17 A.3d 293
N.J. Super. Ct. App. Div.2011Background
- Kennedy was indicted on heroin possession, conspiracy to possess heroin, hindering his own apprehension, and tampering with physical evidence; he pled guilty to tampering with physical evidence while the State dismissed the other charges, and the issue of whether tampering is an offense involving dishonesty was to be decided by the trial court.
- Defendant admitted swallowing heroin when approached by police as part of the factual basis for his plea.
- The trial court sentenced Kennedy to three years of probation and found tampering with physical evidence is not an offense involving dishonesty, thus not requiring forfeiture of public employment.
- The State appealed the part of the sentence denying forfeiture of Kennedy’s public employment; Kennedy moved to dismiss the appeal as a challenge to a fourth-degree offense, but the court reserved decision.
- The Appellate Division held that the forfeiture of public employment is a collateral consequence and appealable, and that tampering with physical evidence is an offense involving dishonesty requiring forfeiture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is tampering with physical evidence an offense involving dishonesty within 2C:51-2(a)(1)? | State argues tampering involves dishonesty and mandates forfeiture. | Kennedy contends it is not an offense involving dishonesty. | Yes; tampering with physical evidence is an offense involving dishonesty requiring forfeiture. |
| Is the State's appeal from the forfeiture determination permissible? | State contends collateral consequence permits appeal. | Kennedy argues no appeal from such collateral decision. | Yes; appeal is permissible as a collateral consequence issue. |
| Was the trial court’s failure to impose forfeiture proper absent the State's appeal? | State seeks forfeiture based on statute. | Court should refrain absent decision on merits. | Remanded for entry of amended judgment including forfeiture. |
Key Cases Cited
- State v. Ercolano, 335 N.J. Super. 236 (App.Div.2000) (collateral forfeiture authority; appealability acknowledged for collateral consequences)
- Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561 (2002) (discusses appealability of illegal sentences; collateral consequences)
- State v. Parolin, 339 N.J. Super. 10 (App.Div.2001) (recognizes State may appeal illegal sentence; collateral consequence framework)
- State v. Veney, 327 N.J. Super. 458 (App.Div.2000) (limits on State’s right to appeal a sentence for a fourth-degree offense)
- State v. Mendez, 175 N.J. 201 (2002) (describes tampering with evidence as deceptive, supporting dishonesty finding)
- Bolus v. Fisher, 785 A.2d 174 (Pa. Commw. Ct.2001) (tampering as obstruction; inherently dishonest)
- Altobello v. Borden Confectionary Prods., Inc., 872 F.2d 215 (7th Cir.1989) (fabrication of evidence as deceit; dishonesty)