On appeal from Superior Court, Law Division, Essex County.
Approved for Publication November 8, 1995. As Corrected.
Before Judges Pressler, Wefing and A.a. Rodriguez. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by PRESSLER, P.J.A.D.
Following a trial by jury, defendant Michael Krieger was acquitted of two charges of second-degree bribery, N.J.S.A. 2C:27-2, and two related charges of second-degree misconduct in office, N.J.S.A. 2C:30-2. He was, however, convicted of a fifth count of the indictment, which charged him with third-degree hindering the apprehension, prosecution, conviction or punishment of himself or his co-defendant, Luis Zafra, by tampering with a witness, contrary to N.J.S.A. 2C:29-3. He appeals, and we reverse.
The core of defendant's legal argument is that hindering the prosecution of another by witness tampering, as defined by section a. of N.J.S.A. 2C:29-3, is an entirely distinct crime from hindering the prosecution of oneself by witness tampering, as defined by section b of the statute. He further asserts that the elements of witness tampering under these two sections are different. He contends, therefore, that it was error to join the two crimes in a single count of the indictment and to permit the jury to rest a finding of guilt on one or the other. We agree, concluding that the jury's verdict of guilt is fatally defective.
Only a brief reference to the facts is necessary in order to address the issues raised on this appeal. Defendant Krieger was the Zoning Official of the City of Newark from 1986 to 1994. During the critical time period, co-defendant Zafra was the sub-code official in the city's building department. The State Division of Criminal Justice undertook an investigation of Krieger because of allegations that he was soliciting and accepting bribes in connection with his official duties. The State obtained the cooperation of Jim Bass, a Newark contractor who had had dealings with Krieger in the past. An undercover investigator, George Wright, posed as Bass's nephew and employee. The gravamen of the State's bribery and official misconduct charges against Krieger was his alleged solicitation of bribes from Bass and Wright for the approval of a development application submitted by Bass. The gravamen of the State's case against Zafra was that he had received a portion of the money paid to Krieger for issuance of the required approvals for the Bass project. These bribery and misconduct charges against Krieger and Zafra were severed for trial, and, as noted, the jury acquitted Krieger of these charges.
The only matter before us is the "hindering by witness tampering" count. The State's sole evidence in support of this charge was a telephone conversation between Wright and Krieger recorded by Wright. During the course of the conversation Krieger told Wright that he, Krieger, was in jeopardy and that Zafra had already been "locked up." Krieger then said to Wright, "you don't know nothing about what he's talking about." This is the balance of that allegedly incriminating conversation:
Krieger: You never did business.
Krieger: You never gave him nothing.
Krieger: You never asked him ...