STATE OF NEW JERSEY v. RALPH W. GRIER

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5279-03T45279-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH W. GRIER,

Defendant-Appellant.

_________________________________

 

Submitted: December 6, 2005 - Decided September 5, 2006

Before Judges Kestin, Lefelt and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, 03-05-0111.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant of a single count of second-degree official misconduct, N.J.S.A. 2C:30-2a, as a result of acts involving one victim. The jury acquitted him of a charge of official misconduct as to another person, as well as charges of second-degree sexual assault and lesser-included criminal sexual conduct as to both individuals. The trial court denied defendant's motions for a judgment of acquittal and for a new trial.

On the sole conviction, the trial court sentenced defendant to a five-year prison term and ordered appropriate statutory assessments and penalties. The court also entered an order requiring defendant to forfeit his public employment as a corrections officer at the rank of lieutenant in the Department of Corrections and disqualifying him from holding any future public office or position in the State. See N.J.S.A. 2C:51-2.

The record discloses that the events leading to the charges occurred at the Edna Mahan Correctional Facility, where defendant was employed and the victim had been an inmate since August 1999. The victim testified that defendant would visit her and bring her items such as gum, candy, cigarettes, and, on one occasion, earrings. "A couple of times he asked me to flash him, and I did." The victim described "flashing" as follows: "I'd open up my robe, and I didn't have anything on underneath it." She said it occurred "maybe three [times]" while she was "inside [her] cell" and defendant was "on the outside." Also, according to the victim, she and defendant discussed many things over time, including his interest in photography and his desire to photograph her. She told defendant that she would allow him to photograph her "if he had [her] transferred to another building, because [she] was having problems in North Hall." Defendant responded that "he could get [her] moved. That's not a problem." The victim also requested $150 for taking the photographs. "[Defendant] sent [her] $30, and he didn't move [her]."

The victim testified further that defendant photographed her in January 2002 after instructing her "to take off [her] clothes[,]" and telling her to assume "different poses . . . while he took the pictures." A "week or two" later, defendant brought the victim copies of some of the photographs. She also received a $30 money order in the mail. "I knew it wasn't from my grandmother, because there wasn't any . . . letter, and it wasn't her handwriting, so I knew where it came from."

On February 2, 2002, another corrections officer found four of the photographs in the victim's prison cell. That officer identified the photographs at trial and averred that they depicted the victim in her prison cell.

Defendant did not testify. Two character witnesses testified on his behalf.

On appeal, defendant raises the following issues:

POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY ERRONEOUS, CONFUSING, AND PREJUDICIAL INSTRUCTIONS ON THE LAW OF OFFICIAL MISCONDUCT. (Not Raised Below)

A. THE INSTRUCTION FAILED TO LIMIT AN "UNAUTHORIZED ACT" TO THE ALLEGATIONS CONTAINED IN THE INDICTMENT. (Not Raised Below)

B. THE INSTRUCTION ON KNOWING CONDUCT ALLOWED THE JURORS TO CONVICT THE DEFENDANT SOLELY ON THE BASIS OF HIS KNOWLEDGE OF HIS ACTS, BUT THE STATUTE REQUIRED THAT THE DEFENDANT MUST HAVE KNOWLEDGE OF BOTH HIS ACTS AND THE LAW. (Not Raised Below)

C. THE INSTRUCTION THAT THE DEFENDANT MUST RECEIVE OR HOPE FOR A "BENEFIT," WITHOUT ANY EXPLANATION, WAS UNDULY VAGUE AND ALLOWED FOR A CAPRICIOUS AND ARBITRARY VERDICT. (Not Raised Below)

D. THE INSTRUCTION WAS NOT MOLDED TO THE FACTS OF THE CASE AS REQUIRED BY THE STATE SUPREME COURT. (Not Raised Below)

POINT II THE TRIAL COURT'S INSTRUCTION ALLOWED A VERDICT OF GUILTY ON THE CHARGE OF OFFICIAL MISCONDUCT WITHOUT JURORS REACHING A UNANIMOUS VERDICT ON THE FACTUAL BASIS FOR OFFICIAL MISCONDUCT, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 9 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)

POINT III THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF THIRD-DEGREE OFFICIAL MISCONDUCT. (Not Raised Below)

POINT IV THE PROSECUTOR'S COMMENT ON SUMMATION THAT NOTHING HAS BEEN BROUGHT OUT TO SHOW BIAS AGAINST THE DEFENDANT VIOLATED THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Partially Raised Below)

POINT V THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD DERIVED OR HOPED FOR A BENEFIT IN EXCHANGE FOR GIVING AN INMATE MONEY.

POINT VI THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE DEFENDANT SHOULD BE SENTENCED TO PROBATION AS A THIRD-DEGREE OFFENDER.

Our detailed review of the record, in the light of the arguments advanced by the parties and prevailing standards of law, reveals that none of these arguments has sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add a few words of clarification in several respects, however.

Considering the trial judge's charge to the jury as a whole, see State v. Wilbely, 63 N.J. 420, 422 (1973), we conclude the jury was amply and accurately instructed, with sufficient clarity, regarding the elements of the crime, including the requirement for a finding that defendant knowingly violated an existing standard of conduct of which he was aware. No argument proffered by defendant in this respect or any other satisfies plain error requirements. See R. 1:7-2; R. 2:10-2; State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). No showing has been made "sufficient to raise a reasonable doubt as to whether the [asserted] error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

The jury was also charged correctly and completely regarding the element of "benefit" in the official misconduct statute, N.J.S.A. 2C:30-2. The statute establishes as a second-degree crime an act relating to the accused's office that is unauthorized, committed with knowledge that the act is unauthorized, and "with purpose to obtain a benefit for himself or another[.]" The statute also provides: "If the benefit . . . is of a value of $200 or less, the offense of official misconduct is a crime of the third degree."

The proofs in this matter did not entitle defendant to a charge on third-degree official misconduct. The third-degree grading of the crime is clearly "an exception from the more general treatment of official misconduct as a second degree offense." State v. Phelps, 187 N.J. Super. 364, 373-74 (App. Div. 1983), aff'd, 96 N.J. 500 (1984).

This exception is clearly pecuniary in nature. The use of the words "of a value" convinces us that the Legislature in this downgrading provision intended to treat more moderately offenses which, by an objective standard, could be measured to be relatively less consequential in nature than would otherwise be the case. It carved out a type of official misconduct for lenient treatment. But the Legislature did not in the downgrading provision deal with a benefit not subject to pecuniary measurement.

[Id. at 375.]

The benefit defendant derived from the acts he committed in this matter had no conceivable pecuniary value to him or anyone else. His conduct was designed to provide him with psychic or sexual gratification, not some result amenable to measurement in dollars. Even if the photographs themselves were to be considered a tangible benefit, they had no monetary value within the contemplation of the Legislature in enacting the exception.

We discern nothing in the prosecutor's summation that can be seen as a denial of any constitutional guarantee defendant enjoys. The sentence imposed was well within the trial court's discretion.

 
Affirmed.

(continued)

(continued)

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A-5279-03T4

September 5, 2006