On appeal from the 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
The issue is whether we should dismiss on double jeopardy grounds the State's appeal from judgments of acquittal entered by the trial court at the close of the State's case.
Atlantic County Indictment No. 89-12-3515 (State Grand Jury Indictment SGJ233-89-3(1)) charged defendants-respondents Walter Collette, Gene Dorn, and Harold Mosee with
conspiracy to commit racketeering (N.J.S.A. 2C:41-2d; count one), racketeering (N.J.S.A. 2C:41-2c and N.J.S.A. 2C:2-6; count two); conspiracy (N.J.S.A. 2C:5-2; count three); bribery (N.J.S.A. 2C:27-2 and N.J.S.A. 2C:2-6; counts four, five, and twelve as to defendant Collette; counts six, seven, eight, nine and ten as to defendant Dorn; count twelve as to defendant Mosee); gifts to public servants (N.J.S.A. 2C:27-6 and N.J.S.A. 2C:2-6; counts fourteen and seventeen as to defendant Collette; counts eighteen, nineteen, twenty, twenty-one and twenty-two as to defendant Dorn; count seventeen as to defendant Mosee); official misconduct (N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6; count fifteen as to defendant Collette; count twenty-three as to defendant Dorn; count sixteen as to defendant Mosee); and commercial bribery (N.J.S.A. 2C:21-10a and 2C:2-6; count twenty-four, defendant Dorn only). Several codefendants, including Kaleem Shabazz, were also named as coindictees, and were charged with several offenses, including bribery and gifts to public servants.
The State filed notices of appeal from judgments of acquittal on counts 2, 4, 5, 14 and 17 regarding Collette; counts 2, 6, 7, 8, 9, 10, 18, 19, 20, 21 and 22 regarding Dorn; and count 17 regarding Mosee. Thereafter, we denied defendants' motions for summary Disposition, which they had predicated on double jeopardy grounds. However, recognizing the significance of defendants' double jeopardy argument and the need to decide that issue before addressing the merits of the State's appeal, i.e., whether the trial court correctly decided defendants' motions for judgments of acquittal, we "bifurcate[d] the double jeopardy issue from the substantive issues" and ordered an "expedited schedule . . . for the full briefing and argument of the double jeopardy issue." Although we did not consolidate the appeals we ordered that they be placed on the same calendar. We now consolidate them for the purpose of this opinion.
The 27 count, 40-page indictment is a complex document, but the core allegation is that Collette and Dorn, as members of the
city council, in return for money or other benefits, influenced or attempted to influence the Atlantic City Zoning Board to act favorably upon certain commercial land use proposals. It is alleged that Mosee, who was not an office holder, aided and facilitated the scheme.
The various counts of the indictment were not concisely or simply phrased. We reproduce two counts of the indictment to inform the reader of the complexity of their structure:
(Bribery -- Second Degree)
on or about May 25, 1989, at the City of Atlantic City, in the County of Atlantic, elsewhere, and within the jurisdiction of this Court, did commit the offense of bribery, in that the said WALTER COLLETTE directly and indirectly did agree to accept and accept from another a benefit in excess of $200 as consideration for the decision, vote, recommendation and exercise of official discretion in an administrative proceeding, that is, the said WALTER COLLETTE being a public servant, that is City Council President of the City of Atlantic City, and thereby having, among others, the official duty to appoint and reappoint members of the Atlantic City Zoning Board, did agree to accept and accept $1000 in United States currency from Albert Black, as compensation for the said WALTER COLLETTE's exercise of influence over members of the Atlantic City Zoning Board, appointed by the said WALTER COLLETTE, in obtaining approval for a proposal submitted to the said Atlantic City Zoning Board for a commercial zoning ...