On appeal from Superior Court of New Jersey, Law Division, Essex County, 98-8-3353-I.
Before Judges Baime, Newman and Fall.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case concerns allegations that five members of the Newark Police Department engaged in a conspiracy to steal firearms that had been surrendered to the police under the City's "Gun Amnesty and Buyback" program. The State's theory was that Lieutenant Milton Medina and Patrolman Jose DaSilva stole a Marlin twelve gauge shotgun that had been surrendered to the Newark East District Precinct Station, and that police officers Robert Russo, John Zajkowski, and John Lavook participated in the unlawful scheme. A grand jury returned a seventeen count indictment charging the five men with a variety of crimes stemming from their roles in the criminal plot. The indictment charged defendant Medina with second degree conspiracy (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2a and -2b), third degree conspiracy (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3a), two counts of official misconduct -- one by engaging in the unauthorized exercise of an official function (N.J.S.A. 2C:30-2a), and the other by refraining from performing an official duty (N.J.S.A. 2C:30-2b), and third degree theft of a firearm (N.J.S.A. 2C:20-3a).
After Zajkowski and Russo pled guilty, the Law Division granted the State's motion to dismiss the conspiracy counts, and to downgrade the remaining charges against Medina, DaSilva and Lavook to disorderly persons offenses. Following a protracted bench trial, the Law Division judge found Medina guilty of obstruction of justice (N.J.S.A. 2C:29-1) and theft of an article worth less than $200 (N.J.S.A. 2C:20-3). Medina was sentenced to concurrent probationary terms of one year. The convictions resulted in the forfeiture of defendant's office.
Defendant appeals, contending: (1) the Law Division erred by permitting the prosecutor to downgrade the charges to disorderly persons offenses, thus depriving him of his right to a jury trial, (2) the judge committed plain error by failing to recuse himself, (3) the judge's questioning of Lavook and other witnesses unfairly bolstered the State's case, and (4) the judge improperly denied his motions for a judgment of acquittal. We reject these arguments.
On January 26, 1998, Newark Police Director Joseph Santiago issued a directive describing the duties of police personnel in implementing the City's Gun Amnesty and Buyback program. The program was to be managed by each district's supervisor, usually the desk lieutenant. He was to ensure that requisite forms, including a log listing the gun's serial number and identifying the specific weapon, were completed, and that the designated payment was disbursed to the person surrendering the firearm. The amount of the payment was not negotiable, but depended upon the type of weapon surrendered. Under the directive, the person surrendering the firearm could insist that he remain anonymous. The weapon was to be secured in the district police station, and was to remain the property of the Newark Police Department.
On March 6, 1998, Officer Maryann Weber was assigned desk duty from 10:00 p.m. to 6:00 a.m. at the east district station. According to her testimony, Medina was the desk lieutenant, having assumed that responsibility after Russo completed his shift. At approximately 5:30 a.m., a male entered the station and asked to surrender a twelve gauge Marlin shotgun. Weber observed defendant exchange cash, which he obtained from a cashbox designated for that purpose, for the gun. After surrendering the weapon and obtaining the designated payment, the man exited the police station.
Weber testified that Medina mentioned to Officer Joseph Martin, who was seated behind the desk, that the firearm was in excellent condition and that it was a good weapon for hunting. Because Weber was the "processing officer," it was her duty to complete the necessary paperwork. She thus asked Medina, who was holding the shotgun, to inform her as to the name of the manufacturer, model and serial number. Medina apprised Weber of the name of the manufacturer and the model of the weapon, but not the serial number. Weber recorded the "make and model" of the weapon on the appropriate log sheet. She then obtained a "central complaint" and an "incident" number for the shotgun. Weber had not yet recorded the numbers on the form when Lavook entered.
Lavook was scheduled to be the next desk supervisor. According to Weber, Lavook told her that she could leave because her workday was completed. Weber gave the paperwork to Martin, who was to record the remaining information. When she exited the police station, Medina was still holding the gun. Martin and DaSilva were in the area of the front desk, and DaSilva was conversing with Medina.
Martin testified that he, Medina, Zajkowski and Lavook were in the front desk area when a man entered the station at approximately 5:30 a.m. and asked to surrender a shotgun. According to Martin, the man exchanged the gun for the designated payment and left the station house. DaSilva and another officer, Evaristo Cordero, entered the precinct several minutes later, accompanied by a prisoner. After Cordero took the prisoner into another room, DaSilva and Medina passed the shotgun back and forth between them. Weber, who was recording the requisite information for the surrender of the shotgun, departed from the station, leaving Martin to complete the applicable forms.
Before Martin could complete the form, Medina handed him a Smith and Wesson five-shot revolver and directed him to process the gun for the amnesty program. Martin did not see anyone surrender the revolver, and did not know how or when Medina had obtained the firearm. Moreover, Martin noticed that the information Weber had recorded with reference to the surrender of the Marlin shotgun had been deleted with white correction fluid. The only information that remained in the log was the central complaint number and Weber's signature. Martin entered the information pertaining to the revolver in the blank boxes from which Weber's recordations had been deleted. The logbook thus showed only that the Smith and Wesson revolver had been surrendered. No reference was made to the Marlin shotgun. Moreover, Martin completed a receipt form purporting to show that the revolver had been surrendered at 5:30 a.m. Lavook signed the receipt, and Martin placed the revolver in the police department's property room.
State Police Sergeant Daniel Poland, an expert in the field of document examination, inspected the precinct's log sheet for March 6, 1998, and determined from laboratory analyses that the original writings had been altered with correction fluid. Using an infrared film process, the witness determined that the words "Marlin" and "twelve gauge" had been covered with correction fluid.
Sergeant Sheila Fitts of the Newark Police Department's Internal Affairs Bureau testified that Newark police officers are trained not to use correction fluid. They are instead directed to draw a line through incorrect entries so that the original mistake remains legible and to write the correct information on another line. Fitts recounted that a thorough search of the precinct disclosed no trace of the Marlin shotgun. Also missing from the precinct's records was a "desk blotter" for March 6, 1998. Fitts explained that Medina, as the supervising desk lieutenant, was required to document everything that occurred on his shift on a form called a "desk blotter." Despite an extensive search of the clerk's office and the storage room where such documents are maintained, the desk blotter for Medina's March 6th shift was not found. We note, however, that the desk blotter was subsequently discovered and admitted in evidence by stipulation. Medina had entered in his supervisor's log that he was investigating an automobile ...