On appeal from Superior Court, Law Division, Passaic County.
Michels, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Gaynor, J.A.D.
Pursuant to leave granted, defendant, Arthur W. Hoffman, appeals from an order denying his motion for admission into the Passaic County Pretrial Intervention Program (PTI). We reverse.
Defendant was charged with official misconduct in violation of N.J.S.A. 2C:30-2 and criminal trespass in violation of N.J.S.A. 2C:18-3 a. The charges arose out of Hoffman's duties as an officer of the Special Civil Part of the Superior Court when he entered the dwelling of a defendant in a civil suit to recover property under a writ of replevin which he believed to be valid but, in fact, was unsigned.
The defendant had been a constable*fn1 in the Bergen County court system for approximately 18 years at the time of the incident giving rise to the indictment returned against him. His duties include the execution of eviction orders and writs of replevin. In accordance with his usual practice of acting upon papers left in his box at the courthouse, he did so in February 1984 with respect to a packet of papers found in his box relating to a replevin action involving furniture sold to one Elizabeth Whittingham, the named defendant. Without checking to see if the included writ of replevin was signed by a judge but noting that the summons was endorsed "bond filed in the amount of $5,000," indicating to him that the writ had issued, defendant proceeded to make arrangements for executing the writ. The furniture company was notified to have a truck at the location on the specified date and a locksmith was engaged. Upon arriving at the Whittingham apartment and finding no one at home and the building superintendent without a key, entry was gained by the removal of the lock. While this was being done a local police officer appeared and inquired as to
what was going on. According to defendant's grand jury testimony, the officer looked at the copy of the paperwork shown to him by defendant, "went back to his patrol car, radioed in, came back, said go ahead." The officer's testimony was that, after being shown the papers by defendant, "I asked where on those papers that it said we can break into the apartment and remove the furniture. He (the defendant) said 'We do this anyway. It doesn't say here, but I can do it anyway.'" The items of furniture involved were then removed by the employees of the company.
Mrs. Whittingham had appeared on the scene while the repossession of the furniture was in progress. Knowing that the replevin action previously had been dismissed, she proceeded immediately to the courthouse to complain to the judge. There, notwithstanding her observations to the contrary, she was assured that her furniture could not be removed since the case had been dismissed and no court order had issued authorizing the repossession. Unsatisfied with this explanation, Mrs. Whittingham sought the advice of an attorney. An investigation of the incident undertaken by the judge satisfied him that defendant had acted without appropriate authority in that the writ of replevin included in the papers delivered to defendant had not been signed. Defendant was reprimanded for his negligence in executing an unsigned writ.
Although not so viewed by the attorney general, the investigative reports and testimony before the grand jury, while not crystal clear on the issue, can reasonably be understood as indicating that defendant was unaware at the time of the repossession that he was acting without the authority of a signed order. Officer Velez, one of the investigating officers, in explaining defendant's statements with respect to this issue, acknowledged that defendant stated he was aware at the time of giving the statement that he did not have authority to act. Further that defendant "agreed that he had made a mistake, he had expected the order to be issued." That defendant had acted under the mistaken belief that the replevin had been
authorized also can be gleaned from defendant's testimony before the grand jury. He acknowledged that he did not examine the documents to determine that the replevin writ had been signed, but explained his understanding that the endorsement on the summons showing the filing of a bond meant that the writ had issued. Also, if he had noted the unsigned writ, he would not have proceeded with the execution. Defendant's subsequent statement to the PTI program director and the affidavit in support of his motion for admission to the program clearly indicate that he had acted without verifying the validity of the writ of replevin and that he would not have executed the order if he had known it was unsigned.
In concluding that Hoffman was a suitable candidate for PTI, the program director noted:
Mr. Hoffman has accepted his full responsibility for the commission of the alleged offenses and he has shown remorse for his actions. The fact that the defendant is a Process Server was a concern to the office. However, the information cited in the prosecutor's investigation points out that the defendant's actions were not the normal misconduct in office for the purpose of self-gain. Furthermore, a verbal reprimand and a one-day suspension were the only actions taken against the defendant. Consideration has been given to the fact that the defendant's version of the offense does not agree in all aspects with the information contained in the investigative material. Nevertheless, this ...