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State v. Merlino

Decided: November 18, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SALVATORE MERLINO, DEFENDANT-APPELLANT



On Appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Brody and Baime. The opinion of the court was delivered by Brody, J.A.D.

Brody

Following a bench trial the trial judge found defendant guilty of second-degree bribery (N.J.S.A. 2C:27-2(c)) and third-degree attempt to make an unlawful gift to a public servant to influence the performance of his official duties (N.J.S.A. 2C:5-1(a)(2); N.J.S.A. 2C:27-6(b)). The sentencing judge, who was not the trial judge, imposed concurrent four-year prison terms after reducing the bribery to a third-degree crime for sentencing purposes pursuant to N.J.S.A. 2C:44-1(f)(2). Overlooked at sentencing was the trial judge's correct ruling that on the facts of this case the crimes merge. We must therefore vacate the sentence for the unlawful gift.

The central issue at trial and the core issue on appeal is whether defendant's self-induced intoxication negatived the culpability element of N.J.S.A. 2C:27-2(c) bribery. N.J.S.A. 2C:2-8(a). The trial judge found that despite being intoxicated, defendant had the "knowing intention to offer" a police officer

$400 and a wrist watch if he would release defendant from custody and not charge him with driving while intoxicated.

Defendant was in the driver's seat of a stationary automobile when Lt. Stephen Schwartz of the Margate City Police Department arrested him for driving while intoxicated. Lt. Schwartz testified that on the way to the police station defendant repeatedly said that he could do the officer "some good" if he would release him. The officer further testified that when they arrived at the station defendant said to him, "[L]et's go around the corner and talk about this." The officer ignored these remarks and accompanied defendant into the station. A few minutes later Lt. Schwartz met defendant in the processing room. During the encounter that followed, which is recorded on a 27-minute videotape, defendant offered Lt. Schwartz the money and the watch. It is evident from the tape, however, that defendant was intoxicated at the time.

Self-induced, non-pathological*fn1 intoxication "is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a). N.J.S.A. 2C:27-2(c) bribery is defined as follows:

A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another . . . [a]ny benefit as consideration for a violation of an official duty of a public servant or party official; . . . .

The trial judge ruled, without objection, that because the statute lacks an express statement of culpable mental state, it must be interpreted as requiring that the bribe be made knowingly.*fn2 N.J.S.A. 2C:2-2(c)(3). Because there was evidence supporting the defense of intoxication, the State thus had the burden of proving that despite his intoxication defendant realized that he was offering Lt. Schwartz cash and other benefits as consideration

for violating his official duty to charge him with driving while intoxicated. See N.J.S.A. 2C:1-13(b)(1); State v. Galiyano, 178 N.J. Super. 393, 397 (App.Div.1981), certif. den., 87 N.J. 424 (1981), 88 N.J. 496 (1981).

The judge found that the State proved its case based upon defendant's initial offers of a general benefit made on the way to the station and repeated on arrival, and upon defendant's statements and conduct recorded on the videotape. He relied upon defendant's persistent efforts by words and gestures to be let "out of here" in consideration for the money, the watch and other unspecified benefits. The judge was satisfied that defendant evidenced an understanding of his predicament by refusing a ...


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