Opinion
DOCKET NO. A-2055-12T4
07-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT K. THOMPSON, Defendant-Appellant.
Eric Tunis argued the cause for appellant (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Mr. Tunis, Robert J. Flanagan, and Irene Hsieh, on the briefs). Jeffrey P. Mongiello, Deputy Attorney General, and Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello and Mr. Kennedy, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-08-0090. Eric Tunis argued the cause for appellant (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Mr. Tunis, Robert J. Flanagan, and Irene Hsieh, on the briefs). Jeffrey P. Mongiello, Deputy Attorney General, and Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello and Mr. Kennedy, of counsel and on the brief). PER CURIAM
After a seventeen-day bench trial, defendant Robert K. Thompson was found guilty of third-degree official misconduct, N.J.S.A. 2C:30-2(a). On October 18, 2012, defendant was sentenced to a year's probation. He was ordered to resign as the Director of the Division of Taxation (Division), and was barred from future government employment. He now appeals, contending that N.J.S.A. 2C:30-2(a) is unconstitutionally vague, that his conviction by a recalled mandatory-retirement-age judge violates New Jersey's constitution, and that his conviction resulted from the improper admission of evidence of uncharged criminal conduct. Finding no merit to any of these claims of error, we affirm.
Defendant was tried with co-defendant David M. Gavin, who is not involved in this appeal. A third co-defendant's charges were dismissed prior to trial.
I
We previously addressed this matter on leave granted to the State to pursue an interlocutory appeal after the first judge assigned to the case dismissed thirty-six of the original forty-two counts of the indictment, including charges under both the official misconduct statute, N.J.S.A. 2C:30-2, and the pattern of official misconduct statute, N.J.S.A. 2C:30-7. The earlier indictment included other co-defendants. State v. Thompson, 402 N.J. Super. 177, 182 (App. Div. 2008) (Thompson I). We agreed that violations of the Department of Treasury's Ethics Code alone do not expose a public official to criminal liability. Id. at 201-02. Distinguishing the State's allegations as to these charges, however, we reinstated counts one, two, seventeen, eighteen, thirty-five, and thirty-six, which named defendant and others. Id. at 195.
The counts that were not dismissed did not relate to this defendant. Id. at 181, n. 1.
The charges related to OSI Collection Services, Inc. (OSI), formerly known as Payco General American Credits, the State vendor retained to collect unpaid taxes and to contact businesses that failed to file tax returns. The matter was re-presented to the State grand jury and defendant was charged by way of superseding indictment with one count of second-degree pattern of official misconduct, N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6, and two counts of second-degree official misconduct, N.J.S.A. 2C:30-26 and N.J.S.A. 2C:2-6. In count three, defendant was alleged to have failed to recuse himself from the investigation of an OSI employee complaint regarding the company's billing practices. In count four, defendant was charged with recommending that OSI's contract be extended for six months in order to obtain improper benefits from OSI. In count one, the pattern of misconduct charge, the State alleged that defendant committed two or more counts of official misconduct "including but not limited to those acts and omissions described in counts three and four." Defendant thereafter filed an unsuccessful motion to dismiss the indictment, relying on Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010). After that decision, defendant waived his right to a jury trial and requested a bench trial.
Judge Andrew J. Smithson, who had retired at age seventy, was recalled on February 7, 2012, by order of the Chief Justice and assigned to this case. The record is devoid of any objection made by anyone regarding Judge Smithson presiding over the bench trial. Indeed, at a May 3, 2012 proceeding, defense counsel commented that Judge Smithson was "an experienced trial judge," and that he "ha[d] great capacity to compartmentalize . . . evidence."
After the State rested, defendant successfully moved for acquittal on the pattern-of-misconduct charge and the failure-to-recuse charge. Remaining was count four pertaining to defendant's recommendation to his superiors that OSI receive a six-month contract extension. Defendant was convicted of this charge.
II
We discern the following facts and procedural history from the trial record. In 1995, the State awarded OSI a contract for the collection of delinquent taxes (the delinquency contract). That same year, defendant received a copy of the Department of Treasury's Code of Ethics. Although a State employee, defendant had not yet been appointed Director of the Division. When he was appointed Director in 1998, OSI began providing the State a second service: the collection of deficient tax and non-tax debt from individual businesses (the deficiency contract). The Division managed the delinquency contract, while the Division of Revenue managed the deficiency contract. By 2001 or 2002, defendant had received a copy of the State's revised Code of Ethics.
Beginning in 1999, defendant received numerous gifts from several OSI employees, including Remy deVarenne, who entertained defendant and his wife at OSI's expense. These gifts included lunches, dinners, drinks, snacks, and cigars. DeVarenne submitted expense reports to OSI for liquor purchases for defendant, totaling $57.22 and $80.18. He also identified various OSI expense reports related to food and drink purchases for defendant, and occasionally for his wife, in the amounts of $65.72, $52.48, $146.22, $86.00, and $153.53. DeVarenne socialized with defendant at both their homes. Defendant attended deVarenne's children's weddings and gave them birthday gifts.
William Cruz, OSI's former Vice President of Operations for Government Services between 1999 and 2005, often purchased meals for defendant and submitted the receipts to OSI for reimbursement. These expenditures included dinner in October 2000, when Cruz, deVarenne, defendant, and their spouses celebrated defendant's birthday. The meal cost $460.98. In September 2002, defendant, Cruz, and other OSI employees had a $298.16 dinner and shared a $55 cab at OSI's expense. In November 2003, Cruz bought defendant and his wife dinner and drinks for a total of $255.40. In April 2004, Cruz took defendant, Gavin, and two other OSI employees to dinner and drinks at a cost of $407.03. In May 2004, Cruz treated defendant to lunch and paid $60.53 for the meal.
Jeffrey Wahl, OSI's Chief Operating Officer from 2004 to 2006, testified that in September 2004, Wahl and Sandra Bielanski took defendant and his wife, in a limousine stocked with champagne and other beverages, to dinner and a Broadway show to celebrate OSI's delinquency contract renewal. Wahl paid $129.23 for the food and drinks and $310.49 for the dinner. Bielanski purchased cigars and alcoholic beverages for the group. The limousine service cost $922.92, while the food and drink for the limousine, along with a copy of the show's sound track purchased for defendant, cost $112.62. Each show ticket cost $240. Wahl instructed Bielanski to submit the celebration dinner's expenses to his department for reimbursement. Having heard defendant mention several times that evening that he was a fan of the St. Louis Cardinals, the following day Wahl arranged for defendant to attend a World Series game in which the team was playing.
Bielanski entertained clients, including defendant, with meals and drinks charged against her OSI expense account in an attempt to impress them with OSI's services and to convince them to do business with the company. Bielanski's compensation would increase if the tax delinquency contract, which expired in 2004, was re-awarded to OSI.
Later in 2004, Bielanski arranged and paid $165.20 for defendant's wife to have a spa treatment in Maine. She paid for defendant's lunch in 2004 when the two discussed an increase in OSI's funding, and paid for other outings with defendant, including bar-hopping in New Brunswick. Defendant never offered to pay in Bielanski's presence.
Bielanski gave defendant documentation to assist him in obtaining additional funding for OSI. She outlined OSI's charges to work on the delinquency and deficiency contracts, and supplied a cost-benefit analysis spelling out the need for additional funding so that OSI could hire additional staff.
Caroline Ehrlich, Treasury Chief of Staff, met with defendant in March 2003. Both of OSI's contracts were set to expire in July. Ehrlich recalled defendant encouraging the extension of the contracts.
Defendant also met with Mary Beth Davies, then a Fiscal Manager in Treasury, in May 2003. The focus of their meetings was the extension of OSI's deficiency contract by two years and its delinquency contract by one year.
That same month, May 2003, defendant wrote a memorandum to the Treasurer, assuring him that OSI's bankruptcy filing would not affect its ability to fulfill its obligations, and urging the State to continue to do business with OSI. Shortly thereafter, both contracts were extended in accord with defendant's recommendations. The deficiency contract was extended to August 31, 2005. The delinquency contract was extended to July 31, 2004, and in June 2004 was extended for an additional three years.
In November 2004, defendant wrote a memorandum to Charles Chianese, the Associate Deputy State Treasurer, recommending an increase in State funding to OSI for both the deficiency and delinquency contracts. Defendant suggested that the State pay OSI an additional $102,000 per month for four months. The following month, defendant followed up to encourage the proposed increase. OSI obtained the funding defendant had urged, which totaled $408,000.
On July 27, 2005, Ehrlich asked defendant if he would agree to extend OSI's deficiency contract for three months because of a delay in the State's rebidding process. Defendant responded by recommending a six-month contract extension for deficiency-related work. Ehrlich then contacted Alice Small, the Associate Deputy Director of Purchasing, for approval of defendant's suggestion. On August 11, 2005, Bielanski accepted the State's offer to extend OSI's deficiency contract for six months.
When she testified, Ehrlich explained that she relied on defendant's recommendations regarding OSI's contract as she had never dealt with the company directly. In 2003, when OSI filed for bankruptcy, defendant explained to her that the restructuring would result in OSI becoming stronger financially.
Besides writing to Chianese, in 2004 defendant encouraged Ehrlich to pay OSI the additional $408,000 so that OSI could hire more staff. Defendant projected that a $1,000,000 investment in OSI would yield $12,000,000 in additional revenue for the State.
Judge Smithson convicted defendant because he was convinced that defendant had known since 2002 that he should have recused himself from OSI matters. OSI bought defendant and his wife meals and gave them tickets and other gratuities. Although the judge observed that the gifts OSI gave defendant were not "brown paper bags with thousands of dollars in them," they were "not necessarily less insidious." Defendant was well-aware from the Ethics Code that he had an obligation to reject gifts that he knew were being offered in an effort to influence him in the performance of his duties.
The judge concluded that "[a] reasonable person certainly would understand that there was a duty to recuse in a conflict of interest situation. . . . The failure to recuse was unquestionably done with full knowledge of the requirements to do so under the 2002 Code of Ethics." In the judge's opinion, this failure to recuse constituted a violation of the statute because, whether ultimately beneficial to the State or not, defendant engaged in the conduct with the "purpose to obtain a benefit." Defendant "enjoyed special respect, deferential treatment[,] and certainly a feeling of importance in [his] relationship with OSI. . . . [OSI's] contracts with Treasury were very, very important business. What is surprising is that [defendant] so readily accepted the attention and the privileged status that [he] enjoyed." In the world of private enterprise, "relentless expenditures of time, energy[,] and money associated with entertaining and gifting" are acceptable means of obtaining favor from purchasers. Not so in public life.
The favored treatment received by defendant included lunches, dinners, entertainment, drinks, even a spa treatment. The timeline was "ragged" but "consistent" and underscored the evolution of a "culture of entitlement . . . that corrupted" defendant's public position. The conduct and its effect on defendant were "precisely what the statutory provision and the Code of Ethics were designed to prevent." Defendant failed to display good faith, honesty, and integrity in the completion of his official duties, thereby engaging in "unauthorized acts with a purpose to benefit" himself. His "relationship with OSI did become a form of partnership." Despite finding defendant guilty based on this analysis, the judge nonetheless determined that it would be "entirely speculative" to find a benefit of over $200 and thus rendered a verdict in the third-degree, rather than second-degree, range.
Defendant raises the following points for our consideration:
POINT I
MR. THOMPSON'S CONVICTION SHOULD BE VACATED AND COUNT FOUR SHOULD BE DISMISSED WITH PREJUDICE BECAUSE N.J.S.A. 2C:30-2 IS
UNCONSTITUTIONALLY VAGUE AND, ALTERNATIVELY, DOES NOT ENCOMPASS HIS ALLEGED CONDUCT.
A. Mr. Thompson's Constitutional Attack on N.J.S.A. 2C:30-2 Presents An Issue of First Impression.
B. N.J.S.A. 2C:30-2 Is Unconstitutionally Vague On Its Face and As Applied to Mr. Thompson.
POINT II
MR. THOMPSON'S CONVICTION SHOULD BE VACATED BECAUSE JUDGE SMITHSON HAD ATTAINED THE AGE OF 70 AND WAS CONSTITUTIONALLY BARRED FROM SERVING AS A SUPERIOR COURT JUDGE AT THE TIME HE PRESIDED OVER THIS ACTION.
POINT III
MR. THOMPSON'S CONVICTION SHOULD BE VACATED BECAUSE IT WAS BASED ON INADMISSIBLE EVIDENCE OF UNCHARGED CONDUCT.
A. State v. Rose — The Test for Intrinsic Evidence.
B. State v. Cofield — The Test For Admissibility Under N.J.R.E. 404(b).
C. Evidence of Mr. Thompson's Alleged Involvement In The Decision in 2003 To Extend OSI's Contracts and Stagger Their Rebids Was Inadmissible.
1. Evidence of Mr. Thompson's Alleged Involvement in the Decisions in 2003 Regarding OSI's Contracts Was Not Intrinsic to the Charged Offense.
2. Evidence of Mr. Thompson's Alleged Involvement In The Decisions in 2003 Regarding OSI's Contracts Was Not Admissible Under N.J.R.E. 404(b).
D. Evidence of Mr. Thompson's Uncharged and Alleged Involvement in the Decision To Increase OSI's Funding Was Inadmissible.
E. Judge Smithson Erroneously Admitted Evidence of Other Uncharged Conduct, Despite the State's Failure to Provide Pre-Trial Notice Under N.J.R.E. 404(b).
F. The Court Should Vacate Mr. Thompson's Conviction Because Judge Smithson's Admission of Evidence of Uncharged Conduct was Reversible Error.
III
A.
Defendant contends that N.J.S.A. 2C:30-2 is vague both on its face and as applied to him. He begins from the premise that the statute does not adequately define the term "benefit" and is thus unconstitutionally vague under Skilling, supra, 561 U.S. at 358, 130 S. Ct. at 2896, 177 L. Ed. 2d at 619. Defendant further argues that his conduct did not fall within the statute's scope. Finally, he asserts that his conviction must be reversed because he was selectively prosecuted.
The pretrial judge found that N.J.S.A. 2C:30-2 was not unconstitutionally vague, and that we had decided the issue in Thompson I. Since we do not agree that Thompson I addressed the issue of vagueness, we do so now.
Every statute is presumed valid, Caviglia v. Royal Tours of America, 178 N.J. 460, 477 (2004), and the objecting party bears the burden of proving a statute unconstitutional, State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998). In order to prevail, the challenging party must show "that the statute's 'repugnancy to the Constitution is clear beyond a reasonable doubt.'" Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 285 (1998) (quoting Harvey v. Bd. Of Chosen Freeholders, 30 N.J. 381, 388 (1959)), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770 (1999).
The vagueness doctrine serves to prevent persons from being held responsible for conduct they "could not reasonably understand to be proscribed." State v. Lashinsky, 81 N.J. 1, 17 (1979) (internal quotation marks omitted). Vague statutes deprive citizens of notice and deprive law enforcement of clear direction. Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983). At the same time, a statute can be drafted in terms general enough to encompass a broad array of conduct, yet specific enough to provide fair notice. Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed. 2d 584, 590 (1972). Our Supreme Court has held that
[t]he determination of vagueness must be made against the contextual background of a particular law and with a firm understanding of its purpose. . . . [T]he standard to
determine the vagueness of a law is not one that can "be mechanically applied. The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depend in part on the nature of the enactment."
[State v. Cameron, 100 N.J. 586, 591 (1985) (quoting Vill. of Hoffman Estates v. The Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371 (1982)).]
The Court also distinguished between facial and as-applied vagueness challenges as follows:
[j]udicial analysis of statutory vagueness also depends upon whether a law is challenged as applied, or facially. A statute that is challenged facially may be voided if it is "impermissibly vague in all its application," that is, there is no conduct that it proscribes with sufficient certainty. A statute so lacking in definitional certainty can be characterized as "perfectly vague." . . . A statute can be challenged "as applied" if the law does not with sufficient clarity prohibit the conduct against which it is sought to be enforced.If a statute is vague as applied to the charged conduct, it will not be enforced even if valid in other circumstances. Cameron, supra, 100 N.J. at 593. "Conversely, if a statute is not vague as applied to a particular party, it may be enforced even though it might be too vague as applied to others." Ibid. In other words, for a facial challenge to succeed, the challenged statute must be vague in every situation. Ibid. For an as-applied challenge to succeed, meanwhile, the challenged statute need only be vague under the circumstances at issue. Ibid.
[Cameron, supra, 100 N.J. at 593 (citations omitted) (quoting Flipside, supra, 455 U.S. at 495, 102 S. Ct. at 1192, 71 L. Ed. 2d at 369).]
The Legislature enacted N.J.S.A. 2C:30-2 to prevent public employees from wielding their power for personal benefit. State v. DeCree, 343 N.J. Super. 410, 417 (App. Div.), certif. denied, 170 N.J. 388 (2001). Under this statute,
[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:Defendant contends that the term "benefit" in N.J.S.A. 2C:30-2 is unconstitutionally vague both on its face and as applied to him. N.J.S.A. 2C:27-1(a) defines "benefit" as "gain or advantage, or anything regarded by the beneficiary as gain or advantage, including a pecuniary benefit or a benefit to any other person or entity in whose welfare he is interested." In turn, N.J.S.A. 2C:27-1(f) defines "pecuniary benefit" as "money, property, commercial interests or anything else the primary significance of which is economic gain." See State v. Saavedra, ___ N.J. ___, ___ (2015) (slip op. at 22) (the statute has been "held to encompass a variety of non-pecuniary benefits"); State v. Lake, 408 N.J. Super. 313, 321 (App. Div. 2009) (citing State v. Phelps, 187 N.J. Super. 364, 375 (App. Div. 1983), aff'd, 96 N.J. 500 (1984)) (explaining that benefits need not be pecuniary).
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.
Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree.
[N. J.S.A. 2C:30-2.]
N.J.S.A. 2C:27-10(c) further defines "benefit," in situations involving public servants, as "any benefit from or by reason of a contract or agreement for goods, property or services if the contract or agreement is awarded, made or paid by the branch, subdivision, or agency of the government that employs the public servant." See also N.J.S.A. 2C:27-11(c) (defining "benefit" in the same manner as N.J.S.A. 2C:27-10(c)). On appeal, defendant concedes that instances of bribery, kickbacks, extortion, and embezzlement would satisfy these definitions.
Even if the statute in question does not precisely define the proscribed conduct, it can still survive a constitutional challenge. State v. Lee, 96 N.J. 156, 166 (1984). Even if there may be situations where it is difficult to determine whether a law has been violated, it may nonetheless be proper. State ex rel. B.N., 99 N.J. Super. 30, 34 (App. Div. 1968). Defendant's facial challenge to N.J.S.A. 2C:30-2(a) fails because the statute is not unduly vague, but rather defines "benefit" with sufficient clarity to pass constitutional muster. See Saavedra, supra, slip op. at 43 (the official misconduct statute "defines the conduct that it proscribes and provides ample notice of its terms").
Furthermore, N.J.S.A. 2C:30-2(a) has two mens rea requirements: that the public servant (1) act "with purpose to obtain a benefit" while (2) "knowing" that his or her actions are unauthorized. Mens rea requirements can "mitigate a law's vagueness," and would do so in this case even if we found the law vague on its face. Flipside, supra, 455 U.S. at 499, 102 S. Ct. at 1193, 71 L. Ed. 2d at 372.
Neither is the statute unconstitutionally vague as applied to defendant. N.J.S.A. 2C:27-1(f) defines "pecuniary benefit" as property or "anything else the primary significance of which is economic gain." It is undisputed that defendant accepted meals, entertainment, and even a spa treatment for his spouse from OSI. A person of ordinary intelligence could readily conclude that accepting gifts from a private State vendor is within the class of conduct prohibited by N.J.S.A. 2C:30-2. See Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 2d 322, 328 (1926) (explaining that a statute is vague when a person of "common intelligence" would guess at the statute's meaning and application).
In State v. Quezada, 402 N.J. Super. 277, 281 (App. Div. 2008), for example, we held that a volunteer fireman who placed false alarm calls obtained a "benefit" under N.J.S.A. 2C:30-2(a) because he experienced the "joy or gratification of participating in the response or even by giving the unit work to keep it in existence." See also Saavedra, supra, slip op. at 22 (collecting similar cases). In this case, in addition to the tangible benefits paid by OSI, the trial judge found that defendant enjoyed a sense of pride in his relationship with the firm. Regardless, the issue of whether defendant obtained a benefit is not one of constitutional magnitude.
As the Court recently reiterated, as-applied challenges can only be made with respect to a defendant's particular conduct. State v. Lenihan, 219 N.J. 251, 267-69 (2014). In Lenihan, the Court quoted with approval the holding in Town Tobacconist, supra, 94 N.J. at 99, that when assessing a vagueness challenge, the reviewing court need not "'consider and determine the validity of every hypothetical application of legislation.'" Lenihan, supra, 219 N.J. at 269.
When the Court recently considered the argument that a bias-crime statute, N.J.S.A. 2C:16-1(a)(3), was unconstitutionally vague, it held that such enactments violate due process only if persons of ordinary ability must guess at their meaning. State v. Pomianek, 221 N.J. 66, 85 (2015). Unlike the statute in that case, any public employee can clearly separate criminal from lawful conduct when deciding whether to accept gifts from a vendor who provides goods or services to the State. Ibid. This penal statute was certainly not "'a trap' for the unwary." Ibid. (quoting Lee, supra, 96 N.J. at 166). Since N.J.S.A. 2C:30-2(a) places reasonable persons on notice of the conduct which constitutes a crime, defendant's as-applied challenge must also fail.
Lastly, defendant contends that he was selectively prosecuted. In order to establish selective prosecution, however, defendant would have to show intentional selectivity and an unjustifiable basis for discrimination. State v. DeFrisco, 118 N.J. 253, 265 (1990). Defendant has not provided "clear evidence" sufficient to overcome the presumption that the prosecutor acted properly in pursuing these charges against him and his co-defendants. See State v. Heine, 424 N.J. Super. 48, 66-67 (App. Div.), certif. denied, 211 N.J. 608 (2012). Evidence that the State chose not to pursue charges against others, without more, is insufficient to support this argument.
B.
Defendant next contends that his conviction should be reversed because Judge Smithson had attained the age of seventy and was therefore constitutionally barred from serving as a judge in the Superior Court. The record is entirely devoid of any objection by counsel to his service. The trial began in May 2012, when the issue of service on recall by judges older than seventy had become a matter publicly debated and discussed in the profession, although State v. Buckner, 437 N.J. Super. 8, 12 (App. Div. 2014), had not yet been decided. That matter is currently on appeal before the Supreme Court. Although not bound by the Buckner decision, we consider it entirely convincing.
See, e.g.. Judges We Can't Recall, 206 N.J.L.J. 18 (2011) ("[T]he Supreme Court . . . must . . . end the practice of recalling retired judges beyond age 70."); 70 and Out, 194 N.J.L.J. 18 (2008) ("We question . . . the recalling [] of judges after they reach the mandatory retirement age of 70."). --------
In Buckner, we did address, contrary to defendant's assertion, the separation-of-powers implications of N.J.S.A. 43:6A-13. We found that the Judicial Article, N.J. Constitution article VI, § 6, ¶ 3, neither expressly nor implicitly banned the temporary recall of judges. Buckner, supra, 437 N.J. Super. at 28. We agree that the retirement requirements in the Judicial Article are conceptually distinct from temporary recall assignments. Id. at 29-36.
The recall statute vests retired judges with the powers of a particular court only for the term of assignment. The recall statute does not transform a retired judge into a "de facto judge." Id. at 28. As in Buckner, both defendant's failure to raise the issue at trial and our constitutional analysis dispose of the question.
Additionally, in this case, although defendant did not expressly assent to Judge Smithson's participation, his silence on the point triggers the doctrine of invited error. Errors which are "induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). Defendant may have made a conscious decision to remain silent on the issue of Judge Smithson's service, knowing that he was over seventy and understanding full well the controversy such appointments were generating, pending the outcome. But the doctrine of invited error bars a disappointed litigant from arguing that the very process by which he was tried, and to which he implicitly assented by his silence, was the result of error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010).
The Court in M.C. III indicated that the doctrine is not applied where it would cause a "fundamental miscarriage of justice." Id. at 342 (internal quotation marks omitted). No such miscarriage has occurred here. Defendant even conceded that Judge Smithson was experienced and capable. Although defendant did not expressly consent to Judge Smithson's appointment despite his age, defendant's failure to object during pretrial motions and the many days of trial triggers the invited-error doctrine. He cannot now be heard, dissatisfied with the outcome, after his prolonged silence.
C.
Lastly, defendant contends that the State's evidence regarding uncharged conduct should not have been admitted, as it did not meet the test for intrinsic evidence found in State v. Rose, 206 N.J. 141 (2011), or the test for the admission of other-crimes evidence under State v. Cofield, 127 N.J. 328 (1992), and N.J.R.E. 404(b). State v. Rose, which discarded the res gestae doctrine, was decided during the pendency of this matter. 206 N.J. at 182.
Here, the trial judge concluded that a variety of predicate acts were admissible, including uncharged conduct, as proof of the special relationship defendant enjoyed with the contract vendor which was "inappropriate to the business responsibilities of the public employee." Without question, the evidence established a longstanding relationship between defendant and OSI.
We review the judge's decision to admit evidence for abuse of discretion. State v. Gillispie, 208 N.J. 59, 84 (2011). Such abuse occurs when a decision is made "'without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
In Rose, the Court defined intrinsic evidence as that which "directly proves" a charged offense. 206 N.J. at 180. N.J.R.E. 404(b), on the other hand, applies only to "other crimes." Rose, supra, 206 N.J. at 180. Where an uncharged act directly proves the charged act, it is intrinsic rather than other-crimes evidence. Ibid. If uncharged acts are performed at the same time as the charged crime, those acts are intrinsic if they facilitate the commission of the charged conduct. Ibid.
On this basis, defendant objects to the State's submissions regarding his alleged involvement in Treasury's decision to extend OSI's contracts in 2003, and to obtain the $408,000 in additional funding for OSI in 2004. The judge heard testimony from Davies that defendant requested the deficiency and delinquency contract extensions in 2003. The court also heard from Ehrlich that defendant requested both extensions. The State presented detailed evidence about meals and gifts from OSI to defendant during those time periods.
Those circumstances established defendant's improper relationship with the vendor. Defendant's recommendation to extend OSI's deficiency contract by six months did not come until 2005, but by that point defendant had been accepting improper gifts from OSI for years. Clearly, at that juncture, defendant knew his ongoing relationship had created a conflict of interest. Thus the State's proofs with regard to the ongoing relationship between vendor and public official were intrinsic to the offense it sought to prove, necessary to demonstrate the very wrong the State claimed—official misconduct.
Defendant also objects to the admission of evidence about which he had no notice: items such as his response to a request for information regarding OSI's bankruptcy filing, his alleged statements regarding union opposition to OSI's collection of deficient and delinquent State tax payments, and his alleged disclosure of information to deVarenne regarding the transfer of responsibility of certain OSI contracts from the Department of Revenue to the Department of Taxation. The court admitted the evidence pursuant to the same rationale: that, considered together, the evidence established the arc of improper activity between defendant and OSI.
The State was attempting to prove that defendant, a public servant, acted with the conscious objective of continuing to obtain benefits from OSI by his continuing advocacy, and therefore the court allowed the evidence. This evidence was also intrinsic, as defined in Rose, because, as the trial judge found, it was part of a continuum of improper behavior.
Pursuant to Rose, specific notice of the proposed evidence would have been required had the evidence called for N.J.R.E. 404(b) analysis. 206 N.J. at 181. The objected-to evidence, however, did not fall into that category. Furthermore, defendant had the opportunity to challenge the admission of the evidence at trial and did not do so. Even if erroneous, its admission was harmless in light of the overwhelming proof of years of improprieties that created defendant's relationship with the vendor. Numerous witnesses testified regarding the details of defendant's improper relationship. Thus the evidence was properly admitted pursuant to Rose.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION