State v. BonceletState v. Boncelet
Defendant Charles G. Boncelet appeals from his conviction on an indictment for violations of
Following a grand jury investigation of the financial affairs of the Borough of Carteret, defendant, a member of the borough council and chairman of its finance committee during the year 1965, was indicted in a four-count indictment. The first two counts charged that between September 1 and December 16, 1965 he, together with three other councilmen, voted to incur liabilities, chargeable to four line items in the budget, in amounts which exceeded the sums appropriated, in violation of
The State‘s proofs were lengthy and involved. Without detailing them here, there was evidence from which the jury could have concluded that between September 1, 1965 and December 16, 1965 the council, by a majority vote of defendant and three of his colleagues (the latter were separately indicted and tried, see State v. Bohanek, et al., Docket A-1613-67), overexpended the appropriations of four line items in the 1965 budget as follows:
(a) Recreation, Other Expenses Account $6,376.71 (b) Free Public Library, Other Expenses Account 2,408.78 (c) Parks and Playgrounds, Other Expenses Account 4,343.78 (d) Street Cleaning, Other Expenses Account 4,197.54
and that on December 29, 1965 they voted to transfer funds from other accounts to make up the overexpenditures, purportedly pursuant to
The jury found defendant guilty on all four counts. He was sentenced to pay a fine of $100 on the first count, and $50 on the fourth count, and sentence was suspended on the second and third counts.
Defendant challenges his convictions on several grounds. They may be summarized as follows: (1) he was entrapped into waiving immunity and testifying voluntarily before the grand jury, (2) the trial judge‘s charge was erroneous; (3) the indictment was constitutionally defective in that others guilty of similar violations were not indicted; (4) the prosecution was politically motivated, and (5) there should have been a judgment of acquittal because (a) no criminal intent was proven and (b) “defendant‘s actions resulting in an indictment for violation of R.S. 40A:4-57 and R.S. 2A:135-5 were nevertheless lawful under R.S. 40A:4-58 and 59.” We consider them in inverse order.
The core argument advanced by defendant is that the overexpenditure prohibited by law is the overexpenditure of the total budget rather than a line item thereof, and that he was guilty of no crime since the transfers made on December 29, 1965 added sufficient funds to each overexpended account to make up for the alleged overexpenditure. Implicit in this argument is the contention that municipal obligations may be incurred and paid for notwithstanding that they result in the overexpending of the line item to which they are chargeable, in the expectation that at the year‘s end there will be unexpended sums in other line items which may be transferred to the overexpended accounts, or, alternatively, that illegality in the overexpenditure of a line item is cured by a subsequent transfer of funds from other line items.
We are satisfied and hold that the Local Budget Law,
These overexpenditures were not rendered legal by the transfers from other accounts.
a. Should it become necessary, during the last 2 months of the fiscal year, to expend for any of the purposes specified in the budget an amount in excess of the respective sums appropriated therefor and there shall be an excess in any appropriations over and above the amount deemed to be necessary to fulfill the purpose of such appropriation, the governing body may, by resolution setting forth the facts, adopted by not less than 2/3 vote of the full membership thereof,
It is clearly worded and does no more than furnish the means whereby under certain conditions the amount budgeted in a given account may be augmented by the excess remaining in another account. The right to transfer from an account depends upon whether there is an unexpended balance, and is limited to the amount of such balance. Here, as noted, the transfers from two line items voted by the majority of the council involved sums greater than the excess remaining in them.
Defendant also urges that criminal intent was the necessary element of the offenses charged and, in the absence of proof thereof, he “was wrongfully adjudged guilty of a crime.” The trial judge properly instructed the jury that criminal intent was an essential element of the common law offense of misconduct in office,
We find the proofs adequate to establish the necessary intent. There was testimony which, if believed, established that defendant, a college graduate and successful businessman who was serving his third year as a councilman and was chairman of the council‘s finance committee, knew of the cited provisions of the Local Budget Law and of the penalty provided by
As to the second and fourth counts for violation of
Defendant next urges that (1) the prosecution against him was politically motivated, and (2) the course of conduct which led to the overexpenditures charge was sanctioned by customary usage, and in singling him out for
Defendant levels two criticisms at the charge — that the trial judge (1) shifted the burden of proof when the jury was instructed to determine who was “holding back or presenting excuses,” and (2) wrongfully permitted the jury to consider the indictment for evidentiary purposes.
We are satisfied that the quoted excerpt did not have the effect of shifting the burden of proof to defendant. An abstract from the charge is not to be considered in isolation, but in the light of the entire charge. Where the charge as a whole is clear and correct there is no error. State v. Neff, 67 N.J. Super. 213, 221 (App. Div. 1961). The challenged excerpt is found in that portion of the charge dealing with the
During its deliberations the jury requested a copy of the indictment. While ordinarily it would not have been error to send the indictment into the jury room, State v. Profita, 113 N.J.L. 330, 334 (Sup. Ct. 1934), aff‘d on other grounds, 114 N.J.L. 334 (E. & A. 1935); State v. Begyn, 58 N.J. Super. 185, 195 (App. Div. 1959), aff‘d on other grounds, 34 N.J. 35 (1961), there was an objection by counsel for defendant. The objection was sustained and in lieu thereof the trial judge summarized the various counts in the indictment for the benefit of the jury, while cautioning the jurors that the indictment was nothing more than a mere formal written charge and neither the indictment nor the allegations set out therein were evidential in any respect. We find no error. It is to be assumed that the jurors followed the court‘s instructions. State v. Curcio, 23 N.J. 521 (1957).
Defendant urges that the indictment was fatally defective because he was entrapped into waiving immunity and giving testimony before the grand jury, citing State v. Fary, 19 N.J. 431 (1955); State v. Sarcone, 96 N.J. Super. 501 (Law Div. 1967), and State v. Rosania, 96 N.J. Super. 515 (Law Div. 1967). He argues that he should have been advised that he was one of the targets of the grand jury‘s investigation and should have been advised as to his privilege against self-incrimination. This argument is wholly lacking in substance. The investigation into the fiscal affairs of the Borough of Carteret for the period named was a general one ordered pursuant to
The record is devoid of any showing that the indictment was based on defendant‘s testimony before the grand jury. On the contrary, the evidence adduced at the trial consisted mostly of municipal records and supporting testimony by the borough clerk, treasurer and accountant, and the municipal accountant who had conducted the investigation by order of the court.
Our careful examination of the record satisfies us that defendant had a full and fair trial, free of error, in which the issue of his guilt or innocence was submitted to the jury in a charge which correctly delineated the issues involved and the law applicable thereto. We find no cause to disturb the verdict.
Affirmed.