On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-11-00515-S.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson and Alvarez.
After a bench trial, defendant was convicted of one count of second-degree official misconduct, N.J.S.A. 2C:30-2a, and two counts of second-degree bribery, N.J.S.A. 2C:27-2a. After merging one bribery count with the other, the judge sentenced defendant, pursuant to N.J.S.A. 2C:44-1f(2), to terms appropriate to a crime one degree lower than those of which he was convicted. The judge imposed concurrent three-year terms of imprisonment for official misconduct and the merged bribery counts. He also entered an order directing that defendant forfeit his public office and be forever disqualified from holding any such office. See N.J.S.A. 2C:51-2.
Within ten days of the imposition sentence, the State filed an appeal pursuant to N.J.S.A. 2C:44-1f(2), contending that the court erred in imposing a sentence appropriate for a crime one degree lower. Defendant's sentence has been stayed pending appeal. See State v. Sanders, 107 N.J. 609, 617 n.7 (1987).
Defendant filed a cross-appeal. His sole argument is that the evidence was insufficient to support his conviction of second-degree offenses, and he should have been convicted only of third-degree official misconduct and bribery.
We agree with the State and reverse on its appeal. We reject defendant's argument and affirm on his cross-appeal.
We set forth in some detail the factual background because it is necessary to our analysis of the issues raised on both the appeal and cross-appeal.
Defendant was the mayor of the Township of Carneys Point. That municipality operates under a form of government in which the voters elect five township committee members who exercise legislative authority and appoint a mayor from amongst themselves. The mayor's appointment authority is subject to approval of the Township Committee.
Defendant's term of office was scheduled to end in 2006. He was running as a Republican candidate for re-election in the November 2006 general election. Defendant was also a member of the Township's Sewerage Authority and served as the emergency management coordinator for Salem County. Defendant had a long history in local politics at both the municipal and county levels.
In 2006, the makeup of the Township Committee was three Republicans and two Democrats. Because defendant was up for re-election, if his seat was won by a Democrat, control of the local governing body would change parties. Anthony Rullo was the Democratic candidate opposing defendant. Rullo had previously served a term on the Township Committee as a Republican. After losing his seat in the prior election, he switched his party affiliation. Rullo was also a member of the Township Sewerage Authority.
Prior to July 4, 2006, defendant approached Rullo and proposed that if Rullo would withdraw as a candidate, he would be guaranteed reappointment to the Sewerage Authority when his term expired. On July 4, 2006, defendant went to Rullo's home and again discussed Rullo's Sewerage Authority reappointment. Defendant also proposed that he could arrange for Rullo to obtain part-time mechanical work for the Authority, which would enable him to earn some extra money. This was the type of work Rullo had done when employed by DuPont, before his retirement. Expanding upon the proposal, defendant told Rullo he wanted him to wait until less than sixty days before the election to drop out so the ballots would already be printed and his party could not offer a replacement candidate. Thus, defendant would be able to run unopposed and would likely be assured re-election.
Rullo and his wife were raising three grandchildren due to personal difficulties of their daughter (the children's mother). Rullo informed his campaign manager about defendant's overtures, and his campaign manager reported the information to the Salem County Prosecutor's Office.
On July 25, 2006, defendant again went to Rullo's home. Defendant told Rullo he could not have the part-time job at the Sewerage Authority because to be eligible he would have to cease being a member of the Authority for at least one year. Defendant offered an alternative proposal. He said he could arrange for Rullo to be hired as the Township's zoning and housing inspector. The person presently holding that position was out on extended medical leave. The Township was in the process of advertising to fill the position until the end of the year. Defendant again conditioned his offer on Rullo dropping out of the election race.
On August 1, 2006, Detective Sergeant Gary Sandes, then with the Official Corruption Unit of the New Jersey State Police, was assigned to investigate the allegations concerning defendant. He contacted Rullo, who described the conditional offers made by defendant. Rullo agreed to cooperate by tape recording his future conversations with defendant. Rullo made clear that he had no intention of dropping out of the election, and he agreed to report all contacts with defendant to the police.
As instructed by the police, Rullo filed an application for the zoning and housing inspector job. On August 9, 2006, Rullo recorded a conversation he had with defendant at Rullo's home.
Defendant explained that Rullo would be coached on how to conduct himself in the interview for the zoning and building inspector job and would be provided in advance with five prepared questions that would be asked at the interview. Rullo feigned concern that he had not served as a housing inspector for thirty years and had lost his familiarity with the applicable codes. Defendant assured him that he would have no problem, and, although another application had been submitted by a better qualified candidate, he assured Rullo that the other Township Committee members would go along with appointing him. Defendant also assured Rullo that he would be appointed to a full term as the zoning and housing inspector the following year as long as he performed the job reasonably for the remainder of the year.
In exchange for these assurances, defendant again asked Rullo to withdraw from the election less than sixty days before election day. In these discussions, defendant commented that his party would then continue in power for the next three years. Defendant also told Rullo that if he dropped out more than sixty days prior to the election and the Democrats were able to place a replacement candidate on the ballot, the deal would be off.
On August 30, 2006, Rullo recorded another conversation with defendant at Rullo's home. Defendant again offered Rullo the zoning and housing inspector job for the remainder of 2006, and reappointment for the 2007 term, in exchange for his dropping out of the upcoming election sometime in mid-September. Defendant offered advice to Rullo about how he should present the withdrawal of his candidacy to other members of his party who supported him and expended party funds for his campaign. Defendant suggested, for example, that Rullo explain that he was in financial difficulty, being retired and unexpectedly raising his grandchildren, as a result of which he needed to accept employment with the Township to earn some money. Defendant also suggested that Rullo tell his party members he felt bad running against defendant. Defendant reiterated that Rullo would be coached through the interview process for the zoning and housing inspector job, and he again assured him he would be reappointed for the 2007 term as long as he did a decent job for the remainder of 2006.
Rullo told defendant that on his application, when asked what salary he expected, he simply "wrote down there whatever the, the base salary is now." Defendant responded, "[Y]ou ain't gonna get rich, but it's not bad for part-time work." He continued: "And let's say in January I would, ah, my preference is I would, I would look to [be]cause John [the current office holder ...