Opinion
DOCKET NO. A-4618-12T2 DOCKET NO. A-4894-12T2
02-09-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. EMIL HANNA, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant, v. EMAD E. NAGUIB, Defendant-Respondent.
Jason Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the briefs). John A. Albright, Designated Counsel, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; Mr. Albright, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-01603. Jason Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the briefs). John A. Albright, Designated Counsel, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; Mr. Albright, on the briefs). PER CURIAM
The State appeals from a May 16, 2013 order granting judgment of acquittal after the jury had convicted both defendants of second-degree official misconduct, N.J.S.A. 2C:30-2(b). We consolidate these cases for purposes of this appeal, and we reverse.
I.
We discern the following facts from the record. Both defendants worked for the New Brunswick Parking Authority (NBPA), a municipal agency offering parking within the city of New Brunswick. The NBPA is supervised by the New Jersey Department of Community Affairs. Emil Hanna, a security sergeant and Emad Naguib, a security guard, were both employees of the NBPA. Both defendants patrolled numerous parking decks and garages under the NBPA's control, assisted cashiers at entrances and exits, assisted patrons with payment, and oversaw security and safety operations for patrons and their property.
NBPA employees, and some monthly patrons, carry swipe cards which allow them in and out of the gates at the various parking decks in New Brunswick. When non-monthly patrons enter a parking deck they take a ticket from the "ticket spitter" and the gate allows them to enter. Patrons may pay for parking upon exiting in one of two ways. First, patrons can pay at a self-pay lane, called a "pay-in-lane," through a machine. Second, patrons can pay at a booth staffed by a booth attendant who validates the ticket and receives payment.
Booth attendants handle the patrons' cash payments and credit card payments. If the booth attendants require more change, security guards go to the bank to get change for them. At the end of a shift, booth attendants count the cash received at the booth, and the money from the pay-in-lanes is counted in the security office by security guards. Generally, booth attendants put the counted booth receipts into a numbered deposit bag and fill out a deposit slip indicating the amount of money in the bag. Afterwards, the security guards take the money to the security office. On occasion, security guards will sit at the booth to relieve a booth attendant.
When a patron uses the "pay-in-lane" method of payment, the ticket is fed into the machine, and the patron is informed of the required fee and may pay with either cash or a credit card. A summary of the transaction is printed on the ticket and the ticket is retained in the machine. If the ticket has been paid, it is stamped "paid." If, however, payment is bypassed for any reason, the ticket is stamped "void." The only way for a payment to be bypassed is through the use of a swipe card to raise the gate. If a patron has difficulty with a pay-in-lane machine and there is no booth attendant or security guard present, the patron can use a call button on the machine which connects the patron to the security office, which then dispatches an employee to provide assistance. If a patron cannot pay for parking, a security guard will issue the patron an IOU envelope which records the incident and requires the patron to pay within seven days. The guard then uses his badge to "swipe out" the patron. Although the security guards provide assistance, they are not authorized to accept cash from deck patrons unless they are sitting at a booth while relieving a booth attendant from cash collection duty.
In April 2008, a NBPA maintenance supervisor, Joseph Deo, was alerted that two of NBPA's parking decks had malfunctioning pay-in-lane machines. Upon his investigation of the issue, he found machines filled with tickets marked "void." His further investigation and observations led him to conclude that certain employees, including defendants, were involved in a scheme to defraud the NBPA. The scheme operated as follows: after regular hours, when booth attendants were not present, patrons entered the garages and took a ticket from the "ticket spitter." When patrons sought to leave the parking garage, the security guards would assist at the exits. If the deck patrons made a cash payment, the security guards would take the cash, insert the patron's ticket into the pay-in-lane machine, and use their employee badge to raise the parking deck gate to allow the patron to leave. The tickets were then inserted into pay machines as "void." Those participating in the scheme would keep the money that the patrons assumed they were paying to the NBPA. Deo reported this activity to authorities and an investigation followed.
Hanna and Naguib were indicted and charged with eleven counts each, including two counts of second-degree official misconduct; third-degree theft by unlawful taking; third-degree theft by failure to make proper disposition of received property; second-degree computer theft; second-degree conspiracy to commit theft; third-degree misapplication of entrusted property; second-degree bribery; second-degree offense of an unlawful benefit to a public servant; second-degree pattern of official misconduct; and third-degree financial facilitation of criminal activity. They were tried jointly before a jury. During the trial, other NBPA security guards testified about their own involvement in the scheme and the involvement of both Hanna and Naguib.
Both defendants moved for a judgment of acquittal at the end of the State's case, but the court reserved its ruling on their motion. They again moved for a judgment of acquittal at the end of the defense case, and the trial judge again reserved judgment on the motion. The jury deliberated until it reached its verdict on January 28, 2012. Both defendants were acquitted of all charges except for those listed in count two, second-degree official misconduct for not reporting the thefts committed by other employees.
Prior to sentencing, defendants moved for a judgment of acquittal n.o.v. and the judge granted their motion after determining the State did not prove that defendants had a clear duty to report co-workers' thefts to their employer. After the trial judge issued its ruling and accompanying order, this appeal followed.
II.
At the outset, we address defendants' threshold procedural argument. Defendants have urged us to dismiss the State's appeal on the basis that ruling in favor of the State would violate the United States Constitution's Double Jeopardy clause. We reject defendants' argument.
"The Double Jeopardy Clause of the Fourth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489, 90 (1999) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969) (internal citations omitted)). Put simply, "[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 651 (1977) (quoting United States v. Ball, 163 U.S. 662, 671 16 S. Ct. 1192, 1195, 41 L. Ed. 300, 303 (1896)).
Double jeopardy applies to both trial and appellate courts; in cases where a trial terminates in a defendant's favor, the State is generally prohibited from seeking an appeal. Widmaier, supra, 157 N.J. at 490-91 (citing State v. Barnes, 84 N.J. 362, 371 (1980)). The exception to this general principle, however, is when the State appeals a judgment of acquittal n.o.v. that issued after a jury renders its verdict. State v. Ortiz, 202 N.J. Super. 233, 239 (App. Div.), certif. denied, 102 N.J. 300 (1985) (citing United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978)). These appealable decisions include "acquittal[s] unrelated to a factual determination of defendant's guilt or innocence." Ibid. If the trial judge grants a defendant's motion for acquittal on the basis of a lack of evidence after the State presents its case (but before the jury renders a verdict), that ruling is unappealable because it is grounded in factual analysis. Martin Supply Co., supra, 430 U.S. at 564, 571, 97 S. Ct. 1349, 1354-55, 51 L. Ed. 2d 642, 651. See also Tibbs v. Florida, 457 U.S. 31, 42-44, 102 S. Ct. 2211, 2218-19, 72 L. Ed. 2d 652, 662-63 (1982).
Because the trial court granted defendant's motion after the jury entered a verdict, there is no applicable double jeopardy barrier because a reversal of the trial court's decision would not result in a retrial, which is the primary danger that the Double Jeopardy Clause addresses. Rather, this court would restore the jury's verdict. The United States Supreme Court addressed this issue in United States v. Wilson, 420 U.S. 322, 95 S. Ct. 1013, 43 L. Ed. 232 (1975), in which it held that a post-verdict judgment of acquittal is appealable because it does not threaten "multiple punishment or successive prosecutions." Id. at 344, 95 S. Ct. at 1022, 43 L. Ed. 2d at 242.
State v. Kleinwaks, 68 N.J. 328 (1975), confirmed the constitutionality of Rule 2:3-1(b)(3), which explicitly permits the State to appeal judgments of acquittal n.o.v. Id. at 331. In that case, the Supreme Court held (relying on Wilson, supra) that the New Jersey court rules explicitly provide an avenue for the government's appeal, and that such an appeal does not implicate Double Jeopardy concerns because it is only applicable to an acquittal rendered after a jury's verdict. Ibid.; see also Widmaier, supra, 157 N.J. at 491. Accordingly, we reject defendants' procedural arguments.
III.
The State makes the following argument on appeal:
AS A SECURITY GUARD EMPLOYED BY THE PARKING AUTHORITY, DEFENDANTS' DUTY TO REPORT THEFTS FROM THE PARKING AUTHORITY WAS CLEARLY INHERENT IN THE NATURE OF HIS JOB, AND HE KNOWINGLY DISREGARDED THAT DUTY; THUS THE TRIAL COURT'S DECISION TO ACQUIT DEFENDANT[S] N.O.V. MUST BE REVERSED BY THIS COURT.
The State asserts that the trial court's determination, that defendants' positions as security guards did not contemplate a "clearly inherent" duty to report other security guards' thefts from the NBPA, should be reversed. We agree.
We review the trial court's decision de novo. In considering a motion to acquit n.o.v. under Rule 3:18-2, "the trial judge must deny the motion if 'viewing [only] the State's evidence in its entirety, be that evidence direct or circumstantial,' and giving the State the benefit of all reasonable inferences, 'a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Sugar, 240 N.J. Super. 148, 152 (App. Div.), certif. denied, 122 N.J. 187 (1990) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)) (emphasis in original). On appeal, we apply the same test as the trial court. Id. at 153 (citing State v. Moffa, 42 N.J. 258, 263 (1964)).
Defendants were convicted of official misconduct pursuant to N.J.S.A. 2C:30-2(b). N.J.S.A. 2C:30-2(b) provides that:
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:
. . . .
(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.
In order to establish that a defendant violated N.J.S.A. 2C:30-2(b), the State must prove, beyond a reasonable doubt, 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. Kueny, 411 N.J. Super. 392, 404 (App. Div. 2010) (citing State v. Thompson, 402 N.J. Super. 177, 196-96 (App. Div. 2008)).]
Neither defendant contests that they were public servants, or that the failure to report thefts injured the NBPA. Our discussion of N.J.S.A. 2C:30-2(b) is thus limited to the trial judge's finding that defendants had no duty to report the thefts.
In order to convict a person of official misconduct by nonfeasance, the misconduct must be connected to that person's duties as a public servant. State v. Schenkolewski, 301 N.J. Super. 115, 146 (App. Div.), certif. denied, 151 N.J. 77 (1997). The duty to act must be "so clear that the public servant is on notice as to the standards that he must meet." Id. (citing State v. Hinds, 143 N.J. 540, 545-46 (1996)). Such notice must be clear so as to avoid prosecuting public officials for a "mere breach of good judgment." Id. at 546.
Courts may ascertain what these duties are by looking to the public servant's "apparent authority." Schenkolewski, supra, 301 N.J. Super. at 143 (citing State v. Bullock, 136 N.J. 149, 156 (1994)). This authority may come from statutory sources, or from a public official's job if that job naturally encompasses the authority to commit an act of misconduct. See Id. at 144-46 (explaining that case law and statutory schemes provide a basis upon which to understand the duties of members of zoning boards); Hinds, supra, 143 N.J. at 546-49 (explaining that police officers are inherently bound to report crimes occurring in their presence because of the nature of a police officer's job).
The State concedes that defendants were under no statutory duty to report the thefts committed by others in this case. Accordingly, in order to convict Hanna and Naguib, the State was required to demonstrate, beyond a reasonable doubt, that each defendant failed to perform a duty that was clearly inherent in the nature of his office. N.J.S.A. 2C:30-2(b). 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, supra, 411 N.J. Super. at 406 (quoting II Final Report of the New Jersey Criminal Law Revision Commission, Commentary 291 (1971)).
The trial court relied upon the NBPA's Security Procedures Manual when it found that defendants had no clearly expressed duty to report the scheme to higher officials. The trial court specifically found that defendants' duties were limited to "patrol[ling] the grounds of the parking decks, mak[ing] sure patrons were safe walking to their cars, and assist[ing] in moving traffic through the deck in an orderly fashion." The judge concluded that defendants had no fiduciary responsibilities and that "their actual responsibilities were not that far off from a receptionist directing visitors in an office." The trial judge thus concluded that handling money was not a clearly inherent part of defendants' duties and that, accordingly, defendants could not be convicted under the official misconduct statute. The judge also found that, even if there was such a duty inherent in the office of a NBPA security guard, defendants had no notice of that duty.
In reaching this conclusion, the trial judge indicated that the Security Procedures Manual dictated the responsibilities of the guards at the parking garage and determined that the manual did not encompass the topic of money, and thus there was no inherent duty to anything relating to money.
In this case, however, a clear duty to report thefts from the NBPA was inherent in defendants' job titles, as well as the Security Procedures Manual. Although the trial court focused upon the concept that security guards at the NBPA were not expected to handle money, the testimony established that they did so on a regular basis. If security guards regularly handled money, they had a duty not to steal that money and not to allow co-workers to steal it. Although we recognize that Hanna and Naguib were not law enforcement officers, the Security Procedures Manual imposed the requirement that security guards "[report] problems to H.Q.," including "the improper use of access cards." Moreover, in this case, the improper use of the access cards was central to the commission of the thefts. Hence, a jury could have reasonably determined that they were on notice of that duty.
In State v. Deegan, 126 N.J. Super. 476, 489-90 (App. Div. 1974), we addressed the issue of nonfeasance and inherent duties to act. In Deegan, members of the Hudson County Employees' Pension Commission neglected to fully investigate each pension claim that they approved. Id. at 481-82 . The members were indicted under the official misconduct statute. Ibid. They argued that they were under no express duty to fully investigate each pension claim, and accordingly, there was no basis for an official misconduct conviction. Id. at 489-90. However, the court found that even if there was no express statutory provision or case addressing that duty, the members held an implicit duty to "not permit misuse of public funds." Ibid.
The same reasoning applies here. Although defendants held no statutory duty to report theft from the NBPA to their supervisors, they were directed by the Security Procedures Manual to report such problems. As security guards, defendants violated that duty when they allowed others to steal money from the authority without reporting the thefts. The jury could infer this knowledge from their job titles, the Security Procedures Manual, the fact that they regularly handled money, and that it was evident that they knew that they could be in trouble if the scheme was ever found out. Both men were subject to the Security Procedures Manual, which directed them to report problems or threats to NBPA property or revenue. Moreover, because Hanna was a supervisor and was aware that the guards he supervised were engaged in theft, a jury could have reasonably considered his duty to act as implicit for that additional reason.
Because the jury could have reasonably made such inferences, we reverse the n.o.v. verdict of acquittal and reinstate the jury's verdict. When viewed as a whole and when giving all reasonable inferences to the State, a reasonable jury could have found that there was a "clearly inherent duty" to report theft from the NBPA, per the relevant standard of review. See Sugar, supra, 240 N.J. Super. at 152. Because the jury could reasonably have found that there was such a duty, a reasonable jury could also have found that defendants "knowingly" failed to report those thefts, and did not make a "mere breach of good judgment." Ibid.
Reversed and remanded for sentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION