The following is an amplification of the court's oral opinion in this matter filed pursuant to R. 2:5-1(b). That decision was rendered on the return day of an order to show cause why defendant should not be declared to have forfeited his offices within the provisions of N.J.S.A. 2C:51-2 a.
Botti is and has been a Commissioner of the City of Union City, an elected public office established by N.J.S.A. 40:72-1. Pursuant to N.J.S.A. 40:72-10 he has been chosen mayor. He is also a member of the Board of Commissioners of the Hudson County Utilities Authority, an appointed position authorized by N.J.S.A. 40:14B-4, and a member of the Weehawken-Union City Trunk Sewer Board, all as disclosed in an affidavit filed by defendant pursuant to the court's direction.
On December 22, 1982 defendant was found guilty in the United States District Court of one count of conspiracy, in violation of 18 U.S.C.A. § 371; 15 counts of mail fraud, in violation of 18 U.S.C.A. § 1341 and 1342, and two counts of
income tax evasion, in violation of 26 U.S.C.A. § 7201. He was sentenced on those convictions on January 24, 1983.
Notwithstanding the defenses contained in his answer, Botti concedes the applicability of N.J.S.A. 2C:51-2 a. From the outset he has conceded that all of the offenses involved dishonesty. Conversely, the Attorney General specifically does not contend in this action that the offenses involved or touched Botti's offices, position or employment, pursuant to subsection (2) of N.J.S.A. 2C:51-2 a. In fact, the Attorney General urged the court not to rule on the applicability of that section since it is not necessary to a decision, in view of Botti's concession that the offenses do come within subsection (1). Moreover, the State desires to reserve its right to urge that some of the offenses did involve or touch his office, position or employment, should the disqualification provided by N.J.S.A. 2C:51-2 c be urged as applicable to Botti at some time in the future. The court accepts that position by the State and specifically does not rule on the applicability of N.J.S.A. 2C:51-2 a(2) because it is not necessary to its decision.
The only matter before the court is a motion by defendant for a stay of the forfeiture pursuant to N.J.S.A. 2C:51-2 b(2). Subsection (b) of the statute deals with the time when forfeiture shall take effect. It provides:
b. The forfeiture set forth in subsection a. shall take effect:
(1) Upon finding of guilt by the trier of fact or a plea of guilty, if the court so orders; or
(2) Upon sentencing unless the court for good cause shown, orders a stay of such forfeiture. If the conviction be reversed, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.
Thus, the forfeiture may take effect when the jury returns its guilty verdict "if the court so orders." The United States District Court judge before whom Botti was convicted did not order the forfeiture to take effect upon the finding of guilt by the jury. In this case, then, the provisions of subsection (2) apply. In this section the Legislature has mandated forfeiture "upon sentencing." This is self-executing unless "the court for
good cause shown, orders a stay of such forfeiture". The federal judge, upon sentencing defendant did not order a stay of forfeiture. Rather, he deferred to the state courts. Accordingly, defendant made his motion before this court for such a stay.
The burden is upon defendant to show good cause why the automatic forfeiture should be stayed. The reasons urged by defendant as "good cause" are as follows:
(1) he has been elected as commissioner by the citizens of Union City and as mayor by his fellow commissioners, and the will of the electorate should not be thwarted; and
(2) the offenses of which he was convicted did not involve his offices, as contrasted to the former commissioner and mayor of Union City whom he replaced (see State v. Musto, 187 N.J. Super. 264 (Law Div.1982), aff'd 188 N.J. Super. 106 (App.Div.1983)), but rather, they related to his private business transactions; and
(3) the amount of money alleged by the United States as having been obtained by defendant by his fraudulent conduct in using the mails was minimal; and
(4) in the event that his conviction should be reversed, it may not be "feasible" to restore him to his public offices. If he is restored, the municipality will pay two salaries. ...