On appeal from the Superior Court of New Jersey, Law Division, Union County.
Petrella, Dreier and Ashbey. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from a conviction of impersonating a public official, N.J.S.A. 2C:28-8. She was acquitted of unauthorized disclosure of juvenile records, N.J.S.A. 2A:4-65d (now N.J.S.A. 2A:4A-60f). Her conviction turned upon a single credibility determination. When defendant, a newspaper reporter, interviewed the mother of a homicide victim, defendant is alleged to have identified herself as a county official, a lady "from the morgue," and then asked personal questions concerning the decedent, her family and her habits. Defendant denied these allegations, contending that she had properly identified herself as a reporter when she obtained the interview.
Defendant had initially been tried in September 1983 and found guilty by a municipal court judge. She was fined $500, assessed a $25 Violent Crimes Compensation Board penalty, and ordered to perform 30 days of community service. On appeal to the Law Division, after a trial de novo on the record, she was again found guilty and the same sentence was imposed. While an appeal was pending before this court, defendant moved before the Law Division to vacate her conviction and for a new trial based on newly discovered evidence. The new trial was granted by the Law Division based upon the prosecution's failure to disclose evidence favorable to the accused, and the appeal was dismissed without prejudice. Upon retrial before a different municipal judge, defendant again was found guilty on the impersonation charge and again appealed to the Law Division. The Law Division ordered disclosure to defendant of non-privileged matters in the file of the original prosecuting
attorney, who had been privately retained pursuant to R. 7:4-4(b) (the attorney having been retained by the family of the decedent with the expectation that the municipal court proceeding would provide discovery for an anticipated civil suit). The Law Division also remanded the matter to the municipal court for further proceedings including a new trial if necessary.
The parties then filed cross-motions for leave to appeal to this court. We granted both parties' motions and ordered the Law Division judge to make an in camera inspection of the former prosecutor's file to determine whether any material contained therein was subject to a work product privilege. We further directed that the defendant could thereafter move for a supplementation of the record, a judgment of acquittal or a new trial. If further proceedings were required, the proceedings should be conducted in the Law Division in any manner appropriate to conclude a de novo trial; then a final judgment should be entered.
On defendant's motions for a directed verdict of acquittal or a new trial, Judge Burton Ironson in the Law Division entered an order vacating defendant's judgment of conviction, denying defendant's motion for a verdict of acquittal, and ordering a de novo plenary trial to be held before him. Defendant was retried, and on August 18, 1986, Judge Ironson rendered an oral opinion in which he found defendant guilty of the impersonation charge and reimposed the original sentence.
At oral argument in this appeal, defendant's attorney noted that no error has been alleged with respect to the trial held by Judge Ironson. On appeal, however, defendant raises two points, with many subpoints:
N.J.S. 2C:28-8 must be interpreted to avoid infringing provisions of the federal and state constitutions which shelter newsgathering activity from governmental intrusion.
A. The New Jersey and United States Constitutions protect ...