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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 -- 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In our prior unpublished opinion in this matter, we considered the State's appeal of a dismissal of an indictment charging defendant, a police officer, with official misconduct,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
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 ...