On appeal from decision of Attorney General of New Jersey.
Botter, Polow and Brody. The opinion of the court was delivered by Botter, P.J.A.D.
[191 NJSuper Page 495] These consolidated*fn1 appeals were filed by suspended members of the state police, Harry F. Helduser, III, a state trooper, and William H. Powell, III, a detective, who seek reimbursement of counsel fees and costs incurred in defending themselves against criminal charges on which they were tried and acquitted. Relying on N.J.S.A. 59:10-1 et seq. and N.J.S.A. 59:10A-1 et seq., appellants contend that the charges against them arose from incidents occurring in the course of performing their duty, and, having been cleared of criminal wrongdoing, the State should reimburse them for the cost of defending themselves. The indictment under which Helduser was tried charged him with homicide for having shot and killed a 21 year old motorist, Sang Ngoc Le, whom he had pursued and attempted to stop for speeding. The indictment under which Powell was tried involved misconduct in office and unlawful possession and distribution of marijuana. These charges resulted from evidence collected during an internal affairs investigation by the state police showing that Powell had diverted more than 250 pounds of marijuana from larger quantities entrusted to him by police authorities to be transported to a site for destruction.*fn2 The Attorney General denied the requests for reimbursement made
by counsel for Helduser and Powell, and these appeals followed.*fn3 We now affirm.
Helduser's demand for reimbursement of counsel fees in the sum of $122,504.33 was made for the first time on October 27, 1981, after a jury acquitted him in his third trial on the homicide charge arising out of events that occurred on April 4, 1978. In the first trial Helduser was convicted of manslaughter, but that conviction was reversed on appeal to this court. A second trial ended in a hung jury. Helduser contends that his revolver discharged accidentally while he was in his motor vehicle abreast of the driver's side of the victim's vehicle. He contends that the gun discharged when the victim "swung his car into [Helduser's] vehicle and rammed it."*fn4 Helduser's explanation of the shooting is refuted by substantial evidence contained in the state
police investigation which resulted in the indictment returned by the Cumberland County Grand Jury. The reports of the investigation and statements of witnesses showed that the motorist slowed or stopped his car at an intersection and that Helduser drew up alongside the victim's vehicle, pointed his gun at the motorist, and fired the gun through the motorist's window, striking him in the head. Evidence gathered in the investigation would permit the conclusion that Helduser fired the gun intentionally or accidentally. But the evidence also showed that he violated state police regulations in using the gun in these circumstances. In addition, there was proof that Helduser's revolver was in an unsafe condition and that a gunsmith had warned him of this. It had a "hair trigger" which allowed the gun to discharge with very slight pressure, possibly because the hammer and trigger had been chrome or nickel plated.*fn5 Thus, evidence gathered in the investigation would permit the conclusion that Helduser's conduct constituted intentional wrongdoing or criminal recklessness and also violated state police regulations.
The record submitted by the Attorney General on the appeal in the Powell case also contains ample evidence of his wrongdoing in the diversion and sale of marijuana entrusted to him. Evidence of his criminal conduct was first called to the attention of the state police by Powell's former partner in a business which he conducted, with knowledge of his superiors, while a member of the state police. The investigation produced corroboration of Powell's misconduct although he was later acquitted of the charges. Powell's request for reimbursement of counsel fees in the sum of $25,885.00 was made for the first time in October 1981 after the criminal proceedings had terminated.
Helduser contends that he is entitled to reimbursement pursuant to provisions contained in N.J.S.A. 59:10A-1 et seq. and [191 NJSuper Page 498] N.J.S.A. 59:10-1 et seq. He argues that N.J.S.A. 59:10A-1*fn6 requires the Attorney General to provide for the defense of a state employee in any action brought against the employee unless the exceptions of N.J.S.A. 59:10A-2 apply.*fn7 Helduser focuses on N.J.S.A. 59:10-2 and argues that its provision for reimbursement of counsel fees governs. This section of the relevant statutes requires indemnification for settlements or judgments and reimbursement for counsel fees when the Attorney General has refused to provide for the defense to which an employee is entitled under N.J.S.A. 59:10A-1 et seq. Helduser emphasizes that under N.J.S.A. 59:10-2 indemnification is required if the employee establishes that the act or omission on which the action was based occurred within the scope of his employment unless the State establishes that his conduct was willful or was motivated by actual fraud or malice. Helduser would require the State to prove this exception to avoid liability. To satisfy his due process rights, he argues that the case should be remanded to the Law Division for an evidentiary hearing.*fn8
The Attorney General argues against reimbursement on a number of grounds. His principal contention is that the provisions for indemnification and reimbursement for counsel fees provided in N.J.S.A. 59:10-2 apply only to civil, not criminal actions. Additional reasons for rejecting the claims for reimbursement were contained in letters sent by the Attorney General to appellants' attorneys in December 1981, as follows:
No request was made to the Attorney General, directly or through the Division of State Police, to provide for the defense of the charges against [Trooper Helduser/Detective Powell].
[Trooper Helduser's/Detective Powell's] actions or omissions were not within the scope of his employment;
His actions were of willful misconduct;
The defense of this action by the Attorney General would have created a conflict of interest between the State of New Jersey and the employee;
The Attorney General's authority to represent a State employee is discretionary; and
There was no opportunity for the Attorney General to assume exclusive control over the ...