On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
The opinion of the court was delivered by
Pursuant to leave granted, the State appeals from the third decretal paragraph of a November 18, 1991 order dismissing counts two and nine of Atlantic County Indictment 89-12-3516
(State Grand Jury Indictment 233-89-3(2)) as to defendant Harold Mosee. The issue is whether a person who is not a public servant may, nevertheless, be guilty of the crime of official misconduct, N.J.S.A. 2C:30-2, as an accomplice or co-conspirator.
N.J.S.A. 2C:30-2, the official misconduct statute, criminalizes certain acts of public servants. Harold Mosee was not a public servant at the time the alleged acts were committed. Count two of the indictment alleged that Lillian Bryant, as supervisor of the Atlantic City Landlord-Tenant Affairs Office, was a public servant, that she had the power to influence rent increases for rental units within Atlantic City and "that the said Lillian Bryant directly and indirectly through the said Harold Mosee, did agree to accept and accept $2,000 in United States currency from Albert Black, as compensation for the said Lillian Bryant's calculation and recommendation of rental increases for" certain rental units in Atlantic City "contrary to the provisions of N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6."
Count nine alleged that Sylvetta Pilgrim, as an employee of the Atlantic City Landlord-Tenant Affairs Office, was a public servant, and that the "said Harold Mosee and the said Sylvetta Pilgrim, directly and indirectly through said Harold Mosee, did agree to accept and accept $300 in United States currency from Albert Black . . . as compensation for the said Sylvetta Pilgrim's calculation and recommendation of rental increases" for certain rental units in Atlantic City "contrary to the provisions of N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6."
Prior to trial, the State moved for a ruling regarding the sufficiency of the indictment.*fn1 See R. 3:10-1. The defendant Harold Mosee cross-moved to dismiss the indictment. Id.; R. 3:10-2. After oral argument, the motion Judge ruled "that the law is, and properly should be, that only a person who is a
public servant can be found guilty of misconduct in office. Mr. Mosee not being a public servant cannot be found guilty of that offense even as an accomplice or co-conspirator." We now reverse.
N.J.S.A. 2C:2-6a provides that a person is guilty of an offense "if it is committed by his own conduct or the conduct of another person for which he is legally accountable, ...