On certification to the Superior Court, Appellate Division, whose opinion is reported at 278 N.J. Super. 1 (1994).
Chief Justice Wilentz and Justices Handler, Pollock, Garibaldi, Stein, and Coleman join in Justice O'hern's opinion. The opinion of the Court was delivered by O'hern, J.
The opinion of the court was delivered by: O'hern
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. John F. Hinds (A-61-95)
Argued November 28, 1995 - Decided April 10, 1996
O'HERN,J., writing for a unanimous Court.
In December 1990, John Hinds was employed as the security manager of a Caldor department store in Holmdel. Co-defendant Michael T. Borsari was a twenty-one year veteran of the Holmdel police force and was in charge of the Detective Bureau. Hinds and Borsari had known each other for twenty years.
The store manager suspected that Hinds and Borsari were jointly involved in theft. After several incidents occurred that supported that belief, Caldor arranged with the State Police to have a Caldor security investigator perform a surveillance on the store. As a result of that surveillance, Hinds and Borsari were charged with conspiracy, official misconduct, theft, and theft by receiving stolen property. A jury convicted both of them on those counts.
On appeal, the Appellate Division reversed Hinds' conviction for official misconduct, finding that because Borsari's actions did not constitute "official misconduct," Hinds' conviction as an accomplice could not stand. The remaining charges were also reversed for other reasons. They were remanded to the Law Division for a new trial.
Although the Court initially denied the State's petition for certification on the official misconduct charge, it subsequently granted the State's motion for reconsideration.
HELD: In engaging in theft and the receipt of stolen goods, a police officer's conduct was sufficiently related to his official status that it constituted the crime of official misconduct.
1. Although official misconduct formerly was both a statutory and common law crime, the Code of Criminal Justice abolished common law crimes in 1979. The current statutory definition is based on New York law. (pp.5-7)
2. The argument that a police officer who commits a crime unrelated to his office and while off duty cannot be guilty of official misconduct for failing to arrest himself does not take the actual situation presented here into account. Hinds was found guilty of theft. Borsari's misconduct was his failure to perform his duties and arrest Hinds for his thefts. Further, the receipt of stolen goods by an off-duty police officer can constitute official misconduct. (pp. 8-11)
3. Not every offense committed by a public official involves official misconduct. The Court declines to accept the State's argument that the statute can be read broadly to mean that any violation of the law exposes a police officer to official misconduct. (pp. 11-12)
4. Hinds may be found guilty as an accomplice to Borsari's crime of official misconduct. On retrial, the jury must be instructed that to be found guilty of accomplice liability, Hinds must have acted with the purpose of promoting or facilitating the substantive offense for which he is charged as Borsari's accomplice. He had to have shared with Borsari the intent to abuse Borsari's office. (pp. 13-15)
5. To convict Borsari of official misconduct, the jury would have to find that Borsari was a public servant at the time of the incident, that he refrained from performing an act that he was required to perform, and that he did so with the purpose to benefit himself or another or to injure or deprive another of a benefit. (p. 15)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for a retrial with the remaining charges.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER,POLLOCK,GARIBALDI,STEIN, and COLEMAN join in JUSTICE O'HERN's opinion.
The opinion of the Court was delivered by O'HERN, J.
The primary question in this appeal is whether an off-duty police officer who conspires with the private security manager of a store to engage in shoplifting may be found guilty of official misconduct. On the facts of this case, we hold that the officer's conduct was sufficiently related to his official status to constitute the crime of official misconduct. The secondary issue is one of accomplice liability. We find that the defendant in this case, who was the store's ...