State v. FerroState v. Ferro
This appeal primarily involves the issue of whether, as a prerequisite to conviction under
Inasmuch as the issue is one of law, we refer only to the salient features of the record.
In one count of the indictment defendant was charged with receiving or offering to receive $250 from one Vincent Salerno as a bribe to obtain, through use of his apparent power and influence, actions by the Probation Department of Hudson
The State adduced testimony concerning numerous meetings between defendant and Messrs. Salerno and Onysko in which discussions of agreements of the kind charged in the indictment took place. Prior to these meetings body microphones were concealed on Salerno and Onysko with their permission. The conversations were monitored and taped by a detective of the State Police. Testimony by the detective as to the contents of the tapes, corroborated by Salerno and Onysko, constituted the bulk of the State‘s case.
Defendant testified that he had been the leader of the Democratic party in a certain section of Jersey City since 1950, but held no government position, although he had once been chief security officer for Hudson County. Defendant stated that Salerno had approached him to see what he could do about a postponement and defendant advised him to see an attorney and to obtain letters from reputable citizens in his behalf. He explained that he had introduced Salerno to a doctor because Salerno claimed he was ill. Defendant denied, as maintained by the prosecution‘s witnesses, that he stated he would secure a medical certificate and would intervene with the probation officer. He further denied receipt of any bribe and stated that Salerno had loaned him $100 and Onysko had loaned him $400. He also claimed that he had rejected a request from Salerno to fix the case, saying to him, “no such possibility existed.” He also asserted that both men informed him he was taped and sought to force his cooperation through threats.
The jury found defendant guilty on both counts after deliberating 40 minutes.
The statutory provision under which the indictment was returned against the defendant provides:
Any person who directly or indirectly gives or receives, offers to give or receive, or promises to give or receive any money, real estate, service or thing of value as a bribe, present or reward to obtain, secure or procure any work, service, license, permission, approval or disapproval, or any other act or thing connected with or appertaining to any office or department of the government of the state or of any county, municipality or other political subdivision thereof, or of any public authority, is guilty of a misdemeanor. [ N.J.S.A. 2A:93-6 ].
The two-count indictment largely parallels the language of the statute charging defendant with committing like offenses with respect to the two individuals in that he;
knowingly, willfully and corruptly did receive, offer to receive, and promise to receive money, * * * as a bribe, present, and reward to obtain, secure, and procure services, permission, approval, disapproval and other acts, and things connected with and appertaining to offices and departments of the government * * *, that is, the use of his apparent power and influence to obtain actions by the Probation Department * * * and dispositions in the Courts * * *, all in violation of the provisions of
N.J.S.A. 2A:93-6 .
Our research has disclosed no legislative statement or history which might assist us in arriving at the legislative intent. Consequently, we are left to apply customary rules of construction of legislative acts.
It is elementary that penal statutes will be strictly construed. See, e.g., State v. Carbone, 38 N.J. 19 (1962). The rule of strict construction, however, does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed or prevent a court from giving effect to the terms of the statute in accordance with their fair and natural acceptation. State v. Meinken, 10 N.J. 348, 352 (1952); State v. Frost, 95 N.J. Super. 1 (App. Div. 1967). Thus, the clear implication and intendment of a penal statute cannot be denied. Nor will a construction which will aid the evasion of the provision be favored. Id. at 3.
Applying these principles, the statute in question must be given its most evident and reasonable meaning consonant with legislative intendment. Significantly,
In the latter context. it has been observed that
Defendant points to the fact that the common law offense of bribery could only be predicated on a reward to a judge or other official concerned with the administration of justice. State v. Ellis, 33 N.J.L. 102 (Sup. Ct. 1868); State v. Begyn, 34 N.J. 35, 47 (1961). He argues that this element of the crime of common law bribery became an essential part of the statute when bribery became a statutory offense and that concept has been carried through in the later revisions of the legislation. These later enactments, it is
Defendant argues that the basis for enacting L. 1898, c. 235, § 30,1 from which
The very language of
Later legislatures also recognized a social interest in keeping certain types of nonofficial action free from corrupting influences. This interest extended not only to corruption in relation to public office, but also to corruption of other individuals in positions of trust. See
The early bribery statutes were recodified in the revision of 1937. The amendment to § 30 is of pertinent concern. It provided:
Any person who shall directly or indirectly give or receive, or promise or agree to give or receive, any money, goods, chattels, real estate, or any other thing, present or reward, to secure or obtain, or to give out or grant the printing of blanks, notices, advertisements or any other printing, or any other work or thing connected with or appertaining to any office or department of the government of the state or of any county, municipality or other political subdivision thereof, shall be guilty of a misdemeanor. [R.S. 2:114-6]
State v. Sullivan, 2 Wash. 2d 1, 96 P.2d 1117 (Sup. Ct. 1939). See also, People v. Woodward, 136 Cal. App. 149, 28 P. 2d 36 (D. Ct. App. 1934), which held that a statute which is analogous to
Authority for this view may be found in State v. Sullivan, supra, where the Washington Supreme Court construed a statute similar to the one before us holding that its statute did not require that a public official be in any way involved in the bribe. What the Washington court said with respect to the statute before it for interpretation is equally applicable to this case:
* * * On the other hand, we believe that § 2333 was primarily designed to prevent the use of influence over public officials, either
actual or feigned, as a means for extracting money from individuals willing to attempt the purchase or coercion of that character [corruption of public officials].
Accordingly, we hold that it is not necessary to a conviction under
Defendant also maintains, under the plain error rule, that the prosecutor made improper and prejudicial remarks on summation justifying a new trial. The prosecutor stated:
To be honest with you, in my relatively short legal career I‘ve tried over two hundred criminal cases. I have to be honest now. I don‘t know what to say. It‘s just that this case, this evidence, I submit, is so overwhelming, so clear-cut, so convincing, so accurate and truthful, no reason to doubt anything, that it would be insulting your common intelligence * * *.
This comment, as well as the prosecutor‘s references to “what you have running around in Hudson County, etc.,” were obviously improper as tending to suggest that the prosecutor had personal knowledge of guilt from his expertise and wholly aside from the evidence produced at trial. See State v. Farrell, 61 N.J. 99, 103-104 (1972). However, we are not satisfied that these improprieties were of the dimension of plain error or had the clear capacity to produce an unjust result. State v. Macon, 57 N.J. 325, 335-336 (1971); State v. Hipplewith, 33 N.J. 300, 314 (1960). Cf. State v. DiPaglia, 64 N.J. 288, 297 (1974).
Affirmed.
Notes
This statutory provision provided:
Any person who shall directly or indirectly give, or receive, or promise, contract or agree to give or receive, any sum or sums of money, or any goods, chattels, gift, lands or real estate, or any other thing, present or reward whatsoever, to secure or obtain, or to give out or grant the printing of blanks, notices, advertisements or any other printing, or any other work or thing, connected with, or in or appertaining to any office or department of the government of this state, or any office or department of the government of any county, city, town, township, borough or other place in this state, shall be guilty of a misdemeanor