On appeal from the Superior Court, Appellate Division, whose opinion is reported at 407 N.J. Super. 489 (2009). (A-36-09.).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
LaVECCHIA, J., writing for a majority of the Court.
Defendant, Jeremiah Hupka, was employed as a Hunterdon County Sheriff's officer and also worked part-time as a Frenchtown police officer. On January 9, 2007, a Hunterdon County grand jury returned a two-count indictment, charging Hupka with first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2 (a) (7), and second-degree sexual assault in violation of N.J.S.A. 2C:14-2 (c) (1), for an incident involving a sexual encounter with a young female acquaintance. At the time of the incident, Hupka was not on duty or in uniform. Hupka negotiated a plea bargain, pursuant to which he pled guilty to a single count of fourth-degree criminal sexual contact. In addition, although Hupka had voluntarily resigned from both of his law enforcement positions after the indictment was issued, the State made the plea conditional on Hupka's agreement never again to seek employment as a police officer in New Jersey or any other state, a condition to which Hupka agreed. The State also raised statutory forfeiture and permanent disqualification from public employment pursuant to N.J.S.A. 2C:51-2 (the "statute"). Hupka would not agree to statutory forfeiture and permanent disqualification; therefore, the parties agreed that the court would resolve the applicability of that statute.
In his plea allocution, Hupka admitted that, on January 14, 2006, he was in Frenchtown with the victim, with whom he had a prior relationship, and that he "touch[ed] her intimate parts, including her buttocks[,].without her freely-given consent[,].[and] for purpose of [his] own sexual gratification." The court accepted the plea, satisfied that Hupka's admission created a sufficient factual basis to sustain the fourth-degree charge of criminal sexual contact. The "Offense Circumstances" section of the presentence report (PSR) included additional facts, including that the victim had been drinking at the time of the incident; Hupka had arrived at the victim's apartment afterward with another man; and the victim had fallen asleep on her couch. The following morning, she observed male ejaculate in her underwear and felt soreness in her vaginal area. When the victim confronted Hupka and his friend, both denied having had sexual relations with her. After later learning she was pregnant, DNA tests showed that there was a 99.9% possibility that Hupka was the father. These allegations have never been admitted by Hupka, nor have they been tested or proved at trial. The court heard argument on statutory forfeiture and permanent disqualification at the time of sentencing and, relying on the two-pronged test enunciated in Moore v. Youth Correctional Institute, concluded that Hupka's conviction for fourth-degree criminal sexual contact was serious and at odds with his duty to protect and serve his community. Accordingly, the court ordered Hupka's statutory forfeiture of and permanent disqualification from public office and sentenced him in accordance with the terms of the plea agreement.
Hupka appealed and a divided panel of the Appellate Division reversed the decision of the trial court. The majority, pointing to the 2007 amendments to the statute that incorporated the Court's holding in McCann v. Clerk of Jersey City, discerned a legislative preference for the "involving and touching" standard enunciated in McCann, over the Moore standard relied on by the trial court. Applying McCann to the facts presented, the majority reversed the order for permanent disqualification, finding no nexus between the performance of Hupka's public duties and the crime for which he was convicted. The dissenting judge on the panel looked beyond the plea allocution to the PSR and concluded that Hupka's conduct was more serious than his plea suggested and was related directly to his role as a law enforcement officer; therefore, permanent disqualification from public office or employment was proper. The State appealed to the Supreme Court as of right based on the dissent in the Appellate Division.
HELD: The State's demand for permanent disqualification was not supported on this record; the offense to which Hupka pled does not compel his forfeiture of office and permanent disqualification under N.J.S.A. 2C:51-2.
1. Pursuant to the statute, a New Jersey public employee who has been convicted of a criminal offense suffers the collateral consequence of forfeiting his public position if he is convicted of an offense involving or touching such office, position or employment. Involving and touching requires that the offense relate directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held. The statute requires forfeiture of the position held at the time of conviction and disqualification from holding any public position in the future. (pp. 8-10)
2. The legislative statement to the 2007 amendment to the statute signals strongly that the disqualification provision was intended to be contingent on a conclusion that the conviction was related, directly and specifically, to the position held, thus, trial courts contemplating entry of an order of forfeiture and disqualification for an offense involving or touching public office pursuant to N.J.S.A. 2C:51-2 (a) and (d) must examine the relationship between the exact offense committed and the particular position held by the individual convicted in order to conclude that the commission of the offense had some direct connection to the office held. (pp. 10-14)
3. The legislative history of the statute clarifies the legislative intent and removes any uncertainty. In the 2007 amendment, the Legislature singled out McCann, incorporating that case law into the statute's wording and into the explanation of the amendatory language. McCann represents the most recent, relevant pronouncement of the "involving or touching" language of the forfeiture and disqualification statute. Under McCann, a conviction does not involve or touch on that person's office unless the facts underlying the conviction bear some direct relationship to the office held. The specific crime to which Hupka pled guilty did not involve, in that it did not directly relate to, his performance in office. The conclusion of the dissenting appellate panel member is inconsistent with McCann and, therefore, is beyond the legislative intent behind the latest clarification of the statute's reach. (pp. 14-24)
4. The dissenting appellate panel member went beyond the four corners of the PSR to conclude that forfeiture and disqualification is appropriate, calling into question the proper role of the PSR in such proceedings. The "Offense Circumstances" section of the PSR report alleges very different facts than those admitted by Hupka at his guilty plea and Hupka has consistently denied the allegations described in that report. The State may produce evidence outside an allocution to establish whether a defendant's offense involved or touched on his office; however, here Hupka denied the material in the PSR, leaving two options - omit consideration of it or order a hearing to resolve it. Procedurally, the disputed evidence could not be used "as is." The Court is not, as suggested by our dissenting colleagues, extending undue protection to convicted public-office holders. Rather, the Court is narrowly disapproving of the dissenting Appellate Division judge's use of disputed facts in the PSR. (pp. 24-26)
5. Prosecutors should include discussions of forfeiture and disqualification in plea negotiations with public employees. When a defendant is charged with a crime that might be regarded as involving or touching his or her public position, the State should require an allocution that either establishes the connection between the crime and the position to enable the court to sustain a subsequent forfeiture and disqualification order, or, alternatively, should negotiate a voluntary disqualification from a future position. There was no agreement reached requiring Hupka's disqualification from all future public positions or offices. Moreover, the factual circumstances do not support the "involving or touching" conclusion in respect of Hupka's office. The Court rejects the ill-defined incompatibility-with-duties analysis that an expansive reading of Moore is said to support. Going forward, the reasoning of McCann as it has been applied to this case should control. (pp. 26-28)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER, dissenting, in which JUSTICE HOENS joins, is of the view that the offense committed by Hupka involved and touched on his public positions and directly relates to his performance as a law enforcement official; therefore, his conduct should subject him to disqualification.
JUSTICES LONG and WALLACE join in JUSTICE LaVECCHIA'S opinion. CHIEF JUSTICE RABNER filed a separate dissenting opinion in which JUSTICE HOENS joins. JUSTICES ALBIN and RIVERA-SOTO did not participate.
The opinion of the court was delivered by: Justice LaVECCHIA
In this matter we are called on to review the Appellate Division's reversal of a May 2, 2008, trial court order that disqualified defendant Jeremiah Hupka "from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions, pursuant to N.J.S.A. 2C:51-2d."*fn1 A majority of the Appellate Division panel agreed with defendant that his conviction for fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), did not "involve or touch upon" the public offices he held in law enforcement. The State has brought this appeal as of right based on the dissent filed below. See R. 2:2-1(a)(2). For the reasons expressed, we affirm the judgment of the Appellate Division. Defendant, by his voluntary agreement, will never again seek future employment in this State or any other as a law enforcement officer. However, we hold that the State's demand for permanent disqualification was not supported on this record. The offense to which he pled does not compel his forfeiture of office and permanent disqualification under N.J.S.A. 2C:51-2.
Defendant was employed as a Hunterdon County sheriff's officer, and also worked part-time as a Frenchtown police officer, when he was indicted on January 9, 2007, for an incident that occurred a year earlier. The indictment involved a sexual encounter with a young female acquaintance of defendant. It is undisputed that at the time of the incident, defendant was neither on duty, nor in uniform. The following description of the alleged events is taken from the "Offense Circumstances" section of his presentence report. Importantly, these allegations have never been admitted by defendant, nor have they been tested or proved at trial.
On the night of January 13, 2006, the victim, K.W., had been drinking with [a female friend.] In the early morning hours of January 14, 2006, the defendant, Jeremiah Hupka, and his [male] friend . . . arrived at K.W.'s apartment. K.W. eventually fell asleep on her couch. Upon awaking the next morning, she woke up, felt ill and went to the bathroom where she was sick. While in the bathroom, she saw male ejaculate in her underwear and in the toilet and noticed soreness in her vaginal region. K.W. confronted both the defendant and [his male friend], however both denied having sex with her. K.W. later learned that she was pregnant. Upon terminating the pregnancy, DNA tests were conducted on the fetus and compared to that of the defendant, [his male friend] and the victim's boyfriend . . . .
It was determined by the State's DNA expert that there was a 99.9% possibility that the defendant had fathered the fetus.
Those allegations led a Hunterdon County grand jury to return a two-count indictment, charging defendant with first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14- 2(a)(7), and second-degree sexual assault in violation of N.J.S.A. 2C:14-2(c)(1). Defendant negotiated a plea bargain, pursuant to which he pled guilty to a single count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), as a lesser-included offense of the second-degree sexual assault charge, and the first-degree charge was to be dismissed. However, there was more to the plea bargain. Although defendant had voluntarily resigned both of his law enforcement positions after the indictment issued, the State made the plea conditional on defendant's agreement never again to seek employment as a police officer in New Jersey or any other state, a condition to which defendant agreed. Further, the State raised statutory forfeiture and permanent disqualification from public employment pursuant to N.J.S.A. 2C:51-2 (the forfeiture statute), due to defendant's status as a public employee when the offense was committed. Defendant would not agree to statutory forfeiture and permanent disqualification and it was not made a condition of the plea. Rather, the parties agreed to have the applicability of N.J.S.A. 2C:51-2 resolved by the court.
In his plea allocution, defendant admitted that, on January 14, 2006, he was in Frenchtown with the victim, K.W., with whom he had had a prior relationship, and that he "touch[ed] her intimate parts, including her buttocks[,] . . . without her freely-given consent[,] . . . [and] for purposes of [his] own sexual gratification." Satisfied that defendant's admissions created a sufficient factual basis to sustain the fourth-degree charge of criminal sexual contact, the court accepted the plea. The court then directed defense counsel and the State to brief whether defendant should be held to have statutorily forfeited his public employment and be permanently disqualified from any future public office or position as a result of his conviction.
The court heard argument on the issue at the time of sentencing. The State urged the court to find that the conviction "touched on" defendant's employment as a law enforcement officer because police officers are "on duty" at all times and are obligated to uphold the law. In reliance on State v. Rodriguez, 383 N.J. Super. 663 (App. Div. 2006), the State argued that defendant's conviction not only bore directly on his police position, but also, by extension, on defendant's competency to perform any public job. Defendant disagreed with the sweeping argument advanced by the State. He argued that the proper inquiry as to the forfeiture statute's applicability was whether there existed a specific and direct nexus between the offense committed and the public office held. Urging the court to find that no such nexus was presented on the facts here, defendant argued against the entry of an order of forfeiture and disqualification.
The trial court, relying on the two-pronged test enunciated in Moore v. Youth Correctional Institute, 119 N.J. 256 (1990), concluded that defendant's conviction for fourth-degree criminal sexual contact was serious and was "at direct odds with the duty to protect and serve the very community within which he was the officer." Accordingly, the court ordered defendant's forfeiture of and permanent disqualification from public office pursuant to N.J.S.A. 2C:51-2, and thereupon sentenced defendant, in accordance with the terms of the plea agreement, to a two-year term of probation, with the conditions noted previously.
Defendant appealed,*fn2 and a divided Appellate Division panel reversed. State v. Hupka, 407 N.J. Super. 489, 493 (App. Div. 2009). The majority, pointing to the amendments to the forfeiture statute made in 2007 to incorporate this Court's holding in McCann v. Clerk of Jersey City, 167 N.J. 311 (2001), discerned a legislative preference for the "involving and touching" standard enunciated in McCann, over the Moore standard on which the trial court relied. Hupka, supra, 407 N.J. Super. at 505-06. Applying the McCann standard to the facts presented, the majority found no nexus between the performance of defendant's public duties and the crime for which he pled and was convicted, id. at 509-510; thus, the Appellate Division reversed the order of permanent disqualification, id. at 511-12.
The dissenting judge argued that the focus should be on "whether the offense is incompatible with the performance in the specific public office held." Id. at 513 (Lihotz, J.A.D., dissenting). Convinced that the civil nature of the forfeiture statute allowed judges to consider collateral facts, the dissent looked beyond the plea allocution to the presentence report, and concluded that defendant's conduct was much more serious than his plea suggested, and was related directly to his role as a law enforcement officer. Id. at 515-17. Because defendant broke the law and thereby deviated from his public duties, the dissent concluded that permanent disqualification from public office or employment was proper. Id. at 517.
Based on the dissent below, the State appealed as of right pursuant to Rule 2:2-1(a)(2). We granted the subsequent requests by the Attorney General of New Jersey and the Association of Criminal Defense Lawyers of New Jersey to appear as amici curiae.
The forfeiture statute in New Jersey's Criminal Code is implicated when "[a] person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof . . . is convicted of an offense . . . ." N.J.S.A. 2C:51-2(a). Although related to a criminal conviction, "[f]orfeiture and disqualification are not penal consequences; rather, they are collateral consequences." Flagg v. Essex County Prosecutor, 171 N.J. 561, 575 (2002).
Pursuant to the forfeiture statute, an employee who has been convicted of a criminal offense suffers the collateral civil consequence of forfeiting his or her public position if
(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
(2) He is convicted of an offense involving or touching such office, position or employment; or
(3) The Constitution so provides.
As used in this subsection, "involving or touching such office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held ...