On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 98-06-1222.
Before Judges Conley, Carchman and Parrillo.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a jury trial, defendant was convicted of third degree perjury, N.J.S.A. 2C:28-1. A two-year probationary term with a requirement of 100 hours of community service was imposed along with fines and penalties.
On appeal, defendant contends:
POINT I THE STATE'S CASE WAS INSUFFICIENT TO PROVE MATERIALITY; ALTERNATIVELY, THE MEAGER EVIDENCE OF MATERIALITY, IF ANY, WAS BLATANTLY INADMISSIBLE HEARSAY AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO DUE PROCESS.
POINT II THE PROSECUTOR'S SUMMATION VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN HE CASTIGATED DEFENDANT AS"SHAMELESS" FOR CALLING CHARACTER WITNESSES AND TOLD THE JURORS TO HOLD DEFENDANT ACCOUNTABLE FOR THE"BETRAYAL OF THE CHILDREN" OF ASBURY PARK (Not Raised Below).
We disagree as to point I but agree the prosecutor's summation exceeded the bounds of acceptable advocacy and reverse on that basis. In doing so, we also comment upon the judge's charge to the jury on the materiality element of perjury and disapprove certain of its language which does not, coincidentally, appear in the Model Jury Charge. On retrial, the language should not be repeated.
In June 1997, two months after defendant was elected to the Asbury Park Board of Education, he and three other board members attended a weekend New Member Orientation Conference in Princeton. The Board's credit card was used for various expenses totaling $1560 and which included $118.99 for clothing defendant purchased for himself at a Foot Locker and Riggins.
Additionally, each member was given $250 by the Board's business administrator as an advance for expenses and which defendant never accounted for. A Monmouth County Grand Jury was convened at some point to investigate the Asbury Park Board of Education and in April 1998 defendant was subpoenaed to provide testimony for which he was given immunity from criminal prosecution, except for perjury and false swearing.
Defendant's grand jury testimony became the basis for the perjury conviction on appeal before us. Originally indicted on nine separate alleged perjurious statements, the State's trial evidence was limited to four alleged perjurious statements. The jury found defendant guilty of perjury as to two. Those statements related to (1) whether after the weekend junket defendant had been requested by the Board's business administrator to account for his expenditures including the $250 advance and the credit card purchases and (2) whether he was aware of a board policy concerning reimbursement for expenditures by members of the Board.
Defendant's grand jury testimony as to whether he had been requested to account for what he spent with the Board's monies, which the petit jury found perjurious, was:
Q: And have you made any effort to account for those monies since then?
Q: Dora never -- Dora Mylchreest [the business administrator] never requested a proof of, or receipts for, that money?
His grand jury testimony as to knowledge of a board policy on reimbursement for expenditures, which the petit jury found perjurious, was:
Q: Let me show you Grand Jury Exhibit One [Policy 147] and ask you to look at that and tell me if you've ...