September 5, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
JOHN FIORE, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Respondent,
JOHN FIORE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 bribery). The following evidence relates to this issue.
EWPAL is a non-profit charitable corporation that provided recreation programs aimed at deterring youth crime in East Windsor Township (Township) and neighboring communities. EWPAL functioned in conjunction with the East Windsor Township Police Department (EWTPD) and EWPAL's sole sponsor, the East Windsor Township Police Benevolent Association, Local No. 191 (PBA). EWTPD and the PBA provided no funds to EWPAL; their "sponsorship" was limited to permitting the use of the word "police" in EWPAL's name. EWPAL received no subsidy from the Township. The majority of EWPAL's funding came from program fees.
The Executive Director
EWPAL's constitution and by-laws required its Board of Directors (Board) to appoint the executive director after consultation with the PBA. The constitution also required the executive director to be a member in good standing of the PBA, while the by-laws required him or her to be a member in good standing of the EWTPD. The by-laws defined the executive director's duties and responsibilities, which included employing and supervising staff, developing a budget, and conducting EWPAL's programs. The executive director also controlled EWPAL's finances, including special projects, and had authority to sign checks to disburse EWPAL funds, subject to the Board's approval. The constitution and by-laws contained no provision for the executive director's compensation.
The Employment Agreements
During a portion of the time he was EWPAL's executive director, defendant was also employed as a police officer with the EWTPD. He planned to retire from the EWTPD at the end of 1994, but continue as EWPAL's executive director. To facilitate defendant's plans, on November 1, 1994, the Township Council amended the ordinance for salaries and wages for non-union employees to add the position of EWPAL executive director as one of the Township's "Key Management Personnel" positions. The Township Council also passed a resolution approving a contract with defendant for that position. The next day, defendant and the Township executed an "Employment Agreement, " which named the Township as "employer" and defendant as EWPAL's executive director (the contract). The contract, effective January 1, 1995 to December 31, 1999, established defendant's powers and duties, which included the administration of EWPAL's day-to-day business and finances. The contract also placed defendant under the direct supervision of the chief of police, required defendant to be bound by EWPAL's constitution and by-laws, work "a minimum of 35 hours per week, " and maintain his existing EWPAL office, which was then located at police headquarters.
Pursuant to the contract, the Township paid defendant a salary of $27, 000 per year for the first year, with annual increases at least equal to the average salary increase of all non-union Township employees. Defendant also received vacation and sick days, and the same holidays that the Township's nonunion employees received. The Township provided defendant with a Township-owned vehicle bearing a municipal government license plate, for his use solely for work-related travel.
Because defendant would receive a pension from the New Jersey Police and Firemen's Retirement System (PFRS) following his retirement from the EWPTD, the contract provided that he would not be enrolled in any State-sponsored pension system. Had defendant not received the PFRS pension, he would have been eligible for a Public Employees Retirement System (PERS) pension as a Township employee.
Defendant retired from the EWTPD as of January 1995, and began working full-time as EWPAL executive director. The Township paid defendant's salary, withheld taxes from his paycheck, issued him W-2 tax forms, and filed the forms with the federal and State governments. Defendant did not receive a Form 1099 from the Township because the Township only provided that form to independent contractors.
In February 2000, the defendant and the Township renewed the contract for the period January 1, 2000 to December 31, 2004 (the renewed contract). The renewed contract increased defendant's yearly salary to $32, 065 and contained other provisions nearly identical to the contract. However, there were some significant differences between the two contracts: the renewed contract now required defendant to be bound by the EWPAL by-laws, not the EWPAL constitution; placed him under the direct supervision of the Township manager, not the police chief; and required him to maintain his office at EWPAL's building, which by that time had been constructed near the Township-owned athletic fields.
EWPAL then amended its by-laws to provide that the Township Council, not the EWPAL Board, would appoint the EWPAL executive director after approval "of the candidate of choice" by the EWPAL Board. The EWPAL Board had to consult with the chief of police and PBA before forwarding the choice to the Township Council.
The Conspiracy Between Defendant and Nemes
In 1998, EWPAL had to vacate its office space at police headquarters, and thus, sought to construct its own building near the Township's athletic fields (the project). EWPAL financed the project with a $300, 000 loan, which included $175, 000 for the building, $100, 000 for new lights on the athletic fields and $23, 000 to satisfy an existing loan. A public bid was not required for the project. EWPAL eventually granted the contract to Nemes's company.
Pursuant to an arrangement Nemes had with Marc Rossi (Rossi), a public insurance adjuster, Nemes paid Rossi a "referral fee" for jobs Rossi referred to Nemes. Rossi, who was related to defendant, told Nemes that defendant was seeking a contractor for the project and Rossi could get Nemes the job but Nemes had to "take care of" both Rossi and defendant. In response, Nemes offered to build defendant a deck on the new house defendant and his wife were building at no cost to defendant in exchange for awarding Nemes the contract.
Defendant eventually met with Nemes and Rossi and discussed the project. At a later meeting between the three men, Nemes agreed to "take care of" defendant in order to get the contract by building a deck on defendant's home and charging the cost to the project. Defendant advised Nemes and Rossi that EWPAL had financing for the project and "there was room in the money for everybody." The three men agreed that EWPAL would award Nemes the contract and, in exchange, Nemes would build a free deck for defendant and pay Rossi a $5000 referral fee. Defendant assured Nemes that no other contractor would bid on the project.
EWPAL's Board eventually approved a contract with Nemes for $256, 000. As soon as EWPAL obtained the $300, 000 loan, defendant gave Nemes a check for $100, 000 from the loan account. Nemes deposited the check into his business checking account. He then paid Rossi $5000 in cash, itemizing the payment as "petty cash" on the account he had established for the project.
Construction began in January 1999, and was completed in April 1999. With certain increases, the final project cost was $275, 046, $62, 569 of which represented Nemes's gross profit.
Nemes built a deck on defendant's new home, which cost $8000 for labor and materials. Although it was Nemes's common practice to have written contracts for each job, he had no written contract for the deck. Nemes also ordinarily had a separate job account for each construction job for accounting purposes. He did not have a separate job account for the deck, and instead assigned $8000 for the deck to the project. He paid the bills for the deck from his business checking account with funds received from EWPAL that were earmarked for the project. In addition, Nemes entered the hours his employees spent working on the deck into his computer system under "EWPAL." He did not request payment from defendant, and defendant did not pay for the deck.
In May 1999, six months after Nemes completed the deck, defendant and his wife allegedly loaned Nemes $40, 000 for a real estate development project in which Nemes was involved. Nemes executed a promissory note for $40, 000 (the note). The note required Nemes to repay the principal amount plus twenty-percent interest per year if the development project was not completed by December 31, 1999, or forty percent of the net profit if the project was completed. The note guaranteed an interest payment of $8000. Nemes subsequently repaid the $40, 000. He did not pay the guaranteed $8000 interest payment. Instead, he told defendant that the cost of the deck satisfied the interest payment.
Nemes and Rossi subsequently became suspects in a criminal investigation involving several arson fires and insurance fraud-related crimes. Investigators eventually discovered Nemes's involvement with defendant, the EWPAL project and the deck, and served a subpoena on EWPAL for documents relating to the project and deck. Defendant initially told EWPAL's president that he had paid for the deck and had a check to prove it. Defendant later stated that the deck was in lieu of the interest payment Nemes was required to pay pursuant to the note.
Defendant and Nemes were indicted for the crimes we previously mentioned. Nemes subsequently pled guilty to the bribery charge (count two). At his plea hearing, he admitted he used EWPAL's funds to build defendant's deck.
Defendant contends in Point I that because he was not a public servant and performed no official governmental function as EWPAL's executive director, it was error to deny his pre-trial motion to dismiss the indictment, his motion for judgment of acquittal at the close of the State's case, and his post-trial motion for JNOV. He argues he was an independent contractor engaged by contract to perform some services for the Township.
An indictment should only be dismissed
when it is manifestly deficient or palpably defective . . . and then only when the grounds for the dismissal can be described as the clearest and plainest. Moreover, where the indictment alleges all the essential facts of the crime, the charge is sufficiently stated and the indictment should not be dismissed unless its insufficiency is palpable.
[State v. Mason, 355 N.J.Super. 296, 298-99 (App. Div. 2002) (citations and internal quotation marks omitted).]
We review a trial judge's decision on a motion to dismiss an indictment for abuse of discretion. Id . at 299. Because an indictment is presumed to be valid, State v. Schenkolewski, 301 N.J.Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997), "[s]uch discretion should not be exercised except on the clearest and plainest ground, " namely, that the indictment "is palpably defective." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984) (citations and internal quotation marks omitted).
We review a judge's decision on a motion for acquittal at the close of the State's case under the same standard as the trial judge. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J.Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
The standard for deciding a Rule 3:18-2 motion for JNOV is the same as that used to decide a motion for acquittal made at the close of the State's case. See State v. Brooks, 366 N.J.Super. 447, 453 (App. Div. 2004). We apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996).
A "public servant" is defined as "any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses[.]" N.J.S.A. 2C:27-1g. The term "public servant" is "defined broadly . . . to encompass individuals who are authorized to perform a governmental function, irrespective of whether they hold a position of public employment." State v. Perez, 185 N.J. 204, 206 (2005); see also Bevacqua v. Renna, 213 N.J.Super. 554, 560 (App. Div. 1986) (holding that "terms such as 'public office' and 'public position' should be broadly construed, especially in dealing with questions of integrity in government").
A public servant is guilty of official misconduct
when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner[.]
The term "official misconduct" is also defined broadly. State v. Maioranna, 225 N.J.Super. 365, 369 (Law Div. 1988), aff'd in part, remanded in part, 240 N.J.Super. 352 (App. Div. 1990), certif. denied, 127 N.J. 327 (1991). Official misconduct has three elements "'(1) the defendant is a public servant, (2) who committed an act relating to his office, (3) with purpose to benefit himself or deprive another of a benefit.'" Mason, supra, 355 N.J.Super. at 301 (quoting State v. Bullock, 136 N.J. 149, 153 (1994)). The term "public office" has been defined to mean "'a place in a governmental system created or recognized by the law of the state which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties.'" Mason, supra, 355 N.J.Super. at 301 (quoting State v. Williams, 189 N.J.Super. 61, 66 (App. Div.), certif. denied, 94 N.J. 543 (1983)).
A person is guilty of official bribery "if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: . . . [a]ny benefit as consideration for a violation of an official duty of a public servant or party official[.]" N.J.S.A. 2C:27-2c.
Official misconduct and official bribery substantially overlap. Both require an improper exercise of an official function and a prohibited motive -- the conferral on any person of a benefit that is not an authorized incident of an otherwise proper exercise of that function. However, because official misconduct focuses on the improper exercise of an official function, it covers only public servants, see N.J.S.A. 2C:30-2a, whereas because official bribery focuses on the prohibited motive, it covers everyone connected to it, not just public officials. See N.J.S.A. 2C:27-2c; Schenkolewski, supra, 301 N.J.Super. at 138-39. For both offenses, the term "government" "includes any branch, subdivision or agency of the government of the State or any locality within it." N.J.S.A. 2C:27-1b.
Defendant relies on Williams and Mason to argue he was not a public servant subject to indictment for official misconduct and official bribery. In Williams, the defendant was the executive director of Minorities United to Save Themselves (MUST), a nonprofit corporation. Williams, supra, 189 N.J.Super. at 63, 65. As executive director, the defendant signed a contract between MUST and Middlesex County's Comprehensive Employment Training Act (CETA) agency for the agency to fund MUST's pilot project for one year. Id . at 63. Part of the funds financed the defendant's salary as the corporation's executive director. Id . at 65. The defendant was convicted of official misconduct for submitting false time sheets, among other things. Id . at 64. We reversed, finding that as the corporation's executive director, the defendant was not a public servant, and the corporation was not a government agency; rather, the defendant "simply supervised the expenditure of CETA grant monies under a contractual arrangement between his employer (MUST) and CETA." Id . at 65-66.
In Mason, the defendants were officers of Archway, a nonprofit corporation. Mason, supra, 355 N.J.Super. at 299-300. Archway contracted with public school districts for funding to provide education services to handicapped students. Id . at 299. The defendants were convicted of official misconduct for diverting the funds for personal use. Id . at 300. We reversed, finding that the defendants were not public officials because their corporation was a private entity "providing a service for a fee and governed by contracts subject to annual renewal. The entities that perform these services are private organizations and not governmental agencies or their functional equivalent." Id. at 302.
The fundamental difference between Williams, Mason and the present case is that defendant was not a private citizen employed by a private entity that contracted with the Township. Defendant was employed directly by the Township in a key management position, he was under the Township's direct supervision, and he received W-2 income and employment-related benefits provided by the Township. Significantly, unlike in Williams and Mason, the Township did not contract with EWPAL to provide recreation opportunities for Township youth or provide a grant to EWPAL to hire and pay for an executive director. The Township directly employed defendant to perform this function and paid him a salary to do the work as a municipal employee. Defendant was, thus, a public servant. His procurement of the deck on his home was not authorized and his ability to procure the deck was directly connected to his official duties as executive director. Thus, he was properly indicted for and convicted of official misconduct and official bribery.
Defendant also contends in Point I that it was error to deny his motion at the close of the State's case to dismiss the conspiracy charge. He argues there was insufficient evidence of a conspiracy because Nemes and Rossi were not credible witnesses and the State coerced their plea agreements. Insofar as this argument is an "against the weight of the evidence" argument, it is barred by Rule 2:10-1 because defendant did not move for a new trial on the conspiracy conviction. State v. Bowens, 108 N.J. 622, 637 (1987).
In any event, the argument lacks merit. The jury heard the testimony of Nemes and Rossi about the conspiracy and was well-aware of their respective plea agreements. Defense counsel spent much of her summation attempting to impugn their credibility, and the judge instructed the jury on witness credibility. It was the jury's function to assess credibility. State v. Simon, 79 N.J. 191, 212 (1979); State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S.Ct. 1074, 4 L.Ed.2d 1019 (1960). There is no evidence the jury was mistaken or prejudiced in its credibility findings. State v. Smith, 262 N.J.Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).
Defendant contends in Point II that the judge erred in amending count two, the official bribery charge, to reference N.J.S.A. 2C:27-2c instead of N.J.S.A. 2C:27-2d. He argues that the two subsections required different proofs for conviction and the State instructed the grand jury only on subsection d, and thus, the amendment improperly charged him with a different offense. We disagree.
N.J.S.A. 2C:27-2 provides, in pertinent part:
A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: . . . .
c. Any benefit as consideration for a violation of an official duty of a public servant or party official; or
d. Any benefit as consideration for the performance of official duties.
Count two of the indictment stated as follows:
(Bribery in Official and Political Matters – Second Degree)
between on or about May 1, 1998, and on or about June 10, 1999, at the Townships of East Windsor and Washington, in the County of Mercer, elsewhere, and within the jurisdiction of this Court, the said JEFFREY NEMES knowingly did directly or indirectly offer, confer or agree to confer upon the said JOHN FIORE a benefit, that is, the construction of a new deck at the residence of the said JOHN FIORE in Washington Township, New Jersey, having a value in excess of $200, and the said JOHN FIORE knowingly did directly or indirectly solicit, accept or agree to accept from the said JEFFREY NEMES and Nemes Enterprises Inc., of which the said JEFFREY NEMES was a principal, the construction of a new deck at the residence of the said JOHN FIORE, as consideration for the violation of the said JOHN FIORE'S duty as a public servant in his capacity as an employee of the Township of East Windsor serving as Executive Director of the East Windsor Police Athletic League, contrary to the provisions of N.J.S.A. 2C:27-2d and N.J.S.A. 2C:2-6, and against the peace of this State, the government and dignity of the same.
Defendant moved to dismiss count two based on insufficient evidence of a bribe. When discussing the evidence, the judge realized that the indictment's narrative tracked the language of N.J.S.A. 2C:27-2c, not N.J.S.A. 2C:27-2d, and amended count two accordingly. The judge found that the change was one of form rather than substance and the indictment's narrative accurately notified defendant of the facts the State intended to prove in order to convict him of official bribery. This ruling was correct.
Rule 3:7-3(a) provides, in pertinent part:
An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant.
An error in the correct statutory citation does not compel dismissal unless it can cause actual prejudice. See In re Appeal of Tuch, 159 N.J.Super. 219, 225 (App. Div. 1978).
Even for an indictment's substantive allegations, amendments that do not change the offense or otherwise prejudice the defendant are permitted:
The court may amend the indictment or accusation 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.
"[I]f an indictment alleges all the essential facts of the crime, the charge is sufficiently stated" to defeat dismissal. N.J. Trade Waste Ass'n, supra, 96 N.J. at 19. The test is whether the State presented the grand jury "with at least 'some evidence' as to each element of its prima facie case." Schenkolewski, supra, 301 N.J.Super. at 137.
Although defendant argues the State instructed the grand jury only on N.J.S.A. 2C:27-2d, he does not allege there were insufficient substantive allegations to support indictment under N.J.S.A. 2C:27-2c. Thus, the error in the correct statutory citation could not have caused him any prejudice.
Furthermore, the ministerial correction here was of lesser moment than those permitted under Rule 3:7-4, namely, substantive allegations that the statute in question did not require to be specifically named as essential elements of the offense. E.g., State v. J.S., 222 N.J.Super. 247, 257-58 (App. Div.) (holding that the offense of sexual assault by "intentional touching" of victim's "intimate parts" did not require the intimate part to be specified, so correction of indictment to name correct part did not name "another or different offense"), certif. denied, 111 N.J. 588 (1988); see also State v. Walker, 322 N.J.Super. 535, 553-55 (App. Div.) (declining to dismiss an indictment that specified one particular robbery as the predicate offense for felony murder, after dismissal of that robbery charge, because the indictment sufficiently explained the concept of felony murder and the second robbery charge sufficed as the predicate offense), certif. denied, 162 N.J. 487 (1999). Accordingly, the judge did not err in amending count two.
Defendant contends in Point III that there was error in the jury instruction for official bribery, N.J.S.A. 2C:27-2c. He argues that the judge improperly added comments that went beyond the model instruction and failed to sufficiently relate the charge to the facts of the case.
In charging the jury on N.J.S.A. 2C:27-2c the judge followed Model Jury Charge (Criminal), "Bribery in Official and Political Matters (Bribe Recipient) (N.J.S.A. 2C:27-2)" (Revised 6/12/89), which was the model charge in effect at the time of defendant's trial. The judge did not improperly deviate from the model charge. The charge given presented "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find" and included instruction on all "essential and fundamental issues and those dealing with substantially material points." State v. Green, 86 N.J. 281, 287-88, 290 (1981). Based on our review of the entire charge, State v. R.B., 183 N.J. 308, 324 (2005), we are satisfied there was no error.
Defendant contends in Point IV that his convictions must be reversed due to the prosecutor's improper comments during summation. We disagree.
As long as "a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). In their summations, prosecutors are expected to make a vigorous and forceful closing argument to the jury. State v. Nelson, 173 N.J. 417, 460 (2002). When the defendant raises an issue or argument in summation, the prosecutor's evaluation and criticism of its weaknesses are permissible as "fair comment." State v. Wilson, 57 N.J. 39, 50-51 (1970). The scope of legal and emotional conflict at trial may inform the determination of whether the prosecution's response was proportionate, or excessive and prejudicial. State v. Engel, 249 N.J.Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991).
Accordingly, summation comments do not justify a new trial unless they "are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting R. 4:49-1(a)). The comments are to be "viewed in the context of the entire record." State v. Bey, 129 N.J. 557, 622 (1992), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995). Prejudicial impact can be neutralized by a curative instruction. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989).
Defendant argues that during summation, the prosecutor improperly referred to the jury verdicts in Nemes's other criminal trials when he said, "[w]hat we're here to talk about is the evidence in the jury trial, the same system that the State has ultimate confidence in, the same jury system that has found Mr. Nemes guilty on two separate occasions." This comment was about the validity of Nemes's guilty plea and conviction in this case, and therefore the credibility of the information Nemes proffered for his plea. It was an argument that the "system" in which Nemes was convicted was the same kind of proceeding in which the jury was to assess the evidence about defendant's guilt. The comment was a proper response to defense counsel's summation comment that Nemes's testimony lacked credibility.
Defendant argues that the prosecutor demeaned and degraded defense counsel during summation by attacking defense counsel's arguments and the nature of the defense's strategy. A prosecutor may not cast "unjustified aspersions" on the motives of defense counsel, such as by arguing without an "adequate foundation in the record" that defense counsel and defense witnesses had colluded in fabricating a defense, Nelson, supra, 173 N.J. at 461-63, or by arguing that the weakness of the defense made counsel resort to distracting the jury with irrelevant matters. State v. Lockett, 249 N.J.Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991). However, as for other improper conduct, reversal is required only when it was egregious enough to amount to the deprivation of a fair trial. State v. Wakefield, 190 N.J. 397, 447 (2006) (such comments did not compel new death penalty-phase trial), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008).
The prosecutor's comments about defense counsel were in response to the criticisms in the defense summation that the State's investigation was sloppy, incomplete and misguided, and reflected a determination to reach a preordained and unfair result. The prosecutor's summation comments were not disproportionate to these criticisms, and the potential for prejudice was mitigated by the judge's instruction that the jurors were the exclusive judge of the facts and were to rely solely on their own recollection of the evidence and not on what the judge or counsel may have said. Juries are generally presumed to understand and follow instructions, State v. Loftin, 146 N.J. 295, 390 (1996), including curative instructions in the absence of evidence to the contrary. State v. Winter, 96 N.J. 640, 649 (1984). There is no contrary evidence here.
Defendant argues that the prosecutor "repeatedly" made comments that shifted the burden of proof or alluded to defendant's failure to "present evidence." First, the prosecutor mentioned "false accusations thrown at the State" during the defense summation and commented on defense counsel's failure to discuss the relevant evidence by asking rhetorically, "How many documents yesterday did you see during [her] summation?" "How many transcripts did we hear from?" and defense counsel promised that defendant was "going to show you document after document." The prosecutor later mentioned defendant's failure to confirm his claim that he had a contract for the deck and a check proving payment by producing the documents. The prosecutor also described the depiction of the deck as a substitute for interest on the note as an "expedient invention, " and said that "[t]here's no proof to the contrary" of the State's perspectives on the evidence.
A prosecutor may not comment on a defendant's failure to testify. State v. Josephs, 174 N.J. 44, 126 (2002); State v. DiRienzo, 53 N.J. 360, 379 (1969); State v. Meneses, 219 N.J.Super. 483, 488 (App. Div. 1987), certif. denied, 110 N.J. 156 (1988). Furthermore, a comment that the State's evidence was "uncontradicted" may be an impermissible "indirect comment" on the defendant's decision not to testify, "if in its context it would have that meaning." State v. Irizarry, 270 N.J.Super. 669, 675 (App. Div. 1994). It would have that meaning if "it does not clearly appear that persons other than the defendant could have been called" to give the testimony that was not presented. State v. Sinclair, 49 N.J. 525, 548-49 (1967). Accord Irizarry, supra, 270 N.J.Super. at 675. Otherwise, the prosecutor is free to state "the legitimate inferences from non-production of evidence, " as part of his or her "right to make fair comment on the evidence and to argue to the jury the significance of the testimony presented." Sinclair, supra, 49 N.J. at 548-49.
Here, the context of the prosecutor's comments about documents and transcripts was not whether defendant testified, but rather the absence of a defense summation argument to counter the inculpatory implications of the documentary evidence presented. Similarly, the prosecutor's comment about the lack of a contract or check for the deck went to the prosecutor's argument about the weakness of defendant's claim that the deck served as an interest payment due on the note. We conclude, therefore, that Sinclair and Irizarry permitted those comments as responses to defense counsel's summation or as comment on the quality of evidence on which defendant relied.
Defendant also complains that the prosecutor improperly suggested that the prosecutor had "critical" information about the offense, i.e., that he knew how individual Board members voted on the contract with Nemes. While it is clearly improper to imply that a defendant must demonstrate innocence by producing exculpatory evidence, State v. Black, 380 N.J.Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006); State v. Jones, 364 N.J.Super. 376, 382 (App. Div. 2003), defendant does not explain what adverse inculpatory inference the prosecutor's comment might have carried, particularly given that the alleged conspiracy had to be formed before the Board members learned of Nemes's deck proposal to defendant. In any event, the final jury charges countered any incorrect inference that the jury might have drawn about burden of proof. The jury charges emphasized the presumption of innocence, the State's burden to prove guilt beyond a reasonable doubt for every element of an offense and the absence of any duty for defendant "to prove his innocence or offer any proof relating to his innocence."
The prosecutor ended his summation by referencing the need to find guilt beyond a reasonable doubt and the "acts of reasonable doubt" that defense counsel had named in her summation. The prosecutor's final comment was that he was "confident" that "after you hear all the evidence, which you've already have [sic], you will be left with one choice, one clear choice, that truth dictates and justice demands, " which would be a guilty verdict. This was nothing more than a statement of belief in the strength of the State's case. It is far removed from the rampant impropriety in State v. Rose, 112 N.J. 454, 523 (1988), where the prosecutor argued in summation that the law and the jurors' own consciences demanded the death penalty, that "the citizens that follow the law, cry out for it" and "demand it, " and that the only impediment would be the jurors' lack of "the guts and the heart and the mind" to act accordingly. In addition, the judge in this case countered the potential for prejudice by specifically referencing the prosecutor's comment and declaring that "justice" instead required the jury to acquit defendant unless they found that the State had proven every element of an offense beyond a reasonable doubt.
Defendant also argues that many of the factual inferences the prosecutor stated during summation lacked support in the record. However, the factual inferences were not totally lacking in support and reflected a belief in certain parts of the documentary evidence and testimony and the discounting of other parts. As long as an argument or inference had some support in the record, the assessment of its plausibility was for the jury to decide. The judge instructed the jury that they were to disregard counsels' representations about the evidence and the credibility of testimony in favor of their own recollections. We are satisfied there was sufficient prophylaxis in a case where the jury could hardly have failed to notice both sides' tendency to advocate or object strenuously on every conceivable point, as the record reflects.
Defendant contends in Point V that the judge erroneously permitted lay testimony about his pension eligibility as a Township employee; improperly permitted the prosecutor to read portions of the trial testimony during summation; improperly permitted the prosecutor to conduct Nemes's re-direct examination in a leading fashion; and failed to disclose a potential conflict of interest involving the judge's wife. We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
We review a trial court's evidentiary rulings under an abuse-of-discretion standard. State v. Buda, 195 N.J. 278, 294 (2008). We will not overturn those rulings absent a showing that "the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Trial judges also "have broad discretion in setting the permissible boundaries of summations, " State v. Muhammad, 359 N.J.Super. 361, 381 (App. Div.), certif. denied, 178 N.J. 36 (2003), and in deciding whether and how to conduct read-backs and playbacks of trial testimony. State v. Miller, 205 N.J. 109, 122 (2011).
In addition, trial judges have discretion in permitting leading questions "when a witness demonstrated hostility or unresponsiveness, " N.J.R.E. 611(c), and "to avoid confusion, to clarify testimony, or otherwise to bring out the truth in serving the cause of justice." Nobero Co. v. Ferro Trucking, Inc., 107 N.J.Super. 394, 404 (App. Div. 1969).
There was no abuse of discretion in this case. The judge correctly admitted the lay testimony on the pension issue. The State laid the proper foundation for this testimony and defendant cites no authority that required expert testimony.
The read-backs amounted to approximately six pages dispersed within a very lengthy summation. The judge correctly exercised his discretion concerning the control of summations to rule that the read-backs were not excessive or prejudicially misleading.
Nemes expressed his distain of and hostility toward the prosecutor in a letter he read to the jury. Nemes testified that his disparaging comments in the letter expressed his belief that the prosecutor had treated him unfairly in this matter. The judge correctly determined that this warranted leading questions on re-direct examination.
Finally, the judge had no conflict of interest, nor was there an appearance of impropriety stemming from his wife's State-government employment. The division of State government in which the judge's wife was employed had no connection whatsoever with or involvement in this case. We agree with the judge that a reasonable, fully informed person could not have had an "objectively reasonable" belief that the alleged conflict rendered the proceedings unfair.
We now address the State's appeal of defendant's sentence. The judge found and applied the following aggravating factors: N.J.S.A. 2C:44-1a(4), "[a] lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;" N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law;" and N.J.S.A. 2C:44-1a(11):
[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices.
The judge found and applied the following mitigating factors: N.J.S.A. 2C:44-1b(6), "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;" N.J.S.A. 2C:44-1b(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;" N.J.S.A. 2C:44-1b(8), "[t]he defendant's conduct was the result of circumstances unlikely to recur;" N.J.S.A. 2C:44-1b(9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense;" N.J.S.A. 2C:44-1b(10), "[t]he defendant is particularly likely to respond affirmatively to probationary treatment;" N.J.S.A. 2C:44-1b(11), "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents;" and N.J.S.A. 2C:44-1b(12), "[t]he willingness of the defendant to cooperate with law enforcement authorities." The judge then treated sentencing disparity in the sentences imposed on Nemes and Rossi as a mitigating factor. The judge made detailed factual findings with respect to each aggravating and mitigating factor and determined that the mitigating factors clearly and convincingly outweighed the aggravating factors and the interest of justice demanded a downgrade.
The State argues that the judge failed to consider aggravating factor N.J.S.A. 2C:44-1a(1), "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner, " and erred in finding and applying mitigating factors 10, 11, 12 and considering the disparity in the sentences imposed on Nemes and Rossi as a mitigating factor.
Our review of a sentence is limited. Miller, supra, 205 N.J. at 127. Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). The trial judge may downgrade first- and second- degree offenses by one degree when clearly convinced that: (1) the mitigating factors substantially outweigh the aggravating factors; and (2) the interest of justice demands a downgrade. N.J.S.A. 2C:44-1f(2).
We discern no abuse of discretion in defendant's sentence. The judge abided by the presumption of imprisonment applicable to a defendant convicted of a second-degree crime, even when that crime is downgraded for the purpose of sentencing. N.J.S.A. 2C:44-1d; State v. Evers, 175 N.J. 355, 388 (2001). We are satisfied that the record amply supports the aggravating and mitigating factors the judge found and applied and does not support aggravating factor one. We are also satisfied that the judge properly weighed the aggravating and mitigating factors and determined that the interest of justice demanded a downgrade of count four from a second- to a third-degree offense pursuant to N.J.S.A. 2C:44-1f(2).