On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 161 N.J. Super.. 424 (1978).
Before Mr. Chief Justice Wilentz, Mr. Justice Sullivan, Mr. Justice Pashman, Mr. Justice Clifford, Mr. Justice Schreiber, Mr. Justice Handler, and Mr. Justice Pollock.
The opinion of the court was delivered by PASHMAN, J.
This appeal presents issues relating to the defenses of entrapment and amnesia. Defendant Theodore Molnar was convicted of misconduct in office, N.J.S.A. 2A:85-1, and two courts of perjury, N.J.S.A. 2A:131-1. A divided Appellate Division ordered a new trial because of the court's instruction placing the burden of persuasion as to amnesia on defendant. State v. Molnar, 161 N.J. Super. 424 (App. Div. 1978). The State appeals that ruling. Defendant cross-appeals, asserting as additional error the trial court's refusal to submit the issue of entrapment to the jury or to hold that entrapment existed as a matter of law. In resolving these questions, we must consider the application
of the recently enacted New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 et seq., to a case pending on direct review after the Code's effective date. See N.J.S.A. 2C:1-1(b), (c); N.J.S.A.. 2C:98-4.
The charges against defendant allege that while serving as Acting Warden of the Mercer County Workhouse, he failed to report and on two separate occasions denied under oath knowledge of a bribery scheme at the facility. The scheme involved the attempt of an inmate, Angelo ("Doc") Migliaccio, to obtain a more agreeable work assignment. Incarcerated since February 1973 under a 12-month sentence for gambling convictions, Migliaccio had lost a favorable "outside" assignment in the facility's hothouse by violating workhouse regulations. His new job entailed custodial duties indoors and was more burdensome. Wishing to avoid the additional labor and concerned about his precarious health, Migliaccio sought to regain his old position in early June 1973. A friend and fellow inmate, Richard Storcella, promised his help in exchange for $1,500.
Storcella's work assignment in the administration building gave him access to the warden's office. There he approached defendant and remarked casually that Migliaccio would pay $1,000 for favorable treatment. Molnar rejected the suggestion of a bribe. He stated that he was not interested in money and would do whatever was in Migliaccio's best interest as an inmate. Storcella never discussed the matter with Molnar again.
Dissatisfied with this response, Storcella enlisted the aid of Michael Loffredo, a guard at the workhouse and a friend of Molnar. Storcella promised the guard $700 for his assistance. Loffredo then spoke with defendant on behalf of Migliaccio, referring to the inmate's poor health and asking for the reassignment as a personal favor. Molnar agreed to help. A few days later, on June 12, 1973, Migliaccio was returned to his
"outside" work detail. Loffredo received $700 through Storcella's wife, and Storcella retained the balance of Migliaccio's $1,500 payment.
Two days after Migliaccio's reassignment, Molnar was hospitalized for thromophlebitis. On July 1, 1973, while defendant was convalescing in Florida, Migliaccio walked off the workhouse grounds and escaped. Molnar returned to New Jersey in early July. Later that summer he met Loffredo in a Trenton bar. They discussed various personal matters, including Molnar's financial problems. At the conclusion of the conversation, Loffredo followed Molnar to the men's room and offered him money. After Molnar rejected it, Loffredo stuffed a $100 bill in Molnar's pocket. Both men testified at trial that the money was in repayment of an $80 debt.
After his escape, Migliaccio began to suspect that Storcella and duped him in the use of the $1,500. While still at large, he contacted the Mercer County Prosecutor's office and informed an investigator of the bribery plot. Migliaccio eventually agreed to assist that office in an investigation of corruption at the workhouse. In return, the prosecutor's office allowed him to remain free during the investigation, and later recommended a reduction of his gambling sentences and no custodial sentence on a pending charge of escape. Migliaccio was resentenced to time already served and was fined for his escape.
At the direction of the prosecutor's office, Migliaccio and his wife engaged Storcella, Mrs. Storcella and Loffredo in telephone conversations which investigators recorded secretly. During a conversation on November 20, 1973, Mrs. Migliaccio told Loffredo that her husband would surrender if the punishment for his escape would not be solitary confinement. Loffredo informed defendant of Migliaccio's offer, and the next day arranged a telephone conversation between Molnar and the escapee.
Pursuant to this arrangement, on November 21, 1973 Migliaccio called defendant from the home of a Mercer County investigator. Having suffered head and other injuries in an automobile
accident about two weeks earlier, Molnar was home on sick leave at the time. The conversation was recorded. As agreed, Migliaccio identified himself by asking "Ted" (the defendant) for "Mike." This was presumably a reference to Loffredo, for Molnar replied that he was not present but had called earlier. After inquiring about defendant's health, Migliaccio stated obliquely that he had given $1,500 to "Storky" (Storcella) and that Loffredo had received $500. Molnar did not express any understanding of his caller's cryptic references to payments. When the escapee asked Molnar directly whether he got his "right amount * * * [the] thousand," he initially replied "No. I didn't get a thing." Defendant then remarked that he had received$100 from Loffredo, but was unaware that the guard had given the money for illicit purposes. After Migliaccio outlined more clearly the payments made to "Storky" and "Mike," defendant again denied any knowledge of a scheme. The rest of the dialogue consisted of entreaties by Migliaccio and assurances by defendant that the escapee would suffer no reprisals upon his return to the workhouse.*fn1
While his comments were often vague and rambling, Migliaccio did make clear to defendant that Loffredo had received a $500 bribe. A later recorded conversation between Migliaccio and Loffredo indicates that defendant did not know of the scheme when he received the $100 from his friend in the Trenton bar. The undisputed inference is that Molnar first learned of bribery at the workhouse when he spoke with Migliaccio on November 21. His defenses in this case rest largely upon the State's role in arranging that conversation and his later failure to recall it due to traumatic amnesia following his accident.
Approximately two months after Molnar's recorded conversation, a county investigator interviewed him at the warden's
office. While the investigator surreptitiously recorded the conversation, they discussed the escapes of a recently apprehended inmate and Migliaccio, who ostensibly was still at large. At one point, Molnar acknowledged hearing a rumor that Migliaccio was in the Trenton area, but denied any personal contact with his former prisoner. When asked directly, Molnar stated that he had not received a bribe, and that he knew of no one at the workhouse who had accepted tainted money. The investigator then stated that word of a bribe was "on the street." Molnar replied, "Well, then, now I know, see what I had heard was not idle gossip. It is * * * a fact or somebody is spreading a rumor * * *."
On January 30, 1974, the Mercer County Grand Jury called Molnar to testify regarding possible improper conduct by workhouse officers. He was warned when he entered the grand jury room that he was a target of the investigation. Under oath, defendant recalled the rumor of bribery related to him by the investigator and a workhouse guard; however, he disclaimed knowledge of payments by Migliaccio for a reassignment or by any inmate for any purpose. Molnar specifically denied that he had received a bribe or any proceeds himself and stated that he had not spoken with Migliaccio at any time after the inmate's escape.
The grand jury recalled defendant on February 6, 1974. He again denied having talked with Migliaccio after his escape. Later that day, the grand jury indicted Molnar for perjury in making that statement. On March 27, the grand jury issued a five-count indictment charging defendant with conspiracy, unlawful taking of money by a public official, bribery and two counts of misconduct in office. A third indictment returned April 19 alleged three counts of perjury. The first count superceded the original perjury indictment; the others charged that during his January 30 testimony, Molnar lied about both his receipt of bribe monies and his knowledge of Migliaccio's bribe.
At the beginning of the jury trial on January 6, 1976, the court and both parties agreed to consolidate one misconduct in office count, which alleged failure to report Molnar's conversation with Migliaccio, with the latter perjury indictment. The court would dismiss the remaining counts ...