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State v. Whalen

Decided: August 16, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS WHALEN, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

J.h. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D. Baime, J.A.D., concurring.

D'annunzio

[235 NJSuper Page 507] Defendant, a City of Bayonne police officer, was convicted of perjury after a jury trial under State Grand Jury Indictment 148-85-4(2). The court sentenced him to three years probation and community service. He now appeals. The principal issue is whether New Jersey's perjury statute, N.J.S.A. 2C:28-1,

unconstitutionally delegates to the trial court the function of determining whether an allegedly false statement is material. N.J.S.A. 2C:28-1b.

The State presented evidence which, if credited, established the following facts. In January 1983, defendant, a Bayonne detective, told the state police that he had an informant who could provide information regarding a loansharking and gambling operation being conducted at a Jersey City luncheonette. On January 19, 1983, two state police detectives met with defendant and his informant, a woman whom defendant introduced as Grace. She told the detectives about a loansharking operation she permitted a man named Red to run from her luncheonette. Grace and defendant also provided other information about the loansharking activities.

The investigation was assigned to the State Police Organized Crime Bureau (Bureau). On January 31, 1983, Detective Place of the Bureau went to Grace's luncheonette. His observations there corroborated the information he had received about the loansharking operation. On February 1, 1983, Place met with Grace Walczyk and defendant at the Hackensack State Police Barracks. Defendant introduced Walczyk as his informant and his girlfriend, and he and Walczyk provided information to Place about the loansharking operation, including a list of debtors and collectors. Place confirmed the information through further investigation.

According to Place, he met with defendant and Grace Walczyk five or six times between February 1 and March 19, 1983 and also met with them after that date. On March 19, 1983, a listening device was placed at Walczyk's luncheonette and, thereafter, Place had daily conversations with Walczyk and met with her twice a week.

Walczyk was called to testify before the State Grand Jury on November 20, 1984 and February 5, 1985. On both occasions Walczyk denied any knowledge of Red's involvement in loansharking activity and denied having given information to Place or to any other law enforcement authorities concerning the

loansharking activities. As a result of her testimony, the State presented evidence of Walczyk's perjury and false swearing to the Grand Jury on October 21, 1985. Defendant was called as a witness. He denied that Walczyk participated in the initial meeting with state police detectives, acknowledged that he had obtained information from Walczyk without her knowledge but denied that she was present at any of his meetings with Place.

Defendant was charged with perjury in a one-count indictment which alleged that defendant was called as a witness before the State Grand Jury inquiring into perjury and false swearing by Grace Walczyk, that "it then and there became material upon the hearing of the said matter to inquire among other things, whether the said THOMAS WHALEN and Grace Walczyk met with New Jersey State Police Officers in the first half of 1983" and further alleged that "in reference to the aforesaid material matters . . . Thomas Whalen then and there before the State Grand Jury, not believing his answers to be true, said swore and gave in evidence, among other things, in substance and to the effect that he and Grace Walczyk did not meet with New Jersey State Police Officers."

N.J.S.A. 2C:28-1a. and b. provide:

2C:28-1. Perjury

a. Offense defined. A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.

b. Materiality. Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding or the disposition of the matter. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material is a question of law.

The predecessor perjury statute, N.J.S.A. 2A:131-1 et seq., did not allocate the materiality issue to judge or jury.*fn1 However, in New Jersey the issue of materiality historically has been allocated to ...


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