On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-07-1027.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Defendant was convicted of official misconduct, N.J.S.A. 2C:30-2(a)(counts one, three and five), setting false fire alarms, N.J.S.A. 2C:33-3 (counts two, four and six) and committing a pattern of official misconduct, N.J.S.A. 2C:30-7 (count seven), for making false fire alarms as a volunteer firefighter on three separate dates.*fn1 He was sentenced to concurrent terms of eight years on counts one, three, five and seven, and to five years on counts two, four and six. On this appeal, defendant argues that the convictions on counts one, three, five and seven must be reversed because he received ineffective assistance of counsel and that the convictions for misconduct and pattern of misconduct must be reversed because: "as a matter of law, his conduct was not related to his office"; "he did not derive a 'benefit' from his conduct"; "the finding of 'benefit'" was against the weight of the evidence; the prosecutor's use of the term "duty" in the summation with respect to defendant's conduct and the judge's failure to give a curative instruction with respect thereto, deprived defendant of a fair trial; and the charge and response to jury questions confused the jury and denied the defendant a fair trial. He further contends his convictions for making false alarms should have merged into the misconduct convictions if those convictions are sustained, and that the pattern of misconduct conviction was only a third degree crime, not a second degree crime, so defendant must be resentenced thereon. He does not challenge the convictions for third degree setting a false alarm.
Defendant contends that his trial counsel was ineffective for not raising a number of things--that calling in the false alarm was not related to his office; that defendant did not receive a "benefit" therefrom for purposes of the misconduct and pattern of misconduct statutes, that there was insufficient evidence defendant received a "benefit"; by not objecting to the summation and charge, and by not arguing that a pattern of misconduct was third degree, not second degree, because his misconduct was making the false alarms, a third degree offense. He essentially makes every substantive contention a basis for his ineffectiveness claim. However, many of the contentions addressed to the misconduct statute and conviction present legal issues which can be raised by motion before or after trial, see Rule 3:10, and which can be, and are, raised on the direct appeal. Hence, we address these arguments in the context of the claims presented without the need to evaluate if counsel's conduct was deficient and affected the result.
We hold that when a volunteer firefighter calls in a false alarm it is misconduct related to a public office or position, and defendant receives a "benefit" by the joy or gratification of participating in the response or even by giving the unit work to keep it in existence. We agree with the State that responding to fires and creating such opportunities for enjoyment or self-gratification is a "benefit" under the statute, and find no insufficiency with the proofs in this case because defendant was identified as the caller, independent of his statement or admission, and the reasonable inferences warrant a finding that he received a "benefit."
Defendant was a volunteer firefighter with the Prospect Park Volunteer Fire Department ("the Department"). He applied to the Department in May 2003, and began four months of training at a firefighter academy in June 2003, graduating in October of that year. Defendant received no compensation for his work because it was voluntary.
Beginning in September 2003, the Department received, and responded to, an increasing number of "false alarms." At a meeting held during December 2003, Jeffrey Vantermolen, then Chief of the Department, discussed the "rash of false alarms" which had been called in. Immediately following a February 21, 2004, false alarm call, Chief Vantermolen contacted the Paterson fire dispatcher, and learned that none of the false alarm calls were being reported "via 911," but instead the caller was directly contacting the Paterson Fire Department by calling its "telephone line," a number which "would bypass police" and was known only to "someone who's familiar with that line even existing." Thus, the police department was never notified of the calls and had no record of the reports. The calls were "voice recorded, but there's no record of the number" calling in.
The Paterson Fire Department had recorded the calls. However, Paterson officials could not locate some of the recordings. Chief Vantermolen listened to the recordings of the December 29, 2003, and January 14 and February 21, 2004, calls, and recognized the defendant's voice as the caller on each of those recordings. Assistant Chief Douglas Struyk subsequently verified the voice identification. Defendant had responded to all of these calls.
On February 23, 2004, the Passaic County Sheriff's Detective Bureau undertook an investigation of the false alarm calls. Detectives Richard Diaz and Don Dolan thereafter met defendant who agreed to accompany the detectives to headquarters. There, the detectives played the tapes of the false alarm calls in the presence of the defendant, who admitted that his voice was on the tape. Detective Diaz advised defendant of his constitutional rights, which were written on a form pursuant to Miranda v. Arizona.*fn2 Defendant executed the Miranda form and waived his rights. Defendant admitted making the calls which were on the tapes and several others, and stated he would call "411" and ask to be connected with "Paterson dispatch directly" "[b]ecause every time [he] called 911 they asked too many questions" and "it was faster calling Paterson dispatch directly." He reported the odor of smoke and then "respond[ed] to the calls on the fire truck." On a few occasions defendant identified himself as a firefighter but did not discuss the calls with fellow firefighters or superiors "[b]ecause there were times when we responded to alarms and . . . the odors of something burning was no longer there at our time of arrival [and he] therefore did not want to get in trouble for it."
There is no contention that the statement was involuntary or that there was not a knowing, voluntary ...