Opinion
DOCKET NO. A-1848-15T3
06-21-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TROY BUNERO and FRANCIS LONGO, Defendants-Respondents.
Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for appellant (Robert Lougy, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). Paul Faugno argued the cause for respondent Francis Longo (Faugno & Associates, L.L.C., attorneys; Mr. Faugno, on the brief). Brian J. Neary argued the cause for respondent Troy Bunero (Law Offices of Brian J. Neary; attorneys; Mr. Neary, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-02-00010. Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for appellant (Robert Lougy, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). Paul Faugno argued the cause for respondent Francis Longo (Faugno & Associates, L.L.C., attorneys; Mr. Faugno, on the brief). Brian J. Neary argued the cause for respondent Troy Bunero (Law Offices of Brian J. Neary; attorneys; Mr. Neary, on the brief). PER CURIAM
By leave granted, the State appeals from two November 12, 2015 trial court orders granting defendants bail pending their appeals from their criminal convictions, pursuant to Rule 2:9-4. We reverse.
Defendants were each convicted of several counts of second-degree official misconduct, N.J.S.A. 2C:30-2, and related offenses, and each received a prison term of five years without parole. As recited in the trial judge's June 17, 2015 letter opinion, at trial defendants sought to raise a defense of duress under N.J.S.A. 2C:2-9(a), based on the claim that they "were routinely required to perform illegal acts under threat of termination" of their employment. There was also testimony that there was a widespread belief, held by defendants and many others in the town, "that resort to the police department or higher officials would be fruitless insofar as the corruption of the government was rampant and unchecked." The trial judge held that economic coercion could support a defense of duress and entered an order confirming that he planned to charge the jury on that issue.
The State filed a motion for leave to appeal, which we granted. The State's motion presented solely an issue of law, unsupported by trial transcripts. In a written opinion, we reversed the trial judge's order, holding as a matter of law that "[a] plain reading of our duress statute requires a defendant to have acted due to the threat, or actual use, of physical force; the text of the statute does not support use of this affirmative defense in response to 'economic duress.'"
After they were convicted and sentenced, defendants filed a motion for bail pending appeal. Over the State's vigorous objection, the trial court admitted defendants to bail, reasoning that the issue was novel and substantial, and the Supreme Court might disagree with the Appellate Division's interlocutory ruling.
We first address the State's procedural contention. Contrary to the State's argument on this appeal, the trial court had jurisdiction to entertain defendants' bail motions. We reject, as patently without merit, the State's argument that, where this court makes an interlocutory ruling during a criminal trial, a post-conviction bail motion raising that same issue must be filed with this court in the first instance. R. 2:11-3(e)(2). Jurisdiction to entertain a bail motion depends on which court entered the last final determination in the case. See State v. Kaufman, 175 N.J. Super. 548, 550 (Law Div. 1980). In this case, the trial court issued the judgments of conviction (JOCs) which triggered defendants' right to file their appeals from the JOCs, and this court has not decided those appeals.
Hence, after filing their notices of appeal, defendants properly filed their applications for bail pending appeal with the trial court. R. 2:9-4. A contrary ruling would potentially require that a bail application be bifurcated between this court and the trial court, depending on what issues defendants intend to raise on appeal. Nothing in Rule 2:9-4 requires that impractical process.
Nonetheless, based on what has been presented to us, we agree with the State that the appeal does not raise "a substantial question that should be determined by the appellate court." R. 2:9-4. Another panel of this court has already decided the issue. Ordinarily, our interlocutory decision of an issue, on its merits, precludes re-litigation of the same issue on direct appeal. See Lombardi v. Masso, 207 N.J. 517, 539-40 (2011). However, putting aside whether the Merits Panel might in an appropriate case depart from the law of the case doctrine, nothing defendants have presented on this appeal convinces us that it would be appropriate to do so here. Further, there may be cases where, in deciding a novel issue, we might agree that the issue is not free from doubt and will likely warrant the Supreme Court's consideration. In such a case, it might be appropriate to admit a defendant to bail pending appeal even after we have decided the issue. But, on the record presented here, this is not one of those cases.
Defendants have not provided us with their trial court motion papers, but we have read the transcript of the argument of their bail motion. Before the trial court, defendants did not argue or even suggest that they had been subjected to any type of physical threats or coercion. They argued that they were afraid of losing their jobs. Although it preceded enactment of the duress statute, State v. Falco, 60 N.J. 570 (1972), held that a duress defense requires a showing of a physical threat, and that fear of losing one's job is insufficient to establish the defense. Id. at 586-87. Nothing in the wording of N.J.S.A. 2C:2-9(a) suggests that the Legislature intended to change that rule.
Consequently, on the record presented, we disagree with the trial judge that the appeal presents a substantial issue. If, as defendants suggested to us at oral argument, there is evidence in the trial record that they were subjected to physical coercion which would suffice to constitute duress under the statute, or if there is another appellate issue they believe is substantial, nothing in this opinion would preclude them from filing a new bail motion with the trial court raising those issues.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION