On appeal from the Superior Court, Law Division, Bergen County.
Petrella, R.s. Cohen*fn1 and Kestin. The opinion of the court was delivered by Kestin, J.s.c. (temporarily assigned).
KESTIN, J.S.C. (temporarily assigned).
Defendant was charged with two counts of third-degree bribery and with possession of cocaine. He was convicted of both bribery charges but was acquitted of the drug charge. Concurrent sentences of four years were imposed on the bribery charges and an aggregate VCCB penalty of $60.00 was levied.
Defendant was selling jewelry in a tavern without a permit. Police had been summoned to the scene by a patron who, upon inquiring, had been told by defendant that the jewelry was "hot", thus accounting for his asking prices which were much lower than the amounts stated on price tags attached to the items. Defendant represented that the items were made of real gold. It was subsequently determined that the jewelry was neither stolen nor genuine. The State and defendant stipulated that the actual value of all the jewelry in the defendant's possession was less than $200.00.
Two detectives responded to the police call. They asked defendant if he had a permit to sell the jewelry, eliciting a negative response. Defendant was then asked for his identification. It was alleged that when defendant withdrew his hand from his pocket in the act of producing identification a folded $20.00 bill fell to the floor. When unfolded, the bill was found to contain a white powder which turned out to be cocaine, the basis of the drug charge.
Defendant was placed under arrest, handcuffed and escorted to a police car. Once in the car, alone with Detective Dalton, defendant offered Dalton some of the jewelry if Dalton would forget about the drug charge and simply issue a summons for peddling without a permit. Dalton refused and advised defendant that he would also charge defendant with bribery. Defendant once again suggested the exchange. While being transported to police headquarters defendant made the same offer to both Dalton and his partner. At police headquarters, he asked
Dalton to forget the bribery charge, once again requesting that he be given only a summons for peddling without a permit.
On appeal, defendant raises the following arguments:
POINT I THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT THE STATE WAS REQUIRED TO PROVE THE VALUE OF THE BENEFIT OFFERED TO DETECTIVE DALTON BEYOND A REASONABLE DOUBT IN ORDER TO CONVICT DEFENDANT OF BRIBERY UNDER N.J.S.A. 2C:27-2 DENIED DEFENDANT THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
POINT II THE TRIAL JUDGE'S FAILURE TO GRANT DEFENDANT A JUDGMENT OF ACQUITTAL ON COUNT ONE CHARGING BRIBERY UNDER N.J.S.A. 2C:27-2(d) VIOLATED HIS RIGHT TO DUE PROCESS OF LAW.
POINT III THE TRIAL JUDGE'S FAILURE TO MERGE DEFENDANT'S TWO CONVICTIONS FOR BRIBERY UNDER N.J.S.A. 2C:27-2(c) AND (d) VIOLATED HIS RIGHT TO DUE PROCESS OF LAW AND THE ...