Opinion
DOCKET NO. A-1870-14T2
09-06-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JOHN P. WARNOCK, Defendant-Respondent.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Law Office of Vincent C. Scoca, attorneys for respondent (Robert Carter Pierce, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Rothstadt and Currier. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-07-0130. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Law Office of Vincent C. Scoca, attorneys for respondent (Robert Carter Pierce, of counsel and on the brief). PER CURIAM
Defendant, an Essex County Sheriff's Officer, was indicted for second-degree official misconduct, N.J.S.A. 2C:30-2 (count one), third-degree criminal restraint, N.J.S.A. 2C:13-2 (count two), third-degree criminal coercion, N.J.S.A. 2C:13-5 (count three), and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count four). Following a jury trial, he was convicted of harassment, N.J.S.A. 2C:33-4, a petty disorderly persons offense, as a lesser-included offense of count four. Defendant was acquitted on counts one and two. The jury was unable to reach a verdict on count three. The State moved for an order of forfeiture and permanent disqualification from public employment, pursuant to N.J.S.A. 2C:51-2(a)(2) and (d) (the forfeiture statute), and now appeals from the denial of its motion. For the reasons that follow, we affirm.
The State moved for dismissal of count three. Defendant was sentenced to a fine.
I.
The testimony regarding the events underlying these charges and defendant's conviction was sharply disputed at trial.
In the early morning hours of October 6, 2012, I.R. and her friend were ejected from Club 4Sixty6 in West Orange by the bouncer. I.R. admitted to drinking up to ten drinks that evening but denied she was intoxicated. Defendant, and three other witnesses, Armando Nogueira, Jodi Biondi and Marcus Jones, all testified she was intoxicated.
I.R and her friend had not arranged for transportation home from the club. I.R.'s friend called her ex-boyfriend to come to take her home. I.R. declined the offer of a ride home from them.
I.R. walked to the parking lot of T.G.I. Friday's (Friday's), which was adjacent to the club she had been at that night. She saw Essex County Sheriff's Officer Armando Nogueira, who had been working that evening as a security officer for Friday's, and asked him for a ride home. Nogueira agreed.
Defendant was also present at the Friday's parking lot with Biondi, a friend and corrections officer. When Biondi observed I.R. get into Nogueira's vehicle, she told defendant that "it didn't look right."
It is undisputed that defendant spoke to Nogueira and advised him against giving I.R. a ride. According to defendant and Nogueira, defendant said he should not take I.R. home because she was intoxicated. Nogueira told I.R. he would not take her home and that she should call a cab. I.R.'s account differed. She stated, "I guess I kind of heard [defendant] saying you can get in trouble so he kind of like made it seem like he was kind of bullying him saying that no, you can't take her home." Nogueira denied being bullied and stated he changed his mind because he respected defendant and because both defendant and Biondi agreed he should not give I.R. a ride home. Nogueira testified that, after he told I.R. he would not drive her home and that she should get a cab, she was "irate," slurring her words and "clearly intoxicated."
Marcus Jones was also at Club 4Sixty6 that evening. He testified he was leaving with his girlfriend and best friend when I.R. asked for a ride. When his friend, who was driving, agreed, I.R. got into the car. Jones testified that as they prepared to leave, two men (defendant and Nogueira) rushed over. Defendant asked, "what are you doing? Where are you taking her?" and said I.R. was not going to leave with them. Jones countered, "well, she's not getting out this car until you . . . say who you are." Defendant answered that they were cops, showed his badge to Jones and identified himself as Sheriff Warnock. The exchange between Jones and defendant became heated as they each questioned each other and argued about whether I.R. should get out of the car. Jones said defendant was adamant about I.R. getting out of the car. Eventually, Jones relented because he wanted to go home and, ultimately, because he lacked any "power [he] could do over" defendant being a cop. I.R stated she did not want to go and asked Jones not to "let them take her," but got out of the car. Jones testified further that I.R. was drunk.
After Jones and his companions left, defendant told Nogueira to leave because he had a long ride home. The versions of events thereafter given by defendant and I.R. differ dramatically.
Defendant testified that I.R. asked him for a ride once again and he refused. He said she became "very agitated and belligerent." As he walked toward his vehicle, he observed a small, two-door black vehicle pull up to I.R, who then called out to him that she knew the driver and was leaving with him. Defendant said he drove home, making one stop along the way, and spoke to Nogueira on the telephone at about 3:10 a.m. Nogueira testified defendant stated he "left that batty bitch there."
I.R. testified she was frustrated because defendant had prevented her from getting rides from Nogueira and Jones. She "just want[ed] to go home" and there was no one left except defendant, whom she trusted because he was a police officer. So, when defendant said, "all right, let's go," and said he was going to take her home, she got into his truck. I.R. testified she was "in shock" during the drive when defendant told her, "pull your panties down." She questioned him, "why? You're a police officer." She stated defendant then demanded, "pull your panties down now or I'll kill you." I.R. was frightened, concerned defendant might try to rape her and could get away with it because he was a police officer. She jumped out of defendant's truck as it approached a red light.
I.R. had injuries to her head, face, knees and buttocks. Ultimately, she received assistance from an off-duty police officer and told him a man who showed her a badge and said he was a cop had threatened to kill her. The officer arranged for I.R. to be taken to the hospital by ambulance.
Biondi had left defendant and Nogueira in the parking lot with I.R. She called defendant at approximately 3:00 a.m. to let him know she had arrived at home. Shortly thereafter, she received a call from his telephone that she believed was "pocket dialed" because no one responded to her. She recognized I.R.'s voice saying, "why would you want to hurt me, why would you want to kill me." Then, she heard defendant's voice saying, "take down your panties," before the phone call dropped.
The State obtained communications data warrants for the cell phones of defendant and Nogueira. Expert testimony was presented to the jury which, the State contends, disproved defendant's version of events. Nonetheless, the jury failed to convict defendant on any of the charges in the indictment. The only conviction was for the lesser included charge of harassment, a petty disorderly persons offense.
That charge was described to the jury as follows: defendant "with purpose to harass I.R., did make or cause to be made a communication in offensively coarse language or in any other manner to cause annoyance or alarm." The trial judge instructed the jury that an essential element of this offense was a purpose to harass and stated the positions of the State and defendant as follows:
The State alleges that the defendant's purpose was to control [I.R.] for sexual gratification.
The defendant contends that he did not have any purpose to harass. Instead, he contends that it did not happen.
The State sought an order of forfeiture and permanent disqualification from public employment pursuant to the forfeiture statute. In its appeal from the trial court's denial of its application, the State argues that defendant's harassment of I.R. "involved and touched on his position as a law enforcement officer," warranting the forfeiture of his position and permanent disqualification from public office pursuant to the forfeiture statute. Defendant counters that the conviction here did not meet the criteria for forfeiture under the statute.
II.
The determination of whether the conviction here requires defendant's forfeiture of office and permanent disqualification under N.J.S.A. 2C:51-2 is a legal issue. Therefore, our review of the trial judge's conclusion is de novo. State v. Hupka, 203 N.J. 222, 231 (2010).
N.J.S.A. 2C:51-2(a)(1) mandates forfeiture of office for any person holding public office who is convicted of "an offense involving dishonesty or a crime of the third degree or above." Because defendant was convicted of a petty disorderly persons offense that did not involve dishonesty, the forfeiture issue here is governed by N.J.S.A. 2C:51-2(a)(2), which provides in pertinent part:
a. A person holding any public office . . . who is convicted of an offense shall forfeit such office, position or employment if:
. . . .
(2) He is convicted of an offense involving or touching such office, position or employment . . . .
In the event forfeiture is appropriate under this provision, the convicted public official "shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions." N.J.S.A. 2C:51-2(d).
In addition, N.J.S.A. 2C:52-2(b) directs that a "crime shall not be subject to expungement if the crime involved or touched [a public] office, position or employment."
The controlling language, that the offense be one "involving or touching such office, position or employment" can fairly be described as ambiguous. In McCann v. Clerk of Jersey City, 167 N.J. 311 (2001), the Supreme Court examined the scope of the conduct targeted by the Legislature in that phrase and stated,
That phrase implies, in our view, a determination on the part of the Legislature to limit the scope of the disqualification provision to crimes that are related directly to an individual's performance in, or circumstances flowing from, a specific public office or position held by that individual. When an individual commits a crime wholly unrelated to his or her public office, the crime ordinarily cannot be characterized as involving or touching on the public office.
[Id. at 321.]
The Legislature amended the statute in 2007 to incorporate this interpretation as a defined term:
The Sponsor's Statement for the amendment explicitly stated the amendment was intended to incorporate the definition set forth in McCann and stated further, "As the Supreme Court stated in McCann: 'When an individual commits a crime wholly unrelated to his or her public office, the crime ordinarily cannot be characterized as involving or touching on the public office.'" Sponsor's Statement to S. 14 (Jan. 9, 2007); Sponsor's Statement to A.20 (Jan. 25, 2007).
"[I]nvolving or touching on his public office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.
[N. J.S.A. 2C:51-2(d).]
Although the amendment did not remove all ambiguity from the statute, Hupka, supra, 203 N.J. at 233, the Court has described this language as "signal[ing] strongly that the disqualification provision was intended to be contingent on a conclusion that the conviction was related, directly and specifically, to the position held." Ibid.
We are required to examine the "nexus between the crime and the employment to determine if there is a sufficient relationship between the two to warrant the harsh penalty of forfeiture." Id. at 237 (quoting Moore v. Youth Corr. Inst., 119 N.J. 256, 266 (1990)). A two-part test applies:
"First, there is a need to assess the gravity of the crime as revealed by its nature, its context, and the identity of the victim. Second, there is a need to assess the qualifications required of the employee's public employment." . . . "[W]hen the infraction casts such a shadow over the employee as to make his or her continued service appear incompatible with the traits of trustworthiness, honesty, and obedience to law and order, then forfeiture is appropriate."
[Id. at 237-38 (quoting Moore, supra, 119 N.J. at 269-70).]
In Hupka, the defendant, a sheriff's officer, was indicted for first-degree aggravated sexual assault and second-degree sexual assault based upon an event that occurred while he was off-duty. Id. at 226. He entered a plea to fourth-degree criminal sexual contact pursuant to a plea agreement and, in the factual basis for his guilty plea, admitted he touched the victim's "intimate parts, including her buttocks[,] . . . without her freely-given consent[,] . . . [and] for purposes of [his] own sexual gratification." Id. at 227 (alterations in original). The description of the offense contained in the pre-sentence report (PSR) noted that the victim became pregnant and DNA tests revealed a 99.9% likelihood that the defendant was the father. Id. at 226. However, the defendant "consistently and vehemently" denied the facts alleged in the PSR's description of the offense. Id. at 240-41.
Given the conflict between the allegations in the PSR and what the defendant had admitted and denied, the Court addressed the question of what information could be relied upon to make the determination as to whether the conviction involved or touched upon the defendant's employment. The Court declared it was "improper" to "rel[y] on the unproven, disputed allegations of the presentence report." Id. at 240.
The matter came before the Court as an appeal as of right because one of the judges on the Appellate Division panel dissented, concluding that, despite the defendant's denial, the facts in the PSR could be considered in determining whether forfeiture was appropriate. --------
We have a similar conflict in the factual assertions here. The theory of the prosecution was that defendant employed his position as a sheriff's officer to commit the acts of criminal restraint, terroristic threats and criminal coercion upon I.R. Count one of the indictment, which charged defendant with second-degree official misconduct, alleged, in part, that defendant, a public servant,
did knowingly identify himself as a member of law enforcement and use his county-issued identification badge to commit an act of Criminal Restraint, Terroristic Threats and Criminal Coercion upon I.R., with the purpose to secure a nonpecuniary benefit to himself . . . .
Although defendant admitted showing his badge to Jones and identifying himself as a police officer, he did not admit doing so to commit the offenses enumerated in the indictment. He did not admit taking I.R. in his car, demanding she take her panties down or threatening to kill her. The fact that the State presented evidence designed to refute his version of events is of no consequence because the jury acquitted defendant of official misconduct, criminal restraint and terroristic threats and was unable to reach a verdict on the criminal coercion charge. Therefore, we must limit our consideration to those facts admitted by defendant or found by the jury, i.e., that defendant "with purpose to harass [I.R.], did make or cause to be made a communication in offensively coarse language or in any other manner to cause annoyance or alarm." See Hupka, supra, 203 N.J. at 240-41.
We must first assess "the gravity of the crime as revealed by its nature, its context, and the identity of the victim." Id. at 237 (citation omitted). The offense was a petty disorderly persons offense committed while defendant was off-duty. The offense was not directly related to the performance of his job and defendant's status as a law enforcement officer was irrelevant to any of the essential elements of the offense. To conclude that defendant's identification of himself as a police officer facilitated his act of harassment, we must favor the version of events provided by I.R., which the jury plainly rejected to a substantial degree.
We are troubled by the fact that defendant identified himself as a law enforcement officer and displayed his badge in exchanges with members of the public, including the victim. The clear import of those actions was to give added weight to his statements to I.R. and his direction that Jones could not drive her away. This added a coercive spectre to conduct that the jury found was motivated by a purpose to obtain sexual gratification. The facts admitted by defendant and found by the jury reflect personal qualities that are relevant to defendant's fitness to serve as a law enforcement officer.
However, while any conviction casts some shadow over a public employee, the Court clearly rejected the use of an "ill-defined incompatibility-with-duties analysis" that would "appl[y] the touching and involving language broadly to police officers." Id. at 243. Here, there is no "direct relationship . . . between the offense[] and [defendant's] responsibilities" as a sheriff's officer. See McCann, supra, 167 N.J. at 322.
Both the Legislature and our Supreme Court have endorsed a narrow construction of the "touching and involving" provision of the forfeiture statute. Ordinarily, an offense that is "wholly unrelated to [a defendant's] public office" will not warrant forfeiture. See id. at 321.
Because defendant displayed his badge and identified himself as a police officer, his offense is not "wholly unrelated" to his office. Still, in determining whether forfeiture is appropriate, we must limit our consideration of the offense to those facts admitted by defendant or found by the jury. Although defendant's conduct bears some relationship to his position, his conviction for the petty disorderly persons offense here is not an offense that is "related directly to [his] performance in, or circumstances flowing from" his position as a sheriff's officer. N.J.S.A. 2C:51-2(d) (emphasis added). Mindful of the legislative purpose to limit the scope of the disqualification provision, we conclude that defendant's offense does not fall within the scope of N.J.S.A. 2C:51-2(a)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION