Opinion
DOCKET NO. A-2655-13T3
07-31-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ADRIAN A. MCCONNEY, Defendant-Respondent.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). Timothy R. Smith argued the cause for respondent (Caruso Smith Picini, P.C., attorneys; Mr. Smith, of counsel; Steven J. Kaflowitz, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-08-1119. Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). Timothy R. Smith argued the cause for respondent (Caruso Smith Picini, P.C., attorneys; Mr. Smith, of counsel; Steven J. Kaflowitz, on the brief). PER CURIAM
The State appeals the dismissal of an indictment that charged defendant with one count of second-degree official misconduct, N.J.S.A. 2C:30-2(a), for engaging in sexual conduct with his student. We reverse and remand.
Subsequent to the State's appeal, pursuant to Rule 2:6-11(d), defendant brought to our attention two bills, S. 3005 and A. 4524, which were recently introduced in the Legislature. The bills make consensual sex between a high school teacher and an adult student a crime, which defendant contends evinces that conduct is currently non-criminal. We disagree with defendant's conclusion.
I.
In February 2013, defendant was a physical education teacher at Piscataway High School when he allegedly engaged in sexual relations with his eighteen-year-old student. The student explained to investigators that she had sexual intercourse with defendant on two separate occasions in February 2013, at defendant's home. The student engaged in a consensual, recorded telephone intercept where she called defendant, and defendant acknowledged having sexual relations with her.
Defendant moved to dismiss the indictment, arguing the State failed to properly charge the grand jury, and the underlying act was not illegal since the student was an adult. See N.J.S.A. 2C:14-2. The trial judge denied defendant's motion. On December 11, 2013, defendant filed a motion for leave to appeal, which we denied. State v. McConney, No. A- 0216-13/M-2667-13 (App. Div. Jan. 2, 2014) (order on motion for leave to appeal).
The State notified defendant that it would introduce the National Education Association's (NEA) Code of Conduct at his upcoming trial. Defendant responded by filing a second motion to dismiss with a supporting brief averring that a violation of an ethical code cannot be the basis for an indictment for official misconduct. Defendant argued that if the court did not dismiss the indictment, it should either exclude the NEA Code of Conduct or require a bill of particulars. Defendant also requested an adjournment of trial.
The State contends that it intended to introduce the NEA Code of Conduct as a way to rebut defendant's claim that he was not on notice that his conduct was unauthorized.
The trial judge denied the request to adjourn the trial and ruled the indictment would not be dismissed, but reserved on whether the court would allow the State to introduce the NEA Code of Conduct. On the next day, when the parties were to proceed to trial, the judge stated that he had reconsidered his ruling on the motion to dismiss the indictment. He allowed the parties to present arguments on the legal sustainability of the indictment. After the court received the submissions and heard further argument, the judge issued a decision, reversing his earlier decision and dismissing the indictment.
The judge arrived at his conclusion after examining previous official misconduct cases:
[E]very case I could find . . . cites a violation of our law. It's clear you don't have to be charged with a violation, you don't have to be convicted of a violation, but . . . a violation of the code of ethics, NEA or otherwise, has never been used . . . . So while this defendant's conduct . . . might be despicable, . . . I'm concerned with whether or not they give rise to criminal charges.
The judge stated in order for the actions of defendant to rise to the level of official misconduct, the conduct must be prohibited by a criminal or municipal code and not just a breach of an employment agreement or ethical responsibility. The court also concluded that a breach of the code of conduct alone is not an unauthorized act under the official misconduct statute.
On appeal, the State raises the following issue for our consideration:
THE TRIAL COURT'S DISMISSAL OF THE INDICTMENT CHARGING DEFENDANT WITH OFFICIAL MISCONDUCT ON THE GROUND THAT DEFENDANT'S SEXUAL RELATIONS WITH HIS STUDENT WAS NOT A CRIME IS PATENTLY WRONG; THERE WAS, AND IS, NO OTHER BASIS FOR DISMISSING THE INDICTMENT.
II.
"[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Eldakroury, 439 N.J. Super. 304, 309 (2015) (citation and internal quotation marks omitted). However, a trial judge's legal interpretations are subject to de novo review. State v. Grate, 220 N.J. 317, 329-30 (2015).
"[T]o survive a motion to dismiss an indictment, the State need not produce evidence adequate to sustain a conviction; but rather, the State must introduce sufficient evidence before the grand jury to establish a prima facie case that defendant has committed a crime." State v. Saavedra, 433 N.J. Super. 501, 507-08 (App. Div. 2013), aff'd, ___ N.J. ___ (2015). A judge should not dismiss an indictment except where it is "manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996), remanded, 297 N.J. Super. 7 (App. Div.), certif. denied, 149 N.J. 142 (1997). In its review, the court must "construe the facts in the light most favorable to the State." Saavedra, supra, 433 N.J. Super. at 514 (citation omitted).
III.
N.J.S.A. 2C:30-2 provides:
A public servant is guilty of official misconduct when, with a purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:Defendant was charged under subsection (a), which "does not require that the predicate act of misconduct be criminal in nature." State v. Thompson, 402 N.J. Super. 177, 192 (App. Div. 2008). Instead, "we look to the scope of the defendant's apparent authority to consider whether the act of misconduct sufficiently relates to the defendant's office." Ibid.
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 the law or is clearly inherent in the nature of his office.
[N. J.S.A. 2C:30-2.]
The crime of official misconduct serves to insure that those who stand in a fiduciary relationship to the public will serve with the highest fidelity, will exercise their discretion reasonably, and will display good faith, honesty, and integrity. These are the obligations which every public officer assumes as a matter of law upon entering office.
[State v. Schenkolewski, 201 N.J. Super. 115, 145-56 (App. Div.), certif. denied, 151 N.J. 77 (1997).]
The State alleged before the grand jury that defendant violated subsection (a) of the official misconduct statute. N.J.S.A. 2C:30-2(a). To establish a prima facie case, the State was required to present evidence that:
(1) defendant was a 'public servant' within the meaning of the statute, (2) who, with the purpose to obtain a benefit or deprive another of a benefit, (3) committed an act relating to but constituting an unauthorized exercise of his office, (4) knowing that such act was unauthorized or that [he] was committing such act in an unauthorized manner.Accord Thompson, supra, 402 N.J. Super. at 191-92 (citing State v. Bullock, 136 N.J. 149, 153 (1994)); Schenkolewski, supra, 301 N.J. Super. at 143. The New Jersey Criminal Law Revision Commission envisioned that "the public servant must know that such act is unauthorized . . . because it is declared to be such by statute, ordinance, rule, regulation or otherwise." State v. Hinds, 143 N.J. 540, 545 (2001) (emphasis added) (citations and internal quotation marks omitted).
[State v. Saavedra, ___ N.J. ___, ___ (2015) (slip op. at 20).]
The disputed element is whether the State has alleged sufficient facts that defendant committed an unauthorized act. The trial court judge found that, because defendant's underlying acts did not violate a criminal or municipal statute, there was no basis to indict defendant under N.J.S.A. 2C:30-2(a). However, in official misconduct cases, "[n]othing in the statute suggests that the underlying act must be criminal in nature." State v. Parker, 124 N.J. 628, 640 (1991); cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992).
Accepting an official role can impose certain inherent duties on a public servant and violating these duties would amount to an unauthorized act. State v. Maioranna, 225 N.J. Super. 365, 373 (App. Div. 1988); aff'd in part remanded in part, 240 N.J. Super. 352 (App. Div. 1990); certif. denied, 127 N.J. 327 (1990). "[T]eachers . . . stand as surrogate parents during the day [and should be] educating, not endangering, and protecting, not exploiting, vulnerable children." Frugis v. Bracigliano, 177 N.J. 250, 268 (2003).
We recognize that, although the individual was a student, under the law she was an adult and not a child. --------
Further, contrary to defendant's contention, our decision in Thompson does not stand for the proposition that a violation of an ethical code applicable to an employee by statute or contract cannot demonstrate the employee engaged in an unauthorized act under N.J.S.A. 2C:30-2(a). In Thompson, we distinguished acts charged under subsection (a) and subsection (b) of N.J.S.A. 2C:30-2. Id. at 191-92. Unauthorized acts under N.J.S.A. 2C:30-2(a) may be shown by an affirmative act in violation of an ethical code, which is applicable to the defendant. See id. at 202-03. Thompson concerned a charge against a public official under N.J.S.A. 2C:30-2(b), which "criminalizes the public official's omission to act." It was within that context we held it is inappropriate to rely exclusively on a broad ethical code to show a defendant engaged in an unauthorized act. Thompson, supra, 402 N.J. Super. at 197-98. Defendant was charged under N.J.S.A. 2C:30-2(a), which criminalizes certain affirmative acts by public officials that constitute "an unauthorized exercise of his or her official functions," and, as we noted, "does not require that the predicate act of misconduct be criminal in nature." Id. at 192.
The State alleges the teachers' handbook promulgated by defendant's employer, which purportedly incorporates the NEA Code of Conduct, and the NEA Code of Conduct proscribes defendant's acts with the student. These documents are not part of the record before us. We are unable to address the merits of a violation by the defendant of the teachers' handbook or the NEA Code of Conduct as an unauthorized act. We leave this determination to the trial court.
However, we do conclude the trial court abused its discretion when it dismissed the indictment. Evidence of an unauthorized act can consist of a criminal act, violation of a specific policy, or a violation of a duty inherent to an official's position. See Parker, supra, 124 N.J. at 640; Saavedra, supra, 433 N.J. Super. at 518-19; Thompson, supra, 402 N.J. Super. at 198-204; Maioranna, supra, 225 N.J. Super. at 373. Here, the fact that defendant's "act" did not constitute an independent criminal offense does not render the indictment palpably defective.
Because the trial judge based his decision upon legal insufficiency, he did not reach defendant's arguments that the evidence presented to the grand jury was factually insufficient and that the charge to the grand jury was improper. The court also did not address defendant's request for a bill of particulars. R. 3:7-5. These issues should be determined in the first instance in the trial court. Accordingly, defendant may again present those issues for determination upon remand.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION