On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Antell, J. H. Coleman and Simpson.
Defendant, a Jersey City police officer, was tried to a jury on three counts of aggravated assault, contrary to N.J.S.A. 2C:12-1 and one count of official misconduct, contrary to N.J.S.A. 2C:30-2. He was acquitted on each of the aggravated assault charges. He was, however, found guilty of a lesser included offense of simple assault upon Jack Molowitz under Count Three of the indictment. On the official misconduct conviction, defendant was sentenced to a two year term of probation and fined $500. His office as a police officer in Jersey City was ordered forfeited pursuant to N.J.S.A. 2C:51-2a(1). The trial judge denied his motion for a new trial but stayed the forfeiture of office pending this appeal. Defendant now appeals contending:
1. THE OFFENSE OF MISCONDUCT IN OFFICE IS AN IMPROPER CHARGE AND HIS CONVICTION MUST THEREFORE BE REVERSED.
2. THE INSTRUCTIONS TO THE JURY WERE DEFECTIVE AND THE CONVICTION MUST THEREFORE BE REVERSED (PLAIN ERROR).
3. THE JUDGMENT OF CONVICTION IS INCONSISTENT AND MUST THEREFORE BE REVERSED.
The trial evidence was in sharp conflict. The record reveals that on July 28, 1981, shortly after leaving a tavern in Jersey City, Gerard Caicedo, Kathleen Pongrac and Jack Molowitz came upon Jack Dressler and his wife on a public street in Jersey City. The Dresslers lived next door to the home of Caicedo's mother. There was apparently some longstanding antagonistic feelings between Dressler and Caicedo's mother. After a heated exchange of words, Molowitz knocked Dressler to the ground. As Caicedo grabbed Molowitz to pull him off of Dressler, Police Officer Lore and his partner came upon the scene in a squad car.
With the arrival of police officers on the scene, Molowitz apparently became frightened and ran away. Defendant fired a shot at Molowitz, barely missing an innocent bystander. Molowitz testified that the bullet went through his hair and he immediately fell to the ground. He further testified that defendant came to him while he was on the ground and stepped on his hands, struck him in the back with his night stick and dragged him by his hair back to the scene of the fight. Caicedo and Pongrac were also allegedly injured by defendant. Caicedo, Pongrac and Molowitz were taken to the Jersey City Medical Center where they received medical treatment.
Defendant's first contention is essentially that his conviction for simple assault does not constitute official misconduct in office. The statute under which defendant was convicted, in pertinent part reads:
A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or deprive another of a benefit:
(a) He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or . . . . [ N.J.S.A. 2C:30-2]
Under the facts of this case, N.J.S.A. 2C:30-2 can be parsed to read, "A public servant is guilty of ...