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Three Passaic Valley Sewerage Commission employees arrested on charges of official misconduct February 1, 2011

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Three Passaic Valley Sewerage Commission employees were arrested today on charges of official misconduct as part of an ongoing probe into the troubled agency.  Arrested were Anthony Ardis, 56, of Paterson, a former PVSC Commissioner who currently is Clerk to the Board of Commissioners and Director of Management Services at the PVSC; Kevin Keogh, 45, of Roseland, Superintendent for Special Services at the PVSC; and Chester Mazza, 69, of Totowa, Assistant Superintendent for Special Services.

Each was charged with official misconduct.  The defendants will be held at Passaic County Jail, with bail for each set at $75,000.  According to the complaint, each was hit with charges that they directed subordinate employees to complete repairs or improvements at their private homes or the homes of people close to them while the employees were on agency time.

According to the complaint, on several occasions Ardis allegedly sent PVSC employees to his mother’s home to tear down sheet rock in her garage and do other home maintenance work. On another occasion, Ardis sent PVSC workers to his girlfriend’s home to replace two air-conditioning units.  According to the Star Ledger, Ardis serves as the agency’s ethics officer and is a former district director for U.S. Rep. Bill Pascrell.

The complaint alleges that Keogh sent workers to his home on several occasions to do deck work, remove old windows and install replacements and cut, finish and install kitchen cabinet doors.  Mazza is alleged to have sent PVSC employees to his home twice, once  to install a roof vent and a second time to repair an outside wall.

Official misconduct carries a maximum sentence of 10 years in state prison.  For each defendant, the conduct is alleged to have  occurred after April 14, 2007, when enhanced penalties for official misconduct took effect. As a result, each defendant would face a mandatory minimum sentence of five years in prison without possibility of parole if convicted.  In other words, these crimes have become very serious and the mandatory terms present problems for criminal defense attorneys.  

The agency has been under fire daily over the past two weeks as Gov. Chris Christie ordered the removal of six of seven commissioners last week. Christie was responding to an expose by the Star Ledger that detailed several abuses including hiring of several family members by the sitting commissioners.  All six resigned late last week.  Last year, Christie replaced the agency’s director with former prosecutor Wayne Forrest.  Earlier this week, Forrest cut the salaries of every employee making over $100,000.

http://www.hudsoncountycriminaldefenseattorney.com

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Bay Head police chief relieved of duty while investigation continues January 17, 2011

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 Police Chief Charles Grace Jr., 50, of the Bay Head Police Department was relieved of duty Saturday by Ocean County Prosecutor Marlene Lynch Ford as part of an ongoing investigation.  Deputy Chief Michael Mohel of the Prosecutor’s Office said Grace was charged in a complaint filed by Detective Ray Gardner, also of the Prosecutor’s Office. The complaint stated that in an investigation beginning April 10, 2007, Grace unlawfully took more than $500 in money belonging with Bay Head-Mantoloking Police Benevolent Association.  Mohel has been named acting chief of police by Ford until the Borough Council can take action.  The State has not revealed the exact amount of money allegedly taken.  No word on when Grace was notified of the investigation or whether Grace has an attorney.
Grace was chief of police since 2005 and was president of the Ocean County Chiefs of Police Association in 2010.  Mohel said day-to-day operations of the department will be handled by Bay Head police officers Lt. Robert Hoffman, Sgt. First Class Geoffrey Barger and Sgt. William Hoffman, who have all been with the department for more than 20 years.  When a chief police administrator is removed from position in a town, Mohel said the prosecutor appoints someone to temporary command until the Borough Council can take further action, which should occur within  about three weeks.

Story is here.

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New Jersey Official Misconduct Lawyer October 29, 2010

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New Jersey Official Misconduct Lawyer

A suspended Camden Police officer from Monroe Township was indicted by a grand jury in Camden County on charges of official misconduct and falsifying or tampering with records. Shane Sampson of Williamstown, was indicted on one count of 2nd degree official misconduct and one count of 4th degree falsifying or tampering with records. Sampson was originally charged and arrested in April 2010 and was released on his own recognizance.

He is accused of abusing his position as a police officer by signing a complaint with the Camden Police Department on Dec. 23, 2009, that led to his ex-wife’s arrest for interference with custody. She was in Florida with their toddler-aged daughter at the time the warrant was issued. A court-ordered custody agreement permitted her to take their daughter to Florida until Dec. 22. But she had allegedly informed Sampson that due to an injury she sustained while away, she would not be able to return to New Jersey until Dec. 28.

Interference with custody matters are typically addressed in Family Court, or on rare occasions, with a summons to appear in criminal court. It is alleged it was improper for Sampson to seek an arrest warrant in this matter. In addition, neither Sampson nor his wife lived in Camden. The Camden Police Department had no jurisdiction over the charge filed by Sampson. Sampson personally travelled to the Atlantic City Airport to ensure that his ex-wife was detained by New Jersey State Police on Dec. 28 as she disembarked from a plane with her young child. She was then arrested and transferred to the Camden Police Department. In total, she was in custody approximately eight hours before being released. The Camden County Prosecutor’s Office later reviewed the complaint signed by Sampson and dismissed the charges as unfounded.

Sampson’s ex-wife signed a complaint with the Internal Affairs Unit of the Camden Police Department shortly after the incident. Sampson has been suspended without pay from the city police force pending the outcome of the case.

Story is here.

NJ rail conductor admits illegally selling tickets August 7, 2010

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Terance Campbell of Rahway, a former New Jersey Transit rail conductor has admitted stealing from his employer by selling bundles of train tickets and keeping the cash. On Friday, he pleaded guilty to official misconduct charges.  The Essex County Prosecutor’s Office will ask for an 18-month prison sentence.

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Operation Heat: Over 30 Alleged Mafia Members and Associates Indicted May 14, 2010

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New Jersey Attorney General Paula T. Dow announced the indictment today of two ruling members of the New York-based Lucchese crime family and 32 other members and associates, including alleged current and former top New Jersey capos Ralph V. Perna and Nicodemo Scarfo Jr., on first-degree charges of racketeering, conspiracy and money laundering.

“Operation Heat” uncovered an international criminal gambling enterprise that transacted billions of dollars in wagers, primarily on sporting events, and relied on extortion and violence to collect debts. The indictment also charges a former New Jersey corrections officer and a high-ranking member of the Nine Trey Gangsters set of the Bloods in an alleged alliance with the Lucchese crime family to smuggle drugs and pre-paid cell phones into East Jersey State Prison.

The indictment charges two members of the three-man ruling panel of the Lucchese crime family, Joseph DiNapoli, 74, of Scarsdale, N.Y., and Matthew Madonna, 74, of Seldon, N.Y. The indictment also charges Ralph V. Perna, 64, of East Hanover, and Nicodemo Scarfo Jr., 44, of Ventnor. Perna allegedly became top capo of the New Jersey faction of the family when Scarfo was deposed in 2007.

A warrant has been issued for Scarfo’s arrest but most of the defendants were initially charged and arrested in Operation Heat in December 2007. However, Scarfo and two other men were charged today for the first time in the ongoing investigation. The other two men are Frank Cetta, 71, of Las Vegas, Nevada, who allegedly ran the gambling operation’s Costa Rican wire room, and Gary P. Medure, 56, of New York, N.Y., a close associate of DiNapoli who allegedly managed gambling “packages,” groups of bettors who regularly gambled through the operation.

Three other men named in the indictment were arrested after the initial arrests but prior to today’s indictment. They are Michael A. Maffucci, 24, of Cedar Grove, N.J., Charles J. Bologna, 57, of Port Chester, N.Y., and Robert V. DeCrescenzo, 35, of Port Chester, N.Y. Each of them allegedly managed or assisted in the management of gambling packages.

Each of the first-degree charges of racketeering, conspiracy and money laundering carries a maximum sentence of 20 years in state prison. In addition to those charges DiNapoli, Madonna and Perna were charged with being leaders of organized crime, a second-degree offense.

Most of the defendants – including DiNapoli, Madonna, Perna, Scarfo, Cetta, Medure, Maffucci, Bologna and DeCrescenzo – were also charged with promoting gambling and possession of gambling records, both third-degree offenses.

It is alleged that DiNapoli and Madonna controlled the crime family’s gambling operations and other criminal activities from New York. Both Perna and Scarfo are alleged to have overseen the Lucchese crime family’s operations in New Jersey.

Also indicted were Perna’s three sons, Joseph M. Perna, 40, of Wyckoff, John G. Perna, 32, of West Caldwell, and Ralph M. Perna, 38, of West Caldwell. The sons, led by Joseph, allegedly managed day-to-day gambling operations under their father’s oversight. Two other men who were indicted, Michael A. Cetta, 43, of Wyckoff, and Martin Tacetta, 59, of East Hanover, the former New Jersey underboss for the family, allegedly exercised their own management control over family gambling operations. Tacetta is currently serving a life sentence in state prison as a result of a Division of Criminal Justice prosecution in the 1990s. Michael Cetta, who is Frank Cetta’s son, has close ties to the Lucchese family through marriage.

Joseph Perna, John Perna, Michael Cetta and three other defendants are charged with extortion and aggravated assault, both second-degree offenses, in connection with alleged threats and attempts to use violence against individuals who owed money or tried to take business away from the gambling operation.

The Division of Criminal Justice has seized or restrained millions of dollars in assets of the defendants alleged to be subject to forfeiture as criminal proceeds, including seven homes, 16 bank accounts, 15 vehicles, over $200,000 in cash, and numerous watches and items of jewelry. The indictment alleges that Joseph M. Perna and his wife, Roseanna Perna, 36, obtained approximately $900,000 in mortgage funds through fraudulent loan applications. The indictment further charges various tax offenses against the couple, as well as Ralph M. Perna, Michael Cetta and Vita Cetta, 41, of Wyckoff.

The investigation uncovered an international criminal gambling enterprise that, according to records reviewed by the Division of Criminal Justice, transacted an estimated $2.2 billion in wagers, primarily on sporting events, during a 15-month period.

The gambling operation involved agents or “package holders,” each of whom brought in bets from a group of gamblers. The enterprise and all of its packages involved hundreds or even thousands of gamblers. Records showed that one high-rolling gambler wagered more than $2 million in a two-month period. Those indicted include package holders as well as individuals who allegedly acted as collectors for the operation, collecting and paying out wins and losses.

The illicit proceeds allegedly were divided by the package holders and the members they worked under, such as the Pernas, Michael Cetta, Tacetta and Medure, who in turn made “tribute” payments to the New York bosses, including DiNapoli and Madonna. It is charged that collection operations at times took the form of threats or acts of violence.

The gambling operation received and processed the wagers using password-protected Web sites and a Costa Rican “wire room” where bets were recorded and results tallied.

The prison smuggling scheme allegedly involved inmate Edwin B. Spears, 36, of Neptune, and a former corrections officer at East Jersey State Prison in Woodbridge, Michael T. Bruinton, 46, of Ringoes. Spears was at East Jersey State Prison at the time of the alleged conduct. Also indicted were Spears’ brother, Dwayne E. Spears, 30, of Neptune, and Kristen A. Gilliam, 27, of Farmingdale. Another defendant, Francine Hightower, 52, of Tinton Falls, pleaded guilty on Feb. 21, 2008, to conspiring to launder money.

It is charged that Edwin Spears, an admitted “five-star general” in the Nine Trey Gangsters set of the Bloods, formed an alliance with Joseph Perna and Michael Cetta to smuggle drugs and cell phones into East Jersey State Prison through Bruinton. The alliance allegedly extended beyond smuggling. In one instance, Joseph Perna allegedly sought assistance from Spears to stop an individual associated with the Bloods from extorting money from a man with ties to the Lucchese family.

It is charged that Perna and Cetta would provide money to Dwayne Spears to acquire contraband including heroin, cocaine, marijuana and pre-paid cell phones. Dwayne Spears allegedly would give the contraband to Bruinton to smuggle into East Jersey State Prison. The drugs and cell phones were allegedly distributed to inmates who had previously placed orders through Edwin Spears. Cell phones are prohibited in prison. It is charged that the purchasers paid by sending money orders or checks to individuals including Hightower and Gilliam, who delivered the proceeds to Cetta to “re-invest” in the smuggling scheme. Samuel A. Juliano, 65, of Glen Ridge, is charged with supplying drugs for the smuggling scheme.

In addition to the first-degree charges of racketeering, conspiracy and money laundering, Bruinton, Edwin Spears, Dwayne Spears, Gilliam, Joseph Perna, Michael Cetta and Juliano are charged for the alleged smuggling operation with conspiracy (2nd degree), official misconduct (2nd degree), bribery (2nd degree), and unlawful possession of a cell phone in prison (3rd degree).

As Operation Heat proceeded it yielded evidence that was pursued by the Manhattan District Attorney’s Office in an investigation that culminated on Oct. 1, 2009 with the indictment of 29 defendants, including DiNapoli, Madonna and other Lucchese crime family members, alleged to have run a criminal enterprise that bribed city building inspectors, among other crimes.

In addition to the defendants already named in this press release, the indictment also charges:

John V. Mangrella, 67, of Clifton;
Alfonso “Tic” Cataldo, 68, of Florham Park;
Antonio “Curly” Russo, 73, of Bloomingdale;
Elliot Porco, 47, of Bronx, N.Y.;
Gianni Iacovo, 34, of Elmwood Park;
James Furfaro Jr., 30, of Parsippany;
John N. Turi, 31, of Clifton;
Michael T. Ramuno III, 36, of Philadelphia;
Robert A. Romano, 31, of Brick;
Ron Scrips, 46, of Staten Island, N.Y.;
Shpetim “Tim” Hani, 33, of North Haledon;
Blerim Ibraimi, 29, of Hawthorne; and
George Maiorano, 65, of Belleville.
The indictment charges the defendants as follows:

Count 1 – Racketeering – First Degree
All Defendants

Count 2 – Leader of Organized Crime – Second Degree
Joseph DiNapoli and Matthew Madonna

Count 3 – Leader of Organized Crime – Second Degree
Ralph V. Perna

Count 4 – Conspiracy – Second Degree
Joseph DiNapoli, Matthew Madonna, Ralph V. Perna, Nicodemo Scarfo Jr., Joseph M. Perna, Michael Cetta, Frank Cetta, John G. Perna, Ralph M. Perna, John Mangrella, Gary Medure, Elliot Porco, Martin Taccetta, Antonio Russo, Alfonso Cataldo, Michael Ramuno III, Ronald Scripps, Gianni Iacovo, Robert Decrescenzo, Charles Bologna, James Furfaro, Robert Romano, John Turi, Michael Maffucci, George Maiorano, Blerim Ibriami, Shpetim Hani, Vita Cetta and Rosanna Perna

Count 5 – Promoting Gambling – Third Degree
Joseph DiNapoli, Matthew Madonna, Ralph V. Perna, Nicodemo Scarfo, Jr., Joseph M. Perna, Michael Cetta, Frank Cetta, John G. Perna, Ralph M. Perna, John Mangrella, Gary Medure, Elliot Porco, Martin Taccetta, Antonio Russo, Alfonso Cataldo, Michael Ramuno III, Ronald Scripps, Gianni Iacovo, Robert Decrescenzo, Charles Bologna, James Furfaro, Robert Romano, John Turi, Michael Maffucci, George Maiorano, Blerim Ibriami, Shpetim Hani, Vita Cetta and Rosanna Perna

Count 6 – Possession of Gambling Records – Third Degree
Joseph DiNapoli, Matthew Madonna, Ralph V. Perna, Nicodemo Scarfo Jr., Joseph M. Perna, Michael Cetta, Frank Cetta, John G. Perna, Ralph M. Perna, John Mangrella, Gary Medure, Elliot Porco, Martin Taccetta, Antonio Russo, Alfonso Cataldo, Michael Ramuno III, Ronald Scripps, Gianni Iacovo, Robert Decrescenzo, Charles Bologna, James Furfaro, Robert Romano, John Turi, Michael Maffucci, George Maiorano, Blerim Ibriami, Shpetim Hani, Vita Cetta and Rosanna Perna

Count 7 – Attempted Theft by Extortion – Second Degree
Joseph M. Perna, John G. Perna, Michael Cetta, Gianni Iacovo, James Furfaro and Robert Romano

Count 8 – Aggravated Assault – Second Degree
Joseph M. Perna, John G. Perna, Michael Cetta, Gianni Iacovo, James Furfaro and Robert Romano

Count 9 – Possession of a Weapon for Unlawful Purpose – Third Degree
John G. Perna and Robert Romano

Count 10 – Theft by Deception – Second Degree
Joseph M. Perna

Count 11 – Falsifying Records – Fourth Degree
Joseph M. Perna

Count 12 – Theft by Deception – Second Degree
Joseph M. Perna and Rosanna Perna

Count 13 – Falsifying Records – Fourth Degree
18 months / $ 10,000
Joseph M. Perna and Rosanna Perna

Count 14 – Failure to File Tax Return – Third Degree
Joseph M. Perna and Rosanna Perna

Count 15 – Failure to Pay Gross Income Tax – Third Degree
Joseph M. Perna and Rosanna Perna

Count 16 – Failure to Pay Gross Income Tax – Third Degree
Ralph M. Perna

Count 17 – Failure to File Tax Return – Third Degree
Michael Cetta and Vita Cetta

Count 18 – Failure to Pay Gross Income Tax – Third Degree
Michael Cetta and Vita Cetta

Count 19 – Conspiracy – Second Degree
Joseph M. Perna, Michael Cetta, Edwin Spears, Samuel A. Juliano, Michael Bruinton, Dwayne Spears and Kristen Gilliam

Count 20 – Official Misconduct – Second Degree
Joseph M. Perna, Michael Cetta, Edwin Spears, Samuel A. Juliano, Michael Bruinton, Dwayne Spears and Kristen Gilliam

Count 21 – Bribery – Second Degree
Joseph M. Perna, Michael Cetta, Edwin Spears, Samuel A. Juliano, Michael Bruinton, Dwayne Spears and Kristen Gilliam

Count 22 – Unlawful Possession of Certain Electronic Devices in Prisons – Third Degree
Joseph M. Perna, Michael Cetta, Edwin Spears, Samuel A. Juliano, Michael Bruinton, Dwayne Spears and Kristen Gilliam

Count 23 – Possession of Oxycodone with Intent to Distribute – Second Degree
Samuel A. Juliano

Count 24 – Possession of Cocaine with Intent to Distribute – Second Degree
Samuel A. Juliano

Count 25 – Possession of Cocaine and Oxycodone – Third Degree
Samuel A. Juliano

Count 26 – Certain Persons Not To Have Weapons – Second Degree
Samuel A. Juliano

Count 27 – Unlawful Possession of a Weapon – Third Degree
Samuel A. Juliano

Count 28 – Unlawful Possession of a Weapon – Third Degree
Samuel A. Juliano

Count 29 – Prohibited Weapon – Third Degree
Samuel A. Juliano

Count 30 – Possession of Weapons During Commission of Certain Crimes – Second Degree
Samuel A. Juliano

Count 31 – Prohibited Weapon – Fourth Degree
Samuel A. Juliano

Count 32 – Prohibited Weapon – Fourth Degree
Samuel A. Juliano

Count 33 – Conspiracy – First Degree
All Defendants

Count 34 – Money Laundering – First Degree
All Defendants

NJ detective accused of exposing himself to girl via webcam May 11, 2010

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Madison, NJ Detective James N. Haspel, of Chatham, was arrested by state police on his way to work Tuesday and charged with second-degree official misconduct, attempting to endanger the welfare of a child, and attempting to transmit obscene materials to a person under 16 years old for allegedly exposing himself via webcam to an undercover detective he believed was a 13-year-old girl and using a computer at police headquarters to communicate with the person he thought was the girl.

The complaint alleges that between December 2009 and May 2010, Haspel transmitted webcam videos of himself with his genitals exposed to a person he believed to be a 13-year-old girl who was actually an undercover detective.  He is charged with official misconduct because he allegedly sent the videos from a hotel in Columbus, Ohio, where he was attending a training conference for the police department, and because he allegedly communicated with the “girl” while on duty at police headquarters using a computer supplied by the borough for official police business.

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

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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).

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

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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). 

Ex-Franklin Twp. housing official admits steering contracts to husband’s business February 17, 2010

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April Harbstreeet, who previously administered the Franklin Township Community Development Block Grant Program has entered a guilty plea today in Somerset County Superior Court. She was responsible for qualifying applicants for federal housing assistance and soliciting bids for housing rehabilitation projects.  In 2005, she contracted $113,677 worth of work to her husband’s company, Ronald Patrick Plumbing. After her supervisors told her to stop, her husband Ronald DeSantis,42, continued to win contracts by working under the name of an electrical contractor, and reaped $169,678.78.

Today, both pleaded guilty to multiple offenses, including 13 counts of second-degree official misconduct and third-degree witness tampering. DeSantis also pleaded guilty under a separate indictment to third-degree tax charges, including failure to file income tax returns.

Under the deal Harbstreet will be sentenced to five years in prison. As a condition of the plea, she was remanded to the county jail pending sentence. DeSantis will be sentenced to serve seven years in prison, but he won’t be sentenced until Harbstreet is released, for the benefit of their child. He also agreed to pay back taxes, interest and penalties which equals $23,479.99.

Story is here.

Essex County’s election superintendent charged with official misconduct January 8, 2010

Posted by jefhenninger in News.
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Carmine Casciano of West Caldwell has been charged with official misconduct.  He is accused of giving unauthorized paid days off to employees who worked on political campaigns. In addition, he is also alleged to have ordered destruction of records related to the scheme. 

Seems like someone flipped.  His attorney needs to act fast to see who is on board and who’s not.  This is an interesting case because he did not profit off of this like most people charged with official misconduct.  The State will need some good witnesses to link all of this together.

Story is here.