State v. MaioranaState v. Maiorana
Defendant Mary Ann Maiorana appeals from her conviction of misconduct in office (
The United States Department of Housing and Urban Development (HUD) made block grants to Bergen County to be used
Codefendant Charles Oglesby1 was employed by the County Community Development Office from September 1981 until January 1986, holding various job titles and progressing from a “cost estimator” to an “assistant planner.” In the latter capacity, Oglesby was assigned to monitor community development activities (including the expenditure of grant monies) for approximately ten municipalities in the central region of Bergen County, including the Township of Saddle Brook. For about two years before Oglesby left the employ of the Community Development Office, he had defendant engaged in a romantic affair. Allegedly in January 1986 that relationship ended when Oglesby began living with another woman.
After Oglesby resigned his position with the county, he was appointed by Peter LoDico, the Mayor of Saddle Brook, as the mayor‘s alternate to the Central Bergen Regional Community Development Council, an unsalaried position. After January 1986, defendant had no further social contact with Oglesby although they met occasionally at meetings of the Regional Community Development Council, which he attended as alternate for the mayor of Saddle Brook and she attended as part of her official duties. Oglesby was elected to serve as the vice-chairman of the regional council and regularly reported back to Mayor LoDico on Regional Council Community Development matters.
Township engineer is in the process of working with the county since Market Street is a county road to obtain their input on plans, once this is approved we should be able to move quickly. The business district study is in the process and report should be forthcoming at a future date.
At trial, the mayor conceded that there was no study nor were there any reports in progress at that time.
Oglesby asked the mayor to appoint him to do the feasibility study of Market Street. The testimony was conflicting as to whether the mayor actually appointed Oglesby to do the study. Oglesby said he had been appointed. The mayor claimed he requested Oglesby to furnish “a proposal” for the study, which he never received, but he did not enter into a contract with Oglesby to perform the study. In any event, in November 1986, Oglesby told the mayor the town had “to show some sort of movement” on the grant and presented the mayor with an official voucher for $15,000 of the $25,000 grant for the central business revitalization study to be transferred to a Saddle Brook account. The mayor signed the voucher on November 25, 1986, and forwarded it to defendant at the County Community Development Office. The voucher stated that the money was to pay for a “preliminary draft.” When this voucher was received at the County Community Development Office, defendant countersigned it, and forwarded it to the county treasurer‘s office. She advised an assistant accountant in the county treasurer‘s office to begin the process of obtaining the HUD
Ultimately, the $15,000 was transferred to Saddle Brook in December 1986. At that time and in January 1987, Oglesby submitted two municipal vouchers to the municipality payable to him, one in the amount of $7,500 and the other in the amount of $10,000, which the mayor and the municipal treasurer refused to process.
On January 22, 1987, Oglesby came to defendant‘s office with a $10,000 voucher payable to him for the central business district revitalization study in Saddle Brook. This voucher contained a certification by Oglesby that the work involved had been completed. Defendant told Oglesby that the voucher could not be processed until she had something from the township to show his appointment to do the study. Using the telephone in defendant‘s office, Oglesby called the Saddle Brook town clerk, relaying his need for a letter confirming that he had been appointed to perform the study. When he hung up, Oglesby informed defendant she would be receiving the letter and left, leaving the voucher with her.
On the following day, January 23, 1987, Oglesby went to the municipal building in Saddle Brook and asked to speak with the mayor. He told the town clerk he wanted to speak to the mayor about obtaining the letter he needed regarding the study. Since the mayor was not in the office, the clerk telephoned him at his work place. She gave the telephone to Oglesby, who spoke directly to the mayor. When the clerk got back on the telephone, the mayor instructed her to prepare the letter and to coordinate with Oglesby as to its wording. The town clerk typed a letter, addressed to defendant as director of the Community Development Office, stating that the mayor had appointed Oglesby to prepare the central business district revitalization
When defendant learned that the letter of appointment from the mayor was on its way, she signed the voucher but held it until the mayor‘s letter was received on January 27, 1987. She attached the other documents to it, logged in the freeholder resolution date, made a copy of all the documents and placed it on the desk of one of her assistants for processing. The account clerk was uncertain whether to process the matter because the voucher was a copy rather than the “green” original, and because the voucher was signed by Oglesby rather than by the mayor. Defendant instructed the account clerk to post the paper and it was processed in the usual way. Although the account clerk testified that it normally takes about ten days for a voucher to be paid, the $10,000 check to pay Oglesby‘s voucher was issued on January 28, 1987, as the paper work was hand carried to the county treasurer‘s office at defendant‘s direction.
On January 28, 1987, an assistant accountant in the treasurer‘s office, called defendant to say he had earlier given Oglesby a check for $10,000 payable to Saddle Brook, but that Oglesby had returned and requested that it be replaced with a $10,000 check payable to him. Defendant told the accountant that the check should be made payable to Oglesby because it was he who had applied for payment and signed the voucher certifying
In late February 1987, the mayor telephoned defendant to ask whether Oglesby had been paid for a study. She explained to the mayor that Oglesby had submitted a voucher and had assured her the study had been submitted to the mayor. When the mayor told defendant he had not received the study, she wrote a letter to Oglesby dated February 24, 1987, which read as follows:
Dear Charles:
On January 27, 1987 you received check number 24188 in the amount of $10,000 for services rendered to the Borough of Saddle Brook in connection with the above captioned project. The Mayor has advised me that he was unaware that these funds had been expended. He further advised that he was waiting for a report from me on work completed to date which you advised him you submitted to me. Inasmuch as neither the mayor nor I have your report on work completed and further since you have been paid for work which you certify to be done, please forward documentation of the completed study within 15 days of receipt of this letter.
On March 2 or March 3, 1987, a council member in Saddle Brook, found in her mailbox a copy of vouchers and the letter from the mayor appointing Oglesby to do a study of Market Street in Saddle Brook. The next day, she went to the prosecutor‘s office to request an investigation.3
The investigation by the Bergen County prosecutor‘s office culminated in a series of witnesses being presented to the grand jury on December 14 and December 21, 1987. After a
Specifically, the second count of the indictment charges that defendant:
... did commit official misconduct when, as the Director of the Bergen County Community Development Program, with purpose to obtain funds belonging to the Township of Saddle Brook and the Bergen County Community Development Program for the benefit of CHARLES OGLESBY, committed acts relating to her office but constituting an unauthorized exercise of her official functions knowing such acts to be unauthorized, to wit:
1. She approved the payment of $10,000 in funds designated for the benefit of the Township of Saddle Brook to CHARLES OGLESBY without the necessary consent of the governing body of the Township of Saddle Brook;
2. She authorized this payment of funds for a written study to be performed by CHARLES OGLESBY without having first received such study, contrary to Bergen County Community Development procedure;
3. She authorized payment of a $10,000 check directly to CHARLES OGLESBY rather than to the Township of Saddle Brook, contrary to the Bergen County Community Development procedure; contrary to the provisions of N.J.S.A. 2C:30-2 and against the peace of this State, the government and dignity of the same.
Both defendant and Oglesby had been called as witnesses before the grand jury. Prior to defendant‘s appearance, she was presented with a waiver of immunity in the anteroom outside the presence of the grand jury. She was accompanied by her attorney who noted that her appearance was compelled by the provisions of
Nothing — under these circumstances, nothing you say then can be used against you in further criminal proceedings. Do you understand that?
She then executed a form indicating her assertion of her privilege. This was placed on top of the waiver of immunity form and reads as follows:
December 14, 1987 Pursuant to the provisions of N.J.S.A. 2A:81-17a(2) I hereby assert and claim my privilege against self-incrimination provided by law in connection with my testimony before the grand jury in this matter.
It was agreed between counsel that the grand jury would not be advised of her assertion of her privilege. She thereupon testified before the grand jury.
Defendant moved to dismiss count two of the indictment pursuant to
... formally approved or adopted by the Bergen County Board of Chosen Freeholders, nor have any rules or regulations ever been adopted by the Board of Chosen Freeholders, or any other federal or state governmental agency, mandating procedures to be followed by the Bergen County Community Development office in the administration of municipal community development projects....
She claimed that the procedures contained in the memorandum were in-house guidelines to be followed by municipal officials, and thus it could not be said that she violated procedures as alleged in the indictment. Defendant‘s motion was denied on April 4, 1988.
On this appeal, defendant raises the following legal arguments:
POINT ONE: A COUNTY OFFICIAL DOES NOT COMMIT MISCONDUCT IN OFFICE PURSUANT TO N.J.S.A. 2C:30-2 BY DEVIATING FROM INTERNAL OFFICE PROCEDURES GOVERNING MUNICIPAL EMPLOYEES AND AGENCIES. [Emphasis in original.]
POINT TWO: DEFENDANT‘S CONVICTION IS FATALLY TAINTED BY PROSECUTORIAL ACCESS TO, AND USE AGAINST HER, OF HER IMMUNIZED TESTIMONY BEFORE THE GRAND JURY OBTAINED BY COMPULSION (Not Raised Below).
POINT THREE: THE JURY WAS NOT PROPERLY INSTRUCTED AS TO THE MISCONDUCT IN OFFICE CHARGE (Not Raised Below).
POINT FOUR: THE CHARGES TRIED BELOW VARIED FATALLY FROM THE INDICTMENT RETURNED BY THE GRAND JURY. POINT FIVE: THE TRIAL COURT IMPROPERLY FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE CONTAINED IN N.J.S.A. 2C:21-15 (Not Raised Below).
I. Denial of motion to dismiss count two of the indictment.
We affirm the denial of defendant‘s motion to dismiss count two of the indictment substantially for the reasons given by Judge Sybil R. Moses in her written opinion published as State v. Maiorana, supra.
II. Adequacy of jury charge.
Defendant claims the charge given by the trial judge4 on misconduct in office under
We agree that the trial judge has a mandatory duty to charge the jury with respect to the fundamental principles of law which are applicable to the facts in a given case. State v. Gelb, 212 N.J. Super. 582, 588, 515 A.2d 1246 (App.Div. 1986), certif. den. 107 N.J. 633, 527 A.2d 456 (1987). Defendant did not request any particular charge to the jury, nor object to the charge as delivered, nor to the answer to the jury‘s question with respect to the misconduct in office charge. “... [N]o party may urge as error any portion of the charge to the jury or omissions therefrom unless he objects thereto before the jury retires to consider its verdict ...,” in the absence of plain error.
III. Lesser included offense.
There is no merit to defendant‘s contention that the trial judge should have charged the jury on misapplication of entrusted property as a lesser included offense pursuant to
In State v. Crisantos (Arriagas), 102 N.J. 265, 275, 508 A.2d 167 (1986), the Supreme Court noted that the decision to charge
It is conceded that defendant did not receive any of the $10,000 obtained by Oglesby. The State‘s theory of the case was that defendant violated office procedures of the Community Development Office to benefit Oglesby because of her romantic attachment to him. Defendant argued, in her counsel‘s summation to the jury, that she was no longer interested in Oglesby‘s welfare in January 1987, and thus did not become his accomplice, but rather was duped by him and perhaps by the mayor. Thus, argues defendant, the trial judge had a duty to instruct the jury on the offense of misapplication of government property under
IV. Use of immunized testimony by the grand jury.
Defendant‘s contention that the indictment should be dismissed because it was returned by the same grand jury that heard her immunized testimony is without merit. In State v. Vinegra, 73 N.J. 484, 376 A.2d 150 (1977), the Supreme Court held that,
... the receipt by a grand jury of evidence obtained in violation of a person‘s Fifth Amendment rights does not infect an indictment based on such testimony.... [S]uppression of such grand jury evidence (and fruits thereof) at trial adequately protects a defendant‘s Fifth Amendment rights. [Id. at 490, 376 A.2d 150]
State v. Strong, 110 N.J. 583, 542 A.2d 866 (1988), has not overruled State v. Vinegra, as argued by defendant. In Strong, the defendant was given immunity pursuant to
Under this form of immunity the State is barred from using compelled testimony or any evidence that was developed as a result of such testimony to prosecute a defendant who had given the compelled testimony, but it can use any evidence that is found or derived through means totally independent of the compelled testimony; and it may use such independently obtained evidence to prosecute a defendant even if the prosecution is for the same crime or criminal events that were the subject of the compelled testimony. [110 N.J. at 589, 542 A.2d 866]
If the Strong court had intended to overrule the conclusion of the Vinegra court, which held that a person may be indicted by the same grand jury who heard his immunized testimony, it
V. Failure to conduct a Kastigar hearing.
Defendant argues that the trial judge should have conducted a Kastigar hearing, as our Supreme Court required in State v. Strong, supra. Under use and derivative use immunity, when the State seeks to use evidence against a defendant relating to criminal acts or events that were the subject of earlier compelled testimony obtained from the defendant in exchange for immunity, the State must prove at a hearing by clear and convincing evidence that such evidence was developed or obtained from sources or by means entirely independent of, and unrelated to, the earlier compelled testimony. 110 N.J. 595-596, 542 A.2d 866. In our decision in State v. Vinegra, we agreed with the trial judge that the use/fruits immunity provided to a public employee under
The burden of proof is upon the State to establish clearly and convincingly that the evidence it proposed to present at trial was developed or obtained from sources or by a means entirely independent of and unrelated to the earlier compelled testimony. State v. Strong, supra, 110 N.J. at 596, 542 A.2d 866. Our review of the transcripts of both the grand jury proceedings and the trial reveals that most of the witnesses who testified before the grand jury also testified at trial. Thus, the knowledge of those witnesses, as reflected by their grand jury testimony, constituted evidence against defendant separate and apart from defendant‘s testimony before the grand jury. From that it appears the State may have had sufficient evidence of defendant‘s guilt of the charge, developed or obtained from sources, or by means entirely independent of, and unrelated to, her compelled testimony before the grand jury. At trial, no reference was made to defendant‘s earlier grand jury testimony, nor was that testimony used by the State in presenting its case.
However, the assistant prosecutor who tried the case was the same assistant prosecutor who presented the matter to the grand jury and who, upon defendant‘s exercise of her Fifth
Some cases have recognized that, where there is prosecutorial access to, or familiarity with, compelled testimony, such prosecutorial use for purposes of a later prosecution will be inferred, and a heavy burden of proof is placed upon the State to negate this inference of prosecutorial use. State v. Strong, 110 N.J. at 606, 542 A.2d 866. A similar heavy burden is placed on the State to show that its pretrial investigation of a crime was insulated from use of any compelled materials. Ibid. As in State v. Strong, the record in this case shows that the assistant prosecutor not only was directly exposed to defendant‘s immunized testimony, but may have made actual use of it in preparing the case against her.
In reinstating an order of the Mercer County Court compelling an immunized witness to testify before a grand jury, the Supreme Court in In Re Petition to Compel Testimony of Tuso, 73 N.J. 575, 376 A.2d 895 (1977), found its view
... buttressed by the precaution the State took in sealing and certifying the record of evidence it proposed to use at Tuso‘s trial and lodging it with the court; also by the plan to use a different Deputy Attorney General before Grand Jury No. 27 from the one assigned to try Tuso. [citation omitted] [73 N.J. at 581, 376 A.2d 895]
The substantial precautions taken by the State in Tuso suggests recognition of the inherent dangers in having the same prosecutor who examines an immunized witness before the grand jury thereafter prepare and try the case against that
Accordingly, the matter is remanded to the trial judge for a Kastigar hearing, at which the burden of proof will be upon the State to establish clearly and convincingly that the evidence adduced at trial against this defendant was developed or obtained solely from sources or by means entirely independent of and unrelated to her earlier compelled testimony before the grand jury. Furthermore, the trial judge shall ascertain the extent to which the prosecutor used the compelled testimony in investigating, preparing or trying the case against defendant. If, after the remand hearing, the trial judge concludes there has been a violation of the use/fruits immunity accorded to defendant pursuant to