Decided: November 18, 1994.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERALD TIMOLDI, DEFENDANT-APPELLANT.
On appeal from Superior Court, Law Division, Hudson County.
Before Judges Pressler, Landau and Newman.
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The opinion of the court was delivered by
Defendant Gerald Timoldi appeals following his conviction on one count of third degree possession of heroin entered pursuant to a negotiated plea. The ten-count indictment included several other possessory counts, as well as counts for possession with intent to distribute within 1,000 feet of school property, possession with intent to distribute, and official misconduct. In accordance with the plea agreement, Timoldi received a three-year probationary sentence conditioned upon attendance at an out-patient drug program and compliance with drug and alcohol rules of probation. In addition, pursuant to N.J.S.A. 2C:51-2a, Timoldi was ordered to forfeit his office or employment as Superintendent of Parks and Recreation, a "civil penalty which is a collateral consequence of conviction" of a crime of the third degree or greater. Old Bridge Public Wkrs. v. Old Bridge Tp., 231 N.J. Super. 205, 209, 555 A.2d 639 (App. Div. 1989). During the retraxit plea proceeding, Timoldi acknowledged that he was aware of the provisions of N.J.S.A. 2C:51-2a.
The only issue raised by Timoldi on appeal is that the requirement that his employment be forfeited upon conviction pursuant to N.J.S.A. 2C:51-2 results in the imposition of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments
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of the United States Constitution and Article I, Paragraph 12 of the New Jersey Constitution. Timoldi's amplification of this argument is essentially an "as applied" challenge keyed to the disproportionate impact of his job loss as compared to the gravity of the offense and to the failure to weigh adequately the fact that the crime resulted from a long-standing addiction to which he was addressing rehabilitative efforts. We conclude that Timoldi's cruel and unusual punishment argument is without merit.
The City of Bayonne submitted a memorandum to the sentencing Judge opposing the defense motion to stay or avoid application of the forfeiture provision. Thus, Timoldi's employer does not want him reinstated. The City's attorneys called attention to the fact, also noted by the Judge at sentencing, that the drugs were purchased by Timoldi while on official duty and with his assigned city-owned vehicle as the means and place of acquisition. The City further urged, and the sentencing Judge found, that these facts make the offense not merely a third degree offense, but one "involving or touching on his public office, position or employment" which, under N.J.S.A. 2C:51-2(c), both disqualifies Timoldi from future public employment and justifies the present forfeiture.
We hold that N.J.S.A. 2C:51-2*fn1 is not, as argued by Timoldi, simply an additional punishment imposed upon public
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employees but not upon those in the private sector. As stated in Moore v. Youth Correctional Institute, 119 N.J. 256, 271, 574 A.2d 983 (1990), the forfeiture statute reflects a belief that "the circumstances surrounding a criminal conviction bear directly on an employee's competency and capacity to do his or her job or to perform any other job for the State." We read the statute to reflect a legislative determination governing the standards of conduct to be observed by those who serve the public, as a condition to continued employment.
N.J.S.A. 2C:51-2 gives advance notice to all public servants, elected and appointed, that conviction of a crime of the third degree or higher will serve to terminate their public office or employment. See also N.J.S.A. 2A:135-9 (repealed); N.J.A.C. 4A:2-2.7. Significantly, the statute was adopted at the same time as N.J.S.A. 2C:51-1,*fn2 which demonstrates legislative cognizance of
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the need to balance public interests with rehabilitative interests in the imposition of disqualifications arising from criminal conviction.
The legislative judgment balances the interests of government in "the protection, security, and benefit of the people" (N.J. Const., art. I, P 2) with other goals of the sentencing process. Timoldi at least implicitly accepted the statutory condition when he became Superintendent of Parks and Recreation, a post in which, as the record provided us here shows, his youth-related duties were significant. The condition was later recognized by Timoldi explicitly and without reservation when the negotiated plea was entered.
To sustain a claim that punishment is cruel and unusual, a "substantial" showing must be made that it shocks the general conscience, violates principles of fundamental fairness, is grossly disparate to the offense, or goes beyond what is reasonably calculated as necessary to a legitimate penal aim. See State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983); State v. Fearick, 69 N.J. 32, 350 A.2d 227 (1976); State v. Hampton, 61 N.J. 250, 294 A.2d 23 (1972). That substantial showing has not been made.
Even if the loss of job were purely penal in nature, given Timoldi's fair notice that it would or could be a consequence of his criminal act, and the fact that while on duty he used his government vehicle as a place to complete a drug purchase and keep heroin, we find no merit in the cruel and unusual punishment contention. Compare Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859, 874 (1976); State v. Maldonado, 137 N.J. 536, 561 (1991); State v. Des Marets, supra, 92 N.J. at 82; State v. Krueger, 241 N.J. Super. 244, 256, 574 A.2d 1006 (App. Div. 1990). The sentencing Judge properly
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recognized that the offense occurred upon and with the use of public property during working hours.
The property forfeiture cases cited by Timoldi are inapposite. There is no absolute property right in a government job. Unlike private property, Timoldi's public employment has always been subject to the plainly enunciated statutory condition of forfeiture upon conviction of crimes of the third-degree or higher. Our cases have consistently enforced the provision. See, for example, Pastore v. County of Essex, 237 N.J. Super. 371, 568 A.2d 81 (App. Div. 1989) certif. denied, 122 N.J. 129 (1990), and cases cited therein at page 377. As we stated there, "The statute was designed to protect the public, not the offender, and we construe it so as to advance this objective."
Id. at 377-78.