NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 24, 2012
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-06-0094.
Jeanne Screen, Deputy Attorney General, argued the cause for appellant State of New Jersey in A-0960-09 and respondent State of New Jersey in A-1078-09 (Jeffrey S. Chiesa, Attorney General, attorney; Lisa Sarnoff Gochman, Deputy Attorney General, of counsel and on the brief).
Richard W. Berg argued the cause for respondent John Fiore in A-0960-09 and appellant John Fiore in A-1078-09 (The Law Offices of Robin Kay Lord, LLC, attorneys; Mr. Berg and Robin Kay Lord, of counsel and on the briefs).
Before Judges Simonelli, Koblitz and Accurso.
Defendant John Fiore is the former executive director of the East Windsor Police Athletic League (EWPAL). His co-defendant, Jeffrey Nemes (Nemes), was a contractor whose company was awarded a contract to construct a building for EWPAL. Defendant and Nemes allegedly conspired to have the contract awarded to Nemes in exchange for Nemes constructing a new deck on defendant's home using EWPAL's funds. A grand jury indicted defendant for the following crimes:
1. second-degree conspiracy to promote or facilitate bribery in official and political matters, N.J.S.A. 2C:27-2d; misapplication of entrusted property, N.J.S.A. 2C:21-15; and official misconduct, N.J.S.A. 2C:30-2 (count one);
2. second-degree bribery in official and political matters (for soliciting, or accepting or agreeing to accept a new deck as consideration for the violation of his duty as a public servant in his capacity as an employee of the Township of East Windsor serving as executive director of EWPAL), N.J.S.A. 2C:27-2d (count two);
3. third-degree misapplication of entrusted property, N.J.S.A. 2C:21-15 (count three); and
4. second-degree official misconduct (for misapplying EWPAL funds and accepting a bribe in order to obtain a benefit for himself or others and as consideration for the violation of his duty as a public servant), N.J.S.A. 2C:30-2a (count four).
Defendant filed a pre-trial motion to dismiss the indictment. He argued that he was not a public servant within the purview of the statutes governing the charges in counts one, two and four, and not a fiduciary entrusted with EWPAL's property within the purview of the statutes governing count three. The motion judge held that defendant was a public servant and denied the motion as to counts one, two and four.The judge granted the motion as to count three and that part of count one alleging conspiracy to commit misapplication of entrusted property, finding that defendant was not a fiduciary, nor did his conduct fall within the purview of N.J.S.A. 2C:21-15.
At trial, defendant moved for judgment of acquittal at the close of the State's case, arguing there was insufficient evidence that he was a public servant. The trial judge denied the motion. The judge also amended count two to reference N.J.S.A. 2C:27-2c instead of N.J.S.A. 2C:27-2d to more accurately reflect the evidence.
A jury found defendant guilty on counts one, two and that part of count four charging second-degree official misconduct for accepting a bribe. The jury acquitted defendant on that part of count four charging official misconduct for misapplying EWPAL funds. The judge denied defendant's post-trial motions for a new trial and for judgment of acquittal notwithstanding the verdict (JNOV).
At sentencing, the judge merged count one with count two, then merged both counts with count four. Over the State's objection, the judge downgraded count four to a third-degree offense pursuant to N.J.S.A. 2C:44-1f(2) and sentenced defendant to a three-year term of imprisonment with no minimum period of parole ineligibility. Defendant would be eligible for an Intensive Supervision Program (ISP) after six months' incarceration and for parole after nine months. The judge also imposed the appropriate assessments, fines and penalties and ordered defendant to pay restitution in the amount of $8000 to EWPAL. These appeals followed.
On appeal, the State raises the following contention:
THE TRIAL COURT WAS CLEARLY MISTAKEN IN IMPOSING A SENTENCE APPROPRIATE FOR A CRIME ONE DEGREE LOWER THAN THE SECOND-DEGREE CRIME OF OFFICIAL MISCONDUCT (COUNT FOUR) OF WHICH DEFENDANT WAS CONVICTED FOLLOWING A JURY TRIAL.
A. The sentencing court erred in finding that the mitigating factors outweighed the aggravating factors.
B. There are no compelling reasons indicating that the interest of justice demands a downgraded sentence.
C. This Court should exercise its original jurisdiction to find that the criteria of N.J.S.A. 2C:44-1f(2) were not met and resentence defendant in the second-degree range.
On appeal, defendant raises the following contentions:
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE COUNTS OF THE INDICTMENT CHARGING OFFICIAL MISCONDUCT, BRIBERY AND CONSPIRACY.
A. THE ULTRA VIRES CONTRACT WAS VOID AS A MATTER OF LAW.
B. THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT WAS A PUBLIC SERVANT.
C. THERE WAS INSUFFICIENT EVIDENCE OF CONSPIRACY.
THE TRIAL COURT ERRED WHEN IT AMENDED THE BRIBERY INDICTMENT TO CHARGE A DIFFERENT SUBSECTION.
THE TRIAL COURT ERRED WHEN IT EXPANDED WITH ERRONEOUS INSTRUCTIONS BEYOND THE MODEL CHARGE ON BRIBERY, DENYING DEFENDANT DUE PROCESS AND A FAIR TRIAL.
THE PROSECUTOR'S REPEATED MISCONDUCT VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL. IT REQUIRES REVERSAL OF HIS CONVICTION.
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRONEOUS RULINGS DENIED DEFENDANT A FAIR TRIAL.
1. IMPROPER TESTIMONY REGARDING PENSION SYSTEM.
2. THE PROSECUTOR'S IMPROPER SUMMATION.
3. ERRONEOUSLY ALLOWING REDIRECT OF NEMES WITH LEADING QUESTIONS.
4. TRIAL COURT'S ERRONEOUS FAILURE TO DISCLOSE A POTENTIAL CONFLICT OF INTEREST INVOLVING HIS WIFE.
We affirm defendant's conviction and sentence.
We first address whether defendant was a public servant for the purposes of the charges of official misconduct and bribery in official and political matters (official ...