August 11, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
February 3, 2011
Argued November 10, 2010 -- Remanded by Supreme Court June 27, 2011. Submitted August 4, 2011 - Decided
Before Judges Fisher, Simonelli and Fasciale.
In our prior unpublished opinion in this matter, we considered the State's appeal of a dismissal of an indictment charging defendant, a police officer, with official misconduct,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 suggested other reasons for dismissal of the indictment that were rejected by the trial judge. We found that although the indictment and the State's bill of particulars were unartful, they did not lack sufficient clarity, and therefore, we reversed the order of dismissal. State v. Buckley, No. A-3922-09 (App. Div. Feb. 3, 2011). The Supreme Court granted defendant's petition for certification and summarily remanded the matter to this court so we might "address the issues raised on defendant's cross-appeal that were not addressed" in our prior opinion.
In his cross-appeal, defendant posed the following additional reasons to support his contention that the indictment*fn1
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.
We assume, since the Court remanded so that we might "address the issues raised on defendant's cross-appeal" not addressed in our earlier opinion, that the Court was not referring, in its summary order, to our disposition of Point I,*fn2 as to which we held:
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, or the satisfaction of a prurient interest.
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. [Buckley, supra, slip op. at 6-8 (citations omitted).]
Our disposition of the argument contained in defendant's Point II is the same as our disposition of the State's appeal. In reversing, we held that the State had alleged sufficient acts of official misconduct to satisfy the requirements of both subsections of N.J.S.A. 2C:30-2. Buckley, supra, slip op. at 9-12. That same rationale compels our rejection of defendant's Point II.
In Point III, defendant argues that the State failed to provide exculpatory evidence to the grand jury. We reject this argument for the following reasons.
The State's theory that defendant engaged in official misconduct was based, at least in part, on defendant's breach of departmental rules and regulations requiring, among other things, the carrying of a weapon and handcuffs. The State called Deputy Chief Joseph Battaglia to testify before the grand jury that defendant's conduct on the date in question violated "a fair number" of the department's rules and regulations. Defendant argued that the State should have gone further and provided the grand jury with a statement Deputy Chief Battaglia gave to the prosecutor's investigator in which he stated "there's a lot of latitude given to administrative personnel" such as defendant, and that no one "to his knowledge" had ever been disciplined for failing to comply with these rules.
In seeking an indictment from a grand jury, "the State may not deceive . . . or present its evidence in a way that is tantamount to telling . . . a 'half-truth.'" State v. Hogan, 144 N.J. 216, 236 (1996). Instead, the State must provide such evidence in its possession "that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Ibid. In short, the State must "give the grand jury evidence in the prosecutor's possession which clearly exculpates a defendant, that is, evidence that directly negates a defendant's guilt." State v. Smith, 269 N.J. Super. 86, 93 (App. Div. 1993), certif. denied, 137 N.J. 164 (1994). Hogan instructs that courts must "act with substantial caution" before concluding the State has failed to comply with this standard.
144 N.J. at 238. Although the statement given by Deputy Chief Battaglia -- that the department's rules were, to his knowledge, not enforced -- may be viewed as somewhat exculpatory, we agree substantially for the reasons set forth by the trial judge in his oral opinion of November 30, 2009, that the State was not obligated to provide this information to the grand jury because that evidence did not clearly negate guilt.
Defendant lastly argued that the indictment was amended in violation of Rule 3:7-4, which provides in part that a court "may amend" an indictment "to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits." Defendant contends that, in amending the indictment to conform to the trial judge's earlier rulings, the State may have deleted allegations which motivated the grand jury to return the indictment. We reject this contention not only because it is the product of speculation but also because defendant has not been and will not be prejudiced. Indeed, as a result of the amendments, defendant has been benefited through the elimination of certain allegations once contained in the indictment, resulting in a clearer and more detailed blueprint of the State's case against him than was required.
For these reasons, we reject the arguments asserted by defendant in his cross-appeal, and adhere to our earlier judgment, which reversed the trial court order that dismissed the indictment.