On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-1161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Simonelli and Fasciale.
In this matter, we consider the State's appeal of a dismissal of an indictment charging defendant, a police officer, with official misconduct, N.J.S.A. 2C:30-2, as well as defendant's cross-appeal, which suggests other reasons for dismissal rejected by the trial judge. Although the indictment and the State's bill of particulars are unartful, we do not agree they lack sufficient clarity and, therefore, reverse the order of dismissal.
In reviewing an order dismissing an indictment, the State is entitled to every reasonable inference regarding the indictment's factual allegations. State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997). Accordingly, in examining the order under review, we assume as true the following.
On August 12, 2008, defendant was a lieutenant with the North Brunswick Police Department and commander of the patrol division, which includes the uniform division and the traffic safety unit. At the time in question, defendant and two other lieutenants were the department's highest ranking officers.
Defendant began work that morning at 7:00 a.m., and was scheduled to work until 5:00 p.m. Because his assigned police vehicle was being serviced, defendant was provided with an unmarked Ford Taurus equipped with emergency lights and sirens.
At approximately 10:00 a.m., defendant called his brother and they agreed to meet. Defendant left police headquarters without informing anyone where he was going and arrived at his brother's North Brunswick home at approximately 10:30 a.m. Upon arriving, defendant observed parked in his brother's driveway a Dodge Viper -- a "high performance sports car" capable of accelerating from zero to sixty miles per hour in 4.2 seconds and from zero to one hundred miles per hour in 9.4 seconds. Defendant accepted his brother's offer and drove away in the Viper, leaving behind his assigned police vehicle.
At approximately 10:40 a.m., defendant was driving the Viper in North Brunswick when he saw Lieutenant Christopher Zerby and another officer taking measurements for a crosswalk. Defendant asked Zerby if he wanted to take an early lunch; Zerby responded that he wanted to go for a ride in the Viper. Defendant agreed and picked up Zerby in the Viper at police headquarters approximately ten minutes later.
With defendant at the wheel, he and Zerby headed toward Route 130, eventually stopping at a traffic signal at the intersection of Carolier Lane and Route 130, an area in North Brunswick posted as a forty-five mile per hour speed zone. When the light turned green, defendant accelerated at a "very high rate of speed" reaching at least ninety-four miles per hour; defendant lost control of the vehicle and struck a guardrail, causing the Viper to rotate in a clockwise direction until its rear end struck a utility pole. After the collision, defendant exited the vehicle. His passenger, however, was not so fortunate. Zerby was taken by ambulance to a nearby hospital and pronounced dead at 11:44 a.m.
An indictment handed down on October 31, 2008, charged defendant with second-degree vehicular homicide, N.J.S.A. 2C:11-5. Another indictment, filed on July 7, 2009, charged defendant with two counts of second-degree official misconduct, N.J.S.A. 2C:30-2.
Defendant moved to dismiss the official-misconduct indictment. After hearing argument, the trial judge continued the matter, providing the State with an opportunity to cure certain purported defects in the indictment. Later, after considering the sufficiency of a proposed amended indictment and bill of particulars, the judge granted the motion to dismiss. The State appealed, arguing in a single point that the indictment as amended by the bill of particulars gave defendant sufficient notice of the offenses charged. Defendant cross-appealed, presenting the following additional reasons to support his contention that the official misconduct indictment was properly dismissed:
I. THE TRIAL COURT ERRED IN ITS CONCLUSION THAT THE GRAND JURY WAS PRESENTED WITH ADEQUATE EVIDENCE AS TO THE BENEFIT ...