On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Furman, Brody and Scalera. The majority opinion of the court was delivered by Scalera, J.A.D. Brody, J.A.D., dissenting.
Defendant was a Westampton police officer who appeals his jury convictions for two counts of second degree official misconduct contrary to N.J.S.A. 2C:30-2(a), (counts one and three) and one count of third degree criminal coercion contrary to N.J.S.A. 2C:13-5, (count two). He was sentenced to consecutive three year terms of imprisonment on counts one and three, a concurrent 18-month term on count two and was required to pay an aggregate fine of $22,500 as well as a $75 penalty to the Violent Crimes Compensation Board.
Defendant was indicted and tried on the basis of two incidents one of which occurred on January 1, 1982*fn1 involving one Jeanette Potter and the other on February 22, 1982 involving one Jane A. Petroski. The evidence involving those offenses indicated the following:
On January 1, 1982 Jeanette Potter, along with her sister and brother-in-law, visited Roy Smitherman at the Howard Johnson Motel in Mount Holly. After driving away, they were stopped by policemen, including defendant and escorted back to the motel. After a search of the purses of Potter and her sister all were taken to Westampton police headquarters. There Potter gave a written statement to defendant. He then left the room with the statement, returned, locked the door and advised her that she was being detained in connection with a drug investigation of Smitherman. Potter denied being in possession of any drugs but defendant insisted that he had to search her for needle marks. He looked at her arms and advised Potter that because some people shoot drugs in their stomach he had her remove her blouse. He then told her to expose the rest of her stomach which she did so by letting her pants fall. Defendant told her that if she proved she was not a drug addict, he would
let her entire group go home. Eventually, defendant did release all of them.
Defendant testified at trial that he recalled arresting Potter but denied that he attempted to search her or required her to undress. He said that he went to Potter's residence subsequent to the incident to obtain more drug information from her. Defendant claimed that Potter never accused him of having strip searched her.
On February 22, 1982, Patrolman Michael Mahalachek of the nearby Willingboro Township Police Department issued a ticket to Jane Anne Petroski at approximately 3:40 a.m. for going through a red light. She produced her credentials and because he smelled no odor of alcohol on her breath Mahalachek released her. Subsequently Mahalachek learned that Petroski had been driving while on the revoked list so he issued her another ticket and went to Westampton Police Station where he had been informed she was. Since the parking lot there was deserted, he left the summons on her car dashboard.
Actually, Petroski had run out of gas near the Westhampton police station and had coasted into the parking lot to use the emergency phone to get help. Burlington County Central Communications issued a radio message that there was a stranded female at the station. Defendant and his rookie partner, Officer Harvey Montijo, as well as several other officers, heard the dispatch on their way to the Burlington City Diner for breakfast. Defendant told Montijo to continue on and that he would answer the call.
Upon arriving at Westampton police headquarters, defendant asked Petroski for her driving credentials. She acknowledged that she had been drinking so he took her inside to perform balance tests. After she performed them he told her she had failed and would have to be searched. He picked up the phone to call a matron, but Petroski never actually saw him dial it. He then told her it would be a long time before someone could perform the search. Petroski was frightened and asked if
defendant could perform the search, not realizing it would involve undressing. Petroski had not been informed that she was under arrest. Initially, he had her remove her socks and boots. Defendant then told her he wanted to see if she had anything between her breasts and requested that she take off her shirt. She did not know what to do, but gathered up her shirt, not removing it. Defendant then told her he had to see if she had anything taped between her legs. He instructed her to drop both her jeans and panties. She complied out of fear of him and of losing her driver's license. He then made her sit in a chair facing him with her legs spread; then, standup, bend over and spread her legs again. After she dressed defendant told her he would not remove her license for driving while intoxicated but would issue her a ticket for driving while on the revoked list. However, defendant never issued such a summons. Thereafter, defendant then drove Petroski home. As she got out of the car, he said, "Don't screw me and I won't screw you."
The defendant's version of the Petroski incident was that he had seen a vehicle speeding down Rancocas Road but did not stop it. Subsequently, that same car broke down and defendant received a call regarding the disabled vehicle. He went directly to headquarters and met with the driver, Petroski. She produced driving credentials but she had blood on her hands and a rear window was broken; she indicated that she had been in a fight at the Washington House and that someone had broken her window. However, Petroski said that she did not want to report it because, "all pigs are the same."
Petroski asked the defendant if she could use the bathroom inside headquarters, so he let her in. He then called the dispatcher and found out that Willingboro Police had stopped Petroski earlier but had let her car go, not knowing that she had been driving on the revoked list. When Petroski came out of the bathroom, he asked her if she wanted to take a breathalyzer test since she looked like she was drunk. She asked to make a telephone call, adding that she wanted to call an
assistant prosecutor for whom her mother worked. Instead, the defendant told Petroski that he would not give her a ticket but would give her a ride home.
He was in the station with her about 15 minutes and in the parking lot for an equal amount of time. Petroski told him that he was a "really nice guy" for driving her home. He denied touching or searching her in any way. However, she had invited him to look into her purse. When he did he saw a small bag of marijuana which he had her dump in the parking lot. While this was going on, Montijo had been at the Burlington Diner eating breakfast with some other local policemen.
At one point defendant had communicated with Montijo and requested his assistance. The defendant eventually decided not to issue a summons to Petroski because of the various personal problems she mentioned as well as the tickets which had previously been issued to her that evening from the Willingboro Police. Eventually he decided to take Petroski home at 4:45 a.m. when Montijo failed to show up.
The incident came to light when Petroski subsequently called her stepmother, her father and her sister the same day and told them of the incident. Later that morning, Petroski's mother reported it to the Chief of the Westhampton Police Department, Russell Minuto. As a result, Chief Minuto telephoned defendant and questioned him concerning the incident. Defendant denied the allegations claiming that the girl was drunk or under the influence of drugs. Defendant insisted that Montijo was with him at all times and could verify his account of what had transpired.
After he had been contacted by Chief Minuto, defendant telephoned Montijo and advised him of the Chief's call and that he had advised the Chief that Montijo was present with him at the station with the girl. Defendant then requested that Montijo verify his version should the Chief inquire but Montijo refused.
Defendant testified that subsequently the Chief told him that the complaint was not being pursued any further. He denied requesting Montijo to lie for him. He added that the Chief also told him that Petroski's mother had called him back later and said that if her daughter had taken her clothes off, she had done so willingly. He denied ever telling the Chief that Montijo had been with him the entire time that he was with Petroski.
On April 30, 1982, defendant was arrested by members of the Burlington County Prosecutor's Office concerning the strip search of Petroski. On May 20, 1982, defendant was again arrested, this time as a result of a complaint concerning the strip search of Potter. On that day, after being advised of his rights, defendant told Captain Neil Forte of the prosecutor's office, "off the record, Neal, I hear you're the guy that's trying to stick it up my a . What's it going to take to get me out of this?" Defendant then offered to resign from the police department or plead guilty to a disorderly persons offense if Forte would terminate the investigation. Forte advised defendant that he could not speak to him with respect to the case since defendant had not waived his rights, and that Forte could not get involved in any type of plea bargaining.
Defendant's version of the post arrest discussions was that he never indicated a willingness to resign or plead guilty to a reduced charge. Rather, he said he was informed that if he resigned the charges would be dismissed. However, he refused to accept this offer. Defendant said the prosecutor's office had specifically advised his attorney that the indictment would be dismissed if the defendant resigned from the Westhampton Police Department, agreed never again to seek employment with any law enforcement agency and executed releases with respect to potential civil liability. The defendant again refused.
During the trial concerning the two incidents forming the basis of the charges in the indictment, the State sought to introduce evidence of three other similar incidents involving the defendant in his position as a police officer. Two of those
incidents occurred prior to the Petroski and Potter incidents while one occurred between those two dates.
In mid August 1979, Brenda McCabe was stopped by defendant at approximately 2:55 a.m. He asked for her driver's license and identification without informing her of the reason for the stop. He noted that she had produced an invalid insurance card and told her to follow him to the nearby Howard Johnson motel. There defendant removed from her pocket a pack of cigarettes which contained two marijuana joints.
Defendant then had her sit in his patrol car, told her she was in a lot of trouble, and asked "what are you going to do about this." Defendant, who is black, said something about getting a "white piece of a ." At that point, McCabe realized that defendant was asking her to engage in sex. McCabe feared that defendant would charge her with several offenses. Defendant instructed her to follow him in her car to police headquarters. Instead, he turned down a dirt road and she followed thinking she was under arrest. Defendant then got into her car and had sexual intercourse with her on the front seat. He returned the marijuana to her, did not issue any summonses and released her.
McCabe drove to the home of her estranged husband and complained to him and a visitor that she had just been raped by a black officer in Westhampton whose name tag read, "Stevens." However, McCabe declined their advice to report it to the police because she felt that the complaint would not be pursued by other officers. She saw defendant a year later when he again stopped her and issued her a summons. At that time she said, "You're the cop that raped me." He responded, "You'll never prove that." McCabe explained further that she didn't tell the police about the rape for three years because of the trauma a trial might cause her. However, a news photograph
of defendant published in connection with similar incidents prompted her to change her mind.
When defendant testified he denied all of McCabe's allegations, recollecting only that he had issued her a summons in October 1980, and that she had complained to him that a cop from Westhampton had raped her. He said that he noted her comment that policemen in Westhampton were "jerks," on his copy of the ticket.
In October or November of 1981 Montijo was a new cop assigned to night patrol with defendant in order to gain experience. Defendant suggested that they "go look for some parkers." Montijo drove up a dirt road and stopped about 25 yards from a parked vehicle. As both officers approached it two female heads appeared from the back seat. When they got out of the car, the lower garments of the older female, about 20 years of age, were around her ankles; the younger girl, about 16, was naked on top. When defendant asked for identification the older girl began to pull up her pants, but defendant told her to "leave your pants down." Defendant turned over their identification to Montijo and instructed him to return to the patrol car and write down the details. While in the patrol car, Montijo noticed that the younger girl was dropping her pants. He got "pretty upset" so he went over to defendant to ask what was going on. Defendant claimed that he was checking for weapons and drugs. When Montijo expressed disbelief defendant told him to return to his task in the car. After finishing, Montijo returned and heard the defendant say ...