or around December, 1969,
(b) that a distribution of money was made to any co-conspirators by FRED HEINIGE in or around December, 1969, apart from the Swagger-Heinige transaction.
II. Do you find unanimously and beyond a reasonable doubt that the Heinige, Swagger, Stocek, Gorleski, Simon partnership was a separate and distinct transaction rather than part of the overall alleged conspiracies charging the defendants, namely, ROBERT SIMON, ROBERT VAN WETTERING and FRANK P. HAUSSMANN, with illegal receipt of money and misconduct in office, assuming for the purpose of this determination that such conspiracies were in fact committed.
III. Do you find unanimously and beyond a reasonable doubt that a distribution of money was made to any or all of the defendants, namely, ROBERT SIMON, ROBERT VAN WETTERING and FRANK P. HAUSSMANN, or to any or all of the alleged co-conspirators, namely, EDWARD GORLESKI, RUSSELL STOCEK and JERRY VOZEH, by FRED ...