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State v. Portee


March 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0005-SJG.

Per curiam.


Submitted September 9, 2008

Before Judges Collester and Graves.

Defendant Gerald Portee appeals from his conviction of third-degree witness tampering, contrary to N.J.S.A. 2C:28-5(a). We affirm.

On February 7, 2005, defendant was indicted on the following charges: third-degree unlawful discharge of a pollutant on August 10, 2003, contrary to N.J.S.A. 58:10A-10(f)(2), N.J.S.A. 58:10A-6(a) and N.J.S.A. 2C:2-6 (count one); third-degree unlawful discharge of a pollutant on August 13, 2003, contrary to N.J.S.A. 58:10A-10(f)(2), N.J.S.A. 58:10A-6(a) and N.J.S.A. 2C:2-6 (count two); third-degree tampering with public records or information, contrary to N.J.S.A. 2C:28-7(a)(1) and N.J.S.A. 2C:2-6 (count three); and third-degree witness tampering, contrary to N.J.S.A. 2C:28-5(a) and N.J.S.A. 2C:2-6 (count four). Count three of the indictment charging tampering with public records was dismissed prior to the commencement of trial. Tried to a jury, defendant was found not guilty as to count one, and a mistrial was declared on count two after the jury failed to reach a verdict. However, defendant was found guilty of third-degree witness tampering. He was sentenced on March 31, 2006 to a one-year probationary term, a $750 fine and mandatory fees and assessments. The court then dismissed count two of the indictment on which the mistrial had been declared.

In brief, the facts are as follows. Defendant was employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) in its power plant. Along with others he was responsible for the improper discharge of waste water produced by the plant into the sewer system. The UMDNJ has an industrial permit issued by the Passaic Valley Sewage Commission (PVSC) permitting discharge of waste water associated with the generation of electricity from the power plant into the sewer system subject to compliance with federal, state and local regulations. One of the conditions of discharge into the sewer system is that the waste water has a pH between 5 and 10.5. The UMDNJ has a required pH meter and pH recorder to monitor the pH of discharge water and record it on chart paper. Every other month inspectors from the PVSC review the chart to check that the UMDNJ is in compliance with the pH requirements that all water has been neutralized to a pH level between 5 and 10.5 prior to discharge. If the pH is too high or too low, the water is to be maintained in a holding tank and then neutralized in a mixing or raven tank to obtain the proper pH level. If the water does not have a pH within the proper range, the valves automatically close, preventing discharge. Bypassing the system requires tampering with the pH probe in the tank.

In August 2003, the PVSC received an anonymous phone call reporting an illegal discharge at the UMDNJ. Glen McLaughlin, the surveillance engineer of PVSC, went to the UMDNJ power house to investigate the allegation. He did not observe any discharge, and the logbooks did not contain a record of an improper discharge.

On August 7, 2003, it was discovered that the acid storage tank was leaking, and there were two to three inches of accumulated acid in the tank. When Allen Bendel, the plant manager, arrived at work he found that the liquid in the tank was draining into a pit inside the tank. The valves of the tank were open, and the acid had gone into the waste water sump and the raven tank because someone on the shift had failed to close them.

On August 11, Bendel arrived at work and began making his rounds. When he walked into the rear of the plant he smelled a pungent odor of acid and saw that the floor had blistered and become jelly-like. The blistering was between the door and the raven tank. The raven tank at that time was empty. There were no records showing the water had been discharged. When Bendel spoke to Joe Pereira, an engineer at the plant, Pereira told him he had been instructed by his supervisor, Vladimir Smolinsky to hook up a fire hose from the raven tank to the sewer drain, thereby bypassing the pump valve. Subsequently, it was determined that the group manager, Victor Smolinsky, instructed Charles Rodriguez to hook up the hose and discharge the acid water into the sewer line. Rodriguez refused because he knew it was illegal to discharge in this manner. Smolinsky told him he would do it himself. The tank was then drained and the pit vacuumed. The discharge was not noted in the logbook.

On or about August 13, Bendel saw that the raven tank was again full and the pH was 12.4. Bendel and another operator tried to remedy the situation by circulating water from the waste water sump into the raven tank in an attempt to bring the pH levels up. By the time Bendel left for the day, the raven tank was full and the sump half full. When Bendel came in the next morning, the tank was empty. He checked the pH chart. There was no indication that any discharge had occurred and no pH recordation. Later he discovered that the pH recorder had been shut off, the pH probe was removed and the tip had broken off. A reading taken from a hand-held pH meter revealed that the pH levels were high at 12.4.

When Bendel checked the log book, he saw an entry that read "Dumped the raven tank," but he saw no evidence that the raven tank had been drained. He discussed the matter with his supervisor the next morning. The supervisor told him the log now said "Drained raven tank back to the sump," meaning that it had not been drained into the sewer system. It was then clear to Bendel that the log book had been altered. Bendel added that it is not possible to drain the raven tank to the sump because the raven tank holds 8,000 gallons and the sump can only hold 2,000.

An investigation commenced into the illegal discharges, alteration of the logbook, a governmental record, and whether defendant falsified a report ostensibly from Smolinsky to defendant containing false statements of the events in August. On January 5, 2005, Reed, another power plant employee, gave a written statement to investigators that defendant had instructed him to drain the waste water to the sewer. Smolinsky later confirmed that the logbook had been altered at defendant's direction, and that his report of the events was in fact prepared by defendant.

On appeal, defendant presents three arguments not raised below: (1) the witness tampering charge was duplicitous; (2) the indictment failed to contain essential facts; and, (3) the witness tampering jury charge was defective. Since the contentions were not raised at the trial level, our scope of review is subject to the plain error standard, which requires defendant to show that the alleged error was "clearly capable of producing an unjust result" and sufficient to raise a reasonable doubt that the error may have led the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.

Defendant's argument that the indictment should have been dismissed lacks merit. A motion to dismiss an indictment based on lack of precision or other defects must be made before trial. See R. 3:10-2(c). See also State v. Branch, 301 N.J. Super. 307, 319 (App. Div. 1997), rev'd in part, 155 N.J. 317 (1998); State v. R.W., 200 N.J. Super. 560, 572 (App. Div. 1985), modified o.g., 104 N.J. 14 (1986). If a motion to dismiss the indictment is not made pretrial, we need not consider it absent a showing of good cause. See R. 3:10-2(c). An indictment will not be dismissed unless manifestly deficient or palpably defective. See State v. Hogan, 144 N.J. 216, 228 (1996); State v. Dixon, 125 N.J. 223, 237 (1991).

It is well settled that separate and distinct offenses cannot be charged in the same count of an indictment. See R. 3:7-6. State v. Torrance, 41 N.J. Super. 445, 452 (App. Div. 1956), certif. denied, 23 N.J. 59 (1956). However, an indictment will be sustained when it does not charge two crimes but two theories of one crime. State v. Speth, 323 N.J. Super. 67, 79 (App. Div. 1999). So in the instant case, defendant has failed to meet the threshold of "good cause" to dismiss the indictment which charges only one crime - third degree witness tampering.

As to defendant's argument that the trial judge's instructions were insufficient, it is clear that jury instructions are essential to a fair trial. State v. Collier, 90 N.J. 117, 122 (1982)(citing State v. Green, 86 N.J. 281, 287 (1981)). A jury charge is essentially "a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). In passing upon the propriety of a trial court's instruction, we will examine the entire charge to see whether the jury was misinformed as to the controlling law. State v. Hipplewith, 33 N.J. 300, 317 (1960). Under the plain error standard, defendant must show "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).

In the instant case, the charge given by the trial judge closely mirrored the model charge. Not only did the defendant fail to object to the charge, he concurred in a re-charge in response to a jury question. Defendant's contention that the charge was inadequate because it was not "tailored" to the facts of the case is without merit. The jury was apprised of the testimony that defendant presented a false report to the State, had Smolinsky sign it, and illegally influenced Smolinsky's answers to investigators.

Defendant also asserts a claim of ineffective assistance. It is well established that "[o]ur courts have expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Ineffective assistance of counsel claims are almost always more appropriately raised in collateral, post-conviction proceedings, as opposed to direct appeals. Id. at 460-62. Therefore, our decision is without prejudice to defendant's right to raise the issue on a petition for post-conviction relief.



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