STATE OF NEW JERSEY v. JOSEPH M. LUCAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4609-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH M. LUCAS,

Defendant-Appellant.

_______________________________________________________________

November 12, 2010

 

Argued February 3, 2010 - Decided

Before Judges Stern, Graves and Harris.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Indictment No.

05-09-00770.

Michael J. Rogers argued the cause for appellant

(McDonald & Rogers, LLC, attorneys; Mr. Rogers,

of counsel and on the brief).

Michael McLaughlin, Assistant Prosecutor, argued

the cause for respondent (Wayne J. Forrest,

Somerset County Prosecutor, attorney; Eric Mark,

Assistant Prosecutor, on the brief).

PER CURIAM

In a four-count indictment, a Somerset County grand jury charged defendant Joseph Lucas with second-degree official misconduct, N.J.S.A. 2C:30-2 (count one); second-degree bribery, N.J.S.A. 2C:27-2(c) and (d) (count two); second-degree acceptance of unlawful benefits by a public servant for official behavior, N.J.S.A. 2C:27-10(a) and (b) (count three); and fourth-degree falsifying records, N.J.S.A. 2C:21-4(a) (count four). On November 16, 2007, a jury found defendant guilty of official misconduct, but he was acquitted of the remaining charges. On April 25, 2008, the court sentenced defendant to a five-year prison term. The trial judge continued bail and stayed the sentence pending appeal.

Defendant presents the following arguments for our consideration:

POINT I

 

THE TRIAL JUDGE'S HOSTILE QUESTIONING OF WITNESS JOSEPH PIETRASZEWSKI DENIED DEFENDANT A FAIR TRIAL.

 

POINT II

 

THE JURY RETURNED A NONUNANIMOUS VERDICT, THE LEGAL EFFECT OF WHICH IS AN ACQUITTAL BECAUSE THE JURY DID NOT AGREE UNANIMOUSLY THAT ANY OF THE FOUR PREDICATE OFFENSES SUBMITTED TO THE JURY UNDER COUNT ONE OF THE INDICTMENT APPLIED.

 

POINT III

 

THE DUPLICITOUS INDICTMENT DENIED DEFENDANT A FAIR TRIAL.

 

POINT IV

 

THE COURT MUST ENTER A JUDGMENT OF ACQUITTAL BECAUSE THERE IS NO EVIDENTIARY CORROBORATION OF THE PRIOR INCONSISTENT STATEMENT OF JOSEPH PIETRASZEWSKI ADMITTED INTO EVIDENCE UNDER N.J.R.E. 803(a)(1) AND N.J.R.E. 613; ADDITIONALLY, THE STATE DID NOT PROVE CRITICAL ELEMENTS OF THE OFFENSE.

 

POINT V

 

THE CONVICTION UNDER COUNT ONE MUST BE REVERSED BECAUSE DEFENDANT WAS NEVER CHARGED WITH VIOLATING THE REQUIREMENTS OF THE PURCHASING MANUAL; MOREOVER, HIS ACTIONS DID NOT VIOLATE THE REQUIREMENTS OF THE PURCHASING MANUAL, OR STATE PUBLIC CONTRACTS LAW, OR ANY DUTY INHERENT IN THE NATURE OF HIS OFFICE.

 

POINT VI

 

THE TRIAL JUDGE FAILED TO CHARGE CRITICALLY IMPORTANT LANGUAGE TO THE JURY WHICH WAS HIGHLY RELEVANT TO THIS CASE CONCERNING A PUBLIC SERVANT'S KNOWLEDGE OF HIS DUTY TO ACT.

 

POINT VII

 

THE TRIAL COURT WAS REQUIRED TO CHARGE THE JURY AS IF THEY WERE DEADLOCKED ON THE PREDICATE OFFENSES UNDER COUNT ONE, ONCE THE TRIAL COURT DECIDED THAT THE INITIAL VERDICT WAS UNACCEPTABLE AND REQUIRED "CLARIFICATION."

 

POINT VIII

 

THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

 

POINT IX

 

APPELLATE INTERVENTION IS WARRANTED AS A MATTER OF FUNDAMENTAL FAIRNESS BECAUSE ONE CANNOT HAVE CONFIDENCE IN THIS VERDICT.

 

We conclude from our review of the record and the applicable law that defendant's arguments are without merit, and we affirm the judgment of conviction.

Defendant was hired by the Somerset County Park Commission (Park Commission) in 1995 as a construction inspector. About two years later, he was promoted to construction supervisor, and he became construction manager in 2001. His job responsibilities as construction manager included soliciting quotations for work not subject to the formal bidding process, overseeing contractors throughout the park system, and supervising other employees.

In 2004 and 2005, Peng Chen was the finance administrator and purchasing agent for the Park Commission. In April 2004, Chen prepared and distributed the Somerset County Park Commission Purchasing Manual (purchasing manual or manual) to each of the department managers. The purpose of the purchasing manual was "to familiarize departments with the procedures, responsibilities, and documents required for purchasing goods and services." The manual states: "No goods or services shall be contracted for or purchased by any department except in accordance with the procedures set forth herein."

The purchasing manual explained that the Park Commission "increased the bid threshold from $17,500 to $25,000" on April 15, 2004, and that expenditures of $25,000 or more were subject to the requirements of the Local Public Contracts Law (LPCL), N.J.S.A. 40A:11-1 to -51. The manual further explained that the LPCL did not apply to any expenditures under $25,000. For projects costing between $3750 and $25,000, department managers were instructed to obtain three quotations from outside vendors or contractors.1

According to the purchasing manual, the Park Commission's "procurement practices and policies" are designed to promote open competition. Therefore, the manual provides: "Purchase [o]rders or contracts will be awarded to the lowest responsible vendor." In addition, the manual states "[p]rices and other specific information received from vendors will be considered confidential. During price solicitation, quotations received from one supplier shall not be divulged to another."

Chen testified that the procedure for construction projects costing between $3750 and $25,000 begins with the solicitation of three quotations for the work by the construction department. After the quotations are received, the construction manager submits a summary thereof to Chen. Based on the summary of quotations, Chen's office prepares a purchase order, which is then sent to the person or company selected to do the work. After the work is performed, the contractor submits an invoice for payment and the finance department prepares a check for payment. However, the check is not released to the contractor until the construction manager approves the work and signs a copy of the purchase order.

Defendant's supervisor, Leslie Holzmann, indicated he was "familiar with the manual" dated April 2004 and confirmed it was distributed to all of the departments in the Park Commission. Holzmann testified that when quotations were needed for a construction project, he generally asked defendant to get the quotes and to complete a solicitation of quotation form that would be submitted to the finance department "for processing and approval." According to Holzmann, defendant was expected to obtain quotes within the Park Commission's budget. Therefore, he was allowed to discuss the Park Commission's budget for a project with a potential contractor.

Holzmann also testified that defendant would sometimes select the contractors who were asked to submit quotes:

Q. Now, sir, when these three quotes would come in, who would be responsible for selecting the contractor?

 

A. It might depend on the project. [If it] was a specialized type of project where we were not familiar with the contractors, with the type of work, Mr. Lucas and I might discuss how to find a contractor to solicit quotes. For the more simple projects that were typical construction types then Mr. Lucas would be responsible for picking the contractors.

 

Frank Taddeo was an inspector in the construction department and defendant was his immediate supervisor. Taddeo testified that in the Fall of 2004, defendant asked him to solicit a quotation from Nicholas Tozzi for a project at the Steinant Building, also known as "Gary's house." Tozzi's written estimate for the entire project, including roofing, siding, and other work, was $16,400. That was the only quote that Taddeo obtained, and he gave it to defendant. According to Taddeo, defendant told him in September or October 2004, that Joseph Pietraszewski "got the job" at Gary's house because "he [needed] some work," and he was "a good carpenter."

When Tozzi learned that someone else was selected to perform the work, he telephoned defendant to find out what happened. Tozzi testified that defendant said he was sorry, but "he had some comparative bids [and] another contractor was real slow." Tozzi also testified that defendant never asked him to do anything improper or illegal.

The project at Gary's house was ultimately awarded to Kimcon General Contractors (Kimcon), a company owned by Pietraszewski's wife. On November 2, 2004, defendant submitted a solicitation of quotation form to the finance department for "Roof @ Steinant." The solicitation form stated that Kimcon's price was $9300, Tozzi's price was $9700, and a third company's price was $10,375. Later in the month, defendant approved a purchase order prepared by the finance department and Kimcon was paid the sum of $9300 on November 18, 2004.

On December 2, 2004, defendant submitted another solicitation of quotation form to the finance department for "Exterior Renovation" work at Gary's house. That form indicated that Kimcon's price was $10,700, Tozzi's price was $12,200, and a third contractor's price was $14,900. On December 16, 2004, after defendant approved the purchase order, Kimcon was paid the sum of $10,700. In addition, Kimcon received $1925 for "extra" roofing and siding work. Therefore, Kimcon was paid a total of $21,925 for the work at Gary's house even though Tozzi had proposed to do the entire project for $16,400.2

In a recorded statement to Detective Robert Pascale of the Somerset County Prosecutor's Office on April 28, 2005, Pietraszewski stated he was friends with defendant, and their families would visit and socialize together. Pietraszewski indicated that on several occasions, defendant told him what to quote "to be awarded the job." Pietraszewski felt defendant gave him the information as a result of their friendship because defendant never asked for money or a loan in return. With regard to the project at Gary's house, Pietraszewski said he knew he was competing against Tozzi and he indicated defendant told him what to quote "to beat Tozzi."

However, when Pietraszewski testified as a State's witness in November 2007, he did not recall having a conversation with defendant regarding the project at Gary's house, and Pietraszewski only "vaguely" remembered giving a recorded statement to Detective Pascale. According to Pietraszewski, he was not "in the right state of mind" to give a statement on April 28, 2005, because it was only four days after his back surgery, he was "pretty much [on] [OxyContins]" and his wife just had major surgery. After reading a transcript of his recorded statement, Pietraszewski still could not remember giving the statement. He testified as follows:

Q. You read it?

 

A. Yes, sir.

 

Q. Does that refresh your recollection?

 

A. Again, I don't recall the conversation with . . . the detective.

 

Q. But does that refresh your recollection as to whether or not you had any conversation with Mr. Lucas about bidding on that job?

 

A. I don't recall if I talked to Mr. Lucas or Mr. Frank Taddeo. I probably spoke to both of them or somebody did in the office regarding the project.

 

Q. . . . [W]hat did you talk about regarding that project?

 

A. . . . [T]hat they needed the bid to be put in and the bid was put in. I didn't put it in.

 

Q. Did you have any conversations with Mr. Lucas about the bid?

 

A. I don't recall.

 

The prosecutor then questioned Pietraszewski about whether he was familiar with the phrase "sharpen your pencil" and he indicated "Yes." When asked what the statement meant or whether Pietraszewski had ever used the phrase before, Pietraszewski was non-responsive, with answers such as "[y]ou are using the term." As the prosecutor continued questioning Pietraszewski, the court eventually intervened and the following exchange took place:

Q. Mr. Pietraszewski, let's talk about [the job at Gary's house]. What type of proposal did you submit?

 

A. I didn't submit the proposal.

 

Q. Who did?

 

A. Someone in the office did.

 

Q. What was the work for?

 

A. I believe there was a roofing and siding project.

 

Q. On what?

 

A. There was a house and a separate garage on a property.

 

Q. And did you do the work there?

 

A. No. I told you we subcontracted it.

 

Q. You subcontracted the whole job?

 

A. We subcontracted the roofing, yes, and siding.

 

Q. What does your company do?

 

A. We're general contractors.

 

THE COURT: That wasn't the question. What did you do? Come on. Let's go. What did you do there?

 

THE WITNESS: I didn't do anything there, sir.

 

THE COURT: What did your company do there?

 

THE WITNESS: We gave a proposal to do work on the building.

 

THE COURT: What did your company do there?

 

THE WITNESS: We subcontracted the roof --

 

THE COURT: You didn't do any work there?

 

THE WITNESS: I did not.

 

THE COURT: Your company didn't do any work there?

 

THE WITNESS: Excuse me.

 

THE COURT: Is that what you are saying, your company didn't do any work there?

 

THE WITNESS: We had people doing the siding there sir. We had a crew doing the siding.

 

Subsequently, during a side-bar conference, the prosecutor argued that Pietraszewski's recorded statement was admissible as a prior inconsistent statement under N.J.R.E. 803(a)(1).3 During a Rule 104 hearing, Pietraszewski testified he was "hooked on [OxyContins] for a couple of years" and that he was "under the influence of [OxyContin]" when he was interviewed by Detective Pascale. According to Pietraszewski, he "would have told [Detective Pascale] the sky was falling if [he] had to."

The trial court found that Pietraszewski's prior inconsistent statement was sufficiently reliable to be admitted into evidence. The trial court's findings and conclusions regarding Pietraszewski's taped statement included the following:

Well, I've had the opportunity to listen to the tape of the statement that was taken back in April of 2005, and although the witness claims that he was strung out on drugs at the time, the tape disputes that. Listening to the words, listening to the conversation, listening to the responses. The quickness of the responses. . . . [I]t's clear to me that the witness knew exactly what questions were being posed to him, understood the questions, responded appropriately to the question that was being asked. He was coherent. He was logical. He was deliberate. He has an acute recall for a number of things. [He was not] under the influence when he gave this statement. Listening to the tape you could tell that. This was a coherent individual on the tape.

 

He claims to have been high on OxyContin. The tape disputes that. Listening to his voice and his responses disputes that. It's also clear to me that the witness is hostile and should be declared hostile to allow the State . . . to ask leading questions of the witness. I do find the witness to be hostile to the State. It is apparent to me that there is a vast friendship between the witness and the defendant. It's clear to me that he doesn't want to be here testifying against his friend, and he is doing everything he can to avoid responding to the questions.

 

Defendant testified on his own behalf. He denied any wrongdoing, and he denied revealing any "confidential information to give anyone an unfair advantage." Defendant acknowledged that his duties as construction manager required him to follow the Park Commission's "policies and procedures." He further admitted that the solicitation of quotation forms he prepared for the siding and roofing work at Gary's house were not accurate because Tozzi had only submitted one quote $16,400 for the entire job:

Q. I am going to show you S-3 B, Mr. Lucas. . . . [T]he requisition with respect to the siding of Gary's house, Steinant, is that correct?

 

A. That's correct.

 

. . . .

 

Q. And in this solicitation of quotation form you write Kimcon's proposal is ten thousand seven hundred dollars, correct?

 

A. That is correct.

 

Q. And you wrote Mr. Tozzi down as having bid twelve thousand two hundred?

 

A. Correct.

 

Q. That's not what Tozzi bid on it, is it?

 

A. According to that proposal, no.

 

Q. So when you wrote that down that's not correct?

 

A. Correct.

 

Q. Nor was . . . ninety-seven hundred dollars which you wrote down as Tozzi bidding for the roof correct, right?

 

A. Not according to his proposal.

 

Defendant also conceded that the roofing work at Gary's house had been completed, and Pietraszewski had submitted an invoice to be paid, when defendant submitted the solicitation of quotation form to the finance department. Furthermore, defendant admitted that he was responsible for selecting Kimcon to perform the work at Gary's house:

Q. And when you spoke to Pietraszewski you told him what he needed to come in at to get the job, right?

 

A. Not on Gary's house, no.

 

Q. You gave him the job even though Tozzi was [the] lower bid?

 

. . . .

 

A. I recommended that Kimcon be awarded that job because he was doing more work. I knew he could get it done faster. He had more guys. It was late in the year and I didn't need one kid trying to side a house by himself and it taking three months to do.

 

Q. You didn't recommend the job, Mr. Lucas, you awarded the job?

 

A. I approved the job, yeah.

 

Q. Right. You didn't go up to Finance and recommend Kimcon. You gave the job to Kimcon, correct?

 

A. I didn't give it to him, no.

 

Q. Well, we just went through the paperwork on that job, Mr. Lucas, and none of your paperwork, and correct me if I'm wrong, went to Finance until after the jobs were done?

 

A. That is correct, yes.

 

Q. So Finance had nothing to do with the approval of this job, correct?

 

A. I -- that would be fair to say, I guess.

 

On November 16, 2007, the jury found defendant guilty of official misconduct involving more than $200. When the foreperson reported the verdict, the following colloquy occurred:

THE LAW CLERK: Madam Forelady, how do you find as to the charge of official misconduct?

 

THE FOREPERSON: Guilty.

 

THE LAW CLERK: If you find defendant guilty of this offense, how do you find as to the value of the benefit involved?

 

THE FOREPERSON: More than two hundred.

 

THE LAW CLERK: If you find defendant guilty of this offense, specify which acts did you . . . unanimously find defendant committed?

 

THE FOREPERSON: We didn't find. We didn't check any of them.

 

THE COURT: That's [the] last question?

 

THE FOREPERSON: Right.

 

THE COURT: Which A, B, C?

 

THE FOREPERSON: None.

 

THE COURT: None.

 

Following a discussion with counsel, the court asked the jury to clarify the verdict:

THE COURT: Okay. Jury, with regard to your decision, your verdict on counts two, three and four, I think that's perfectly clear. We understand what your verdict is. We are a little confused as to count one as to what the verdict is because clearly you seem to be indicating that he is guilty of official misconduct and you seem to have made the monetary decision that has been proven beyond a reasonable doubt with regard to economic value. But as you recall when I gave you instructions on this particular matter I indicated to you that if you find the defendant guilty of this offense to specify which act you found to be unanimously present that the defendant committed and yet it seemed to be that the answer was none if I heard the forelady correctly.

 

THE FOREPERSON: (Nods.)

 

THE COURT: And so I need further clarification as to whether that was the verdict as to the jury that you found that none of these were present unanimously? So I need you to go back and discuss that with your fellow jurors because I'm going to ask you as to each count so that we can get a clarification. If you [will] retire again, please.

 

After further deliberation, the jury found defendant guilty of official misconduct because he had "disclose[d] bidding information to insure specific contractors were awarded specific jobs." The jurors were polled on each of the three parts of the guilty verdict, and each of the jurors agreed with the verdict.

Prior to sentencing, defendant filed a motion for a judgment of acquittal or, in the alternative, a new trial. In denying defendant's motion, the court stated: "As a manager it was defendant's duty, and he admits to this, to follow and enforce the policies of the [P]ark [C]ommission. The jury found that he did not."

In his first point, defendant argues he did not receive a fair trial because the trial court improperly interjected itself into the case when it questioned Pietraszewski. Defendant claims that State v. Taffaro, 195 N.J. 442 (2008), supports his position. However, defendant's reliance on Taffaro is misplaced.

The defendant in Taffaro was accused of violating a restraining order by posting a personal ad on Craigslist inviting people to contact his sister for sexual favors by telephoning her at her unlisted telephone number. Id. at 446. At the time, defendant and his sister were involved in a dispute regarding their parents' estate, and defendant's sister had obtained a restraining order that prohibited defendant from communicating with her "personally, or by telephone, in writing, or in any other manner directly or indirectly." Id. at 445-46. At trial, defendant claimed that two acquaintances, Daniel Ng and Redner Portela, had typed the ad on his computer while they were visiting him. Id. at 446. Defendant testified that when he learned of the ad, he told Ng and Portela to remove the message and he "believed them when they said they had done so." Id. at 447. However, Ng and Portela both denied typing or posting the offensive ad. Ibid. Thus, as the Court noted, "the case devolved into a battle over credibility." Ibid.

In Taffaro, the Court concluded that defendant was entitled to a new trial because the trial judge asked defendant more than thirty questions, id. at 448, which "underscored the weakness in his defense." Id. at 452. The Court stated:

[T]he questions had the effect of suggesting to the jury that the court doubted defendant's account in a case that rested heavily on defendant's credibility. The questions also covered, in part, terrain that had already been crossed. Rather than clarify points in a witness's testimony, the court's questions had the capacity to signal disbelief. The overall length of the questioning amounting to half the time of the prosecutor's brief cross-examination compounded the error. But it is the impact of the court's questions, and not the number of minutes they lasted, which matters most.

 

[Id. at 453-54.]

 

More recently, in State v. O'Brien, 200 N.J. 520 (2009), the Court reiterated the principles enunciated in Taffaro:

N.J.R.E. 614 explicitly grants judges the right to question witnesses "in accordance with law and subject to the right of a party to make timely objection." Additionally, we have held that trial judges possess broad discretion to intervene in a criminal trial where necessary. Indeed, it is proper, and even encouraged, for a trial judge to step in when a party's basic rights are being threatened, when expedition is necessary to prevent a waste of judicial time/resources, when testimony requires clarification, or when a witness appears to be in distress or is having trouble articulating his/her testimony. However, that right is limited particularly in the context of a jury trial, where the judge is not the factfinder to ensure that a court does not telegraph to the jury any partiality to a given party's side.

 

[Id. at 534 (citations omitted).]

 

In this case, unlike in Taffaro and O'Brien, the trial judge did not act in a partisan manner when he questioned Pietraszewski, and the questions he asked cannot reasonably be viewed as "an attack on Mr. Pietraszewski's credibility" as alleged by defendant. On the contrary, it is abundantly clear from our review of the record that Pietraszewski was a reluctant witness, and the court's questions were an attempt to expedite the trial by clarifying the actual work that Pietraszewski or his company performed at the job site. Once Pietraszewski testified Kimcon "had a crew doing the siding," the court did not ask any further questions. Thus, the judge's questions were neither improper nor unduly protracted, and the court did not challenge key facts or issues that were critical to defendant's defense. We are convinced the judge's questions did not deprive defendant of a fair trial.

Defendant argues in his second point that the jury verdict was non-unanimous in violation of Rule 1:8-9 because the jury initially failed to find that defendant had committed one of the four acts specified on the jury verdict form.4 According to defendant, the judge's request for clarification of the verdict was "tantamount to a judicial scolding of the jury for returning an improper verdict in violation of the court's legal instructions." We do not agree.

"A jury verdict is not final . . . 'until the deliberations are over, the result is announced in open court, and no dissent by a juror is registered.'" State v. Jenkins, 349 N.J. Super. 464, 475 (App. Div. 2002) (quoting State v. Rodriquez, 254 N.J. Super. 339, 348 (App. Div. 1992)). In this case, the trial court did not abuse its discretion when it instructed the jury to continue its deliberations and, therefore, "the 'second' verdict actually constituted the only verdict." State v. Lefkowitz, 335 N.J. Super. 352, 358 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001). Moreover, it is clear that when the jury returned the second time, the verdict was unanimous.

In his third point, defendant claims he did not receive a fair trial because the indictment was duplicitous. "'Duplicity is the joining in a single count of two or more distinct and separate offenses.'" State v. N.J. Trade Waste Assn, 96 N.J. 8, 21 (1984) (quoting United States v. Starks, 515 F.2d 112, 116-17 (3d Cir. 1975)). "The rule against duplicity protects defendant from prejudice." Ibid. As the Court explained:

"One vice of duplicity is that a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both. Conceivably this could prejudice the defendant in protecting himself against double jeopardy. Another vice of duplicity is that a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. Conceivably, this could prejudice the defendant in sentencing and in obtaining appellate review. A third vice of duplicity is that it may prejudice the defendant with respect to evidentiary rulings during the trial since evidence admissible on one offense might be inadmissible on the other. Joining conspiracy and substantive offenses in the same count present this vice in a particularly aggravated form, because of the admissibility of declarations made by coconspirators. Assuming such a joinder, and a general guilty verdict, there would ordinarily be no way of discerning whether the jury found the defendant guilty of the offense in proof of which such coconspirator's admissions were properly admitted. Finally, there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either. (Footnotes omitted.)"

 

[Id. at 21-22 (quoting Starks, supra, 515 F. 2d at 116-17).]

 

These concerns, however, are not present in this case, and defendant has not explained how he was prejudiced by the indictment or why he failed to seek relief prior to trial. A motion to dismiss an indictment based on lack of precision or a motion for other relief must be made before trial, and the failure to do so constitutes a waiver, absent a showing of good cause. See R. 3:10-2(c). State v. McDougald, 120 N.J. 523, 562 (1990) ("Rule 3:10-2 mandates that with certain specified exceptions [not present here], objections to the indictment [must] be made before trial or else [they are] waived.").

In addition, the trial court rejected the same argument when it denied defendant's motion for a new trial, reasoning that the three acts found by the grand jury "were all actions which would constitute one [offense], official misconduct." Thus, the court concluded that the official misconduct count of the indictment was not defective or duplicitous for alleging the specific means by which defendant allegedly committed a single offense. We agree with the trial court's analysis. See State v. McDougald, supra, 120 N.J. at 562-63 (noting that a hindering apprehension or prosecution count of an indictment was not duplicitous even though it charged the defendant with various criminal actions); State v. N.J. Trade Waste Assn, supra, 96 N.J. at 22 (noting that a count of an indictment charging a single conspiracy is not duplicitous even when it includes several separate and distinct criminal objects of the conspiracy); State v. Speth, 323 N.J. Super. 67, 80 (App. Div. 1999) (stating that "defendant was not charged with two crimes but with two theories of one crime"); see also R. 3:7-3(a) ("It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specific means.").

Defendant argues in his fourth point that Pietraszewski's prior inconsistent statement should not have been admitted into evidence. Relying on State v. Mancine, 124 N.J. 232, 251 (1991), defendant argues there was insufficient evidence to corroborate Pietraszewski's tape-recorded statement. The Mancine Court stated: "A prior inconsistent statement for which substantial evidence exists corroborating any of its specific elements and enhancing its seeming reliability is corroborated in its entirety and may be used for all purposes." Ibid. However, the Court also stated "that the substantive elements of a criminal charge may be proven through a prior inconsistent statement alone, provided that the statement was made under circumstances supporting its reliability and the defendant has the opportunity to cross-examine the declarant." Id. at 256.

As previously noted, the trial court ruled that Pietraszewski's tape-recorded statement was admissible, and we discern no basis to second-guess the trial judge's decision. In addition, the testimony of Taddeo and Tozzi and the paperwork authenticated by Peng Chen corroborated Pietraszewski's prior inconsistent statement. Accordingly, the prior inconsistent statement was sufficiently corroborated to be admitted into evidence.

In point five, defendant contends that his right to procedural due process was violated because there was no "testimony before the grand jury about the Somerset County Parks Commission Purchasing Manual." In addition, defendant claims the State never mentioned that defendant's failure to follow the manual's requirements was evidence of official misconduct until "after the jury was sworn and trial commenced." Nevertheless, defendant's counsel acknowledges that the discovery materials he received from the State included the manual; according to Chen, the purchasing manual was distributed to all department managers in April or May 2004; and defendant testified that his job description, which he wrote, required him to follow and enforce Park Commission policies and procedures. Under these circumstances, we conclude there was no violation of defendant's procedural due process rights.

Defendant also argues his actions did not violate the requirements of the purchasing manual, because defendant only made recommendations to Peng Chen, who was responsible for awarding contracts when the work was not subject to competitive bidding. According to defendant, if he "did anything technically incorrect, it was because he was a victim of the 'get it done' culture of the Park Commission," and "he did not do anything illegal." These same arguments were rejected by the jury, and we do not find them persuasive.

In point six, defendant argues that his conviction must be reversed because the jury charge was deficient. Defendant claims the trial judge failed to charge important language "concerning a public servant's knowledge of his duty to act."

It is clear that proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). A jury charge is essentially "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). "In passing upon the propriety of a trial court's instruction, [we] will examine the entire charge to see whether the jury was misinformed as to the controlling law." State v. Hipplewith, 33 N.J. 300, 317 (1960).

In this case, the trial court's instructions to the jury regarding official misconduct included the following:

So for the defendant to be guilty of official misconduct the State must prove each of the following elements beyond a reasonable doubt. Element number -- and there are three. Element number one, that the defendant was a public servant at the relevant times. Number two, that he committed an act relating to his office knowing that it was unauthorized or committed an act in an unauthorized manner knowing that the manner was unauthorized. And, three, that his purpose in so acting was to benefit himself or another. Those are the elements the State needs to prove beyond a reasonable doubt in order for you to find the defendant guilty of this charge.

 

. . . .

 

[T]he State must prove defendant committed an act relating to his office or committed an act in an unauthorized manner. An act in question must relate to the public servant's office. The commission of the act must constitute an unauthorized exercise of his official function. The public servant must know that the act was unauthorized or that the act was done in an unauthorized manner.

 

For an act to be relating to a public servant's office it must be connected to his office duties. An act is not connected to the public servant's official duties merely because a public servant performs that particular act. An act is unauthorized if it is committed in a breach of some proscribed duty of the public servant or office. The duty must be official and . . . nondiscretionary, imposed upon the public servant by law such as statute, municipal charter, ordinance or clearly inherent in the nature of his office. Not every unauthorized act committed by a public servant rises to the level of official misconduct. Unauthorized act must amount to an official misconduct only if the public servant knew at the time that his conduct was unauthorized and unlawful.

 

As to defendant's alleged conduct, the State must prove that there was a clear duty imposed on the defendant to act or to refrain as alleged. That is to say, there must have been a body of knowledge such as a preferable law by which the defendant could regulate and determine the legality of his conduct. One [cannot] be convicted of official misconduct if the official duties imposed by themselves are unclear. So if you conclude beyond a reasonable doubt that the defendant was required to act or refrain by any status, rule, regulation and he failed to do so this element will be satisfied. An act in question need not be criminal in nature. Proof of a criminal act is not required to find the defendant guilty of this offense.

 

Thus, the jury charge in this case closely mirrored the model jury charge on official misconduct and accurately explained the elements of the offense. Accordingly, we find no error.

Defendant's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The manual defines "quotation" as follows: "The response to a formal or informal request made by a contracting agent of a vendor for provision or performance of goods or services when the aggregate cost is less than the bid threshold."

2 Tozzi's quotation dated September 22, 2004, was for "roof & siding" and other work, including the installation of a new "36" door going into basement."

3 A prior inconsistent statement made by a testifying witness may be admissible as substantive evidence when the statement is offered by the party calling the witness and the statement is sound recorded or in a writing made by or signed by the witness in circumstances establishing its reliability. State v. Mancine, 124 N.J. 232, 247 (1991); State v. Gross, 121 N.J. 1, 7-9 (1990).

4 The jury verdict form instructed the jury to state which of the following acts it unanimously found if defendant was guilty of official misconduct:

a) instruct private contractors to add additional amounts of money charged to the Park Commission for work not done.

 

b) disclose bidding information to insure specific contractors were awarded specific jobs.

 

c) approve vouchers that contained amounts of money for work not performed.

 

d) accept money in return from contractors for the unlawful exercise of his official function.