On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Trautwein, J.A.D.
[189 NJSuper Page 62] Defendant was charged in Middlesex County Indictment 469-78 with various crimes, including misconduct in office, in violation of N.J.S.A. 2A:85-1. Thereafter a second indictment, 303-80, charged defendant with aiding and abetting Patricia Clark and Dorian Gilmer to obtain money by false pretenses, in violation of N.J.S.A. 2A:85-14 and N.J.S.A. 2A:111-1. The indictments were consolidated.*fn1 Defendant was tried to a jury and convicted of misconduct in office and two counts of aiding and abetting the obtaining of money by false pretenses. He was then sentenced to three 90-day concurrent terms in the Middlesex County Adult Correction Center. These sentences were stayed pending appeal.
Defendant's first contention on appeal is that the proofs adduced at trial did not demonstrate that he was a public officer within the meaning of the common law crime of misconduct in office retained by N.J.S.A. 2A:85-1. Therefore, he argues the trial judge erred in denying his motion for judgment of acquittal on that charge. The judge, in denying the motion, stated:
I'm going to deny that motion. I feel that the Defendant was a public officer, for many reasons. He was on the public payroll, he still is, I believe, he vouched to other people he had subordinates on the payroll, he did not have a permanent job, evidently, but I don't think that's definitive at all.
We disagree and conclude that the motion should have been granted.
The following framework of facts emerged from the State's proofs. For some time prior to the events leading up to his indictment, defendant worked for a social service agency known as the God Squad. The purpose of this squad was to aid the impoverished in the New Brunswick-Somerset area and to this end it employed a number of CETA participants. (Comprehensive Employment and Training Act, 29 U.S.C.A. § 801 et seq.). Defendant was the community organizer for the agency, setting up programs and workshops in the community. Defendant was not a paid employee of the God Squad until October 1977 when he became a CETA participant. During the latter part of October 1977 defendant began negotiations with the Middlesex County CETA agency respecting funding of a service agency he had organized under the name of MUST (Minorities United to Save Themselves). The Middlesex County CETA is the agency representing a geographic unit eligible under federal legislation to receive monies for the purpose of providing employment and training to qualified persons. Eventually, defendant negotiated a contract between Middlesex CETA and MUST. Defendant signed this contract as executive director of MUST. Pursuant to this contract, MUST was allocated $160,466 to operate a pilot comprehensive nutrition project for one year, beginning November 3, 1977. MUST was obligated to hire 15 participants, each of whom were to work 40 hours a week. To accomplish the
nutritional goals of the project, MUST was to operate according to the following guidelines:
* project staff will instruct residents in how to utilize available land to reduce the cost of food, and supply themselves with fresh fruits and vegetables from backyard gardens;
* staff will train residents in the techniques of agriculture;
* staff will assist community residents in obtaining municipal and county assistance in the form of space in which ...