On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0115-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2008
Before Judges Rodríguez, Kestin and Newman.
Pursuant to Passaic County Indictment No. 04-02-0115-I, defendant David M. LaConti, a sergeant in the Ringwood Police Department, was charged in four counts: official misconduct, N.J.S.A. 2C:30-2(a) (count one); official misconduct, N.J.S.A. 2C:30-2(b) (count two); sexual assault by committing acts of penetration, N.J.S.A. 2C:14-2(c)(1) (count three); and sexual assault by intentionally touching intimate parts of the victim, N.J.S.A. 2C:14-3(b) (count four). These counts are all based on the alleged conduct of defendant towards K.M., a dispatcher in the Ringwood Police Department. K.M. alleged that on three different occasions, defendant sexually assaulted her by making her perform oral sex on him, by forcing her to masturbate him, and by grabbing her breast over her clothes.
At the end of the State's case, defendant moved for a judgment of acquittal with respect to counts one and two of the indictment (the official misconduct counts). The trial court granted the motion as to count one, but denied it as to count two.
The jury returned a not guilty verdict as to counts three and four, but found defendant guilty of count two. On the amended verdict sheet, the jury found defendant guilty of official misconduct as to all three incidents specified on the verdict sheet. A motion to set aside the jury's verdict and enter a judgment of acquittal, or alternatively, to order a new trial, was denied.
The trial court, without objection from the State, sentenced defendant for a third degree crime, even though he was convicted of a second degree crime, to three years' imprisonment, along with the appropriate fines and penalties. The trial judge continued bail and stayed the sentence pending appeal. Defendant appeals. We affirm.
From June 1989 to 1991, K.M. was employed as a civilian police dispatcher for the Ringwood Police Department ("police department"). During this period, she and defendant, a patrolman at the time, had a consensual sexual relationship. On numerous occasions, they engaged in sexual acts, including intercourse and oral sex, in the police department, while they were on duty. Their sexual activities took place in the patrol room, located in the back of the police department building. Theirs was not a dating relationship, and they did not see each other outside of the police department.
In May 1990, K.M. ended the sexual relationship with defendant after getting engaged to another man. She testified that defendant did not want to end the relationship, became "belligerent" and made nasty comments to her. In 1991, K.M. left the department's employment because her husband received another job in Illinois. She returned to New Jersey in 2000. In January 2002 she started working again as a part-time 9-1-1 dispatcher at the police department but was made a full-time dispatcher after a short time. In the interim, defendant had become a sergeant.
K.M. testified that when she was previously employed, the police department did not have a 9-1-1 emergency system, but when she returned, they had implemented one. As a dispatcher, if K.M. wanted to step away from the dispatch area, she had to contact the State, log-off her computer and call the neighboring town designated to receive the re-routed calls and report what was happening. If this did not happen and a dispatcher did not answer a phone, after a few rings, the call would be re-routed anyway.
The shifts for a dispatcher were split into three time periods: 7:00 a.m. to 3:00 p.m. (day shift), 3:00 p.m. to 11:00 p.m. (evening shift) and 11:00 p.m. to 7:00 a.m. (midnight shift). A dispatcher would work four days on one shift, have two days off, then work four days on the next shift, cycling through the three shifts. The police officers worked six days on, three days off, with shifts starting on a rotating basis. K.M. testified that there were times when she and defendant would be the only ones in the building, especially during the midnight shifts.
The first incident took place in late spring or early summer of 2002. When K.M. was walking from the patrol room back to the dispatch area, defendant was sitting in one of the chairs in the dispatch area with his penis hanging out of his pants. She testified that his pants were unbuttoned and opened, but that they were not pulled down. K.M. testified that defendant grabbed her arm and said "Why don't you take care of this for old times sake?" She responded that she did not want to, but he pulled her down to her knees because he wanted her to perform oral sex on him. After performing oral sex, she went to the bathroom and washed her face off. She testified that she was "scared." At the time this happened, defendant, in uniform, was the shift supervisor. It was the midnight shift, and the 9-1-1 emergency system was up and running.
The second incident took place in late spring 2003. During the midnight shift, while defendant was the shift supervisor and in uniform, K.M. testified that as she walked down the hall from the patrol room to the dispatch area, defendant walked up to her and said he wanted oral sex. She said no and walked to her seat in the dispatch area. When she was sitting down, defendant came up behind her with his penis out of his pants and said "just take care of this for me." She stood to get up and defendant grabbed her arm and started stroking his penis with her hand.
She was leaning up against a low cabinet, and defendant unbuttoned her pants and stuck his hand in her pants. She pushed him away again. He took her hand and started stroking his penis again, resulting in him ejaculating on the floor. After this happened, K.M. went to the bathroom, started crying and then left the police department. While this was taking place, the 9-1-1 emergency system was up and running.
The third incident took place in July 2003 when K.M. was on the midnight shift. At the time, defendant was the shift supervisor, wearing his uniform and no one else was in the building. K.M. testified that she was entering information in the computers and had to ask defendant a question. She went into the patrol room and sat down. She testified that defendant said she was cranky, and he stood up to give her a back rub. While he was massaging her shoulders, he slid his hand down over her breast, above her clothing. K.M. told him to stop, got up and walked away.
A few days after the third incident, K.M. approached Sergeant Henry Hill, who was the chief commander on the night shift. She told him that she was having a problem with a police officer and did not know what to do. She told Sgt. Hill that she was being sexually harassed by defendant and that she needed advice on how to handle the situation. She was told by Sgt.
Hill that she had to talk to Lt. Mancher. Lt. Mancher was on vacation and she did not speak to him until a week later. When she did speak with him, she told him what happened with defendant. After talking to Lt. Mancher, K.M. told Chief Bernard Lombardo what happened. After meeting with Chief Lombardo, K.M. met with the Passaic County Prosecutor's Office and provided a statement regarding the sexual abuse.
Detective Maria Papargau of the Prosecutor's Office, Sgt. Hill, and Chief Lombardo all testified at trial as to what K.M. told them. Defendant did not testify, nor did he call any witnesses.
On appeal defendant raises the following issues for our consideration.
POINT I: VARIOUS ERRORS REGARDING JURY INSTRUCTIONS AND THE JURY VERDICT SHEET REQUIRE THE REVERSAL OF DEFENDANT'S CONVICTION
a. The amended verdict sheet was misleading and had the clear capacity to confuse the jury and produce an unjust result, thus warranting reversal of defendant's conviction
b. Defendant was denied a fair trial as a result of the introduction to the jury of the amended verdict sheet after counsel had summed up and five hours into jury deliberations, thus warranting reversal of Defendant's conviction
c. The three acts specified on amended verdict sheet relating to Count Two actually reflected the State's theory in support of Count One on which the ...