Opinion
DOCKET NO. A-0992-10T3
09-01-2011
STATE OF NEW JERSEY, Plaintiff-Appellant, v. WILLIAM ROSEMAN and LORI LEWIN, Defendants-Respondents.
John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). McCusker, Anselmi, Rosen & Carvelli, attorneys for respondent William Roseman (Patricia Preszioso and Kathleen A. Hirce, on the brief). Flood & Basile, attorneys for respondent Lori Lewin, join in the brief of respondent William Roseman.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
10-04-00769.
John L. Molinelli, Bergen County Prosecutor,
attorney for appellant (Catherine A. Foddai,
Senior Assistant Prosecutor, of counsel and
on the brief).
McCusker, Anselmi, Rosen & Carvelli,
attorneys for respondent William Roseman
(Patricia Preszioso and Kathleen A. Hirce,
on the brief).
Flood & Basile, attorneys for respondent
Lori Lewin, join in the brief of respondent
William Roseman.
PER CURIAM
The State sought leave to appeal from an order dismissing two counts of an indictment that charged defendants William Roseman and Lori Lewin with official misconduct, N.J.S.A. 2C:30-2(a). We granted the State's motion and, for the reasons that follow, we now reverse.
The Bergen County Grand Jury returned a six count indictment against both defendants, charging them with conspiracy, N.J.S.A. 2C:5-2 (counts one and four); theft by deception, N.J.S.A. 2C:20-4(a) (counts two and five); and official misconduct, N.J.S.A. 2C:30-2(a) (counts three and six).
Detective Sergeant John Haviland of the Bergen County Prosecutor's Office testified before the grand jury regarding an investigation concerning the Borough of Carlstadt that was commenced in late 2007. Pertinent parts of his testimony are summarized as follows.
Roseman became Mayor of the Borough of Carlstadt in 1996. As Mayor, he received a benefits plan through Carlstadt, the Borough of Carlstadt Bergen Municipal Employees Benefit Fund Health Plan, that included a medical, prescription and dental benefits plan. The benefits provided to Roseman were available to his wife, defendant Lewin, and child. However, his wife was not entitled to such benefits after they divorced on July 7, 2000, unless she purchased the coverage through COBRA.
The medical and prescription plan was self-funded and administered through a third party administrator, IDA. Claims for payment from health care doctors or for reimbursement from employees were submitted to IDA, which then processed the claims and periodically notified Carlstadt of the claims to be paid. Carlstadt funded an account for such purpose and, upon resolution of the Council, authorized payment. All the funds used to pay the medical claims were public funds obtained from the taxpayers. As for the dental plan, the premiums for the insurance coverage were paid for by public funds.
The Carlstadt Health Insurance Plan booklet advises the employee, "it is your responsibility to notify the Borough of Carlstadt of needed changes regarding your insurance." Roseman submitted a change request form, dated June 30, 1995, to notify IDA of his change of address to a Jefferson Street address in Carlstadt and also submitted a change form in 1998 to enroll his son in the plan. The forms were submitted to the Borough's insurance officer. In 2001, Roseman filed a W-4 form to change his tax deductions after his divorce.
In addition, Roseman was required to notify Carlstadt of his divorce within sixty days pursuant to 42 U.S.C.A. § 300bb-6(3) and Carlstadt's employee plan handbook. However, he did not notify the Borough or IDA of the divorce or remove Lewin from the coverage provided by the Borough. Lewin continued to receive benefits through Carlstadt's medical plan, prescription plan and dental plan. In 2001, after his divorce, Roseman moved to an address on Hackensack Street. However, he did not submit a change of address form for that move.
Roseman continued to receive his mail, including insurance explanation of benefits (EOB) forms from IDA and mail relating to Borough business, at the Jefferson Street address where Lewin continued to reside with their son. The EOB forms were sent to the insured employee to notify the insured of claims and the payment of claims for persons on his or her account. Haviland testified that, from the time of defendants' divorce through 2007, approximately one hundred EOBs were sent to Roseman at the Jefferson Street address. Of these, there were twelve separate EOBs that identified claims made for services received by Lewin, the doctor's name and the amount of the benefit. The total of benefits paid to doctors and reimbursements to the insured employee for these claims by Lewin was approximately $4,000. The Borough also paid approximately $7,000 in prescription expenses for Lewin following defendants' divorce. The Borough continued to pay premiums for dental coverage for Lewin at a cost of approximately $840 per year for five years after she was not eligible for such coverage.
As Mayor, Roseman presided over meetings of the Borough Council in which resolutions were passed to fund the medical, prescription and dental plans and to approve the payment of bills submitted by the third party administrator. The bills were not itemized as to the person for whom services were provided. However, as Haviland testified, payments made on behalf of Lewin were included in such resolutions.
Defendants filed a motion to dismiss the indictment, arguing, in part, that the State failed to present evidence of a prima facie case of official misconduct to the grand jury. The trial court granted the motion as to the official misconduct counts and denied the motion as to the remaining counts.
Defendants made a motion for leave to appeal from an order that denied their motion to dismiss the remaining counts of the indictment, which we denied.
The dismissed counts read in pertinent part as follows:
THIRD COUNT
. . . WILLIAM ROSEMAN and LORI LEWIN, on or about during and between July 1, 2002, and January 31, 2008, in the Borough of Carlstadt . . . did commit official misconduct in that WILLIAM ROSEMAN was a public servant (official) in the Borough of Carlstadt where he served as Mayor and WILLIAM ROSEMAN and LORI LEWIN, did, with purpose to obtain a benefit for WILLIAM ROSEMAN and/or LORI LEWIN valued at over $200.00, commit an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act was unauthorized or that they were committing such an act in an unauthorized manner, to wit: WILLIAM ROSEMAN
and LORI LEWIN, kept LORI LEWIN, after their divorce, on the medical and prescription benefits plan(s) provided to WILLIAM ROSEMAN as Mayor of the Borough of Carlstadt, and WILLIAM ROSEMAN had the obligation to notify the benefit plan(s) administrator(s) of the change in status of his marriage, which would have affected benefits coverage and/or cost for LORI LEWIN and he did not and LORI LEWIN continued to use the benefits plan(s) for both medical and prescription benefits, knowing that WILLIAM ROSEMAN was the Mayor of the Borough of Carlstadt and that the benefits flowed from said position and WILLIAM ROSEMAN, in his official position as Mayor of the Borough of Carlstadt voted on or otherwise participated in official actions to fund the Borough of Carlstadt medical and prescription benefits plan(s), the same benefits plan(s) that LORI LEWIN was improperly utilizing, at the expense of the Borough of Carlstadt; contrary to the provisions of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:30-2a . . . .
SIXTH COUNT
. . . WILLIAM ROSEMAN and LORI LEWIN, on or about during and between May 6, 2003, and January 31, 2008, in the Borough of Carlstadt . . . did commit official misconduct in that WILLIAM ROSEMAN was a public servant (Official) in the Borough of Carlstadt where he served as Mayor and WILLIAM ROSEMAN and LORI LEWIN, did, with purpose to obtain a benefit for WILLIAM ROSEMAN and/or LORI LEWIN valued at over $200.00, commit an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act was unauthorized or that they were committing such an act in an unauthorized manner, to wit: WILLIAM ROSEMAN and LORI LEWIN, kept LORI LEWIN after their divorce, on the dental benefits plan provided to WILLIAM ROSEMAN as Mayor of the
Borough of Carlstadt, and WILLIAM ROSEMAN was obligated to have LORI LEWIN removed, after their divorce, from the dental benefits plan paid for by the Borough of Carlstadt and he failed to do so and LORI LEWIN remained, after the divorce, on the dental benefits plan paid for by the Borough of Carlstadt and she continued to receive dental benefits under said plan, knowing that WILLIAM ROSEMAN was the Mayor of the Borough of Carlstadt and that the benefits flowed from said position and WILLIAM ROSEMAN, in his official position as Mayor of the Borough of Carlstadt did participate in official action to approve and/or facilitate payments by the Borough of Carlstadt to the dental benefits plan provider, the same dental benefits plan that LORI LEWIN was improperly using, at the expense of the Borough of Carlstadt; contrary to the provisions of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:30-2a . . . .
Whether an indictment should be dismissed or quashed lies within the discretion of the trial court. Such discretion should not be exercised except on "the clearest and plainest ground" and an indictment should stand "unless it is palpably defective." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). If an indictment alleges all of the essential facts of the crime charged, the charge is deemed sufficiently stated. Id. at 19; State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997).
The indictment here was not challenged based upon a facial deficiency. It was argued that the State failed to present sufficient proof of a prima facie case to the grand jury. The dismissed counts alleged violations of N.J.S.A. 2C:30-2(a), which defines official misconduct in pertinent part as follows:
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:The three essential elements of official misconduct are: (1) the defendant is a public servant, (2) who committed an act relating to his office, (3) with purpose to benefit himself or deprive another of a benefit. State v. Bullock, 136 N.J. 149, 153 (1994).
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 . . . .
The presentment against Lori Lewin was based upon a theory of accomplice liability and the grand jury was charged on the applicable law. See State v. Hinds, 143 N.J. 540, 549-51 (1996); State v. Thompson, 402 N.J. Super. 177, 183 n.4 (App. Div. 2008) ("A person who is not a public official may incur accomplice liability under the official misconduct statute for the purposeful facilitation of a public official's affirmative misconduct or nonfeasance.").
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In dismissing the official misconduct counts, the trial court found insufficient evidence of the second of these elements:
[T]he fact that he's the mayor and the fact that he participated in the meetings, council meetings, and signed paperwork, I don't think he was doing anything that furthered this circumstance. That's my
opinion, I don't think he did. Obviously, that goes with respect to the co-defendant. I don't think he, being the mayor, resulted in this scheme moving forward. It was moving forward anyway, because I believe there was enough evidence to show a theft by deception. So regardless if he's the mayor, the head of DPW, the local librarian or not, there was nothing done that touched upon his office as mayor that furthered this scheme in a knowing and purposeful manner in accordance with the statute 2C:30-2(a).
The State argues there was sufficient evidence of an act relating to Roseman's office because he presided over council meetings at which the expenditures that included Lewin's medical, prescription and dental claims were approved. Defendants argue this is insufficient because, as the trial court found, defendant did not vote on any of the resolutions and the claims and bills would have been paid without his participation.
We review the trial court's exercise of its discretion in dismissing these counts of the indictment to determine whether there has been a mistaken exercise of that discretion, State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010), and accord no deference to the court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In determining the sufficiency of the evidence to sustain the indictment, every reasonable inference is to be given to the State. Further, the evidence need not be sufficient to sustain a conviction, butSee also State v. Hogan, 144 N.J. 216, 227 (1996); Schenkolewski, supra, 301 N.J. Super. at 137.
merely sufficient to determine that there is prima facie evidence to establish that a crime has been committed.
[N.J. Trade Waste Ass'n, supra, 96 N.J. at 27.]
The second element of official misconduct requires proof that the defendant committed "an act relating to his office," knowing it was unauthorized. Bullock, supra, 136 N.J. at 153; State v. Thompson, 402 N.J. Super. 177, 191 (App. Div. 2008); Schenkolewski, supra, 301 N.J. Super. at 143. The predicate act of misconduct need not 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). In Schenkolewski, we explained that the crime is not proven by showing misconduct committed by a person who happens to be a public officer, but must be connected to that person's official duties.
Official functions include those duties which are imposed by law as well as those which are clearly inherent in and naturally arise from the nature of the office. To determine whether an act sufficiently relates to a defendant's office to constitute official misconduct, a court must look to the scope of the defendant's apparent authority.
[Schenkolewski, supra, 301 N.J. Super. at 143 (internal citations omitted).]
In Ord. § 2-4, Carlstadt defines the "Powers and Duties of Mayor" as follows:
The mayor shall preside over all meetings of the borough council but shall not vote except to give the deciding vote in case of a tie.
The mayor shall see that the laws of the state and the ordinances of the borough are faithfully executed, and shall recommend to the council such measures as (s)he may deem necessary or expedient for the welfare of the borough. The mayor shall maintain peace and good order and have power to suppress all riots and tumultuous assemblies in the borough and shall have all the powers granted by the laws of the state and the ordinances of the borough.
Although defendants characterize Carlstadt as a "weak mayor" form of government, it is evident that the ordinance reposes public trust and confidence in the mayor to see that the law is faithfully executed. That delegation carries with it a concomitant responsibility to comply with the law and the obligations the mayor assumes as an employee of the Borough. As we have observed:
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.See also State v. Hinds, 143 N.J. 540, 546 (1996) ("duties of police officers . . . are inherent or implicit in the nature of the office."); State v. Weleck, 10 N.J. 355, 366 (1952) ("Where the statutory law is incomplete or unclear, . . . a court should take judicial notice of those duties which arise out of the nature of the office."); Thompson, supra, 402 N.J. Super. at 190-191; State v. Grimes, 235 N.J. Super. 75, 79 (App. Div.), certif. denied, 118 N.J. 222 (1989).
[Schenkolewski, supra, 301 N.J. Super. at 145-46.]
We believe the trial court and defendants have defined the scope of Roseman's duties and acts too narrowly. Neither the indictment nor the evidence presented to the grand jury limited consideration of Roseman's "act" to his presiding over council meetings. The evidence before the grand jury emphasized that Roseman was required to provide notice of his divorce within sixty days pursuant to federal law, Carlstadt's health plan, and Carlstadt's employee handbook. Although he filed a W-4 form to change his tax deductions after the divorce, he failed to provide appropriate notice of his divorce so that Lewin would be removed from his coverage. It can be inferred that he permitted claims to be submitted on her behalf after the divorce. As a result, the Borough paid sums on her behalf that should not have been paid by the taxpayers. The charges in counts three and six are consistent with this evidence.
At this stage of the proceedings, we are not concerned with the sufficiency of the evidence to support a conviction. See N.J. Trade Waste Ass'n, supra, 96 N.J. at 27. Our task is to determine whether the State presented prima facie proof of the challenged element. Ibid. Since the "opportunity afforded by [his] office" allowed Roseman to commit the action attributed to him, the evidence before the grand jury was prima facie proof that the action "sufficiently related to his office." See Bullock, supra, 136 N.J. at 157; State v. Hupka, 407 N.J. Super. 489, 511 (App. Div. 2009). According the State every reasonable inference, as we must, we are satisfied the testimony presented to the grand jury constituted prima facie evidence of the offense charged.
Reversed and remanded for further proceedings in conformity with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION