On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-04-00018-5.
Before Judges Petrella, Braithwaite and Wells.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal by the State from a judgment notwithstanding the verdict that reduced defendant's jury conviction for second- degree official misconduct, N.J.S.A. 2C:30-2, to third-degree official misconduct. Following the jury's verdict of guilty to a charge of second-degree official misconduct, defendant moved for a judgment notwithstanding the verdict, arguing that the value of the "benefit" he received from the receipt and conversion of $4,800 in government money was $200 or less and therefore his conviction should be graded as a third-degree offense rather than a second- degree offense. See N.J.S.A. 2C:30-2(b).
The trial judge granted defendant's motion for a judgment notwithstanding the verdict and reduced defendant's official misconduct conviction to one of the third-degree.
On appeal, the State contends that the trial judge erred in granting defendant's motion. We agree and now reverse and reinstate the original jury verdict of guilty to second-degree official misconduct. We remand to the trial judge for resentencing.
Defendant Thomas E. Cetnar III, was a lieutenant and later a captain in the Essex County Prosecutor's Office ("ECPO"). In both capacities, defendant was responsible for the Special Investigations Unit ("SIU"). One area of investigation of the SIU was illegal narcotics distribution.
On October 23, 1995, defendant requested authorization to receive $4,800 in confidential government funds in order to conduct an undercover narcotics investigation. Defendant represented falsely to his superiors that he was investigating certain narcotics transactions in an area of Newark. His request was approved by the proper authority in the ECPO and a check for $4,800 was given to defendant. Defendant cashed the check.
At the time defendant received the funds, he was living with his then-girlfriend, Diane Rockwell. Rockwell maintained a checking account in her name from which the joint household expenses for her and defendant were paid. Defendant would deposit funds into Rockwell's account to help pay their bills. On October 26, 1995, three days after defendant received the $4,800, $2,500 of the funds were deposited into Rockwell's account. Prior to the deposit, there was only $197.79 in the account. However, Rockwell had written and mailed a check in the amount of $1,100 to American Express. The check payable to American Express cleared Rockwell's account on October 26, 1995. Rockwell testified that she was very careful about balancing her checking account and would not mail checks to pay bills unless there was sufficient money to cover the checks or knew that an adequate deposit was about to be made to cover the written check or checks.
The ECPO had a policy that funds received for undercover operations that went unused were to be returned to the ECPO within forty-eight hours. The prosecutor who approved defendant's receipt of the $4,800 learned within a week of defendant's receipt of the funds that the alleged undercover investigation was not going forward.
In light of this fact, defendant's superiors insisted that he return the money to the appropriate place in accordance with ECPO's protocol. Defendant refused to do so and told one superior, in late 1995, that the money was in an ECPO office safe. The representation was false. Defendant was told to return the funds to the proper location, but still refused to do so.
In March 1996, some five months after defendant's receipt of the money, his superior learned that the funds had not been returned. ...