On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Shebell, Skillman and Wallace.
The opinion of the court was delivered by
Defendant John Hinds was indicted with codefendant Michael Borsari for second degree conspiracy contrary to N.J.S.A. 2C:30-2a, 2C:20-3, 2C:20-7, and 2C:5-2; second degree official misconduct contrary to N.J.S.A. 2C:30-2, and 2C:2-6; third degree theft by unlawful taking contrary to N.J.S.A. 2C:20-3a, 2C:20-2, and
2C:2-6; and third degree theft by receiving stolen property contrary to N.J.S.A. 2C:20-7, 2C:20-2, and 2C:2-6. Following a jury trial defendant and Borsari*fn1 were found guilty on all counts. The trial court merged the conspiracy count into the official misconduct count and sentenced defendant to a seven year custodial term. The trial court also merged the third degree theft counts and imposed a concurrent four year custodial term. After the trial court denied defendant's motion for bail pending appeal, we granted bail pending appeal. This appeal followed.
Defendant raises the following contentions in his brief on appeal.
THE DEFENDANT'S CONVICTIONS OF OFFICIAL MISCONDUCT AS AN ACCOMPLICE AND OF CONSPIRACY ARE UNSUPPORTED BY THE FACTS AND PERTINENT LAW.
THE JURY INSTRUCTIONS AS TO OFFICIAL MISCONDUCT WERE MISLEADING AND HIGHLY PARTIAL TO THE STATE, NECESSITATING REVERSAL.
NUMEROUS AND EGREGIOUS INSTANCES OF MISCONDUCT BY THE PROSECUTOR AND TRIAL JUDGE VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL. U.S.CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT'S FAILURE TO EXCUSE FOR CAUSE OR CONDUCT SUFFICIENT EXAMINATION ON VOIR DIRE OF NUMEROUS VENIRE PERSONS DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY. U.S.CONST., AMEND. VI; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT'S REFUSAL TO DOWNGRADE THIS MATTER FOR SENTENCING PURPOSES TO A THIRD-DEGREE OFFENSE RESULTED IN AN EXCESSIVE SENTENCE AND THUS AN ABUSE OF DISCRETION.
For the reasons that follow, we reverse.
Defendant was employed as a security manager for a Caldor store in Holmdel, New Jersey. Borsari, a twenty-one year veteran of the Holmdel Police Department, was employed as a police sergeant in charge of the Department's detective bureau. Defendant and Borsari had known each other for over twenty years. They were often seen walking together through the Caldor store. In December 1990, the Caldor store manager, Thomas Keenan, began to suspect that defendant and Borsari were stealing merchandise. The incidents which led to an investigation and ultimately to defendant's arrest were described similarly by the witnesses on behalf of the State.
Pat Quaglia, the operations manager of Caldor, testified that shortly after she started to work at Caldor, defendant introduced her to Borsari. On one occasion she commented to Borsari that he was in the store often, and Borsari replied that he helped defendant catch shoplifters.
Debbie Eichler, a store employee, testified that on December 3 or 4, 1990, she saw Borsari pushing a shopping cart through the store which contained a blue Rubbermaid tote. While walking through the store, he placed various items of merchandise in the tote. Borsari exchanged glances with defendant and walked out the front entrance. The merchandise was neither bagged nor tagged. The following morning, Eichler told defendant that she had seen Borsari leave the store with unpaid merchandise. According to Eichler, defendant said "it can't be true ... and if it [is I will] punch Mike in the nose." However, defendant gave no indication that he would investigate the incident.
On December 7, 1990, Keenan saw Borsari in the store's record department. Borsari had a shopping cart which contained a blue Rubbermaid tote. Keenan observed Borsari hold up two videotapes and wave them at defendant. Borsari then left the store with unpaid merchandise with defendant behind him. Keenan decided not to stop Borsari and defendant as they exited the store. Keenan immediately contacted James Hanway, Caldor's regional
security manager, to inform him of the situation. Hanway, in turn, contacted Caldor's regional investigator, William Soop, and detectives William Hutnick and Dan Hurley of the New Jersey State Police Corruption Department. They decided to set up a surveillance of the Holmdel store.
Soop began his surveillance on December 13, 1990. He was given a physical description of the suspects, a copy of defendant's work schedule, and a camcorder. Soop arrived at the store at 6:37 p.m. As he walked through the store, he saw Borsari in the appliance department with a shopping cart containing several items. He then saw Borsari walk to the housewares department, grab a Rubbermaid tote, and place the merchandise that was in his cart inside the tote. From a security booth Soop then observed Borsari speak to defendant. Soop had left his camcorder in the car and did not videotape what he saw.
Soop then left the security booth and went to his car. From that vantage point, Soop observed Borsari exit the store without paying for the merchandise and place the merchandise in his car. Soop discontinued his surveillance and telephoned Hanway to report his observations. A video surveillance was planned for December 16, 1992.
On December 16, 1992, Soop arrived at the store at 7:45 a.m. He stationed himself in the store's security tower with a camcorder and a two-way radio. Hanway was stationed in the parking lot with detectives Hutnick and Hurley in order to observe the front entrance of the store.
According to Soop, defendant arrived at the store at 9:12 a.m. He saw defendant talking to his wife who was shopping. Borsari arrived at the store at approximately 10:50 a.m with his two-year old grandson. After speaking with defendant, Borsari began walking through the store. Borsari took a Rubbermaid tote off the shelf and placed it in his shopping cart. As he walked through the store, Borsari placed merchandise inside the tote. Borsari then entered the store's vestibule area near the front entrance and
Soop lost sight of him. Soop radioed Hanway and the detectives and told them that Borsari was exiting the store.
Upon receiving Soop's communication, Hutnick moved his car to the front of the parking lot and waited for Borsari to exit the store. Borsari left his grandson with an acquaintance in the vestibule and walked with the merchandise to his car. As Borsari was putting the merchandise in his car, Hanway and Hutnick approached him and identified themselves as police officers. According to Hutnick, Borsari said that he was also a police officer and was working with defendant. Hutnick looked into the rubbermaid container and told Borsari that he would be charged with shoplifting, and administered Miranda*fn2 warnings.
After Hutnick removed the stolen merchandise, Borsari was permitted to drive his grandson home. Detective Hutnick followed Borsari to his home where Hutnick again administered Miranda warnings. At that time, Borsari admitted stealing merchandise and agreed to return everything he had taken from the store. Borsari entered his home and emerged with the merchandise he had taken from Caldor on previous occasions. Hutnick returned to Caldor with the stolen merchandise he had recovered. The prices on the recovered merchandise totaled approximately $560.
Meanwhile, Detective Hurley identified himself to defendant and administered Miranda warnings. Defendant agreed to speak to Hurley and admitted seeing Borsari in the store that day. However, defendant told Hurley that he did not know whether or not Borsari had paid for the merchandise in his shopping cart.
Borsari testified at trial and admitted stealing merchandise from Caldor on December 13, 1990, December 16, 1990, and one other date; but maintained that he was never on police duty when he committed the thefts. Borsari testified that defendant was unaware that he was stealing merchandise from the store. Borsari
said that he did not plan to steal anything with defendant and all conversations he had with defendant related to Borsari's personal problems. Defendant did not testify at trial.
Based on this evidence, both Borsari and defendant were convicted of official misconduct, conspiracy, and theft.
The primary issue presented in this appeal is whether defendant may be convicted of official misconduct as an accomplice or co-conspirator for actions committed by Borsari, a police officer, while Borsari was not in the performance of his duties. Defendant contends that he should not have been convicted of official misconduct as an accomplice or co-conspirator or of conspiracy to commit official misconduct because Borsari did not violate N.J.S.A. 2C:30-2. Defendant further argues that even if Borsari could properly be convicted of official misconduct, defendant could not be held accountable for the same conduct as an accomplice or co-conspirator because N.J.S.A. 2C:30-2 was intended to apply to public servants only, and not private citizens.
We view the issue as one of statutory construction. In addressing statutory construction, we are mindful that we must begin our analysis by looking at the wording of the statute to ascertain its plain meaning. See Town of Morristown v. Woman's Club of Morristown, 124 N.J. 605, 610, 592 A.2d 216 (1991). Absent a legislative intent to the contrary, the language of the statute should be given its ordinary meaning. Ibid. See also Merin v. Maglaki, 126 N.J. 430, 434, 599 A.2d 1256 (1992). We are required to "effectuate the legislative intent in light of the language used and the objects sought to be achieved." State v. Maguire, 84 N.J. 508, 514, 423 ...