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Third Degree Official Misconduct is Only an Exception April 4, 2010

Posted by jefhenninger in Articles.
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In State v. Phelps, 187 N.J. Super. 364, 375 (App. Div. 1983), aff’d, 96 N.J. 500 (1984), the Appellate Divsion held that official misconduct is a crime of the second degree and that, rather than forming a substantive element of the offense, the part of the statute that reads:

“any offense proscribed by this section is a crime of the second degree. If the benefit offered, conferred, agreed to be conferred, solicited, accepted or agreed to be accepted is of the value of $200.00 or less, any offense proscribed by this section is a crime of the third degree”

“carves out an exception” where the benefit obtained or sought to be obtained is of a value of $200 or less. Id. at 373-74. The Phelps Court found that the Legislature intended for courts construing the official misconduct statute to “start from the premise that the offense is of the second degree.” Id. at 375. The carved out exception “is clearly pecuniary in nature” and did not apply to “a benefit not subject to pecuniary measurement.” Ibid.  Applying this same reasoning, the Appellate Division has also affirmed a conviction for second-degree official misconduct of a volunteer firefighter who repeatedly called in false fire alarms in order to experience the joy of responding to them and possibly to give the volunteer fire department enough work to justify its existence, holding that “[b]ecause there was no pecuniary benefit, the misconduct was second degree.” State v. Quezada, 402 N.J. Super. 277, 286 (App. Div. 2008).

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