On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-09-00770.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and Harris.
In a four-count indictment, a Somerset County grand jury charged defendant Joseph Lucas with second-degree official misconduct, N.J.S.A. 2C:30-2 (count one); second-degree bribery, N.J.S.A. 2C:27-2(c) and (d) (count two); second-degree acceptance of unlawful benefits by a public servant for official behavior, N.J.S.A. 2C:27-10(a) and (b) (count three); and fourth-degree falsifying records, N.J.S.A. 2C:21-4(a) (count four). On November 16, 2007, a jury found defendant guilty of official misconduct, but he was acquitted of the remaining charges. On April 25, 2008, the court sentenced defendant to a five-year prison term. The trial judge continued bail and stayed the sentence pending appeal.
Defendant presents the following arguments for our consideration:
THE TRIAL JUDGE'S HOSTILE QUESTIONING OF WITNESS JOSEPH PIETRASZEWSKI DENIED DEFENDANT A FAIR TRIAL.
THE JURY RETURNED A NONUNANIMOUS VERDICT, THE LEGAL EFFECT OF WHICH IS AN ACQUITTAL BECAUSE THE JURY DID NOT AGREE UNANIMOUSLY THAT ANY OF THE FOUR PREDICATE OFFENSES SUBMITTED TO THE JURY UNDER COUNT ONE OF THE INDICTMENT APPLIED.
THE DUPLICITOUS INDICTMENT DENIED DEFENDANT A FAIR TRIAL.
THE COURT MUST ENTER A JUDGMENT OF ACQUITTAL BECAUSE THERE IS NO EVIDENTIARY CORROBORATION OF THE PRIOR INCONSISTENT STATEMENT OF JOSEPH PIETRASZEWSKI ADMITTED INTO EVIDENCE UNDER N.J.R.E. 803(a)(1) AND N.J.R.E. 613; ADDITIONALLY, THE STATE DID NOT PROVE CRITICAL ELEMENTS OF THE OFFENSE.
THE CONVICTION UNDER COUNT ONE MUST BE REVERSED BECAUSE DEFENDANT WAS NEVER CHARGED WITH VIOLATING THE REQUIREMENTS OF THE PURCHASING MANUAL; MOREOVER, HIS ACTIONS DID NOT VIOLATE THE REQUIREMENTS OF THE PURCHASING MANUAL, OR STATE PUBLIC CONTRACTS LAW, OR ANY DUTY INHERENT IN THE NATURE OF HIS OFFICE.
THE TRIAL JUDGE FAILED TO CHARGE CRITICALLY IMPORTANT LANGUAGE TO THE JURY WHICH WAS HIGHLY RELEVANT TO THIS CASE CONCERNING A PUBLIC SERVANT'S KNOWLEDGE OF HIS DUTY TO ACT.
THE TRIAL COURT WAS REQUIRED TO CHARGE THE JURY AS IF THEY WERE DEADLOCKED ON THE PREDICATE OFFENSES UNDER COUNT ONE, ONCE THE TRIAL COURT DECIDED THAT THE INITIAL VERDICT WAS UNACCEPTABLE AND REQUIRED "CLARIFICATION."
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.
APPELLATE INTERVENTION IS WARRANTED AS A MATTER OF FUNDAMENTAL FAIRNESS BECAUSE ONE CANNOT HAVE CONFIDENCE IN THIS VERDICT.
We conclude from our review of the record and the applicable law that defendant's arguments are without merit, and we affirm the judgment of conviction.
Defendant was hired by the Somerset County Park Commission (Park Commission) in 1995 as a construction inspector. About two years later, he was promoted to construction supervisor, and he became construction manager in 2001. His job responsibilities as construction manager included soliciting quotations for work not subject to the formal bidding process, overseeing contractors throughout the park system, and supervising other employees.
In 2004 and 2005, Peng Chen was the finance administrator and purchasing agent for the Park Commission. In April 2004, Chen prepared and distributed the Somerset County Park Commission Purchasing Manual (purchasing manual or manual) to each of the department managers. The purpose of the purchasing manual was "to familiarize departments with the procedures, responsibilities, and documents required for purchasing goods and services." The manual states: "No goods or services shall be contracted for or purchased by any department except in accordance with the procedures set forth herein."
The purchasing manual explained that the Park Commission "increased the bid threshold from $17,500 to $25,000" on April 15, 2004, and that expenditures of $25,000 or more were subject to the requirements of the Local Public Contracts Law (LPCL), N.J.S.A. 40A:11-1 to -51. The manual further explained that the LPCL did not apply to any expenditures under $25,000. For projects costing between $3750 and $25,000, department managers were instructed to obtain three quotations from outside vendors or contractors.*fn1
According to the purchasing manual, the Park Commission's "procurement practices and policies" are designed to promote open competition. Therefore, the manual provides: "Purchase [o]rders or contracts will be awarded to the lowest responsible vendor." In addition, the manual states "[p]rices and other specific information received from vendors will be considered confidential. During price solicitation, quotations received from one supplier shall not be divulged to another."
Chen testified that the procedure for construction projects costing between $3750 and $25,000 begins with the solicitation of three quotations for the work by the construction department.
After the quotations are received, the construction manager submits a summary thereof to Chen. Based on the summary of quotations, Chen's office prepares a purchase order, which is then sent to the person or company selected to do the work.
After the work is performed, the contractor submits an invoice for payment and the finance department prepares a check for payment. However, the check is not released to the contractor until the construction manager approves the work and signs a copy of the purchase order.
Defendant's supervisor, Leslie Holzmann, indicated he was "familiar with the manual" dated April 2004 and confirmed it was distributed to all of the departments in the Park Commission.
Holzmann testified that when quotations were needed for a construction project, he generally asked defendant to get the quotes and to complete a solicitation of quotation form that would be submitted to the finance department "for processing and approval." According to Holzmann, defendant was expected to obtain quotes within the Park Commission's budget. Therefore, he was allowed to discuss the Park Commission's budget for a project with a potential contractor.
Holzmann also testified that defendant would sometimes select the contractors who were asked to submit quotes:
Q: Now, sir, when these three quotes would come in, who would be responsible for selecting the contractor?
A: It might depend on the project. [If it] was a specialized type of project where we were not familiar with the contractors, with the type of work, Mr. Lucas and I might discuss how to find a contractor to solicit quotes. For the more simple projects that were typical construction types then Mr. Lucas would be responsible for picking the contractors.
Frank Taddeo was an inspector in the construction department and defendant was his immediate supervisor. Taddeo testified that in the Fall of 2004, defendant asked him to solicit a quotation from Nicholas Tozzi for a project at the Steinant Building, also known as "Gary's house." Tozzi's written estimate for the entire project, including roofing, siding, and other work, was $16,400. That was the only quote that Taddeo obtained, and he gave it to defendant. According to Taddeo, defendant told him in September or October 2004, that Joseph Pietraszewski "got the job" at Gary's house because "he [needed] some work," and he was "a good carpenter."
When Tozzi learned that someone else was selected to perform the work, he telephoned defendant to find out what happened. Tozzi testified that defendant said he was sorry, but "he had some comparative bids [and] another contractor was real slow." Tozzi also testified that defendant never asked him to do anything improper or illegal.
The project at Gary's house was ultimately awarded to Kimcon General Contractors (Kimcon), a company owned by Pietraszewski's wife. On November 2, 2004, defendant submitted a solicitation of quotation form to the finance department for "Roof at Steinant." The solicitation form stated that Kimcon's price was $9300, Tozzi's price was $9700, and a third company's price was $10,375. Later in the month, defendant approved a purchase order prepared by the finance department and Kimcon was paid the sum of $9300 on November 18, 2004.
On December 2, 2004, defendant submitted another solicitation of quotation form to the finance department for "Exterior Renovation" work at Gary's house. That form indicated that Kimcon's price was $10,700, Tozzi's price was $12,200, and a third contractor's price was $14,900. On December 16, 2004, after defendant approved the purchase order, Kimcon was paid the sum of $10,700. In addition, Kimcon received $1925 for "extra" roofing and siding work. Therefore, Kimcon was paid a total of $21,925 for the work at Gary's house even though Tozzi had proposed to do the entire project for $16,400.*fn2
In a recorded statement to Detective Robert Pascale of the Somerset County Prosecutor's Office on April 28, 2005, Pietraszewski stated he was friends with defendant, and their families would visit and socialize together. Pietraszewski indicated that on several occasions, defendant told him what to quote "to be awarded the job." Pietraszewski felt defendant gave him the information as a result of their friendship because defendant never asked for money or a loan in return. With regard to the project at Gary's house, Pietraszewski said he knew he was competing against Tozzi and he indicated defendant told him what to quote "to beat Tozzi."
However, when Pietraszewski testified as a State's witness in November 2007, he did not recall having a conversation with defendant regarding the project at Gary's house, and Pietraszewski only "vaguely" remembered giving a recorded statement to Detective Pascale. According to Pietraszewski, he was not "in the right state of mind" to give a statement on April 28, 2005, because it was only four days after his back surgery, he was "pretty much [on] [OxyContins]" and his wife just had major surgery. After reading a transcript of his recorded statement, Pietraszewski still could not remember giving the statement. He testified as follows:
Q: Does that refresh your recollection?
A: Again, I don't recall the conversation with... the detective.
Q: But does that refresh your recollection as to whether or not you had any conversation with Mr. Lucas about bidding on that job?
A: I don't recall if I talked to Mr. Lucas or Mr. Frank Taddeo. I probably spoke to both of them or somebody did in the office regarding the project.
Q:... [W]hat did you talk about regarding that project?
A:... [T]hat they needed the bid to be put in and the bid was put in. ...