Before Judges Wefing, Wecker and Bilder. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 95-10-1630-I.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2002
This appeal concerns N.J.S.A. 2C:51-2, the provision of the Criminal Code that requires a public employee or office holder who is convicted of certain offenses to forfeit the public position and, if the conviction is for an offense "involving or touching" that position, bars that person from holding any future public position.
N.J.S.A. 2C:51-2 provides, in pertinent part: a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:
(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
(2) He is convicted of an offense involving or touching such office, position or employment; . . . . d. In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S. 2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions. [emphasis added.]
Thus a public employee or office holder who is convicted of any first, second, or third degree offense, or an offense that involves dishonesty, forfeits his or her position. N.J.S.A. 2C:51-2a(1) (hereinafter also referred to as "section a(1)"). Forfeiture also is mandated upon conviction for a lesser offense if the underlying conduct involves or touches the public office. N.J.S.A. 2C:51-2a(2) (hereinafter also referred to as "section a(2)"). When the conduct that forms the basis for a conviction at any level involves or touches the individual's public office, that individual is also disqualified from all future public office. N.J.S.A. 2C:51-2d (hereinafter also referred to as "section d").
Defendant, Roy Williams, was originally convicted of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was also convicted of fourth degree aggravated assault by pointing a gun in the direction of another under circumstances manifesting extreme indifference to human life. N.J.S.A. 2C:12-1b(4). At the time of the events upon which these convictions were based, Williams was an off-duty police officer employed by the City of Bayonne. As a result of his conviction for the second degree offense, and in addition to concurrent state prison terms imposed for the two offenses, the Law Division judge ordered Williams' employment forfeit and his right to future public employment barred.
On appeal, the Supreme Court reversed his second degree conviction. State v. Williams, 168 N.J. 323 (2001). The State elected not to retry Williams for that offense. Williams therefore remained convicted only on the fourth degree offense, and section a(1) therefore no longer applied. Williams moved for an order restoring his employment as a Bayonne police officer. The State opposed, arguing that his right to public employment was nevertheless forfeit pursuant to section a(2), because he was convicted of an offense "involving or touching" his employment.
The motion judge granted defendant's motion, relying substantially on McCann v. Clerk of City of Jersey City, 167 N.J. 311 (2001). In a written decision, the judge concluded that because defendant was off duty at the time of the offense, on sick leave, "miles away from Bayonne," and "in his own vehicle with his wife and child," the fact that he used his service revolver and that he identified himself as a police officer did not "alone . . . establish the requisite direct link to his public office as envisioned in McCann." The judge concluded that "the assault committed by defendant was not directly related to his performance as a police officer. Further, the circumstances under which the offense took place did not flow from his public office." We disagree and therefore reverse.
The operative language of the order appealed from provided "that the forfeiture provision of N.J.S.A. 2C:51-2a(2) does not apply . . . ." The judge's written opinion also recognized that "[i]f the requisite relationship [between defendant's position and the criminal conduct] is found, defendant would be forever barred from holding any public position in the state [pursuant to] N.J.S.A. 2C:51-2d." The State's single point heading states: "because defendant was convicted of a crime that 'involved or touched' his public office, . . . his employment as a police officer is therefore subject to mandatory forfeiture under N.J.S.A. 2C:51-2a(2)." The State argues (under the same point heading) that defendant also must be barred from future public employment pursuant to section d. In light of the motion judge's reliance upon McCann, a section d case, and the Supreme Court's own description of the "involve or touch" language of section d as duplicating that of section a(2), McCann, 167 N.J. at 321, our decision necessarily addresses the applicability of both the forfeiture and future disqualification provisions of the Code to Williams' circumstances.
These are the facts revealed by the evidence in the criminal trial, as set forth in the Supreme Court's opinion reversing his second-degree conviction:
At the time of the accident, Mrs. Williams was driving because Williams, who had been injured on the job a week earlier, was taking pain medication and was unable to drive. According to the Williamses, their mini-van was rear-ended by Erickson while stopped at a traffic light. When Erickson failed to pull over to exchange insurance information, Mrs. Williams pursued the fleeing vehicle, sounding her horn and flashing her headlights. At one point during the chase, [both Mr. and Mrs.] Williams ...