February 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
KEITH R. BUCKLEY, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 10, 2010
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 ELEMENT OF OFFICIAL MISCONDUCT.
II. THE TRIAL COURT ERRED IN ITS CONCLUSION THAT THE ACTIONS OF THE DEFENDANT WHICH ARE ALLEGED TO BE OFFICIAL MISCONDUCT WERE RELATED TO HIS OFFICE.
III. THE TRIAL COURT ERRED BY FAILING TO DISMISS THE INDICTMENT DUE TO THE PROS-ECUTOR'S FAILURE TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.
IV. THE INDICTMENT SHOULD HAVE BEEN DISMISSED DUE TO THE STATE'S IMPROPER AMENDMENT THEREOF AS TO SUBSTANCE.
The decision to dismiss an indictment "lies within the discretion of the trial court." State v. Hogan, 144 N.J. 216, 229 (1996). However, an indictment should be dismissed only "on the 'clearest and plainest ground' and only when the indictment is manifestly deficient or palpably defective." Id. at 228-29. An indictment is adequate if "the document in reasonably understandable language communicates to the defendant the essential factual ingredients of the offense," State v. Boratto, 80 N.J. 506, 518 (1979), and should not be dismissed "if there is some evidence establishing each element of the crime to make out a prima facie case," State v. Morrison, 188 N.J. 2, 12 (2006). In reviewing a determination regarding the sufficiency of the evidence provided to the grand jury, we are obligated to give the State every reasonable inference. Schenkolewski, supra, 301 N.J. Super. at 137.
The official-misconduct indictment charges defendant with two separate violations of N.J.S.A. 2C:30-2, a statute intended to "insure that those who stand in a fiduciary relationship to the public will serve with the highest fidelity, will exercise their discretion reasonably, and will display good faith, honesty, and integrity." State v. Thompson, 402 N.J. Super. 177, 190-91 (App. Div. 2008). The two counts of the official-misconduct indictment here are based on the statute's two separate subsections. Subsection (a) of N.J.S.A. 2C:30-2 makes it unlawful for "a public servant," with "purpose to obtain a benefit for himself or another," to commit "an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such an act in an unauthorized manner"; subsection
(b) makes it unlawful for a public servant, with the same purpose, of "knowingly refrain[ing] from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office."
In examining whether the trial judge mistakenly exercised his discretion in dismissing the indictment, we first briefly consider an element common to both counts -- the allegation that defendant, in engaging in the conduct in question, obtained a benefit for himself or another. Defendant argues that the grand jury was not provided with evidence that he obtained a benefit or that the indictment provides an insufficient description of the benefit allegedly obtained. We reject these arguments substantially for the same reasons expressed by the trial judge in his oral decisions. A benefit, within the meaning of this statute, may be something other than a pecuniary advantage and need not be tangible. For example, it has been held that this element is satisfied by an intangible gratification, State v. Quezada, 402 N.J. Super. 277, 281 (App. Div. 2008) (holding that a volunteer firefighter obtained a benefit from making a false alarm because he received the "joy or gratification of participating in the response or even by giving the unit work to keep it in existence"), or the satisfaction of a prurient interest, State v. Stevens, 203 N.J. Super. 59, 68 (Law Div. 1984) (finding a police officer obtained an "implied benefit" in the prurient interest satisfied by conducting a strip search). See also State v. Phelps, 187 N.J. Super. 364, 366 (App. Div. 1983), aff'd, 96 N.J. 500 (1984). The allegation that defendant obtained for himself or for Zerby the benefit of a "thrill" from driving or riding in a high performance sports car at a high rate of speed meets the "benefit" requirement of N.J.S.A. 2C:30-
2. We also agree with the trial judge that the grand jury could infer such a benefit from the evidence presented to it. Accord Quezada, supra, 402 N.J. Super. at 281.*fn1
In addition, we agree with the trial judge that there was sufficient evidence put before the grand jury to support an indictment on both subsections of N.J.S.A. 2C:30-2.*fn2 However, in the final analysis, although we concur with the judge's conclusion that both the indictment and bill of particulars --insofar as they describe the acts or omissions underlying the charged offenses -- are unartful, we do not agree they lack the clarity necessary to survive a motion to dismiss.
The first count alleges a violation of subsection (b), i.e., that defendant "knowingly refrain[ed] from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office." N.J.S.A. 2C:30-2(b). Although the statute would ostensibly permit an indictment that merely cites a defendant's knowing failure to perform duties that are "clearly inherent in the nature of his office," in response to the judge's initial criticism, the State served a bill of particulars, which specified those duties it claimed defendant had knowingly failed to perform. That is, the indictment as amended by the bill of particulars asserted that defendant knowingly refrained from performing a duty which was imposed upon him by law and/or[*fn3 ] was clearly inherent in the nature of his office. [Defendant] had the official functions and duties of a police officer which included, the duty to:
1. Protect life and liberty and serve the public;
2. Obey, uphold and enforce all federal, state and local laws and ordinances within the department jurisdiction, including all motor vehicle laws set forth in N.J.S.A. 39:4-1 et seq.;
3. Obey all speed limits when driving while on duty and not responding to an emergency;
4. Not to engage in conduct while on duty that would unnecessarily endanger the public.
We find this aspect of the indictment sufficiently clear to preclude dismissal.
Indeed, it would have been satisfactory, in stating an offense pursuant to N.J.S.A. 2C:30-2(b), if the indictment referred only to defendant's failure to perform the duties inherent in his office when he deserted his post on the date in question to go joyriding in a sports car. The State was not obligated to plead the many duties of a police officer that were allegedly disregarded when defendant was driving or racing about instead of acting as an on-duty police officer. That the State may have provided further definition of those allegedly disregarded duties, in our view, was irrelevant to its obligation to provide a clear statement of the elements of the offense charged, which was here fulfilled.
The sufficiency of the indictment's second count, which alleges defendant violated subsection (a) of the official-misconduct statute, is not as readily apparent, but we are satisfied the indictment's allegations, as amplified by the bill of particulars, are clear enough to avoid dismissal. Indeed, the trial judge's understandable concerns about the difficulties in presenting such a case to a jury are more a product of the statute and the Legislature's "subtle blurring of the two subsections," Thompson, supra, 402 N.J. Super. at 192, than some failure in the manner in which the State has expressed its allegations. Circumstances are certainly conceivable that a defendant may face trial on charges based on both subsections for essentially the same conduct. However, as the judge correctly recognized, this is no present impediment.
An indictment, based on subsection (a) of N.J.S.A. 2C:30-2, requires the inclusion of allegations that defendant committed "an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such an act in an unauthorized manner." Although we would again join in the trial judge's view that the indictment, even as amplified by the bill of particulars, was less than adept, the State has alleged therein that, by racing about his municipality while on duty, defendant was engaged in an unauthorized exercise of his official duties or was utilizing his office in an unauthorized manner. In addition, the State has alleged that defendant engaged in unauthorized conduct with regard to his supervision of Zerby, who was also on duty at the time in question; defendant allowed him to be a passenger in the Viper while Zerby was unarmed and without any of his other police equipment, thereby rendering Zerby unable to properly perform his police duties. Although the second count, as amended, may contain other verbiage that may ultimately prove unnecessary or irrelevant to the charges, we are satisfied that the essence of the second count's allegations -- that defendant acted in an unauthorized manner in operating the Viper and in his supervision of Zerby -- were not so unclear as to warrant dismissal.