On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-10-1031.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
The State appeals defendant's sentence and defendant cross-appeals her conviction. We reverse and remand for a new trial.
Defendant was indicted by the grand jury in July 2007 and charged with third-degree witness tampering, N.J.S.A. 2C:28-5a(1) (count one), and second-degree official misconduct, N.J.S.A. 2C:30-2 (count two), for attempting to influence the testimony of a seventeen-year-old female high school student who was believed to be the victim of sexual assault by another teacher. Following a bench trial, defendant was found guilty of both offenses. Her motion for a new trial was denied.
The court imposed a four-year custodial sentence with a two-year period of parole ineligibility on count one. As to count two, a second-degree offense, the court sentenced defendant as a third-degree offender based on a finding that the mitigating factors substantially outweighed the aggravating ones, but made no finding that the "interest of justice demand[ed]" the downgrade, N.J.S.A. 2C:44-1f(2), and imposed a concurrent custodial sentence of four years with a two-year period of parole ineligibility. The State appealed and the defense conceded error by the court if her convictions were upheld. By order of July 28, 2009, we continued the trial court's stay of defendant's sentence pending appeal. We reverse defendant's convictions but note the court's sentencing error in the event defendant is convicted on retrial.
On her cross-appeal, defendant argues:
IT WAS ERROR FOR THE TRIAL COURT TO CONVICT THE DEFENDANT OF OFFICIAL MISCONDUCT SINCE THE INDICTMENT WAS INSUFFICIENT TO SUBSTANTIATE SUCH A CHARGE AND THE FACTS DID NOT SUPPORT IT. (NOT RAISED BELOW).
THE STATE FAILED TO PROVE A REQUIRED ELEMENT OF WITNESS TAMPERING NAMELY THAT PAINTER ENGAGED IN CONDUCT TO CAUSE B.D. TO TESTIFY FALSELY. FURTHER, THE TRIAL COURT COMMITTED ERROR IN: REFUSING TO PERMIT PAINTER TO INTRODUCE EVIDENCE REGARDING HER STATE OF MIND; INCORRECTLY SHIFTING THE BURDEN TO PAINTER; AND, FOLLOWED THE INCORRECT JURY CHARGE AND CONSIDERED EVIDENCE THAT SHOULD NOT HAVE BEEN CONSIDERED.
BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, PAINTER'S CONVICTIONS FOR WITNESS TAMPERING AND ...