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Official Misconduct Must Somehow Relate to the Defendant’s Public Office April 4, 2010

Posted by jefhenninger in Articles.

Official Misconduct has become a very popular crime over the last decade.  With NJ’s economy further falling into the abyss, the public will demand that public officials be prosecuted and law enforcement, always ready to make headlines, will look for utilize this statute any chance they get.  With that desire however, comes over reaching.  There have been several cases where the State has charged official misconduct only to have the court throw it out.  

When confronted with an official misconduct charge, a defense lawyer must assume the facts are true (for now) in order to make sure that the charge is proper.

The 2009 case of State v. Kueny is a great example of what happens when the State goes too far and how to analyze these cases.   

N.J.S.A. 2C:30-2 provides: 
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: 


a. He 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; or

b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
[N.J.S.A. 2C:30-2.]
Defendant was indicted for, and convicted of, violating N.J.S.A. 2C:30-2b. The three elements required to establish a violation of N.J.S.A. 2C:30-2b are that “(1) the defendant was a public servant; (2) the defendant knowingly refrained from performing a duty which is imposed upon him or her by law or which is clearly inherent in the nature of the office; and (3) the defendant’s purpose in so refraining was to benefit himself or herself or to injure or deprive another of a benefit.” State v. Thompson, 402 N.J. Super. 177, 195-96 (2008) (citing Model Jury Charge (Criminal), “Official Misconduct” (N.J.S.A. 2C:30-2) (Revised 9/11/06)).
Misconduct in office or official misconduct has been defined as “unlawful behavior in relation to official duties by an officer entrusted with the administration of justice or who is in breach of a duty of public concern in a public office.” State v. Mason, 355 N.J. Super. 296, 301�(App. Div. 2002) (citing State v. Winne, 12 N.J. 152, 176 (1953)). The purpose of N.J.S.A. 2C:30-2 is to “prevent the perversion of governmental authority.” State v. Perez, 185 N.J. 204, 206 (2004). Defendant was not indicted or convicted for violating N.J.S.A. 2C:30-2a, which requires an affirmative act. The State claims that the defendant violated N.J.S.A. 2C:30-2b by not returning the victim’s ATM card and by keeping her money.
The indictment alleged that on July 1, 2006, in the City of Ocean City, the defendant, “being a public servant, that is a police officer, and acting with purpose to obtain a benefit to himself and/or deprive another of a benefit, did refrain from performing a duty imposed upon him by law, or clearly inherent in the nature of his office, that is, he knowingly did make an unauthorized ATM withdrawal from the account of [Ms. P.] without her knowledge and/or permission and kept the proceeds from that transaction, namely $100″
The unauthorized ATM withdrawal is an affirmative act, but it had nothing to do with the “exercise of his official functions.” In any event for present purposes, we focus on the allegation that defendant “kept the proceeds” and failed to return Ms. P.’s $100, an allegation that he failed to take an action required by his official duties.
It is clear that there is sufficient evidence in the record to sustain the first element of N.J.S.A. 2C:30-2b, that the defendant was a public official, and the third element, that the defendant’s purpose in refraining from doing an act was to benefit himself or to injure or deprive another of a benefit. Defendant argues that a breach of official duty was not “charged in the indictment nor was such a breach submitted to the jury.” He further contends the evidence did not support a conviction under the second element (which requires that it be shown that the defendant “refrain from performing a duty which is imposed upon him by law or is clearly inherent in the nature of the office”) and that the State did not demonstrate that he was under any obligation greater than that of an ordinary citizen to return the victim’s $100.

The defendant’s oath as a police officer to defend and obey the laws of New Jersey, in of itself, does not make him strictly liable for official misconduct for all crimes he may commit. The Supreme Court has stated that, although the oath of office “is a necessary condition to assumption of office, of itself it creates no particular duty, transgression of which” would be indictable. See State v. Silverstein, 41 N.J. 203, 205 (1963). Nor was there introduced into evidence any statute, Mount Laurel Police Department standard operating procedure, order, rule or regulation which prescribed that a police officer had a duty to return lost money that is discovered while the officer is off-duty, on vacation or outside of Mount Laurel. In New Jersey “‘the fundamental duty of a policeman . . . is to be on the lookout for infractions of the law and to use due diligence in discovering and reporting them.'” Ballinger v. Del. River Port Auth., 172 N.J. 586, 604 (2002) (quoting City of Asbury Park v. Dep’t of Civil Serv., 17 N.J. 419, 429 (1955) (brackets omitted)). However, as a rule “a governing body can directly exercise its police power only within its jurisdictional boundaries, absent a statute broadening those powers.” State v. Cohen, 73 N.J. 331, 342 (1977). 

The jurisdiction of officers of New Jersey municipal police departments is generally limited to “within the territorial limits” of their municipalities. N.J.S.A. 40A:14-152. An exception to this rule is that a municipal police officer has “full power of arrest for any crime committed in said officer’s presence and committed anywhere within the territorial limits of the State of New Jersey.” N.J.S.A. 40A:14-152.1. See State v. White, 305 N.J. Super. 322, 327 (App. Div. 1997); State v. Montalvo, 280 N.J. Super. 377, 381 (App. Div. 1995); see also Barna v. City of Perth Amboy, 42 F.3d 809, 817 (3d Cir. 1994). 

N.J.S.A. 2C:30-2b reads as it did when the Code of Criminal Justice was first introduced in 1971, with the additional language in the introductory clause regarding the purpose to benefit oneself or deprive another. I Final Report of the New Jersey Law Revision Commission, Report and Penal Code 109 (1971). The Comment to the subsection reads: 


Subsection b, the “omission to act” phase of this offense, has reference to a public servant who consciously refrains from performing an official non-discretionary duty, which duty is imposed upon him by law or which is clearly inherent in the nature of his office. In addition, the public servant must know of the existence of such non-discretionary duty to act. Thus, such duty must be either one that is imposed by law, or one that is unmistakably inherent in the nature of the public servant’s office, i.e., the duty to act is so clear that the public servant is on notice as to the standards that he must meet. In other words, the failure to act must be more than a mere breach of good judgment. In the absence of a duty to act, there can be no conviction. 

[II Final Report of the New Jersey Law Revision Commission, Commentary 291 (1971).] 

The proposition that it is an inherent duty of every police officer to obey the law, and therefore police officers are strictly liable under

N.J.S.A. 2C:30-2 for the commission of any crime, is forestalled by precedent. “[N]ot every offense committed by a public official involves official misconduct.” State v. Hinds, 143 N.J. 540, 549 (1996). To be guilty of a violation of N.J.S.A. 2C:30-2, the defendant must be shown to have committed misconduct that is “sufficiently related to the officer’s official status.” Id. at 546. A public servant’s private misconduct cannot be punished as official misconduct; the private misconduct can only be punished to the extent that the same conduct by a private citizen can be punished. Hinds, supra, 143 N.J. at 549; Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:30-2 (1999). 

Stated differently, the misconduct must somehow relate to the wrongdoer’s public office. There must be a relationship between the misconduct and public office of the wrongdoer, and the wrongdoer must rely upon his or her status as a public official to gain a benefit or deprive another. State v. Corso, 355 N.J. Super. 518, 526 (App. Div. 2002) (off duty officer has a duty to arrest persons committing a crime in the officer’s presence; conviction upheld), certif. denied, 175 N.J. 547 (2003). See also State v. Bullock, 136 N.J. 149, 157 (1994) (suspended officer displayed State Police identification card to his victims; conduct sufficiently related to office to constitute misconduct); State v. Mason, supra, 355 N.J. Super. at 305 (dismissal of misconduct count affirmed; defendants were private citizens performing services pursuant to government contracts); Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:30-2 (collecting cases). 

The fraudulent use or theft by the illegal use of another person’s ATM card by a police officer, without more, does not constitute misconduct in office. The defendant in this case simply did not use his status as a police officer to commit the crime of fraudulent use of a credit card. Accordingly, we reverse the indictment for third degree misconduct in office,
N.J.S.A. 2C:30-2b. See State v. Reyes, 50 N.J. 454, 458-59 (1967). 


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