On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-04-00769.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
The State sought leave to appeal from an order dismissing two counts of an indictment that charged defendants William Roseman and Lori Lewin with official misconduct, N.J.S.A. 2C:30-2(a). We granted the State's motion and, for the reasons that follow, we now reverse.
The Bergen County Grand Jury returned a six count indictment against both defendants, charging them with conspiracy, N.J.S.A. 2C:5-2 (counts one and four); theft by deception, N.J.S.A. 2C:20-4(a) (counts two and five); and official misconduct, N.J.S.A. 2C:30-2(a) (counts three and six).
Detective Sergeant John Haviland of the Bergen County Prosecutor's Office testified before the grand jury regarding an investigation concerning the Borough of Carlstadt that was commenced in late 2007. Pertinent parts of his testimony are summarized as follows.
Roseman became Mayor of the Borough of Carlstadt in 1996. As Mayor, he received a benefits plan through Carlstadt, the Borough of Carlstadt Bergen Municipal Employees Benefit Fund Health Plan, that included a medical, prescription and dental benefits plan. The benefits provided to Roseman were available to his wife, defendant Lewin, and child. However, his wife was not entitled to such benefits after they divorced on July 7, 2000, unless she purchased the coverage through COBRA.
The medical and prescription plan was self-funded and administered through a third party administrator, IDA. Claims for payment from health care doctors or for reimbursement from employees were submitted to IDA, which then processed the claims and periodically notified Carlstadt of the claims to be paid. Carlstadt funded an account for such purpose and, upon resolution of the Council, authorized payment. All the funds used to pay the medical claims were public funds obtained from the taxpayers. As for the dental plan, the premiums for the insurance coverage were paid for by public funds.
The Carlstadt Health Insurance Plan booklet advises the employee, "it is your responsibility to notify the Borough of Carlstadt of needed changes regarding your insurance." Roseman submitted a change request form, dated June 30, 1995, to notify IDA of his change of address to a Jefferson Street address in Carlstadt and also submitted a change form in 1998 to enroll his son in the plan. The forms were submitted to the Borough's insurance officer. In 2001, Roseman filed a W-4 form to change his tax deductions after his divorce.
In addition, Roseman was required to notify Carlstadt of his divorce within sixty days pursuant to 42 U.S.C.A. § 300bb-6(3) and Carlstadt's employee plan handbook. However, he did not notify the Borough or IDA of the divorce or remove Lewin from the coverage provided by the Borough. Lewin continued to receive benefits through Carlstadt's medical plan, prescription plan and dental plan. In 2001, after his divorce, Roseman moved to an address on Hackensack Street. However, he did not submit a change of address form for that move.
Roseman continued to receive his mail, including insurance explanation of benefits (EOB) forms from IDA and mail relating to Borough business, at the Jefferson Street address where Lewin continued to reside with their son. The EOB forms were sent to the insured employee to notify the insured of claims and the payment of claims for persons on his or her account. Haviland testified that, from the time of defendants' divorce through 2007, approximately one hundred EOBs were sent to Roseman at the Jefferson Street address. Of these, there were twelve separate EOBs that identified claims made for services received by Lewin, the doctor's name and the amount of the benefit. The total of benefits paid to doctors and reimbursements to the insured employee for these claims by Lewin was approximately $4,000. The Borough also paid approximately $7,000 in prescription expenses for Lewin following defendants' divorce. The Borough continued to pay premiums for dental coverage for Lewin at a cost of approximately $840 per year for five years after she was not eligible for such coverage.
As Mayor, Roseman presided over meetings of the Borough Council in which resolutions were passed to fund the medical, prescription and dental plans and to approve the payment of bills submitted by the third party administrator. The bills were not itemized as to the person for whom services were provided. However, as Haviland testified, payments made on behalf of Lewin were included in such resolutions.
Defendants filed a motion to dismiss the indictment, arguing, in part, that the State failed to present evidence of a prima facie case of official misconduct to the grand jury. The trial court granted the motion as to the official misconduct ...