STATE OF NEW JERSEY v. JAMES HABEL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1473-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES HABEL,
Defendant-Respondent.
_____________________________
Argued November 28, 2017 – Decided April 10, 2018
Before Judges Fasciale, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-06-1087.
Edward C. Bertucio argued the cause for
appellant (Hobbie, Corrigan & Bertucio, PC,
attorneys; Edward C. Bertucio, of counsel and
on the brief; Elyse S. Schindel, on the
brief).
Mary R. Juliano, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Mary R. Juliano, of counsel and on
the brief).
PER CURIAM
Defendant James Habel appeals from a December 4, 2015 judgment
of conviction; a December 4, 2015 order denying his motion to be
sentenced as a third-degree offender on count one, for "waiver of
the minimum stipulation of parole ineligibility," and for waiver
of the presumption of incarceration; a November 20, 2015 order
denying his motion for a mistrial and a December 4, 2015 order
denying his ensuing motion for reconsideration; a July 9, 2015
order denying his motion for judgment notwithstanding the verdict
or alternatively for a new trial; and September 24, 2014 orders
denying his motions to dismiss the indictment and suppress
evidence. He contends:
POINT I
TRIAL COUNSEL COMMITTED A VIOLATION OF THE
RULES OF PROFESSIONAL CONDUCT AND VIOLATED
STATUTORY LAW AND CASE LAW [PROHIBITING] SIDE-
SWITCHING FROM PRIOR GOVERNMENT EMPLOYMENT
WHERE HE PRESIDED OVER THE SAME INVESTIGATION
OF APPELLANT THAT HE DEFENDED HIM AGAINST AT
TRIAL, WHICH REQUIRES THE REVERSAL OF
APPELLANT'S CONVICTIONS AND THE REMAND FOR A
NEW TRIAL.
POINT II
THE TRIAL COURT IMPROPERLY SPLIT THE SINGLE
OFFICIAL MISCONDUCT COUNT IN THE INDICTMENT
INTO TWO SEPARATE COUNTS, COUNT 1A AND 1B,
WHEN APPELLANT WAS ONLY INDICTED FOR ONE COUNT
OF OFFICIAL MISCONDUCT. THIS WAS A VIOLATION
OF HIS CONSTITUTIONAL RIGHT TO INDICTMENT BY
GRAND JURY AND A VIOLATION OF THE FEDERAL AND
STATE RIGHTS TO PROCEDURAL DUE PROCESS, WHICH
2 A-1473-15T4
REQUIRES THE REVERSAL OF THE CONVICTION FOR
OFFICIAL MISCONDUCT AND ALL OTHER CONVICTIONS.
POINT III
THE TRIAL COURT IMPROPERLY TOOK A PARTIAL
VERDICT AS TO COUNT 1A, WHERE THE JURY WAS
DEADLOCKED ON COUNT 1B, AND THEREFORE THE
ILLEGAL CONVICTION OF COUNT 1, OFFICIAL
MISCONDUCT, MUST BE REVERSED AS WELL AS ALL
OTHER CONVICTIONS.
POINT IV
THE CONVICTION FOR OFFICIAL MISCONDUCT AND ALL
OTHER CONVICTIONS RELATING TO CAR MILEAGE
SHOULD BE REVERSED BECAUSE EVIDENCE WAS
ADMITTED IN VIOLATION OF THE STATUTE OF
LIMITATIONS AND IN VIOLATION OF N.J.R.E.
404(B) AS ILLEGAL PREDISPOSITION EVIDENCE
REGARDING ALLEGED CONDUCT THAT PRE-DATED 2007,
WHICH CONDUCT WAS ULTIMATELY BARRED FROM
CONSIDERATION AS SUBSTANTIVE EVIDENCE OF GUILT
BY THE TRIAL COURT.
(A) THE JURY SHOULD HAVE BEEN INSTRUCTED
THAT ALL EVIDENCE AND TESTIMONY ELICITED
AS TO ALLEGED CONDUCT PRE-2007 WAS
INADMISSIBLE AND NOT TO BE CONSIDERED AS
SUBSTANTIVE EVIDENCE OF GUILT AND COULD
NOT BE USED BY THE JURY AS PREDISPOSITION
EVIDENCE EITHER. NO SUCH INSTRUCTION WAS
GIVEN.
(B) THERE SHOULD HAVE BEEN A PRETRIAL
N.J.R.E. 404(B) HEARING AS TO THE
ADMISSIBILITY OF EVIDENCE AND TESTIMONY
AS TO THE ALLEGED CONDUCT BEFORE 2007
THAT WAS NOT A THEFT, AND THERE SHOULD
HAVE BEEN A LIMITING INSTRUCTION THAT
SUCH EVIDENCE WAS INADMISSIBLE AS
SUBSTANTIVE EVIDENCE.
3 A-1473-15T4
POINT V
ALL OF APPELLANT'S CONVICTIONS SHOULD BE
REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY
DENIED THE PRE-TRIAL AND POST-VERDICT MOTIONS
TO DISMISS THE COUNTS FOR WHICH HE WAS
CONVICTED AS THE INDICTMENT DID NOT ALLEGE ANY
STATUTE, RULE, REGULATION, OR MUNICIPAL
CHARTER THAT WAS VIOLATED BY APPELLANT AND THE
TRIAL COURT FAILED TO CHARGE AND THE STATE
FAILED TO ESTABLISH ANY LEGAL DUTY THAT WAS
VIOLATED BY APPELLANT'S ALLEGED CONDUCT AND
THE FIRST TRIAL COURT FAILED TO CONSIDER
CERTAIN EXCULPATORY EVIDENCE THAT CLEARLY
ESTABLISHED THAT THERE WAS NO WRONGDOING
COMMITTED BY APPELLANT IN THIS CASE.
POINT VI
APPELLANT'S CONVICTION SHOULD BE REVERSED
BECAUSE:
(A) DURING TRIAL THE COURT IMPROPERLY
ALLOWED THE STATE TO CONDUCT AN
ADDITIONAL INVESTIGATION AS TO THE ISSUE
OF CAR USAGE AND MILEAGE IN VIOLATION OF
[RULE] 3:13-3 AND EVIDENCE RULES, OR
(B) DURING THE TRIAL THE COURT
IMPROPERLY PREVENTED THE DEFENSE FROM
PRESENTING [EXCULPATORY] EVIDENCE.
POINT VII
THERE WERE VARIOUS INSTANCES OF PROSECUTORIAL
MISCONDUCT THAT OCCURRED THAT REQUIRE REVERSAL
OF ALL OF APPELLANT'S CONVICTIONS.
(A) THE ASSISTANT PROSECUTOR PUT
APPELLANT'S TRIAL COUNSEL ON THE STATE'S
WITNESS LIST TO CREATE A CHILLING EFFECT
ON TRIAL COUNSEL'S REPRESENTATION OF
APPELLANT, KNOWING HE WAS FIRST ASSISTANT
PROSECUTOR AND ACTING MONMOUTH COUNTY
PROSECUTOR FROM 2
003 TO 2005.
4 A-1473-15T4
(B) THE STATE FAILED TO REQUEST AN
N.J.R.E. 404(B) HEARING, AS WAS ITS DUTY,
REGARDING ALLEGED CONDUCT BEFORE 2007,
WHICH WAS INADMISSIBLE AND BEYOND THE
STATUTE OF LIMITATIONS.
(C) THE ASSISTANT PROSECUTOR READ TWO
EMAILS ALLEGEDLY WRITTEN BY APPELLANT TO
THE JURY DURING HER OPENING ARGUMENT
WHICH WERE NOT INTRODUCED AT TRIAL AT
ALL, NOR TESTIFIED TO REQUIRING A NEW
TRIAL.
(D) THE ASSISTANT PROSECUTOR ENGAGED IN
ILLEGAL NAME-CALLING AND MADE IMPROPER
AND DEROGATORY COMMENTS DURING CROSS-
EXAMINATION AND HER SUMMATION, ABOUT
APPELLANT AND TRIAL COUNSEL, WHICH
CONSTITUTED PROSECUTORIAL MISCONDUCT.
POINT VIII
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL PER SE, DUE TO THE CLEAR CONFLICT OF
INTEREST IN [COUNSEL'S] REPRESENTATION OF
APPELLANT, WHICH RESULTED FROM HIS ILLEGAL
SIDE-SWITCHING. SAID CONFLICT OF INTEREST
INFECTED APPELLANT'S ENTIRE TRIAL, REQUIRING
THE REVERSAL OF ALL OF APPELLANT'S CONVICTIONS
ON DIRECT APPEAL.
POINT IX
THE CUMULATIVE ERROR IN THIS CASE REQUIRES A
REVERSAL OF ALL OF APPELLANT'S CONVICTIONS.
POINT X
THE SECOND TRIAL COURT ABUSED ITS DISCRETION
IN DENYING THE DEFENSE'S MOTION FOR RELAXATION
OF THE STIPULATION OF PAROLE INELIGIBILITY AND
FOR A DOWNGRADE OF THE OFFENSE. THE RESULTING
SENTENCE WAS, THEREFORE, EXCESSIVE.
5 A-1473-15T4
We disagree with all of defendant's arguments and affirm.
Defendant was convicted by a jury on March 10, 2015, of
second-degree official misconduct,
N.J.S.A. 2C:30-2(a) (count
one), and four counts of fourth-degree falsifying or tampering
with records,
N.J.S.A. 2C:21-4(a) (counts seven, eight, nine and
thirteen).1
The indictment stemmed from defendant's position as
superintendent of schools in the Wall Township school district –
which he held since 2003; defendant acted as the Board of
Education's chief executive and administrative officer, and had a
general supervisory role. The charges related to accepting
payments for unreported vacation-day absences and falsifying or
tampering with the records relating to his district-issued
automobile. Defendant's attorney, Robert Honecker, Jr.,
previously served as First Assistant Prosecutor and thereafter
Acting Prosecutor of the Monmouth County Prosecutor's Office from
2003 to 2005.
1
The jury acquitted defendant on count six (theft of district-
issued equipment) and count twelve (falsifying or tampering with
records relating to attendance documentation in his personnel
file); it could not reach a unanimous verdict on count one
(official misconduct) — Question 1B, count two (theft by
deception), and count five (financial facilitation). On August
28, 2015, with the State's consent, the judge dismissed counts two
and five.
6 A-1473-15T4
I.
Prior to sentencing, defendant moved for a new trial
contending his convictions should be automatically reversed
because Honecker had a nonwaivable, "side-switching" per se
conflict of interest occasioned by a meeting he attended as Acting
Monmouth County Prosecutor. The meeting was part of an
investigation that led to a separate, unrelated indictment against
defendant that was ultimately dismissed. The motion judge
summarized defendant's argument:
[A]t some point some evidence may have been
offered into the trial arising out of a
meeting which occurred allegedly back in March
of 2005 in which there was an ongoing dispute
as to whether or not the Wall Township Board
of Education and its employees, including
[defendant], were adequately performing a
memorandum of understanding in relation to
abused children, which includes incidents of
bullying or sexual misconduct because the
Attorney General wanted to make clear to all
of the schools in the state through the
Commissioner of Education that they could not
deal with these types of allegations
internally.
The State requested an evidentiary hearing and cross-moved for an
order declaring that defendant had waived the attorney-client
privilege with respect to his communications with Honecker. On
November 20, 2015, the motion judge denied both motions without
prejudice.
Defendant moved for "reconsideration for a sua sponte grant
7 A-1473-15T4
of a mistrial" based on Honecker's per se conflict of interest,
arguing the time-bar applicable to a motion for a new trial did
not apply to a motion for a mistrial. The judge denied defendant's
motion on December 4, 2015.
Defendant now argues the attorney conflict requires a new
trial in that defense counsel was First Assistant Prosecutor or
Acting Prosecutor
between 2003 and 2005 when the Monmouth County
Prosecutor's Office began investigating
[defendant] and the Wall Township School
District for alleged financial improprieties
and the alleged improper use of [defendant's]
district[-]issued vehicle, a Yukon Denali.
Ten . . . years later, [Honecker] represented
[defendant] on the same investigation, where
evidence of that investigation was introduced
by the State at trial.
Under our well-settled standard of review, pursuant to Rule
2:10-1, a trial court's ruling on a motion for a new trial "shall
not be reversed unless it clearly appears that there was a
miscarriage of justice under the law." A trial judge shall not
set aside a jury verdict unless "it clearly and convincingly
appears that there was a manifest denial of justice under the
law." R. 3:20-1. In this context, there is no difference between
"miscarriage of justice" and "manifest denial of justice under the
law." See Pressler & Verniero, Current N.J. Court Rules, cmt. 2
on R. 3:20-1 (2018) (citing State v. Perez,
177 N.J. 540, 555
8 A-1473-15T4
(2003)). "[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that discretion
will not be interfered with on appeal unless a clear abuse has
been shown." State v. Russo,
333 N.J. Super. 119, 137 (App. Div.
2000).
For legal issues, however, an appellate court's standard of
review is de novo, owing no deference to the trial court's
"interpretation of the law and the legal consequences that flow
from established facts." State v. Maurer,
438 N.J. Super. 402,
411 (App. Div. 2014) (quoting State v. Bradley,
420 N.J. Super.
138, 141 (App. Div. 2011)); Manalapan Realty, LP v. Twp. Comm. of
Manalapan,
140 N.J. 366, 378 (1995).
We agree that defendant's motion for a new trial was not
timely filed. Rule 3:20-2 requires a new trial motion based on
any grounds other than newly discovered evidence to "be made within
[ten] days after the verdict." The judge found defendant's
proffered evidence in support of the motion was known to him at
the time a timely motion could have been filed. Defendant's motion
was filed in September – well beyond the ten-day period from the
March 10, 2015 jury verdict; that period was non-enlargeable. R.
1:3-4(c).
We also conclude the motion judge correctly ruled that
defendant provided no competent factual information establishing
9 A-1473-15T4
his right to relief. Finding defendant refused to waive his
privilege regarding his communications with Honecker, the judge
concluded, "The law is clear that the way in which this motion was
presented, there are no facts in dispute to either have a hearing
or even make any factual determination as to any of the claims as
to . . . whether there was or wasn't a conflict."
The existence of a conflict is an issue of law and thus is
subject to de novo review. State v. Hudson,
443 N.J. Super. 276,
282 (App. Div. 2015). In the absence of factual disputes requiring
resolution on credibility grounds, a reviewing court need not
defer to the trial judge's findings or ultimate decision. State
v. Bruno,
323 N.J. Super. 322, 331 (App. Div. 1999). Where a per
se conflict is found, prejudice is presumed. State v. Norman,
151 N.J. 5, 24-25 (1997). "Otherwise, the potential or actual conflict
of interest must be evaluated and, if significant, a great
likelihood of prejudice must be shown . . . to establish
constitutionally defective representation of counsel." Id. at 25.
We reject defendant's attempted analogy to State v. Morelli,
152 N.J. Super. 67 (App. Div. 1977), and State v. Lucarello,
135 N.J. Super. 347 (App. Div.), aff'd o.b.,
69 N.J. 31 (1975), because
the attorneys in those cases had actual contact with key witnesses
in the trials in which they were involved. Lucarello's attorney
was not only First Assistant Prosecutor during the time "much of
10 A-1473-15T4
the information relevant to the crimes charged in two of the
indictments [against the client he was representing at trial] was
gathered," id. at 352-53, he was also present at the interrogation
of the key State witness, "may have talked to him," and heard a
tape recording made by the witness referring to the client's
criminal conduct alleged in the indictment he was defending, id.
at 350. The attorney in Morelli had previously represented "a key
prosecution witness" who was named in the indictment against his
client as "an unindicted coconspirator"; the attorney had also
been contacted by the witness after he was issued a grand jury
subpoena to testify in the matter that resulted in the indictment.
152 N.J. Super. at 73. Another attorney from Morelli's counsel's
office accompanied the witness and consulted with him when he
testified before the grand jury. Ibid. We conclude from our de
novo review that defendant's proffer in this case falls far short
of the evidence that supported the disqualifications in Lucarello
and Morelli.
Honecker's deposition revealed only that while he was First
Assistant Prosecutor in 2005, he "may have sat in on a meeting"
about an investigation of defendant. Although Honecker had
supervisory duties and "operational responsibilities" at the
Prosecutor's Office as First Assistant, there is no evidence he
was directly involved in the investigation, or that he was even
11 A-1473-15T4
informed about it. Indeed, the only personnel mentioned in a
March 7, 2006 report submitted by the prosecutor's office in
opposition to defendant's motion are Sergeant Harry Cuttrell, who
was assigned the follow-up investigation and who authored the
report, and Assistant Prosecutor Thomas Campo, "who was the legal
[advisor] on th[e] investigation" to whom Cuttrell reported
results of the investigation; the report did not mention Honecker.
Moreover, contrary to defendant's present claims, no evidence
reveals that the investigation conducted while Honecker was at the
Prosecutor's Office had any relation to the charges for which
defendant was indicted. According to a newspaper article submitted
by defendant, the matter about which Honecker commented to the
newspaper in July 2005 related to a draft audit report of the
2003-2004 budget prepared by a board auditor of which Honecker –
and the Wall Police Department, Monmouth County Superintendent's
Office and State Board of Education – was notified by the Board
attorney. The contents of the report were not disclosed in the
article; "[o]fficials [were] tight-lipped about the content of the
. . . report." Honecker is reported as saying his "office's
financial crimes unit had set up a meeting with the district's
auditor . . . to determine if the accounting inconsistencies rose
'to the level of criminal acts.'" The story continued, "Depending
on the outcome of the meeting, county detectives may conduct a
12 A-1473-15T4
criminal investigation and 'find out the nature and extent of
possible criminal activities.'" Nothing indicated the
investigation – which had not yet begun – involved the same matters
as in defendant's trial, or in any way directly involved Honecker.
Tellingly, defendant's present counsel certified:
It is clear that beyond the fact that Mr.
Honecker "may have attended a meeting" in
which [defendant] was being investigated, he
made statements to the press in which he was
quoted at length about said investigation of
[defendant] and the Wall Township school
system regarding accounting "improprieties
and inconsistencies[,"] including but not
limited to, use of a vehicle at that time for
which [defendant] was ultimately cleared and
from which [defendant] was not prosecuted
either earlier or in the prosecution that is
sub judice.
[Emphasis added.]
Cuttrell's report of March 7, 2006, buttresses defense
counsel's certification. The investigation related to the
contract for defendant's vehicle – not the indicted charges
relating to defendant's false representations about his personal
use of that vehicle. The additional investigation of the
district's accounting discrepancies had nothing to do with the
indictment brought against defendant, but with what were
ultimately found to be non-criminal "antiquated" and
"lackadaisical" financial practices. As defense counsel
13 A-1473-15T4
certified, Cuttrell's investigation did not result in any criminal
charges against defendant or any other person or entity.
We note that defendant consistently declined to waive his
attorney-client privilege, effectively precluding Honecker from
providing information that may have shed more light on the conflict
issue. There is no evidence Honecker acquired any knowledge about
the earlier investigation of defendant.
We reject defendant's contention that Honecker violated
N.J.S.A. 52:13D-17 and was hence disqualified from representing
defendant. Even if Honecker was considered, as defendant submits,
a State employee because of his designation as a "special attorney
general," nothing in the record established he was connected "with
any cause, proceeding, application or other matter with respect
to which [he] . . . made any investigation, rendered any ruling,
[gave] any opinion, or [was] otherwise substantially and directly
involved at any time during the course of his office or
employment."
N.J.S.A. 52:13D-17 (emphasis added). Likewise, the
proofs do not establish he had "substantial responsibility" for
or "personally and substantially" participated in defendant's
investigation or prosecution, so as to disqualify him under RPC
1.11.
14 A-1473-15T4
The inclusion of Honecker on the "witness list" did not create
a disqualifying conflict. The judge, before reading the lengthy
list, told the jury:
I do want to note the fact that someone's name
is on this list does not mean that the person
is actually going to be a witness. These are
individuals who may be called as witnesses or
whose names you might hear during the course
of the trial.
The jury would have had to speculate in order to conclude that
Honecker's inclusion on the list was based on a sinister
affiliation with defendant. The jury was instructed not to
speculate, conjecture or guess, and they are presumed to have
followed the judge's instructions. State v. Loftin,
146 N.J. 295,
390 (1996).
The same holds true for defendant's argument regarding the
email he sent on which Honecker was copied. And we note that the
judge told the jury that it could not consider "for any purpose"
that counsel was copied on the letter defendant authored. We
determine that argument, and the balance of defendant's arguments
relating to the conflict issue — including his reliance on
inapposite cases in which a finding of attorney conflict was based
on the replaced appearance of impropriety standard — to be without
sufficient merit to warrant discussion in this written opinion.
R. 2:11-3(e)(2).
15 A-1473-15T4
To the extent defendant argues Honecker rendered ineffective
assistance of counsel, the record – due to defendant's election
not to waive the attorney-client privilege2 – is not sufficiently
developed and is better suited for a post-conviction relief
application. State v. Wiggins,
291 N.J. Super. 441, 452 (App.
Div. 1996). On the record now standing, defendant's argument is
deficient because he has shown neither a "significant" conflict
nor a great likelihood he was prejudiced. See Norman,
151 N.J.
at 24-25 (holding, where no per se conflict from an attorney's
"simultaneous dual representations of codefendants" exists, "the
potential or actual conflict of interest must be evaluated and,
if significant, a great likelihood of prejudice must be shown . .
. to establish constitutionally defective representation of
counsel").
Neither the judge's denial of the motion for a new trial,
nor the denial of the motion for reconsideration, was an abuse of
discretion, and there is no proof of actual harm to defendant.
See State v. Van Ness,
450 N.J. Super. 470, 495-96 (App. Div.
2017); State v. Lawrence,
445 N.J. Super. 270, 274 (App. Div.
2016). We also conclude the motion for reconsideration was
2
The attorney-client privilege "does not extend to communications
relevant to an ineffective-assistance-of-counsel claim." State
v. Bey,
161 N.J. 233, 296 (1999); N.J.R.E. 504(2)(c).
16 A-1473-15T4
properly denied. Our review of the denial of defendant's motion
for a mistrial is the same as that for a motion for a new trial.
State v. Thomas,
76 N.J. 344, 362 (1978). For the reasons we
heretofore expressed, we also affirm the motion judge's denial of
the motion for a mistrial.
II.
We reject defendant's arguments that the trial judge erred
by splitting the first count of the indictment into two separate
questions in the jury instruction and on the verdict sheet. The
State's separate factual theories for count one – charging official
misconduct under both
N.J.S.A. 2C:30-2(a) and (b)3 – required the
judge to give a specific unanimity charge. Where the State offers
3 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.
17 A-1473-15T4
multiple theories of culpability, based on different evidence as
to a defendant's guilt, the jury must unanimously agree as to the
same theory to support the defendant's conviction on that charge.
State v. Frisby,
174 N.J. 583, 596-97 (2002). "The notion of
unanimity requires 'jurors to be in substantial agreement as to
just what a defendant did' before determining his or her guilt or
innocence." Id. at 596 (quoting United States v. Gipson,
553 F.2d 453, 457 (5th Cir. 1977)). Thus the court is required to give a
specific unanimity charge if the allegations are contradictory,
conceptually distinct, and not marginally related to each other.
Id. at 597-98.
Defendant's trial counsel recognized that the State offered
alternative theories of culpability for the official misconduct
count and requested the judge to give a specific unanimity charge.
Counsel agreed to the form of charge and the concomitant portion
of the verdict sheet crafted by the judge that distinguished the
theories: "breaching a duty to truthfully and accurately report
the use of vacation days when not working for the Wall Township
School District and to ensure that used vacation days were deducted
from his accrued vacation balance" and "breaching a duty to
knowingly refrain from falsely and fraudulently cashing in
vacation days when he knew his vacation balance was carrying in
the negative."
18 A-1473-15T4
The balance of defendant's arguments regarding count one are
without sufficient merit to warrant discussion here. R. 2:11-
3(e)(2). We add only that, as argued by the State, defendant's
request for a specific unanimity charge on the first count invoked
the invited error doctrine, under which "trial errors that were
induced, encouraged or acquiesced in or consented to by defense
counsel ordinarily are not a basis for reversal on appeal." State
v. Munafo,
222 N.J. 480, 487 (2015) (quoting State v. A.R.,
213 N.J. 542, 561 (2013)). Our Supreme Court declared "[t]o justify
reversal on the grounds of an invited error, a defendant must show
that the error was so egregious as to 'cut mortally into his
substantive rights.'" State v. Ramseur,
106 N.J. 123, 282 (1987)
(quoting State v. Harper,
128 N.J. Super. 270, 277 (App. Div.
1974)). Defendant has failed to make that showing. Both counsel
and the trial judge correctly protected defendant from an
amalgamated verdict by parsing the failure to properly record
vacation time from receipt of district funds for unused vacation
days. And, in light of our conclusion regarding the presentation
of count one to the jury, the return of the guilty verdict on the
first theory of that count was not, as contended by defendant, an
erroneously accepted partial verdict.
III.
That same jury instruction gainsays defendant's argument that
19 A-1473-15T4
the jury received no citation to any statute, rule, or municipal
charter that imposed the legal duty – incumbent upon him as a
public official – he allegedly breached in connection with the
official misconduct count. He contends, absent specific
instructions and evidence of duty, the jury was improperly allowed
to speculate as to what official actions by a school district
superintendent are legal or illegal.
We reject defendant's attempt to analogize State v. Jenkins,
234 N.J. Super. 311, 316 (App. Div. 1989) (holding "[a] jury is
not qualified to say without guidance which purposes for possessing
a gun are unlawful under
N.J.S.A. 2C:39-4(a) and which are not").
The trial judge here specified both types of conduct the State
alleged violated the official misconduct law and charged:
An act is unauthorized if it is committed
in breach of some prescribed duty of the
public servant's office. This duty must be
official and non-discretionary imposed upon
the public servant by law such as statute,
municipal charter, or ordinance, or clearly
inherent in the nature of his office.
The duty to act must be 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 failure
to exhibit good judgment. In addition, the
State must prove that [defendant] knew of the
existence of his non-discretionary duty to act
prior to the incident in question.
Not every unauthorized act committed by
a public servant rises to the level of
20 A-1473-15T4
official misconduct. An unauthorized act
amounts to 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 [defendant] to act or to refrain
as alleged; that is to say, there must have
been a body of knowledge such as applicable
law by which [defendant] could regulate and
determine the legality of his conduct. One
cannot be convicted of official misconduct if
the official duties imposed are themselves
unclear.
So if you conclude beyond a reasonable
doubt that [defendant] was required to act or
to refrain by statute, rule, or regulation and
he failed to do so, this element will be
satisfied.
It was up to the jury to determine whether the State proved the
elements of the offense.
A defendant's act or omission relating to his or her express
or inherent official duties and obligations can support an official
misconduct conviction. State v. Kueny,
411 N.J. Super. 392, 407
(App. Div. 2010); State v. DeCree,
343 N.J. Super. 410, 418 (App.
Div. 2001); State v. Schenkolewski,
301 N.J. Super. 115, 144 (App.
Div. 1997). Even if not imposed by law, the duty may be "clearly
inherent or implicit in the nature of the office." State v.
Maioranna,
225 N.J. Super. 365, 371 (Law Div. 1988), aff'd in part
and remanded in part,
240 N.J. Super. 352 (App. Div. 1990);
Schenkolewski,
301 N.J. Super. at 143; State v. Lore, 197 N.J.
21 A-1473-15T
4 Super. 277, 282 (App. Div. 1984). A clearly inherent duty is "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." Kueny,
411 N.J. Super. at 406 (quoting II Final Report of the New Jersey
Criminal Law Revision Commission, commentary to
N.J.S.A. 2C:30-2,
at 291 (1971)).
We acknowledge a court must give a "comprehensible
explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the
jury may find," State v. Green,
86 N.J. 281, 287-88 (1981), and
that the charge should include instruction on all "essential and
fundamental issues and those dealing with substantially material
points," id. at 290. The State presented evidence that defendant's
misconduct was directly related to his public office; his
employment contracts – and the power, influence and control he
exercised over the district's functioning and his subordinates –
provided both the means and opportunity for him to take vacation
leave without reporting it and to manipulate his vacation leave
balance to obtain vacation day payouts to which he was not
entitled. As such, the jury – notwithstanding defendant's protest
that the State "offered no statute, rule, or municipal charter"
as the source of the legal duty – could have found that defendant's
22 A-1473-15T4
public-official duties of office arose out of the nature of the
office itself. Thus, the judge's instructions – to which no
objection was made – were not erroneous and were not clearly
capable of causing an unjust result. See State v. Macon,
57 N.J.
325, 335-36 (1971) (holding the possibility of an unjust result
must be "one sufficient to raise a reasonable doubt as to whether
the error led the jury to a result it otherwise might not have
reached").
IV.
Defendant did not previously raise his present argument that
the trial judge erred by admitting allegations of pre-2007 criminal
conduct without a pretrial hearing or proper limiting instruction.
Although we can address trial error in the absence of objection
under a plain error standard where reversal is warranted – when
the error is "of such a nature as to have been clearly capable of
producing an unjust result," R. 2:10-2 – we decline to do so here
because there was no error. See State v. Robinson,
200 N.J. 1,
20 (2009).
The trial judge narrowed the allegations in three counts from
the originally charged time frame4 to conduct commencing in
4
Counts one (official misconduct), two (theft by deception), and
five (financial facilitation) originally charged conduct from
October 2003 to June 2012.
23 A-1473-15T
4 November 2007. The judge agreed with defense counsel's request
during the charge conference for an instruction explaining the
narrower period and told the jury:
When this trial began, I told you about
the charges that were contained in the
indictment. I also explained that the
indictment is not evidence but merely a
written document that brings the charges
before a jury so that the jury can decide
whether the defendant has been proven guilty
beyond a reasonable doubt.
As the judge of the law, it is my
responsibility to review those charges with
the attorneys at the end of the case to decide
which charges will be submitted to you for
deliberation. Sometimes as a matter of law I
may determine that not every charge within the
indictment should be submitted to you.
. . . .
I have also ruled that those portions of
Counts 1, 2, 5 of the indictment which allege
[defendant] committed the offenses charged in
those counts . . . between October of 2003 and
October of 2007 will not be submitted to you
for your consideration.
You should not consider my ruling as an
opinion by the [c]ourt on the merits of any
of the charges that you must consider. My
ruling on those charges was based on matters
of law and should not be -- should not
influence your deliberations. You are not to
consider for any purpose in arriving at your
verdict the fact that the [c]ourt may have
deleted charges for your deliberation.
Evidence of the pre-2007 charges was not, as defendant argues,
"other crimes evidence" that would require analysis under N.J.R.E.
24 A-1473-15T4
404(b) and, if admitted, an appropriate jury instruction. See
State v. Cofield,
127 N.J. 328, 338 (1992). The evidence pertained
to allegations in the indictment which the judge ruled would not
be presented to the jury. He correctly gave the model jury
instruction regarding that evidence, and it was for the jury to
determine whether defendant had been proved guilty "by the
evidence[] which [was] relevant and material to that particular
charge."5 The pre-November 2007 evidence was not relevant and the
jury, presumably, did not consider it. See State v. Manley,
54 N.J. 259, 270 (1969) (observing that jurors are presumed to follow
the court's instructions). There was no error much less plain
error. See Macon,
57 N.J. at 335-36.
V.
We consider defendant's arguments regarding the trial
judge's evidentiary rulings under the familiar abuse of discretion
standard. State v. Gorthy,
226 N.J. 516, 539 (2016); State v.
J.M.,
225 N.J. 146, 157 (2016). See also State v. Belliard,
415 N.J. Super. 51, 87 (App. Div. 2010) (holding appellate courts
"review a trial judge's evidentiary determinations under an abuse
of discretion standard, provided that the judge's rulings are not
inconsistent with applicable law"). Under that standard, we find
5
Model Jury Charges (Criminal), "Addition or Dismissal of Charges"
(approved June 16, 2003).
25 A-1473-15T4
no abuse of discretion.
Defendant first contends the trial judge erred by admitting,
over defendant's trial objection, a detective's measurement of the
distance between defendant's home and office – after the judge
struck the same measurement as calculated by Mapquest – because
the measurement was done mid-trial and was not previously disclosed
to him in discovery.
The trial judge did not abuse his discretion in ruling:
I am going to permit the detective to testify
that she took a trip and it was 10.9 miles one
way, 9.5 miles back the other way.
. . . You have not demonstrated any
prejudice whatsoever. I will give you as much
time as you need to conduct an investigation
as to the distance between the Wall Township
central office and [defendant]'s home. This
has been an issue in this case, apparently,
since the beginning.
. . . [E]veryone . . . understood that
part of the contention here was that the
driving distance between [defendant]'s home
and the Wall Township Board of Education . .
. is alleged to constitute personal use of his
automobile, for which he should have allocated
miles or a percentage of miles on the four
forms which are the subject of the four counts
for falsifying a record.
The judge exercised an option available under Rule 3:13-3(f) by
allowing the evidence, subject to an offered continuance. That
the distance from his home was known or readily knowable to
defendant, and the apparentness from the indicted charges of the
26 A-1473-15T4
information's relevancy, buttressed the judge's finding that
defendant was not prejudiced. We find no abuse. See State v.
Ates,
426 N.J. Super. 521, 536-37 (App. Div. 2012), aff'd,
217 N.J. 253 (2014).
Defendant also avers the trial judge should have allowed
trial counsel to use a recording of a Wall Township Board of
Education executive session with its counsel, surreptitiously made
and disclosed by a board member; trial counsel had argued the
recording "makes a difference in regards to the mortgage fraud
count."
We disagree with defendant's argument that the privileged
communication between the Board and its attorney was waived. The
privilege belonged to the Board, not to the individual board member
who released it. See Hedden v. Kean Univ.,
434 N.J. Super. 1, 14-
16 (App. Div. 2013) (holding the university, not its athletic
director, held the attorney-client privilege, and could be waived
on behalf of the "organizational client" only by "those who manage
or control its activities"). Further, even if the relevance of
the recording related to the mortgage fraud count, the trial judge
dismissed the mortgage fraud counts. There was no basis to allow
the evidence.
VI.
Defendant, in part for the first time on appeal, argues he
27 A-1473-15T4
was denied a fair trial due to prosecutorial misconduct, claiming
the assistant prosecutor: (1) included trial counsel's name on the
witness list; (2) read emails during opening statements that were
not admitted into evidence; (3) engaged in derogatory name-calling
during cross-examination of defendant's expert and summation; and
(4) presented evidence of defendant's alleged criminal conduct
before 2007.
To warrant a new trial, a prosecutor's conduct must have been
"'clearly and unmistakably improper,' and must have substantially
prejudiced defendant's fundamental right to have a jury fairly
evaluate the merits of his defense." State v. Smith,
167 N.J.
158, 181-82 (2001) (quoting State v. Timmendequas,
161 N.J. 515,
575 (1999)). In determining whether a prosecutor's actions were
sufficiently egregious we consider: (1) whether defense counsel
made a timely and proper objection; (2) whether the remarks were
promptly withdrawn; and (3) whether the judge struck the remarks
from the record and issued a curative instruction. Id. at 182.
In our review we "consider the tenor of the trial and the
responsiveness of counsel and the court to the improprieties when
they occurred." Timmendequas,
161 N.J. at 575.
If no objection was made, the prosecutor's conduct generally
will not be deemed prejudicial, as the failure to object indicates
counsel did not consider the conduct improper and deprives the
28 A-1473-15T4
trial judge of the opportunity to take curative action. State v.
Echols,
199 N.J. 344, 360 (2009). When there is a failure to
object, the defendant must establish the conduct constitutes plain
error under Rule 2:10-2. State v. Feal,
194 N.J. 293, 312 (2008).
We find insufficient merit in defendant's arguments to
warrant discussion here. R. 2:11-3(e)(2). Other than our previous
comments on some of these issues, we add only that: Honecker's
name was justifiably included on the witness list because of the
potential defense use of no-billed charges in connection with
which Honecker had represented defendant; the prosecutor's
reference in her opening to one email that was not admitted – in
light of the plethora of evidence and the judge's instruction that
opening statements were not evidence – did not prejudice
defendant's right to have the jury objectively weigh the evidence
so as to require reversal, see State v. Land,
435 N.J. Super. 249,
269 (App. Div. 2014); the prosecutor's questioning comments and
summation were based on the evidence or inferences that could
reasonably be drawn therefrom, and, although a stray comment or
two were marginally overzealous, they were not nearly so egregious
as to warrant reversal.
VII.
We reject defendant's claim that cumulative errors deprived
him of a fair trial. Reversal is required when the cumulative
29 A-1473-15T4
impact of the errors, viewed "through the prism of how they
affected [a defendant's] ability to have the jury fairly consider
[the evidence]," "casts doubt on the fairness of [that] defendant's
trial and on the propriety of the jury verdict that was the product
of that trial." State v. Jenewicz,
193 N.J. 440, 447 (2008).
"[T]he predicate for relief for cumulative error must be that the
probable effect of the cumulative error was to render the
underlying trial unfair." State v. Wakefield,
190 N.J. 397, 538
(2007). As we have concluded, there was no error and certainly
none sufficient for reversal.
VIII.
Finally, we determine defendant's arguments that the
sentencing judge erred because he should have: applied mitigating
factor ten, defendant was particularly likely to respond
affirmatively to probationary treatment,
N.J.S.A. 2C:44-1(b)(10);
treated count one, official misconduct, as a downgraded third-
degree offense pursuant to
N.J.S.A. 2C:44-1(f)(2); waived the
presumption of incarceration and sentenced defendant to probation
under
N.J.S.A. 2C:44-1(d); and eliminated or reduced the parole
disqualifier under
N.J.S.A. 2C:43-6.5, to be without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant received a prison term of five years with a five-year
parole ineligibility on the second-degree official misconduct
30 A-1473-15T4
count, and concurrent flat terms of one year each on counts seven
through nine and thirteen, fourth-degree falsifying or tampering
with records. The judge's findings of aggravating factor nine,
the need to deter defendant and others from violating the law,
N.J.S.A. 2C:44-1(a)(9), and mitigating factor seven, defendant had
no history of prior delinquency or criminal activity,
N.J.S.A.
2C:44-1(b)(7), were supported by evidence in the record. See State
v. Bolvito,
217 N.J. 221, 228 (2014). The record also supports
the judge's consideration and denial of other mitigating factors,
see State v. Grate,
220 N.J. 317, 338 (2015) (requiring sentencing
courts to consider evidence of mitigating factors and applying
those that are amply based in the record), and the judge's decision
that the presumption of imprisonment was not overcome. The
official misconduct sentence was the mandatory minimum term
required by
N.J.S.A. 2C:43-6.5(a). Mitigating factor ten was
therefore irrelevant. State v. Kelly,
266 N.J. Super. 392, 396
(App. Div. 1993). Considering our deferential standard of review,
State v. Noble,
398 N.J. Super. 574, 598-99 (App. Div. 2008), we
conclude the sentencing judge did not abuse his discretion in
imposing defendant's sentence.
Affirmed.
31 A-1473-15T4
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