On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cape May County, Indictment No. 06-09-00669.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 16, 2009
Before Judges Stern, Sabatino and Harris.
Defendant was convicted by jury of fraudulent use of a credit card, N.J.S.A. 2C:21-6h (count one), and third degree misconduct in office, N.J.S.A. 2C:30-2b (count two). He was sentenced to concurrent terms of four years probation with conditions. He also forfeited his office as a police officer.*fn1
Through the use of the victim's card which had been left in an ATM machine, defendant obtained $100. He testified that he didn't know the card had been left in the machine and that because of glare from the sun and problems he was having with his children,*fn2 he accidentally hit the automatic $100 withdrawal button, and that when he realized what he had done, left the victim's ATM card for the owner to retrieve because it could not be used by others without a PIN. He then withdrew $320 through his own ATM card and asserts that the police got to him before he could report that the victim left her card in the machine and the accidental withdrawal of her money. However, eleven days elapsed in between.
Defendant argues that the conviction must be reversed because a mistrial should have been declared when the jury observed him suffer a medical condition it could have thought was feigned for sympathy and that the judge's charge on the subject was inadequate. He further asserts his conduct did not constitute official misconduct, but he doesn't contest that the credit card conviction alone warrants the forfeiture.*fn3 Defendant specifically contends that "...assuming that the defendant did breach a 'police duty' to care for the property of another the breach of such a duty was not charged in the indictment nor was such a breach submitted to the jury," because the instructions were premised on the belief "that any time a police officer commits a crime he ergo also commits official misconduct." He asks for reversal of the misconduct conviction and entry of a judgment of acquittal thereon, and a new trial on count one to include instructions on a lesser included theft offense.
Independent of his first point concerning the medical condition, the State contends that both convictions are unassailable. It specifically asserts that "an off-duty police officer... had the duty to bring the ATM card to the nearest law-enforcement agency, had another duty not to run a balance inquiry on the card and yet another duty to leave the funds in someone's else's account untouched." Certainly, an officer, even as here off-duty and outside his jurisdiction while vacationing in another New Jersey municipality, has duties beyond those of a private citizen. However, the critical issue before us is whether defendant's actions constituted misconduct in office and, if so, whether the jury charge was adequate.
Defendant was a police officer in the Mount Laurel Township Police Department. On the evening of Saturday, July 1, 2006, defendant was nearing the end of a week-long vacation in Ocean City with his wife and three young children, along with a babysitter. The family planned to have dinner at the Mack & Manco Pizza restaurant. Defendant dropped his wife, his youngest child, and the babysitter at the restaurant slightly before 6:00 p.m., and then went with his two older children, then ages four and seven, to a branch of the Fox Chase Bank in Ocean City to obtain cash for dinner. The children were argumentative because they wanted to go directly to the boardwalk amusements as it was their last night of vacation.
At approximately the same time, Ms. P.*fn4 went to the Fox Chase Bank to make a withdrawal from the ATM machine. The testimony of Ms. P., records from the Fox Chase Bank ATM machine, and the ATM's surveillance videotape establish that Ms. P. began her ATM session at 6:12 p.m. by reviewing the balance of her checking account, which she noted was $132. Ms. P. had great "difficulty reading the screen" due to the glare of the sun. She then withdrew $20 at 6:14 p.m. After this transaction, she noted that $112 remained her account. She was "very frustrated" at that point because she "couldn't see" the screen, and left the bank without realizing that she had failed to end her ATM session and that her ATM card remained in the machine.
The testimony of police officers who interviewed the defendant, records from the ATM machine, and the ATM's surveillance tape reveal that at 6:15 p.m., less than a minute after Ms. P. left, the defendant walked up to the ATM machine. He conducted a balance check of Ms. P.'s account and within the next minute, withdrew $100 from that account. At 6:17 p.m., he made a $320 withdrawal from his own checking account, which left a balance of $1,715.30 in defendant's account.
The defendant testified that he did not know that Ms. P.'s card was in the ATM machine, and because of the glare of the sun shining on the screen and the "distraction[s]" caused by his children "fighting" and a cell phone call from his wife to "hurry up," he accidentally hit the automatic $100 withdrawal button. He then claims to have realized that he had made a withdrawal from someone else's account, and left the ATM card for the owner to retrieve because it could not be used by others without the PIN number.
On the next day, July 2, 2006, Ms. P. checked her account and discovered that she only had a balance of $12, rather than the $112 she had expected. On Monday, July 3, 2006, Ms. P. completed an affidavit at the Fox Chase Bank in which she reported that there had been an unauthorized withdrawal of $100 from her checking account. The bank reimbursed Ms. P. three weeks later.
The defendant also testified that he planned to return the $100 to the Fox Chase Bank, but he had not done so by July 12, 2006, eleven days after the withdrawal, when he was contacted by the Ocean City Police about the $100 that had been withdrawn from Ms. P.'s account. He subsequently gave a statement to the police.
The defendant contends that the trial judge should have granted a mistrial when he suffered a "medical episode" after both sides had rested and completed their summations. Specifically, defendant argues that a mistrial was necessary because the court was faced with an "irregular matter" that had the capacity of influencing the result of the case because the jury might have thought it had been ...