On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-12-2711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Fisher, Sapp-Peterson and Simonelli.
Defendant appeals his conviction, following a jury trial, of one count of second-degree bribery, N.J.S.A. 2C:27-2, and the five-year custodial sentence imposed. We affirm.
A grand jury indicted defendant on two counts of second-degree bribery, N.J.S.A. 2C:27-2. Count One arose of a series of events that allegedly occurred between January 1 and May 31, 2004. Count Two, for which defendant was convicted, related to events that occurred between April 13 and May 5, 2005, while defendant was a member of the Atlantic City Board of Education and its president.
At trial, the State's chief witness in connection with Count Two was Stephanie Davies-Khan (Davies-Khan). Defendant's key witnesses in connection with that count were Tracey Neville (Neville) and Catherine Hunton-Clarke (Hunton-Clarke). The bribery charge in Count Two turned on whether defendant accepted a $2200 check as payment for legitimate business services he provided or whether the check represented a kickback.
The evidence presented at trial disclosed that defendant became a member of the Board in 2003 and remained on the Board until 2005. He initially served as vice president and later as the Board's president. During this time period, defendant also operated a consulting business called Methodical Endeavors, which formulated business plans and aided entrepreneurship.
Davies-Khan testified that in 2004, at the suggestion of defendant's
nephew, she reached out to defendant for assistance
in creating a business plan for her business, PECC,*fn1
which she had established with Hunton-Clarke and Neville.
PECC provided plumbing, HVAC, and electrical services to property
owners. Defendant met with the three women and advised that he would
charge $500 for his consulting services, but PECC decided not to have
defendant prepare the business plan at that point. Thereafter, while
attending a meeting for parents at a local school, Davies-Khan learned
about an upcoming program the Board was considering for adult
vocational training that sounded similar to the program that she and
her associates had discussed with defendant. She suspected that
defendant had stolen PECC's program.
Defendant met with her, Hunton-Clarke and Neville a second time and offered to put PECC's paperwork in order in exchange for a one percent interest in the company. They rejected this proposal. Defendant then told them that they would have to pay him $1000 for facilitating their acquisition of a contract with the Board, to which Davies-Khan indicated she told defendant "that's extortion[.]" However, Davies-Khan testified that "[e]verything that got [to the Board] got there through Cornell."
Defendant submitted PECC's proposal to the Board after PECC, at defendant's repeated requests, lowered its bid proposal. The Board awarded a contract to PECC. Subsequently, Davies-Khan was elected to the Board in April 2005 and, as a result of an ethics opinion she received, she severed her ties to PECC. Her relationship with defendant was fairly friendly at that time.
According to Davies-Khan, sometime thereafter, Neville contacted her and told her that she, meaning Neville, was supposed to meet with defendant but defendant had not arrived at the school where the meeting was to take place. It was at that point that Davies-Khan first learned defendant had been teaching for PECC, despite being on the Board. Davies-Khan lived across the street from the school where Neville was scheduled to meet defendant. Neville explained to Davies-Khan that she was leaving for the Bahamas and asked Davies-Khan to give defendant a check she had for him because she could no longer wait for him. The check was for $2200. When Davies-Khan asked Neville why defendant was getting a $2200 check, Neville told her that she and Hunton-Clarke just wanted defendant to "leave us alone."
Davies-Khan went across the street to the school and met Neville, who gave her the check. Davies-Khan waited for defendant, and when he arrived, he asked her to copy some papers for him. While copying those papers, she made a copy of the $2200 check and then left the check for defendant on a desk with the papers she had copied. Davies-Khan testified that she copied the check because she was unhappy that defendant was being paid by PECC despite his position on the Board.
Davies-Khan testified that she was "waiting for the decision on whether or not [she could] take money, if [she could] teach in the class, if [she could] volunteer in the class[,]" and she felt that defendant's situation was different than hers "because he was already the Board President" and she knew "he wasn't entitled to" $2200. The following day during a telephone conversation with defendant, Davies-Khan asked ...