Opinion
DOCKET NO. A-2190-13T1
02-03-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PHILIP KENNY, Defendant-Appellant.
Law Office of Evelyn Padin, attorneys for appellant (Eliot Skolnick, on the briefs). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas J. Carroll, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5696-09. Law Office of Evelyn Padin, attorneys for appellant (Eliot Skolnick, on the briefs). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas J. Carroll, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Philip Kenny appeals from an October 25, 2013 order denying his request to vacate a three-year-old judgment requiring that he forfeit his right to "public office, position or employment." He also appeals the December 6, 2013 order denying reconsideration. We affirm.
The 2013 decisions were made on the papers. The only indication of the judge's rationale is a notation, presumably in her writing, on the pre-typed order form she was provided by Kenny: "No meritorious defense proffered[.] N.J.S.A. 2C:5[1]-2 provides for mandatory forfeiture." None of the pleadings filed in connection with either order were included in Kenny's appendix. We were supplied only with the 2009 complaint, order to show cause, and judgment forfeiting Kenny's public employment and his right to obtain future public employment.
Kenny's brief states, without record support, that in August 2013, he challenged the 2009 judgment based on Rule 4:50-1, and that his motion was unopposed. The following details appear to be undisputed by the State and are contained in the copies of the 2009 forfeiture pleadings and the October 6, 2009 transcript of Kenny's guilty plea in the United States District Court for the District of New Jersey. On that date, Kenny entered a guilty plea to interfering with commerce by extortion in violation of Title 18, United States Code Sections 1951(a) and 2. Those offenses, according to the certification submitted in support of the application for the order to show cause, are equivalent to the crime of bribery, N.J.S.A. 2C:27-2(a) and (d), and/or acceptance or receipt of unlawful benefit by a public servant, N.J.S.A. 2C:27-10(a). Both are crimes of the second degree.
According to the transcript, from March to May 2009, Kenny was employed as the Operations Coordinator for the Hudson County Board of Chosen Freeholders. Kenny's employment, according to the certification, commenced in 2005. Kenny asserts, without reference to the record, that the position was "primarily secretarial and administrative in nature." On April 6, 2009, Kenny was appointed to fill a vacant seat on the Jersey City Council. On May 12, 2009, he was elected to that position.
During his election campaign in March 2009, Kenny was approached by a United States Federal Bureau of Investigation (FBI) cooperating witness (CW) regarding a $5000 contribution to his campaign in exchange for the expedition of approvals for a real estate project that CW claimed he was developing. Kenny accepted two $2500 checks made payable by straw donors to his campaign fund. Another unnamed "Jersey City official" arranged and attended the meetings at which the bribery payments were discussed, and actually accepted, by Kenny. The record does not indicate the sentence ultimately imposed.
In his brief, Kenny contends, without record support, that "the [forfeiture] [j]udgment and [o]rder [to show cause] w[ere] signed ex-parte and with no opposition having been filed on behalf of Kenny. Upon information and belief, the [c]omplaint filed was not served upon Kenny." Included in the State's appendix, however, is the November 17, 2009 certification of the assistant prosecutor who signed those documents, stating that Kenny's attorney of record in federal court agreed to accept service of the forfeiture complaint and order to show cause. Also attached was a signed return receipt card evidencing receipt of the papers by Kenny's attorney's office.
Rule 2:6-1(a)(1) states that an appellant's appendix shall contain the relevant pleadings. The rule also provides: "Briefs submitted to the trial court shall not be included in the appendix, unless . . . the question of whether an issue was raised in the trial court is germane to the appeal." We do not have any of the documents submitted to the judge which resulted in the two orders on appeal. Without them, we have no knowledge regarding the information Kenny supplied to the judge in support of his Rule 4:50-1 application to vacate the judgment.
Kenny claims that his 2013 motion raised "fifteen separate defenses to the State's complaint for forfeiture[,]" and reiterates that he was not served with a copy of the complaint in 2009. We simply do not know what these defenses were.
Since the judge decided Kenny's applications without hearing oral argument, copies of his briefs would have been the only source of information regarding his legal arguments, which the court found meritless. We have no information as to the nature of those arguments.
Items bearing on an appeal must be included in the appendix, but in this case they were not. See Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). Clearly, without knowing the facts or legal arguments made in support of the application, we cannot engage in appellate review. See Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001).
This we do know: Rule 4:50-2 requires all motions to be made "within a reasonable time, and for reasons (a), (b) and (c) of Rule 4:50-1 not more than one year after the judgment." We lack the information necessary to meaningfully review whether the court properly entertained the application to set aside the judgment despite its filing nearly four years after issuance.
The merits of Kenny's argument, as we can discern it, warrant little discussion in a written opinion. See R. 2:11-3(e)(1)(E). Kenny forfeited his position as councilman pursuant to N.J.S.A. 2C:27-10(a). And before that appointment, his employment with the Board of Freeholders made him a "public servant" within the meaning of the statute. Agreeing to support a particular real estate development in exchange for a bribe clearly mandates loss of both positions. Kenny's actions fit the language of the statute that
[a] public servant commits a crime if, under color of office and in connection with any official act performed or to be performed by the public servant, the public servant directly or indirectly, knowingly solicits, accepts or agrees to accept any benefit, whether the benefit inures to the public servant or another person, to influence the performance of an official duty or to commit a violation of an official duty.His positions were thus properly forfeited.
[N. J.S.A. 2C:27-10(a).]
The propriety of Kenny's forfeiture of any future employment is governed by the terms of N.J.S.A. 2C:51-2(d). That statute requires that a public office holder or employee shall be "forever disqualified" from public employment if "convicted of an offense involving or touching on his public office, position or employment," which covers any offense "related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person." Ibid.
The Supreme Court has explained that a public officeholder convicted of a crime related to that office forever forfeits his right to public employment. State v. Hupka, 203 N.J. 222, 230-31 (2010). The very definition of bribery is an offer of payment or other consideration to a public official to influence future conduct. We cannot imagine a clearer situation in which the statute would require forfeiture of future employment. Hence we find the judge's decision refusing to vacate the prior judgment under Rule 4:50-1 to be supported by the statutory scheme. Hupka, supra, 203 N.J. at 231. Kenny's guilty plea to bribery forfeited his employment with the County Board of Chosen Freeholders, his elected position as a Jersey City councilman, and his right to hold public employment in the future.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION