May 23, 2 017
appeal from the Superior Court of New Jersey, Law Division,
Somerset County, Indictment No. 15-05-0240.
Brian Stack, Assistant Prosecutor, argued the cause for
appellant in A-0483-16 and respondent in A-0484-16 (Michael
H. Robertson, Somerset County Prosecutor, attorney; Mr.
Stack, on the briefs).
Timothy R. Smith argued the cause for respondent in A-0483-16
and appellant in A- 0484-16 (Caruso, Smith, Picini, PC,
attorneys; Mr. Smith, of counsel and on the brief; Steven J.
Kaflowitz, on the brief).
Judges Messano, Espinosa and Suter.
appeals require us to consider the inherent duties of a judge
of the Superior Court of New Jersey, whether those duties
include an obligation to take whatever steps necessary at any
time to "enforce an arrest warrant, " and if such a
duty exists, what must a judge do to perform, and not refrain
from performing, that duty. A Somerset County grand jury
indicted Carlia M. Brady, a judge assigned to the Middlesex
Vicinage, charging her with second-degree official
misconduct, N.J.S.A. 2C:30-2b (count one); and two counts of
third-degree hindering the apprehension or prosecution of
Jason Prontnicki, N.J.S.A. 2C:2 9-3a(1) and a(2) (counts two
and three). The Law Division judge granted defendant's
motion to dismiss count one of the indictment but denied the
motion as to counts two and three. The judge subsequently
denied motions for reconsideration filed by defendant and the
State of New Jersey.
granted the State's motion for leave to appeal
(A-0483-16), as well as defendant's motion for leave to
appeal (A-0484-16), and consolidated both appeals to issue a
single opinion. We now affirm.
summarize the evidence produced by the State before the grand
jury, then consider the legal instructions the prosecutor
gave to the panel and the judge's reasoning in deciding
Woodbridge Police Department initially commenced the
investigation, which was transferred subsequently to the
Somerset County Prosecutor's Office. Prontnicki and
defendant started dating in late 2012 and began living
together in defendant's home in Woodbridge by March 2
013. Defendant took the oath of office as a Superior Court
judge on April 5, 2013. On April 29, 2013, the Old Bridge
municipal court issued a warrant for Prontincki's arrest,
charging him with robbery of a pharmacy, possession of a
weapon - a crowbar - for an unlawful purpose and unlawful
possession of a weapon.
after 10:00 a.m. on the morning of June 10, 2013, while on
vacation, defendant went to the Woodbridge Police Department
to report one of her cars was missing. Woodbridge Police
Officer Walter Bukowski, along with Officer Robert Bartko,
advised police that Prontnicki originally told her he had
loaned the car to his brother in Bayonne. However, when the
brother failed to return the car by 2:00 a.m., she and
Prontnicki drove to Bayonne to recover the car. On the way,
Prontnicki changed his story and told defendant that he lent
the car to a friend. Together, defendant and Prontnicki drove
around Hudson County for two hours, were unable to locate the
car and returned to Woodbridge. Prontnicki returned to Hudson
County at 6:00 a.m. to continue the search, and defendant
told him she would report the car stolen if she did not hear
from him by 10:00 a.m.
various databases, police located the outstanding warrant for
Prontnicki's arrest for the Old Bridge robbery, as well
as another outstanding arrest warrant. They also determined
Prontnicki's driver's license was suspended. Bukowski
testified that he and Bartko told defendant
[Y]ou're an officer of the court, you have an obligation
or it would be in your best interest to let us know if
[Prontnicki] is somewhere . . . now or if once we left, if
she came back that . . . it would be her duty to call us and
let us know if [Prontnicki] came home.
tried unsuccessfully to locate Prontnicki's friend who
allegedly had the car. Defendant wanted to sign a complaint
against the friend, but police told her she could only sign a
complaint against Prontnicki, who actually took the car.
Defendant declined until she spoke to her family and
attorney, and then left the police station. Police
periodically rode by defendant's home afterwards and saw
the missing car parked in her driveway at 9:35 p.m. They
knocked on her door, but no one answered.
secured defendant's cellphone records as part of the
investigation. Between 12:36 p.m. and 12:43 p.m. on June 10,
defendant sent text messages to friends, in which she
acknowledged police told her of the robbery, which occurred
after Prontnicki moved in with her and after defendant became
a judge. In one text, defendant wrote, "I can't have
[Prontnicki] in my house [because] I [would] now be harboring
a criminal. I [would] have to report him."
thereafter, Prontnicki called defendant's cellphone.
Defendant recounted the conversation in a text message she
sent to a friend at 1:37 p.m. on June 10:
[Prontnicki] just called to tell me he got the car and will
bring it home. I told him he can't stay with me [because]
he has a warrant out for his arrest and I am required to
notify authorities when I know someone has a warrant. So I
told him he must leave after he drops the car off as I must
go to the police.
corroborated these events in a statement to police after his
arrest. He arrived at defendant's home with the car, and
defendant's father let him into the house. He and
defendant went into the garage and spoke for approximately
one hour. She told him she was "supposed to call the
Woodbridge Police when he arrived, " and Prontnicki told
her to "do what you have to do." Prontnicki refused
defendant's offer of money for cab fare and left for his
brother's house in Woodbridge.
Defendant called Woodbridge police at 4:36 p.m. and asked to
speak to Officer Bartko; he was unavailable, but defendant
left the following voice mail:
[T]his is Carlia Brady. . . . I sat with you to fill out [an]
incident report . . . with regard to the unlawful taking of
my car . . . . I just wanted to report . . . that . . .
Prontnicki, the suspect . . . actually returned it just now.
. . . [I]t is in my driveway. I haven't inspected it yet
cause it's raining and I didn't bring it into my
house because I didn't want it in my house unless I can
inspect it. . . . I just wanted to let that be known. Also,
to let you know since there's a warrant out for his
arrest, he is not with me, but he is in Woodbridge cause he
left . . . my property so please give me a call back. I, we
need to know whether an amended report needs to be redone . .
. or added, whatever I needed to do. Please give me a call
back . . . .
was also on vacation the next day, June 11. That morning, she
and Prontnicki had a two-hour and twenty-three minute phone
conversation. Prontnicki told police he asked defendant when
she would be home because he needed to pick up some clothing;
defendant told him she would be at the house between 3:00
p.m. and 4:00 p.m. Police, meanwhile, decided to surveil
p.m., Prontnicki called defendant to confirm she would be in
her house as planned. At 2:14 p.m., defendant sent a text
message to a friend, in which she repeated Prontnicki's
denials of involvement in the robbery. She also wrote:
He . . . will turn himself in . . . when his lawyer is able
to come with him and cooperate fully with the cops by giving
them everything he knows. He can't stay in my house cos
(sic) he has an arrest warrant right now and I have a duty as
a judge to report all crimes and anyone with an arrest
warrant. So he is at his brother's house.
p.m., defendant again called police and left a voicemail,
advising that Prontnicki had returned her car and she wanted
to know when she could obtain an amended report. She did not
tell police about her conversations with Prontnicki, or that
she expected him at her home shortly.
3:48 p.m., Prontnicki called defendant as he drove to
defendant's home with his brother. Undercover police
stationed outside defendant's home observed Prontnicki
exit the passenger side of his brother's car. The garage
door opened and defendant was standing on the threshold.
Prontnicki entered the garage, the door shut, and he stayed
for approximately one hour. Police then saw the garage door
open, and defendant and Prontnicki appeared. Holding a duffel
bag, Prontnicki returned to his brother's car, entered
and drove away. Police stopped the car some distance from
defendant's home and arrested Prontnicki. In the bag were
multiple items of clothing and miscellaneous papers. In his
statement to police, Prontnicki said defendant prepared a bag
of his clothing before he arrived, and he transferred the
clothing to a duffel bag.
messages to friends sent immediately after Prontnicki left,
defendant described his claims that there was no outstanding
warrant for robbery, he was only wanted for questioning,
police arrested someone else for the crime and his
driver's license was not suspended. Minutes later, police
arrived and arrested defendant at her home.
grand jurors heard a recording of defendant's
conversation with Bartko in the police vehicle as he took her
to headquarters. Among other things, defendant told the
officer she was not trying to break the law and was only
helping her boyfriend, who denied there was an outstanding
warrant for his arrest.
testified at length before the grand jury and confirmed many
of these events. However, defendant claimed that during her
visit to the police station on the morning of June 10, police
told her to call them only when she knew Prontnicki's
exact whereabouts. She told them he might be at her home as
they spoke, because he had keys to the house, and offered
police her keys. She suggested they surveil her home, but
they refused her offers. Defendant was concerned for her
safety and told police she did not want "to be in the
middle." She would only call them when it was safe,
i.e., when Prontnicki was not present, which was why she
waited until Prontnicki left before calling police after he
returned her car.
asked police to see a copy of the arrest warrant, but they
refused. She offered them photographs of the Hudson County
street where she and Prontnicki searched for her car, but the
officers were not interested. Defendant did not want to
return to her home once she knew about the robbery warrant,
but police would not let her stay at the police station.
described in detail Prontnicki's return of the car and
the one-hour long conversation she had with him in the
garage. Her father offered Prontnicki cab fare.
insisted that the recordings of both her calls to the
Woodbridge Police Department lacked critical information she
had provided to the police. The prosecutor instructed the
grand jurors that both the State and defense had experts
evaluate the accuracy and authenticity of the recordings, and
there was a dispute between those experts. Defendant said
that during the first call on June 10, she told police
Prontnicki was in Woodbridge, staying at his brother's
house, and described its location. Defendant specifically
remembered telling police she was "attempting to
discharge any reporting obligations per [their]
again challenged the accuracy of the recorded conversation of
her second phone call to police headquarters. Defendant
claimed the recording omitted her statement that she wanted
to confirm that police had received the update of
Prontnicki's whereabouts she had provided the day before.
testified that on June 11, Prontnicki told her his brother
would come over to pick up his things. Instead, Prontnicki
opened the garage door with a remote control that he had. He
gathered some things, but defendant kept her distance and
urged him to turn himself in to police. Defendant said
Prontnicki left through the garage door, and, after she
closed the door, she intended to go to the police station.
Police arrived and arrested her, however, before she could
witnesses who testified after defendant directly contradicted
portions of her testimony, specifically, the interactions
with police at headquarters on June 10, and the events at
defendant's home on June 11 when Prontnicki arrived and
retrieved his clothing.
any testimony, the prosecutor advised the grand jurors that
defendant was charged in two complaints with hindering by
harboring Prontnicki, knowing he was a fugitive charged with
robbery, N.J.S.A. 2C:29-3a(1), and by "deceiving law
enforcement by not immediately notifying law enforcement of .
. . Prontnicki's . . . whereabouts." N.J.S.A.
2C:29-3a(5). The prosecutor further advised that he would
make a "direct presentation" on the charge of
official misconduct, in that defendant "failed to
perform a duty . . . inherent in the office of [S]uperior
[C]ourt judge, that is to enforce an arrest warrant for . . .
Prontnicki by failing to adequately notify the . . . Police
Department of . . . Prontnicki['s] intended appearance or
presence at [defendant's] house." He explained, the
State contended defendant refrained from performing this duty
for her own benefit - to avoid the embarrassment of having
her boyfriend arrested - and for Prontnicki's benefit -
prosecutor provided written instructions to the grand jury,
including the elements of N.J.S.A. 2C:29-3a(1) and (2),
criminal attempt, N.J.S.A. 2C:5-1. As to official misconduct,
N.J.S.A. 2C:30-2b, the prosecutor began by generally
following Model Jury Charge (Criminal),
"Official Misconduct (N.J.S.A. 2C:30-2)" (Sept. ...