(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 28, 1995 -- Decided April 10, 1996
O'HERN, J., writing for a unanimous Court.
In December 1990, John Hinds was employed as the security manager of a Caldor department store
in Holmdel. Co-defendant Michael T. Borsari was a twenty-one year veteran of the Holmdel police force
and was in charge of the Detective Bureau. Hinds and Borsari had known each other for twenty years.
The store manager suspected that Hinds and Borsari were jointly involved in theft. After several
incidents occurred that supported that belief, Caldor arranged with the State Police to have a Caldor security
investigator perform a surveillance on the store. As a result of that surveillance, Hinds and Borsari were
charged with conspiracy, official misconduct, theft, and theft by receiving stolen property. A jury convicted
both of them on those counts.
On appeal, the Appellate Division reversed Hinds' conviction for official misconduct, finding that
because Borsari's actions did not constitute "official misconduct," Hinds' conviction as an accomplice could
not stand. The remaining charges were also reversed for other reasons. They were remanded to the Law
Division for a new trial.
Although the Court initially denied the State's petition for certification on the official misconduct
charge, it subsequently granted the State's motion for reconsideration.
HELD: In engaging in theft and the receipt of stolen goods, a police officer's conduct was sufficiently related
to his official status that it constituted the crime of official misconduct.
1. Although official misconduct formerly was both a statutory and common law crime, the Code of Criminal
Justice abolished common law crimes in 1979. The current statutory definition is based on New York law.
(pp.5-7)
2. The argument that a police officer who commits a crime unrelated to his office and while off duty cannot
be guilty of official misconduct for failing to arrest himself does not take the actual situation presented here
into account. Hinds was found guilty of theft. Borsari's misconduct was his failure to perform his duties and
arrest Hinds for his thefts. Further, the receipt of stolen goods by an off-duty police officer can constitute
official misconduct. (pp. 8-11)
3. Not every offense committed by a public official involves official misconduct. The Court declines to
accept the State's argument that the statute can be read broadly to mean that any violation of the law
exposes a police officer to official misconduct. (pp. 11-12)
4. Hinds may be found guilty as an accomplice to Borsari's crime of official misconduct. On retrial, the jury
must be instructed that to be found guilty of accomplice liability, Hinds must have acted with the purpose of
promoting or facilitating the substantive offense for which he is charged as Borsari's accomplice. He had to
have shared with Borsari the intent to abuse Borsari's office. (pp. 13-15)
5. To convict Borsari of official misconduct, the jury would have to find that Borsari was a public servant at
the time of the incident, that he refrained from performing an act that he was required to perform, and that
he did so with the purpose to benefit himself or another or to injure or deprive another of a benefit. (p. 15)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for a retrial with the remaining charges.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
61 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHN F. HINDS,
Defendant-Respondent.
Argued November 28, 1995 -- Decided April 10, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
278 N.J. Super. 1 (1994).
Marcy H. Geraci, Deputy Attorney General,
argued the cause for appellant (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender,
attorney).
The opinion of the Court was delivered by
O'HERN, J.
The primary question in this appeal is whether an off-duty
police officer who conspires with the private security manager of
a store to engage in shoplifting may be found guilty of official
misconduct. On the facts of this case, we hold that the
officer's conduct was sufficiently related to his official status
to constitute the crime of official misconduct. The secondary
issue is one of accomplice liability. We find that the defendant
in this case, who was the store's security manager, may be found
guilty as an accomplice to the official misconduct committed by
the off-duty police officer.
We accept generally the recital of testimony set forth in the defendant's Appellate Division brief. Of course, defendant disputes much of the testimony, but it could have formed the basis for the jury's verdict.
In December 1990, John Hinds was employed as the security manager of a Caldor department store in Holmdel. Co-defendant Michael T. Borsari was a twenty-one year member of the Holmdel police force who had reached the rank of detective sergeant and was in charge of the Detective Bureau. Borsari and Hinds had known each other for twenty years. Borsari admitted having taken merchandise from the Holmdel Caldor on three occasions--December 13, 1990, December 16, 1990, and one other date that he could not specifically recall. He denied that he committed theft on any other days. Borsari also denied that Hinds was aware of his activities, that Hinds conspired with him, or that Hinds received any money or merchandise as a result.
Thomas Keenan, the store manager, however, suspected that Borsari and Hinds were jointly involved in theft. Keenan noticed that Borsari was often in the store with Hinds for long periods of time. On one occasion, Keenan saw Borsari, who had a blue Rubbermaid container in his shopping cart, hold up two items of merchandise in Hinds' direction. He then saw Borsari leave the
store with the merchandise in the cart and Hinds behind him. The
manager knew that Borsari had not purchased the merchandise.
Keenan alerted the Operations Manager of the store to the
purported activities of Hinds and Borsari. The Operations
Manager herself had noticed that Borsari was frequently in the
store with Hinds. She suspected that Borsari had not paid for
some merchandise removed from the store because she checked a
register, although she conceded that there were many banks of
registers in the store. Hinds had once introduced her to Borsari
and when she commented that Borsari was in the store often,
Borsari replied that he "helped Hinds catch shoplifters."
Two other employees described Borsari as being in the store
almost "on a daily basis" to speak to Hinds. Shortly before
Christmas in 1990, one employee observed Borsari in the parking
lot with a cart filled to the top with merchandise that was
neither "bagged nor tagged." He informed Hinds, who responded,
"He better not have or I'll kick his ass." But Hinds took no
steps to pursue Borsari or to see what was in the cart. When
another employee mentioned to Hinds that Borsari had left with
unpaid merchandise on a separate occasion, Hinds responded, "It
can't be true and if it was [I] would punch Mike [Borsari] in the
nose."
Ultimately, Caldor's Loss Prevention Department contacted
the New Jersey State Police Corruption Department. An
investigator for the State Police arranged for a security
investigator from Caldor, not known in Holmdel, to perform a
surveillance of the store. This investigator testified that he
saw Hinds and Borsari pacing back and forth in the vestibule of
the store with Borsari eventually pushing a cart loaded with
merchandise out of the door without stopping at a cash register.
Borsari conceded that he had taken merchandise from the store on
that date but denied that Hinds was in the area of the vestibule
when he left.
On another date, the Caldor investigator observed Hinds and
Borsari standing together near the appliance department. Borsari
then pushed a cart through the store, took various items, and
placed them within a Rubbermaid container with items on top of
it. Next, Borsari entered the shoe department out of the
investigator's sight, with the merchandise no longer visible.
Eventually Borsari reappeared in the parking lot with a shopping
cart loaded with unpaid-for Caldor merchandise.
The State Police investigator testified that, when
confronted, Borsari said that "he was also a police officer
working with John Hinds, the store's security manager." There
followed a disputed conversation about whether the State Police
investigator threatened Borsari that he would lose his job and
pension rights unless he implicated Hinds. Borsari has denied
stating in this conversation that he was working with Hinds.
The jury convicted Hinds and Borsari of conspiracy, official
misconduct, theft, and theft by receiving stolen property. On
Hinds' appeal, the Appellate Division reversed his conviction of
official misconduct. It also reversed the other convictions for
trial errors and remanded those matters for a new trial. It
held, however, that Hinds could not be re-tried on the charge of
official misconduct because Borsari himself could not have been
found to have committed an act of official misconduct on these
facts. While we originally denied the State's petition for
certification,
140 N.J. 276 (1995), we granted the State's
petition for certification on its motion for reconsideration.
142 N.J. 452 (1995).
Prior to the 1979 adoption of N.J.S.A. 2C:30-2, official misconduct was both a statutory crime and a common law crime. State v. Maioranna, 225 N.J. Super. 365, 368 (Law Div. 1988), affirmed, 240 N.J. Super. 352 (App. Div. 1990), and certif. denied, 127 N.J. 327 (1991). The contours of the common law crime were vague and elusive.
[T]he term "misconduct in office" is sometimes used in a generic sense to refer broadly to all official wrongdoing, thus including in its sweep the more particularized crimes of extortion, bribery and the like, as well as in the special sense, as here, to designate an offense which bears no other name and is comprised of elements differing in some particulars from those of the related crimes. Distinctions have become shadowy and labels imprecise and somewhat non-exclusive. There are many situations, like that before us, where essentially the same factual situation could properly ground a prosecution for more than one of these offenses.
In general, culpability for official misconduct at common
law attached to
1) any act which is wrongful in itself--malfeasance, or 2) any lawful act performed
in an unlawful manner--misfeasance, or 3)
omission to do any act which is required of
him by the duties of his office--nonfeasance.
However, the precise sub-labeling is not
always found and is not requisite. The
gravamen of the charge of misconduct is
malfeasance--the doing of an act which is
positively unlawful or wrong.
[Maioranna, supra, 225 N.J. Super.
at 369 (citation omitted).]
The 1979 Code of Criminal Justice abolished common law
crimes. N.J.S.A. 2C:30-2 now defines official misconduct as
follows:
Official Misconduct. 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:
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.
The 1971 Commentary of the Criminal Law Revision Commission
explains:
This is Section §195.00 of the New York
Code. It is intended to consolidate the law
as to malfeasance and non-feasance by public
servants. . . .
Subsection a, which condemns aggressive
action, requires that the "act" relate to the
public servant's office and that it
constitute an unauthorized exercise of his
official functions. In addition, the public
servant must know that such act is
unauthorized . . . because it is declared to
be such by statute, ordinance, rule,
regulation or otherwise.
Subsection b, the "omission to act"
phase of this offense, has reference to a
public servant who consciously refrains from
performing an official non-discretionary
duty, which duty is imposed upon him by law
or which is clearly inherent in the nature of
his office. In addition, the public servant
must know of the existence of such non-discretionary duty to act. Thus, such duty
must be either one that is imposed by law, or
one that is unmistakably inherent in the
nature of the public servant's office, i.e.,
the duty to act is so clear that the public
servant is on notice as to the standards that
he must meet. In other words, the failure to
act must be more than a mere breach of good
judgment. In the absence of a duty to act,
there can be no conviction.
The kind of culpability required by this
Section is stated alternatively, i.e., the
public servant's intent must be either (a) to
obtain a benefit, or (b) to injure another
person or to deprive another person of a
benefit.
[Cannel, Criminal Code Annotated,
Comment N.J.S.A. 2C:3-2.]
The indictment charged the defendants with violations of
section 2(b), the failure-to-act prong of the statute. While no
special or private law prescribes the duties of police officers,
such duties are inherent or implicit in the nature of the office.
Maioranna, supra, 225 N.J. Super. at 371 (quotation omitted).
We have had occasion in recent cases to consider official
misconduct among off-duty officers. In Moore v. Youth
Correctional Inst.,
119 N.J. 256, 270 (1990), we found that an
off-duty corrections officer who trespassed upon his superior's
property to commit a harassing act committed an act that
"involved and touched" his employment. "New Jersey cases have
generally adhered to the involve and touch analysis . . . and
have applied it regardless of whether the employee committed the
offense on the job premises or during work hours." Id. at 269.
In State v. Johnson,
127 N.J. 458 (1992), we determined that an
off-duty state trooper could be found to have committed official
misconduct when he donned his uniform and feigned a drug arrest.
In State v. Bullock,
136 N.J. 149 (1994), we held that a
temporarily suspended officer nonetheless involves his office and
is guilty of an act of official misconduct when he represents
himself as a police officer while perpetrating a crime.
The acts of the off-duty officers in Johnson and Bullock
were sufficiently related to the officers' official status to
constitute official misconduct because they made calculated use
of an office to avoid suspicion and to instill in unsuspecting
victims a false sense of security. Borsari's conduct and
statements to Caldor employees demonstrate that the jury could
find that Borsari too used his office to instill a false sense of
security and to avoid suspicion. Recall that when the store
operations manager grew suspicious and confronted Borsari, he
alleviated her concerns by stating that he "helped Hinds catch
shoplifters."
Defendant has relied principally upon the concurring opinion
of Chief Justice Weintraub in State v. Cohen,
32 N.J. 1 (1960).
In that case, the Chief Justice suggested that the mere violation
of the law by a police officer would not constitute official
misconduct.
[A police officer] is indictable for
nonfeasance, misfeasance or malfeasance only
if, with the requisite criminal mind, he
fails to perform or improperly performs his
public duty.
If his act, thus criminal when committed by a
private citizen, does relate to the
performance of his duty of office, . . . he
would be guilty at least of nonfeasance with
respect to his specific duty. . . .
But I cannot agree that a policeman is
guilty of the common-law crime by reason of
his every infraction of the penal laws. A
police officer is not appointed to prevent
himself from committing offenses, nor to
detect and arrest himself. Rather, his
official role is to deal with others. It is
much too attenuated and unrealistic a thought
that a man be his own policeman. . . . I do
not see how a line could be drawn short of
such absurdities if it were held that a
policeman has the public duty to prevent
himself from violating the law and to detect
his own infractions.
[32 N.J. at 13-14 (Weintraub, C.J., concurring).]
Defendant thus argues that a police officer who commits a
crime unrelated to his office and while off duty does no more
than commit the underlying crime. Because Hinds' conviction as
an accomplice is predicated on the substantive guilt of Borsari,
he argues that "the principal's guilt would consist essentially
of the failure to apprehend himself, a clearly untenable result
under common law."
This is a sophisticated argument, but we believe that it
fails to take into account the reality of the situation. The
jury must have believed that Hinds shared in the proceeds with
Borsari as it convicted Hinds of the receipt of stolen goods. It
thus found that Hinds was a thief. That being so, Borsari
undoubtedly had a duty to report Hinds' crimes. In Robey v.
Indiana,
484 N.E.2d 628 (Ind. Ct. App. 1985), the court held that
a store security guard, appointed by the Sheriff as a deputy, who
accepted money to forego the arrest and prosecution of a person
who left the store with unpurchased merchandise was guilty of
official misconduct. Reasoning that the duties of a police
officer include the mandate to arrest persons committing a crime
within the officer's presence, the court found it inconceivable
that the officer would not be expected to apprehend shoplifters.
Id. at 629. Hinds was essentially engaged in shoplifting. (The
amounts involved take the case beyond the offense of
shoplifting.)
In its opinion below, the Appellate Division relied upon the
Commentary to the repealed crime of "official oppression" to
bolster its conclusion that Borsari could not be guilty of
official misconduct. We are not so sure, however, that the
Commentary to repealed N.J.S.A. 26:30-1 "is equally applicable to
N.J.S.A. 2C:30-2," State v. Hinds,
278 N.J. Super. 1, 11 (App.
Div. 1994), as the crime of official oppression was repealed
before it became effective and neither the enacted N.J.S.A.
2C:30-2 nor its legislative history included language concerning
"purely private wrongdoing by one who may incidentally be a
public servant." See Cannel, Criminal Code Annotated Comment,
N.J.S.A. 2C:30-1 ("The Commission Commentary to proposed 2C:30-1
is reprinted below for whatever value it may still have.").
Moreover, as noted above, our law is based on New York law.
In New York, a police officer who receives stolen goods while off
duty may still be found guilty of official misconduct. People v.
Ventura,
487 N.Y.S.2d 785 (A.D. lst Dept.), affirmed,
496 N.Y.S.2d 416 (N.Y. 1985). The flip side of the issue (the honest
off-duty cop making the arrest) is often seen. An off-duty
police officer out of uniform and working as a security guard
observing a crime "ha[s] the right and duty to arrest and detain
a person who was violating a law." Tapp v. Indiana,
406 N.E.2d 296, 301 (Ind. Ct. App. 1980) (quoting State v. Gloves,
367 N.E.2d 1202, 1204 (Ohio Ct. App. 1976)).
Of course, not every offense committed by a public official
involves official misconduct. See Craig v. Texas,
19 S.W. 504
(Texas Crim. App. 1892) (holding that drunkenness in office did
not involve official misconduct); Hall v. Texas,
736 S.W.2d 818,
819-20 (Tex. Ct. App. 1987) (involving "nothing more than an
individual driving an automobile in a negligent manner"). We
need not debate the outer limits of the crime of official
misconduct. At oral argument, the Attorney General urged us to
accept an expansive interpretation of 2C:30-2 that might possibly
subject police officers to liability for official misconduct
whenever they violate the law. In a context like this, the
statute itself confines the crime of official misconduct to those
circumstances in which an officer refrains from performing a duty
to "obtain a benefit for himself or another or to injure or to
deprive another of a benefit." See State v. Scirrotto,
115 N.J. 38, 45-46 (1989) (defining, in the analogous context of bribery,
the meaning of "benefit"). So, for example, an off-duty officer
who assaults an opponent in a weekend softball game is not
realistically trying to deprive that individual of a benefit or
to obtain a benefit for himself or his teammates. However, by
refraining from performing his duty to turn in Hinds, although he
would have necessarily turned in himself, Borsari conferred a
benefit on Hinds and also obtained a benefit for himself.
Borsari cannot escape that responsibility by conspiring with a
thief. The trial court below understood this distinction and
correctly impressed upon the jury in the charge that Borsari
could not be guilty of official misconduct unless "his failure to
act [was] done with the purpose to obtain a benefit for himself
and/or for others."
The subsidiary question is whether Hinds may be found guilty as an accomplice to the crime of official misconduct. Although we denied Hinds' cross-petition for certification on the issue of accomplice liability, 140 N.J. 276 (1995), principles of justice require that we consider the issue. Hinds argues that he is not in any manner a public official and that it would be clearly improper to apply the official misconduct statute to a private person. If the statute applies to Borsari, it functions to enhance the penalties imposed upon him as a public official. Hinds asserts that no reason in law exists to extend that policy of enhancement to a private citizen.
Yet, our decisions have held that a private person may be an accomplice to official misconduct. See State v. Bryant, 257 N.J. Super. 63, 68 (App. Div. 1992) (finding private person who brought together corrupt public officials for bribery scheme guilty of official misconduct). We see nothing to add to Judge D'Annunzio's discussion of the issue in Bryant, in which the court determined that "N.J.S.A. 2C:2-6d . . . anticipates the defense of lack of capacity" for accomplice liability to official misconduct. Id. at 67. The Section provides:
A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by another person for whose conduct he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
The Bryant court further noted that "[m]isconduct by public
officials frequently is encouraged, aided and facilitated by
persons outside government and, therefore, accomplice liability
is consistent with the statutory aims of deterrence and
punishment implicit in N.J.S.A. 2C:30-2." Bryant, supra, 257
N.J. Super. at 68 (footnote omitted). Bryant is consistent with
federal law on the issue of the accountability of an aider and
abettor or conspirator for status crimes. See, e.g., United
States v. Ruffin,
613 F.2d 408, 413 (2d Cir. 1979) ("Where the
principal is found guilty of a criminal offense . . . it is
undisputable that a person may be convicted as an aider and
abettor . . . even though he may lack the capacity to violate the
substantive criminal statute."); United States v. Lester,
363 F.2d 68, 72-73 (6th Cir. 1966) (holding defendants liable for
conspiring to willfully cause police officers to act "under color
of State law" to deprive third party of civil rights even though
police officers were found innocent of any wrongdoing and
defendants lacked capacity to act "under color of State law"),
cert. denied,
385 U.S. 1002,
87 S. Ct. 705,
17 L. Ed.2d 542
(1967).
Defendant insists that Bryant is not applicable because it
relates to the first prong of official misconduct, the
unauthorized exercise of official function. Still, we think that
the principles are similar. In People v. Teitelbaum,
526 N.Y.S.2d 230 (App. Div. 2d Dept. 1988), a New York court treated
as an accomplice to official misconduct one who offered a sexual
inducement to an officer to refrain from issuing a summons.
Hinds offered Borsari an inducement (free rein of the store) to
refrain from performing his duty to turn in Hinds. Obviously, in
the retrial of this case the jury must be charged that to be
found guilty of accomplice liability Hinds must have acted with
the purpose of promoting or facilitating the substantive offense
for which he is charged as an accomplice. Hinds should not be
liable for official misconduct in the absence of proof that he
shared with Borsari the intent to abuse Borsari's office.
As for Borsari, to convict him of official misconduct, the
jury must find that he was a public servant at the time of the
alleged crime, and that he refrained from performing an act that
he was required to perform as part of his office, with the
purpose to benefit himself or another, or to injure or deprive
another of a benefit. In its official misconduct charge to the
jury below, the trial court focused the jury's attention on the
"joint criminal activity" of the two defendants and the fact that
Borsari "protect[ed] himself and Hinds by seeing that the
criminality of them would not be brought . . . to the attention
of others who would take some action to bring [Borsari and Hinds]
to justice." Such misconduct is sufficiently related to
Borsari's status to sustain his conviction of official
misconduct. See State v. Bullock, supra, 136 N.J. at 153. We
surmise from the evidence in this case that a jury could clearly
find that Hinds shared Borsari's intent to abuse his office.
The judgment of the Appellate Division on the official
misconduct count is reversed. The charge of official misconduct
is remanded to the Superior Court for retrial with the remaining
counts.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN, and COLEMAN join in JUSTICE O'HERN's opinion.
NO. A-61 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHN F. HINDS,
Defendant-Respondent.
DECIDED April 10, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY