STATE OF NEW JERSEY VS. CARLIA M. BRADYÂ (15-05-0240, SOMERSET COUNTY AND STATEWIDE)Â (CONSOLIDATED)(RECORD IMPOUNDED)
A-0483-16T4/A-0484-16T4
| N.J. Super. Ct. App. Div. | Sep 11, 2017|
Check Treatment RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0483-16T4
A-0484-16T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
September 11, 2017
v.
APPELLATE DIVISION
CARLIA M. BRADY,
Defendant-Respondent.
__________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLIA M. BRADY,
Defendant-Appellant.
___________________________________
Argued May 23, 2017 – Decided September 11, 2017
Before Judges Messano, Espinosa and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 15-05-0240.
W. Brian Stack, Assistant Prosecutor, argued
the cause for appellant in A-0483-16 and
respondent in A-0484-16 (Michael H.
Robertson, Somerset County Prosecutor,
attorney; Mr. Stack, on the briefs).
Timothy R. Smith argued the cause for
respondent in A-0483-16 and appellant in A-
0484-16 (Caruso, Smith, Picini, PC,
attorneys; Mr. Smith, of counsel and on the
brief; Steven J. Kaflowitz, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
These appeals require us to consider the inherent duties of
a judge of the Superior Court of New Jersey, whether those
duties include an obligation to take whatever steps necessary at
any time to "enforce an arrest warrant," and if such a duty
exists, what must a judge do to perform, and not refrain from
performing, that duty. A Somerset County grand jury indicted
Carlia M. Brady, a judge assigned to the Middlesex Vicinage,
charging her with second-degree official misconduct, N.J.S.A.
2C:30-2b (count one); and two counts of third-degree hindering
the apprehension or prosecution of Jason Prontnicki, N.J.S.A.
2C:29-3a(1) and a(2) (counts two and three). The Law Division
judge granted defendant's motion to dismiss count one of the
indictment but denied the motion as to counts two and three.
The judge subsequently denied motions for reconsideration filed
by defendant and the State of New Jersey.
We granted the State's motion for leave to appeal (A-0483-
16), as well as defendant's motion for leave to appeal (A-0484-
16), and consolidated both appeals to issue a single opinion.
We now affirm.
2 A-0483-16T4
I.
We summarize the evidence produced by the State before the
grand jury, then consider the legal instructions the prosecutor
gave to the panel and the judge's reasoning in deciding
defendant's motion.
A.
The Woodbridge Police Department initially commenced the
investigation, which was transferred subsequently to the
Somerset County Prosecutor's Office.1 Prontnicki and defendant
started dating in late 2012 and began living together in
defendant's home in Woodbridge by March 2013. Defendant took
the oath of office as a Superior Court judge on April 5, 2013.
On April 29, 2013, the Old Bridge municipal court issued a
warrant for Prontincki's arrest, charging him with robbery of a
pharmacy, possession of a weapon — a crowbar — for an unlawful
purpose and unlawful possession of a weapon.
Shortly after 10:00 a.m. on the morning of June 10, 2013,
while on vacation, defendant went to the Woodbridge Police
Department to report one of her cars was missing. Woodbridge
Police Officer Walter Bukowski, along with Officer Robert
Bartko, interviewed defendant.
1
Because defendant was a sitting judge in Middlesex County,
where the crimes allegedly occurred, venue for the prosecution
was transferred to Somerset County.
3 A-0483-16T4
She advised police that Prontnicki originally told her he
had loaned the car to his brother in Bayonne. However, when the
brother failed to return the car by 2:00 a.m., she and
Prontnicki drove to Bayonne to recover the car. On the way,
Prontnicki changed his story and told defendant that he lent the
car to a friend. Together, defendant and Prontnicki drove
around Hudson County for two hours, were unable to locate the
car and returned to Woodbridge. Prontnicki returned to Hudson
County at 6:00 a.m. to continue the search, and defendant told
him she would report the car stolen if she did not hear from him
by 10:00 a.m.
Utilizing various databases, police located the outstanding
warrant for Prontnicki's arrest for the Old Bridge robbery, as
well as another outstanding arrest warrant. They also
determined Prontnicki's driver's license was suspended.
Bukowski testified that he and Bartko told defendant
[Y]ou're an officer of the court, you have
an obligation or it would be in your best
interest to let us know if [Prontnicki] is
somewhere . . . now or if once we left, if
she came back that . . . it would be her
duty to call us and let us know if
[Prontnicki] came home.
Police tried unsuccessfully to locate Prontnicki's friend who
allegedly had the car. Defendant wanted to sign a complaint
against the friend, but police told her she could only sign a
4 A-0483-16T4
complaint against Prontnicki, who actually took the car.
Defendant declined until she spoke to her family and attorney,
and then left the police station. Police periodically rode by
defendant's home afterwards and saw the missing car parked in
her driveway at 9:35 p.m. They knocked on her door, but no one
answered.
Investigators secured defendant's cellphone records as part
of the investigation. Between 12:36 p.m. and 12:43 p.m. on June
10, defendant sent text messages to friends, in which she
acknowledged police told her of the robbery, which occurred
after Prontnicki moved in with her and after defendant became a
judge. In one text, defendant wrote, "I can't have [Prontnicki]
in my house [because] I [would] now be harboring a criminal. I
[would] have to report him."
Shortly thereafter, Prontnicki called defendant's
cellphone. Defendant recounted the conversation in a text
message she sent to a friend at 1:37 p.m. on June 10:
[Prontnicki] just called to tell me he got
the car and will bring it home. I told him
he can't stay with me [because] he has a
warrant out for his arrest and I am required
to notify authorities when I know someone
has a warrant. So I told him he must leave
after he drops the car off as I must go to
the police.
Prontnicki corroborated these events in a statement to
police after his arrest. He arrived at defendant's home with
5 A-0483-16T4
the car, and defendant's father let him into the house. He and
defendant went into the garage and spoke for approximately one
hour. She told him she was "supposed to call the Woodbridge
Police when he arrived," and Prontnicki told her to "do what you
have to do." Prontnicki refused defendant's offer of money for
cab fare and left for his brother's house in Woodbridge.
Defendant called Woodbridge police at 4:36 p.m. and asked
to speak to Officer Bartko; he was unavailable, but defendant
left the following voice mail:
[T]his is Carlia Brady. . . . I sat with
you to fill out [an] incident report . . .
with regard to the unlawful taking of my car
. . . . I just wanted to report . . . that
. . . Prontnicki, the suspect . . . actually
returned it just now. . . . [I]t is in my
driveway. I haven't inspected it yet cause
it's raining and I didn't bring it into my
house because I didn't want it in my house
unless I can inspect it. . . . I just
wanted to let that be known. Also, to let
you know since there's a warrant out for his
arrest, he is not with me, but he is in
Woodbridge cause he left . . . my property
so please give me a call back. I, we need
to know whether an amended report needs to
be redone . . . or added, whatever I needed
to do. Please give me a call back . . . .
Defendant was also on vacation the next day, June 11. That
morning, she and Prontnicki had a two-hour and twenty-three
minute phone conversation. Prontnicki told police he asked
defendant when she would be home because he needed to pick up
some clothing; defendant told him she would be at the house
6 A-0483-16T4
between 3:00 p.m. and 4:00 p.m. Police, meanwhile, decided to
surveil defendant's home.
At 1:49 p.m., Prontnicki called defendant to confirm she
would be in her house as planned. At 2:14 p.m., defendant sent
a text message to a friend, in which she repeated Prontnicki's
denials of involvement in the robbery. She also wrote:
He . . . will turn himself in . . . when his
lawyer is able to come with him and
cooperate fully with the cops by giving them
everything he knows. He can't stay in my
house cos (sic) he has an arrest warrant
right now and I have a duty as a judge to
report all crimes and anyone with an arrest
warrant. So he is at his brother's house.
At 3:31 p.m., defendant again called police and left a
voicemail, advising that Prontnicki had returned her car and she
wanted to know when she could obtain an amended report. She did
not tell police about her conversations with Prontnicki, or that
she expected him at her home shortly.
At 3:48 p.m., Prontnicki called defendant as he drove to
defendant's home with his brother. Undercover police stationed
outside defendant's home observed Prontnicki exit the passenger
side of his brother's car. The garage door opened and defendant
was standing on the threshold. Prontnicki entered the garage,
the door shut, and he stayed for approximately one hour. Police
then saw the garage door open, and defendant and Prontnicki
appeared. Holding a duffel bag, Prontnicki returned to his
7 A-0483-16T4
brother's car, entered and drove away. Police stopped the car
some distance from defendant's home and arrested Prontnicki. In
the bag were multiple items of clothing and miscellaneous
papers. In his statement to police, Prontnicki said defendant
prepared a bag of his clothing before he arrived, and he
transferred the clothing to a duffel bag.
In text messages to friends sent immediately after
Prontnicki left, defendant described his claims that there was
no outstanding warrant for robbery, he was only wanted for
questioning, police arrested someone else for the crime and his
driver's license was not suspended. Minutes later, police
arrived and arrested defendant at her home.
The grand jurors heard a recording of defendant's
conversation with Bartko in the police vehicle as he took her to
headquarters. Among other things, defendant told the officer
she was not trying to break the law and was only helping her
boyfriend, who denied there was an outstanding warrant for his
arrest.
Defendant testified at length before the grand jury and
confirmed many of these events. However, defendant claimed that
during her visit to the police station on the morning of June
10, police told her to call them only when she knew Prontnicki's
exact whereabouts. She told them he might be at her home as
8 A-0483-16T4
they spoke, because he had keys to the house, and offered police
her keys. She suggested they surveil her home, but they refused
her offers. Defendant was concerned for her safety and told
police she did not want "to be in the middle." She would only
call them when it was safe, i.e., when Prontnicki was not
present, which was why she waited until Prontnicki left before
calling police after he returned her car.
Defendant asked police to see a copy of the arrest warrant,
but they refused. She offered them photographs of the Hudson
County street where she and Prontnicki searched for her car, but
the officers were not interested. Defendant did not want to
return to her home once she knew about the robbery warrant, but
police would not let her stay at the police station.
Defendant described in detail Prontnicki's return of the
car and the one-hour long conversation she had with him in the
garage. Her father offered Prontnicki cab fare.
Defendant insisted that the recordings of both her calls to
the Woodbridge Police Department lacked critical information she
had provided to the police. The prosecutor instructed the grand
jurors that both the State and defense had experts evaluate the
accuracy and authenticity of the recordings, and there was a
dispute between those experts. Defendant said that during the
first call on June 10, she told police Prontnicki was in
9 A-0483-16T4
Woodbridge, staying at his brother's house, and described its
location. Defendant specifically remembered telling police she
was "attempting to discharge any reporting obligations per
[their] instructions."
She again challenged the accuracy of the recorded
conversation of her second phone call to police headquarters.
Defendant claimed the recording omitted her statement that she
wanted to confirm that police had received the update of
Prontnicki's whereabouts she had provided the day before.
Defendant testified that on June 11, Prontnicki told her
his brother would come over to pick up his things. Instead,
Prontnicki opened the garage door with a remote control that he
had. He gathered some things, but defendant kept her distance
and urged him to turn himself in to police. Defendant said
Prontnicki left through the garage door, and, after she closed
the door, she intended to go to the police station. Police
arrived and arrested her, however, before she could leave.
Other witnesses who testified after defendant directly
contradicted portions of her testimony, specifically, the
interactions with police at headquarters on June 10, and the
events at defendant's home on June 11 when Prontnicki arrived
and retrieved his clothing.
10 A-0483-16T4
B.
Before any testimony, the prosecutor advised the grand
jurors that defendant was charged in two complaints with
hindering by harboring Prontnicki, knowing he was a fugitive
charged with robbery, N.J.S.A. 2C:29-3a(1), and by "deceiving
law enforcement by not immediately notifying law enforcement of
. . . Prontnicki's . . . whereabouts." N.J.S.A. 2C:29-3a(5).
The prosecutor further advised that he would make a "direct
presentation" on the charge of official misconduct, in that
defendant "failed to perform a duty . . . inherent in the office
of [S]uperior [C]ourt judge, that is to enforce an arrest
warrant for . . . Prontnicki by failing to adequately notify the
. . . Police Department of . . . Prontnicki['s] intended
appearance or presence at [defendant's] house." He explained,
the State contended defendant refrained from performing this
duty for her own benefit — to avoid the embarrassment of having
her boyfriend arrested — and for Prontnicki's benefit —
"avoiding jail."
The prosecutor provided written instructions to the grand
jury, including the elements of N.J.S.A. 2C:29-3a(1) and (2),2
and criminal attempt, N.J.S.A. 2C:5-1. As to official
2
The prosecutor never charged the grand jury with respect to
N.J.S.A. 2C:29-3a(5).
11 A-0483-16T4
misconduct, N.J.S.A. 2C:30-2b, the prosecutor began by generally
following Model Jury Charge (Criminal), "Official Misconduct
(N.J.S.A. 2C:30-2)" (Sept. 11, 2006). He then described "one of
the central issues in this case."
Is there a duty clearly inherent in the
office of [S]uperior [C]ourt judge? The
first question is does a . . . judge have an
inherent duty to enforce an arrest warrant?
The second question would be what does that
duty entail? And, third, did . . .
defendant refrain from performing that duty
in this case? These are all . . . issues
for you to decide.
[(Emphasis added).]
The prosecutor told the grand jury "there is no statute,
decision or rule of law which expressly states a judge must
enforce an arrest warrant." However, he continued, "a [c]ourt
may take judicial notice of [a judge's obligation]" if it is
"inherent in the office of judge of the [S]uperior [C]ourt."
The prosecutor discussed "arrest warrants." He said a
police officer "has a non-discretionary expressed obligation to
arrest where he or she is aware of the existence of an arrest
warrant." However, referencing the Court's decision in In Re
P.L. 2001, Chapter 362, 186 N.J. 368 (2006), the prosecutor
said, "it is not the job of a judge to execute an arrest
warrant." The prosecutor cited provisions of the Code of
Judicial Conduct (the Code), but cautioned, "these are general,
12 A-0483-16T4
general obligations. For you to find official misconduct
here[,] you must find a duty to enforce, . . . clearly inherent
in the office of [S]uperior [C]ourt judge, not just a general
duty to obey the law." The prosecutor stated, "a judge may, and
I emphasize may, have a duty to see that a warrant is executed
if such a duty is clearly inherent in the office of [S]uperior
[C]ourt judge." (Emphasis added). He repeated it was for the
grand jurors to decide if a judge had "an inherent duty to
enforce an arrest warrant[.]"
After all testimony ended, the prosecutor again provided
instructions on the hindering complaints. As to official
misconduct, he told the grand jurors there were three elements:
whether defendant was a public servant; whether "she refrained
from performing a duty imposed upon her by law, or clearly
inherent in the nature of her office"; and, whether "her purpose
in refraining from acting was to benefit herself or another or
injure another."
He continued,
[W]ith regard to that duty, that duty must
be official and nondiscretionary. It's
imposed upon a public servant by law such as
a statute, municipal charter or ordinance or
clearly inherent in the nature of her
office. The duty to act must be so clear
that the public servant is on notice as to
the standards she must meet. In other
words, the failure to act must be more than
a failure to exhibit good judgment.
13 A-0483-16T4
The State has to prove that there's a
clear duty of defendant to act as alleged,
that is to say, there must have been a body
of knowledge such as applicable law by which
defendant could regulate the legality of her
conduct. She can't be convicted of . . .
official misconduct[] if the official duties
imposed upon her are themselves unclear.
So that brings us to the question of,
is there a duty clearly inherent in the
nature of a [S]uperior [C]ourt judge, does
she have an inherent duty to enforce an
arrest warrant, what does that duty entail
and, if so, did she refrain from performing
that duty in this case for the purpose of a
benefit herself or detriment of another.
Again, . . . you have to remember, if
you find a duty to enforce, it must be
clear. In this case, it must be clearly
inherent in the office of a [S]uperior
[C]ourt judge.
During deliberations, the grand jurors asked several times for
clarification regarding the law as to hindering apprehension but
asked for no further instructions on the recommended official
misconduct count.
The indictment charged defendant with official misconduct
in that, with the purpose to benefit herself "and/or another,"
she "refrain[ed] from performing a duty clearly inherent in the
nature of her office . . . , that is, . . . [she] knowingly . .
. fail[ed] to enforce an arrest warrant . . . by failing to
adequately notify the Woodbridge Police Department of . . .
[Prontnicki's] intended appearance or presence at her
14 A-0483-16T4
residence." N.J.S.A. 2C:30-2b. Count two charged defendant
with purposely "hinder[ing] the detention, apprehension,
investigation, prosecution, conviction or punishment of . . .
Prontnicki," by "harbor[ing] or conceal[ing]" him. N.J.S.A.
2C:29-3a(1). The third count charged defendant with hindering
by "offer[ing] to provide to or aid . . . Prontnicki in
obtaining money, transportation and/or clothing as a means of
avoiding discovery or apprehension or effecting escape."
N.J.S.A. 2C:29-3a(2).
C.
In her written decision, the motion judge rejected the
State's argument that a judge has "a duty inherent in her office
to enforce an arrest warrant, or that there is a specifically
required time limit in which [d]efendant was required to act."
The judge also concluded that defendant was not "acting in her
official capacity. There is no connection between the duties
inherent in the office of Judge and the . . . conduct here."
The judge denied defendant's motion as to counts two and
three. Giving the State the benefit of all reasonable
inferences, she reasoned there was some evidence that defendant
admitted Prontnicki into her home knowing there was an
outstanding warrant for his arrest, permitted him to stay there
"for a significant period of time, and did not inform the
15 A-0483-16T4
police." As to the second hindering count, the judge concluded
there was some evidence that defendant aided Prontnicki by
allowing him into her home to "get his clothes and be offered
cab fare."
The judge found no reason to reconsider her earlier
decision in denying the State's and defendant's motions for
reconsideration.
II.
We review the trial court's decision on defendant's motion
to dismiss the indictment for an abuse of discretion. State v.
Saavedra, 222 N.J. 39, 55 (2015). "A trial court's exercise of this discretionary power will not be disturbed on appeal 'unless it has been clearly abused.'"Id. at 55-56
(quoting State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied,140 N.J. 277
(1995)).
"A trial court deciding a motion to dismiss an indictment
determines 'whether, viewing the evidence and the rational
inferences drawn from that evidence in the light most favorable
to the State, a grand jury could reasonably believe that a crime
occurred and that the defendant committed it.'" Id. at 56-57
(quoting State v. Morrison,188 N.J. 2
, 13 (2006)). "A trial
court . . . should not disturb an indictment if there is some
evidence establishing each element of the crime to make out a
16 A-0483-16T4
prima facie case." Morrison, supra, 188 N.J. at 12 (citations omitted). However, "[t]he absence of any evidence to support the charges would render the indictment 'palpably defective' and subject to dismissal."Ibid. (citing State v.
Hogan,144 N.J. 216
, 228-29 (1996)). "[O]ur review of a trial judge's legal interpretations is de novo." State v. Eldakroury, 439 N.J. Super. 304, 309 (App. Div.) (citing State v. Grate,220 N.J. 317
, 329-30 (2015); State v. Drury,190 N.J. 197
, 209 (2007)), certif. denied,222 N.J. 16
(2015).
A.
In A-0484-16, defendant argues that, even if she allowed
Prontnicki into her home with knowledge of the outstanding
warrant, such "passive" conduct does not support an indictment
for harboring or concealing a fugitive under N.J.S.A. 2C:29-
3a(1). She also argues that the State failed to demonstrate she
acted with the purpose of hindering Prontnicki's apprehension
because the overwhelming evidence was to the contrary.
Regarding count three, defendant essentially argues that even if
she offered Prontnicki aid, whether in the form of money,
transportation or clothing, it was insufficient to prove a
violation of N.J.S.A. 2C:29-3a(2). We reject these arguments
and affirm the judge's order denying defendant's motion to
dismiss counts two and three of the indictment.
17 A-0483-16T4
The statute provides:
a. A person commits an offense if, with
purpose to hinder the detention,
apprehension, investigation, prosecution,
conviction or punishment of another for an
offense . . . he:
(1) Harbors or conceals the other;
(2) Provides or aids in providing a weapon,
money, transportation, disguise or other
means of avoiding discovery or apprehension
or effecting escape . . . .
[N.J.S.A. 2C:29-3a(1) and (2).]
As to subsection (1), the State must produce some evidence that
defendant knew Prontnicki could or might be charged with an
offense; that she harbored or concealed him; and her purpose in
doing so was to hinder Prontnicki's detention, apprehension,
investigation, prosecution, conviction or punishment. Model
Jury Charge (Criminal), "Hindering Apprehension or Prosecution
of Another (N.J.S.A. 2C:29-3a)" (May 12, 2014) (Hindering
Charge). Defendant "harbored or concealed" Prontnicki if she
"hid, or protected, or sheltered or secreted [him] from the
authorities." Id. at 2.
Because of the lack of decisions construing subsection
a(1), both sides rely on precedent interpreting an analogous
provision of the United States Code, 18 U.S.C.A. § 1071, which
provides:
18 A-0483-16T4
Whoever harbors or conceals any person for
whose arrest a warrant or process has been
issued under the provisions of any law of
the United States, so as to prevent his
discovery and arrest, after notice or
knowledge of the fact that a warrant or
process has been issued for the apprehension
of such person, shall be fined under this
title or imprisoned not more than one year,
or both . . . .
In construing a predecessor provision, the court in United
States v. Shapiro, said, "To conceal . . . means to hide,
secrete, or keep out of sight. To harbor . . . means to lodge,
to care for, after secreting the [fugitive]." 113 F.2d 891, 893 (2d Cir. 1940) (quoting Firpo v. United States,261 F. 850
, 853
(2d Cir. 1919)).
Defendant argues the analogous federal statute requires
"[s]ome affirmative, physical action" to "harbor or conceal,"
United States v. Lockhart, 956 F.2d 1418, 1423 (7th Cir. 1992), and allowing Prontnicki to enter her home was insufficient. However, the Fifth Circuit held that the defendant's physical act of closing and locking the door where a fugitive was hiding after she saw federal marshals was sufficient to convict her of violating the statute. United States v. Stacey,896 F.2d 75
, 77
(5th Cir. 1990).
Defendant ignores the basic proposition that "[i]n the
grand jury setting, our law sharply distinguishes between
evidence sufficient to support an indictment and the evidence
19 A-0483-16T4
necessary to establish guilt beyond a reasonable doubt." State
ex rel. A.D., 212 N.J. 200, 219 (2012). "At the indictment stage, the State need not present evidence necessary to sustain a conviction, but only a showing sufficient for the grand jury to 'determine that there is prima facie evidence to establish that a crime has been committed.'"Id. at 220
(quoting Stave v. N.J. Trade Waste Ass'n,96 N.J. 8
, 27 (1984)).
According the State all favorable and reasonable
inferences, the evidence established that defendant knew
Prontnicki was wanted for armed robbery and permitted him to
enter her home on two occasions for significant periods of time.
On June 11, she specifically told him when she would be home,
knowing he intended to gather some of his belongings and leave.
Nonetheless, she never told police he would be arriving. The
grand jurors were entitled to reject defendant's version of the
events on June 11, and accept that defendant affirmatively
opened the garage door, closed it after Prontnicki entered the
home, provided him with some of his belongings, including more
clothing than was necessary for a short stay at his brother's
house, and escorted him out through the garage until he left.
Defendant argues she did not know police were looking for
Prontnicki. This ignores the reasonable inference to be drawn
from defendant's own call to police the day earlier, in which
20 A-0483-16T4
she told police Prontnicki had returned the car and, although
not with her at that moment, was somewhere in Woodbridge.
Defendant also contends that, since much of the interaction
occurred in the garage, she did not secrete Prontnicki from
public observation. That argument lacks any merit, since it is
undisputed that on both June 10 and 11, Prontnicki spent more
than one hour inside the house, where he was shielded from
observation, or in the garage with the door shut.
The grand jurors were also free to reject defendant's
explanation of why she acted as she did, and conclude, based on
reasonable inferences, that her purpose was to hinder
Prontnicki's apprehension. See, e.g., Hindering Charge, supra,
at 4 (explaining purpose is a "condition[] of the mind which
cannot be seen and can only be determined by inferences from
conduct, words or acts"). We affirm the denial of the motion
to dismiss count two of the indictment.
As to count three charging defendant with harboring under
subsection a(2), the critical issue is whether there was
sufficient prima facie evidence that, with a similar purpose,
defendant "provided (or aided in providing) . . . money,
transportation, [and/or clothing as a] means of avoiding
21 A-0483-16T4
discovery or apprehension or affecting escape) to" Prontnicki.3
Id. at 2.
Defendant appropriately points to a footnote to the
Hindering Charge which provides:
Providing a fugitive with funds is an act of
equivocal significance. He may use it to
escape or hide, to pay debts or go into
business, or to support himself or his
dependents, or to hire a lawyer. Paragraph b
[now 3a(2)] is intended to require proof
that money was furnished not merely pursuant
to a general desire to promote the
offender's plan to remain at large, but
specifically to facilitate escape efforts.
[Ibid. n.3 (quoting Final Report of the New
Jersey Criminal Law Revision Commission,
Vol. II at 284-85 (1971)).]
The Model Penal Code (MPC) § 242.3 was a source for N.J.S.A.
2C:29-3. Cannel, New Jersey Criminal Code Annotated, comment 1
on N.J.S.A. 2C:29-3 (2017). Specifically, the commentary to the
MPC includes nearly verbatim language to that which we just
quoted. See MPC, supra, comment on 4 § 242.3 (Am. Law Inst. 1980). However, the MPC omitted providing money to a fugitive as one means by which the actor may hinder apprehension.MPC, supra
, § 242.3. Our Legislature rejected that course and
included money in N.J.S.A. 2C:20-3a(2). The Revision Commission
recognized that in providing money to a fugitive, the actor's
3
We modify the language of the Model Charge to include only the
specific items contained in count three of the indictment.
22 A-0483-16T4
"motivation[] may be mixed and permit conviction where the
obstructive purpose was present." Final Report, supra, at 284.
Here, the evidence taken in the best light for the State
indicates defendant offered Prontnicki money for cab fare, which
he refused. The State concedes that at most, this was an
attempt to hinder Prontnicki's apprehension, and it charged the
grand jury with the law regarding attempt. We conclude that
under all circumstances presented, the State adduced some
evidence that defendant's offer was an attempt to facilitate
Prontnicki's escape. The grand jury was free to reject
Prontnicki's claim that he intended only to return to his
brother's home, hire a lawyer and turn himself in, i.e., to
remain "at large," as opposed to avoid prosecution. There was
no independent proof that was his intention, and a reasonable
inference can be drawn otherwise, particularly since the bag of
clothing provided Prontnicki with numerous changes of clothing.
The grand jurors could reasonably conclude the packed bag
provided Prontnicki with a "means of avoiding discovery or
apprehension or effecting escape." N.J.S.A. 2C:29-3a(2).
Moreover, as already noted, defendant's purpose may be
determined from all the circumstances presented, including
taking these actions without calling police, despite knowing
beforehand that Prontnicki was coming to her home. We affirm
23 A-0483-16T4
the denial of defendant's motion to dismiss count three of the
indictment.
B.
The State's appeal presents issues of significant
importance beyond this case. We tread cautiously, with an
express desire that our decision be limited only to the facts
presented by this appeal and the arguments made by the State.
N.J.S.A. 2C:30-2 is based upon New York Penal Law § 195.00.
Cannel, supra, comment 1 on N.J.S.A. 2C:30-2. "Misconduct in
office or official misconduct has been defined as 'unlawful
behavior in relation to official duties by an officer entrusted
with the administration of justice or who is in breach of a duty
of public concern in a public office.'" State v. Kueny, 411
N.J. Super. 392, 404 (App. Div. 2010) (quoting State v. Mason,355 N.J. Super. 296
, 301 (App. Div. 2002)).
N.J.S.A. 2C:30-2b provides:
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[,] . . .
[h]e knowingly refrains from performing a
duty which is imposed upon him by law or is
clearly inherent in the nature of his
office.4
4
Few states have adopted the "clearly inherent" language found
in subsection (b) of our statute. See Alaska Stat. § 11.56.850
(2017); Ark. Code Ann. § 5-52-107 (1987); Del. Code Ann. tit.
11, § 1211 (2017); Ky. Rev. Stat. Ann § 522.030 (2017); Or.
(continued)
24 A-0483-16T4
As we said in Kueny,
The three elements required to establish a
violation of N.J.S.A. 2C:30-2(b) are that
"(1) the defendant was a public servant; (2)
the defendant knowingly refrained from
performing a duty which is imposed upon him
or her by law or which is clearly inherent
in the nature of the office; and (3) the
defendant's purpose in so refraining was to
benefit himself or herself or to injure or
deprive another of a benefit."
[411 N.J. Super. at 404 (quoting State v.
Thompson, 402 N.J. Super. 177, 195-96 (App.
Div. 2008)).]
There is no dispute as to the first and third elements.
Defendant is a public servant. See N.J.S.A. 2C:27-1g (defining
"[p]ublic servant" to include "judges"). A "'[b]enefit' means
gain or advantage, or anything regarded by the beneficiary as
gain or advantage, including a pecuniary benefit or a benefit to
any other person or entity in whose welfare he is interested."
N.J.S.A. 2C:27-1a. Although defendant disputes whether her
(continued)
Rev. Stat. Ann. § 162.415 (2017); Tenn. Code Ann. 39-16-402
(2017); Utah Code Ann. § 76-8-201 (2017). Others limit the
crime only to the actor's failure to perform a duty required by
law. See Colo. Rev. Stat. § 18-8-405 (1973); 720 Ill. Comp.
Stat. 5/33-3 (2017); Iowa Code § 721.2 (2017); Mont. Code Ann.
45-7-401 (2017); Wis. Stat. 946.12 (2017); Wyo. Stat. Ann. 6-5-
107 (2017). In People v. Beruman, 638 P.2d 789, 793 (Colo.
1982), the court held the predecessor statute, which included
the language "a duty . . . clearly inherent in the nature of his
office," was unconstitutionally vague.
25 A-0483-16T4
conduct benefitted herself or Prontnicki, the argument lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(2); see,
e.g., State v. Quezada, 402 N.J. Super. 277, 285 (App. Div.
2008) (concluding "joy of responding to fires as a volunteer
firefighter" was sufficient). Only the second element is at
issue in this case.
We must consider the duties of a Superior Court judge, not
as "imposed by law," i.e., expressed in a statute, the Code or
administrative policy or directive applicable to judges of the
Superior Court. See Schochet v. Schochet, 435 N.J. Super. 542,
545 n.3 (App. Div. 2014) (noting policies adopted by the
Administrative Office of the Courts have the force of law). The
State concedes none of those sources impose a duty upon a judge
to "enforce an arrest warrant." It argues instead that
decisional law, the Code, policies directed to other judiciary
employees and common sense provide guidance regarding duties
"clearly inherent in the nature of [a judge's] office,'"
N.J.S.A. 2C:30-2b, one of which is to enforce an arrest warrant.
We therefore consider whether such a duty is inherent in the
office based upon these other sources.
"[N.J.S.A. 2C:30-2b] criminalizes the knowing failure to
perform a duty. The duty must be 'one that is unmistakably
inherent in the nature of the public servant's office, i.e., the
26 A-0483-16T4
duty to act is so clear that the public servant is on notice as
to the standards that he must meet.'" Thompson, supra, 402 N.J. Super. at 198 (quoting State v. Hinds,143 N.J. 540
, 545-46 (1996)). "[T]he 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."Kueny, supra
, 411 N.J. Super. at 406 (quoting FinalReport, supra, at 291
).
"Whether a statutory duty is imposed upon a public officer
is a legal issue." State v. Deegan, 126 N.J. Super. 475, 482 (App. Div.), certif. denied,65 N.J. 283
(1974). Yet, because it is practically impossible to spell out every duty imposed upon a public official, "[i]t is within the province of the court to 'take judicial notice of the duties which are inherent in the very nature of the office.'"Thompson, supra
, 402 N.J. Super. at 198 (quotingDeegan, supra
, 126 N.J. Super. at 492). Regardless from where the duty emanates, it is a question of law whether one actually exists. State v. Grimes,235 N.J. Super. 75
, 79 (App. Div.), certif. denied,118 N.J. 222
(1989).
1.
In opposing the State's motion for reconsideration,
defendant argued alternatively that the first count of the
indictment should be dismissed because the prosecutor let the
grand jury decide whether a Superior Court judge has an inherent
27 A-0483-16T4
duty to "enforce an arrest warrant." The motion judge agreed
that whether such a duty existed was a "question of law," and
stated the grand jury "cannot make such a finding." Although,
she did not specifically adopt defendant's argument, we do, and
therefore affirm dismissal of the indictment on these grounds
alone.
"A prosecutor must charge the grand jury 'as to the
elements of specific offenses.'" Eldakroury, supra, 439 N.J. Super. at 309 (quoting State v. Triestman,416 N.J. Super. 195
, 205 (App. Div. 2010)). "[A]n indictment will fail where a prosecutor's instructions to the grand jury were misleading or an incorrect statement of law."Ibid. (quoting Triestman, supra
,
416 N.J. Super. at 205). In Eldakroury, we affirmed the trial court's dismissal of an indictment, concluding "the State's instruction to the jury was 'blatantly wrong' and, in effect, relieved the State from having to establish defendant's mens rea as to a material element of the offense."Id. at 310.
Here, it was incumbent on the prosecutor to specifically
define the duty that defendant "refrain[ed] from performing" and
which was "clearly inherent" in the office of a Superior Court
judge. N.J.S.A. 2C:30-2b. Yet, on multiple occasions in his
instructions, the prosecutor invited the grand jury to decide
whether or not the obligation to "enforce an arrest warrant" was
28 A-0483-16T4
clearly inherent in the duties of a Superior Court judge. In
Grimes, we reversed the defendant's conviction and dismissed the
indictment, because, in part, the "law" as to the duties of the
defendant's office as constable were "so uncertain that it was
presented to the jury as a matter of disputed fact." 235 N.J.
Super. at 90.
The grand jury is, of course, "an accusatory and not an
adjudicative body." Hogan, supra, 144 N.J. at 235. We might
assume the return of defendant's indictment implicitly reflects
the grand jurors' conclusions that a duty existed and defendant
refrained from performing it. Nevertheless, in the first
instance, the prosecutor must clearly and accurately explain the
law to the grand jurors and not leave purely legal issues open
to speculation by lay people who are simply performing their
civic duty.
Our conclusion is not a criticism of the prosecutor's
presentation. He attempted in good faith and in substantial
detail to synthesize the law. However, the prosecutor demurred
in telling the grand jury a duty existed. That hesitation
reflects the exquisitely difficult task of trying to define the
duty in the first instance, and what actions a judge must take
to perform that duty, the avoidance of which could result in
criminal culpability.
29 A-0483-16T4
The prosecutor's quandary demonstrates why we are required
to do more in this opinion. Avoiding the question of whether it
is the duty of a Superior Court judge to "enforce an arrest
warrant," or face conviction for a second-degree crime if he or
she refrains from performing that "duty," does a disservice to
this defendant, other judges and the public-at-large. We will
not avoid deciding the merits of the State's case, because the
issue will only arise again should the State simply present the
same evidence with more definitive instructions to a new grand
jury.
2.
The State argues that a judge has a non-discretionary duty,
inherent in her office, to enforce an arrest warrant, and,
because a judge is always "on duty," defendant was criminally
culpable for not notifying police when Prontnicki was either at,
or on his way to, her home. It further argues defendant's own
statements make clear she was aware of this duty.5
5
The State also pre-emptively argues that imposing such a duty
on a judge does not violate the constitutional separation of
powers, discussed in In Re P.L. 2001. There, the Court held the
Probation Officer Community Safety Unit Act, N.J.S.A. 2B:10A-1
to -3; N.J.S.A. 2C:39-6(c)(17), which created a unit of
probation officers authorized to carry firearms and arrest
probation violators, breached the constitutional separation of
powers. In re P.L. 2001, supra, 186 N.J. at 372-73, 394. The
(continued)
30 A-0483-16T4
This second point lacks sufficient merit to warrant
discussion. R. 2:11-3(e)(2). While defendant told friends it
was her duty as a judge to notify police about Prontnicki's
whereabouts, those statements followed her interaction with
members of the Woodbridge Police Department, who told her that
was her judicial "duty." Obviously, defendant's subjective
belief that a duty exists, if none exists at law, cannot support
an essential element of the crime of official misconduct.
The State cites various decisions to support the
proposition that defendant refrained from performing an official
duty inherent in her office; however, none of them are
persuasive under the facts of this case. For example, Deegan,
supra, 126 N.J. Super. at 480, predates enactment of our (continued) Court stated, "[I]t is the duty of the many municipal, county, and state law enforcement agencies to execute arrest warrants, including those of probation violators. Those are executive, not judicial, branch functions."Id. at 391
(emphasis added). While "the principle of separation of powers is not inconsistent with the notion of cooperation among the several branches toward the common goal of achieving responsible government[,]"id. at 383,
"the special role of the judiciary in our constitutional scheme requires that there be no entangling alliances between law enforcement and judiciary employees."Id. at 388.
The State argues that as a judge, defendant had an inherent
duty to enforce an arrest warrant, not execute the warrant by
actually arresting Prontnicki. Because we are affirming for
other reasons, we need not decide whether this is a meaningful
distinction that renders In re P.L. 2001 unpersuasive authority
for defendant's position.
31 A-0483-16T4
Criminal Code, and so does not address the very precise language
of N.J.S.A. 2C:30-2b.6 Our opinion in Deegan supports the
proposition that the duties of a public office need not be
expressed in any statute, and "[t]he power to act imports a duty
to act when the public interests suggest to the public officials
that something should be done." Id. at 490 (citing McDonough v. Roach,35 N.J. 153
, 157 (1961)). However, in Deegan, the defendants' duties, although not expressed in a statute, were the very duties of the position, i.e., approving the award of disability pensions to only qualified candidates.Id. at 480.
Defendants' actions or omissions involved the only essential
tasks they were empowered to perform.
The same principle is at the core of State v. Weleck, 10
N.J. 355 (1952), another pre-Code case. There, the defendant, a borough attorney, was charged with extorting payments from a citizen in return for agreeing to use his influence to secure the passage of a favorable zoning amendment.Id. at 364-65.
Once again, the Court held that some duties are inherent in the
6
The defendants in Deegan were charged with violating N.J.S.A.
2A:85-1 (repealed 1979), which read:
Assaults, batteries, false imprisonments,
affrays, riots, routs, unlawful assemblies,
nuisances, cheats, deceits, and all other
offenses of an indictable nature at common
law, and not otherwise expressly provided
for by statute, are misdemeanors.
32 A-0483-16T4
office of a public attorney. Id. at 368-69. Those duties — to render uncorrupted legal advice and refrain from extortion in return for rendering that advice — are inseparable from properly performing the tasks of the office. See, e.g., State v. Green,376 A.2d 424
, 428 (Del. Super. Ct. 1977) ("The phrase 'a duty
which . . . is clearly inherent in the nature of his office'
means those unspecified duties that are so essential to the
accomplishment of the purposes for which the office was created
that they are clearly inherent in the nature of the office.")
(quoting Del. Code Ann. tit. 11, § 1211(2)). Neither Deegan nor
Weleck support the State's position that defendant's official
duties included a non-discretionary duty, while at home on
vacation, to notify police of Prontnicki's whereabouts. It is
only "unlawful behavior in relation to official duties" that
give rise to the charge of official misconduct. Mason, supra, 355 N.J. Super. at 301 (emphasis added) (citing State v. Winne,12 N.J. 152
, 176 (1953)).
In Sheridan v. Sheridan, 247 N.J. Super. 552, 565 (Ch. Div.
1990), while recognizing the absence of any controlling court
rule or administrative directive, the Family Part observed that
most judges report "illegal or improper activities . . . because
it is the right thing to do and because it is repugnant to their
oath that judges sit mute in the face of acknowledged,
33 A-0483-16T4
demonstrated or potential wrongdoing." Notably, in Sheridan,
the judge became aware of criminal wrongdoing during sworn
testimony in a case over which he was presiding, i.e., while the
judge was performing an official duty. Id. at 563. More importantly, Sheridan was firmly rooted in a judge's ethical responsibilities, seeid. at 563-66,
and the court never
suggested that the judge's failure to make such a report would
subject him or her to criminal culpability.
The State next turns to Canons One and Two of the Code for
support. Canon One provides, "An independent and honorable
judiciary is indispensable to justice. A judge therefore shall
uphold and should promote the independence, integrity and
impartiality of the judiciary." Canon Two states, "[a] judge
should avoid impropriety and the appearance of impropriety in
all activities." The Rules associated with Canon One require a
judge to "personally observe[] high standards of conduct" and
"respect and comply with the law."7
7
The State has not argued that defendant refrained from
performing a duty inherent in her office — complying with the
law — because she committed the crime of hindering. We have
rejected similar arguments involving other officials. See e.g.,
Kueny, supra, 411 N.J. Super. at 406-08 (rejecting the proposition that every crime committed by a police officer, including refraining from returning stolen property, was official misconduct);Thompson, supra
, 402 N.J. Super. at 201
("reject[ing] the use of a general 'duty to perform other duties
in good faith' as a means to impose criminal liability") (citing
(continued)
34 A-0483-16T4
It is the duty of every judge "to abide by and enforce" the
Code. In re DiLeo, 216 N.J. 449, 467 (2014) (citing R. 1:18). In dicta, we recognized that the Code "specifically deal[s] with the duties of judicial office and could readily be used as a basis for describing the duties inherent in that office."Thompson, supra
, 402 N.J. Super. at 201. However, the Court characterized an earlier version of the Code as "a general statement of standards and goals, admirably serving the purpose of providing guidance to judges in all matters precisely because of the generality of its provisions." In re Alvino,100 N.J. 92
, 102 (1985) (emphasis added). "While judges are expected to adhere to the Code, every breach 'does not mean . . . that judicial misconduct has occurred, or that discipline . . . is appropriate.'"DiLeo, supra
, 216 N.J. at 468 (quotingAlvino, supra
, 100 N.J. at 96). It surely follows that not every breach of the Code subjects a judge to criminal prosecution. In the absence of any reported New Jersey case holding the Code's "general statements" of ethical conduct are a declaration of (continued) People v. Garson,848 N.E.2d 1264
(N.Y. 2006); see also State v.
Imbriani, 291 N.J. Super. 171, 183 (App. Div. 1996)
(specifically refusing to consider whether "crimes committed by
a Superior Court Judge outside of his official duties constitute
a breach of the public trust" under guidelines for the Pre-trial
Intervention Program).
35 A-0483-16T4
inherent judicial duties, we consider some decisions from our
sister states.
In People v. La Carrubba, the defendant judge was charged
with refraining from performing a duty inherent in her office by
improperly dismissing a friend's traffic ticket. 389 N.E.2d
799, 801 (N.Y. 1979). In interpreting a provision identical to N.J.S.A. 2C:30-2b, reversing the defendant's conviction and dismissing the indictment, the court said "the Code of Judicial Conduct and the Penal Law serve discrete, if in some respects complimentary, purposes."Id. at 802.
Recognizing the penal
code clearly defined acts or omissions that violated the law,
the court said:
Couched in the subjunctive mood, the code is
a compilation of ethical objectives and
exhortations for the violation of which
recourse has traditionally been had to
disciplinary rather than criminal
proceedings. If in any instance the conduct
proscribed by the canons also independently
constitutes a criminal offense under the
Penal Law (e.g., bribe receiving, [New York]
Penal Law, § 200.12) then, of course, the
sanctions of the Criminal Law are available
and the coexistence of ethical impropriety
would stand as no barrier to criminal
prosecution. Taken alone, however, instances
of ethical impropriety, although
unquestionably to be condemned, provide no
predicate for the imposition of criminal
penalties.
[Ibid.]
36 A-0483-16T4
In Garson, the court reversed the dismissal of an
indictment charging the defendant judge with violating New York
Penal Law § 200.25, receiving a reward for official misconduct
by violating his duty as a public servant, but affirmed
dismissal of the indictment charging a violation of § 195.02(2).
848 N.E.2d at 1265. In that case, the defendant received various gifts from an attorney in return for referring cases, in violation of the Rules of Judicial Conduct enacted in New York following constitutional amendment and pursuant to an express legislative grant of power to the court.Id. at 1268,
1272.
The Garson court distinguished La Carrubba in two ways.
First, the court recognized the mandatory nature of New
York's Rules of Judicial Conduct, as opposed to the earlier code
of conduct. Id. at 1271-74. Second, the court recognized that § 200.25 rested "not on a violation of the Rules alone but on the acceptance of a benefit for violating an official duty defined by the Rules."Id. at 1273.
"Had the judge as a public servant violated ethical duties alone -- without accepting a benefit for the violation -- and had the action not otherwise been prohibited by the Penal Law, the public servant would be subject only to discipline in a proceeding brought by the Commission on Judicial Conduct."Ibid. (emphasis added). 37
A-0483-16T4
Delaware, which also criminalizes the failure to perform a
duty inherent in a public office, has limited the use of ethical
standards to define criminal conduct. See, e.g., Green, supra,
376 A.2d at 428 (concluding a duty "inherent in the nature of [a
public servant's] office . . . does not include the duty of
avoiding violation of unspecified conflict-of-interest or other
ethical standards").
Some states that criminalize the performance of
unauthorized acts or acts in excess of official powers, as does
N.J.S.A. 2C:30-2a, have rejected application of ethical
guidelines to define the nature and scope of the official duties
of an office. See, e.g., State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987) (concluding the code of professional responsibility and city ethics code could not be used to define the "lawful authority" of a municipal prosecutor accused of official misconduct for dismissing a friend's traffic tickets); Clayton v. Willis,489 So. 2d 813
, 815-16 (Fla. Dist. Ct. App. 1986)
(rejecting violations of the state Code of Judicial Conduct as a
basis for judge's alleged criminal misconduct in fraudulently
abusing and exceeding his powers).
As the motion judge noted, the Code does not expressly
include a duty to enforce another court's warrant. The State
cites Code of Conduct for Judiciary Employees, Canon 1G (2014),
38 A-0483-16T4
which provides, "No court employee shall refuse to enforce or
otherwise carry out any properly issued rule or order of court."
However, that Code, which in this instance directs the
ministerial duties of judiciary personnel, does not apply to a
judge. Similarly, the State's reliance on Administrative
Directive #14-06, "Probation Field Supervision and Safety
Standards," (August 3, 2006), is unavailing. That directive,
which also does not apply to judges, instructs probation
officers to cooperate with law enforcement in the supervision of
probationers and in effecting the arrest of violators.
Unequivocally, "[i]t is the judge's obligation to see that
justice is done in every case that comes before him [or her]."
In re Yaccarino, 101 N.J. 342, 388 (1985) (quoting In re Albano,75 N.J. 509
, 514 (1978)). A judge must live by this humble
maxim, one that, as most sitting judges would agree, is more
easily stated than realized. The Code codifies this ideal and
provides guidance for the conduct of each judge as he or she
performs his or her duties. A judge who refrains from
performing her official duty in a case that comes before her,
coupled with the purpose to bestow a benefit on herself or
another, subjects herself to criminal prosecution for official
misconduct. This is not such a case.
39 A-0483-16T4
We do not mean to imply that a judge may only commit
official misconduct by refraining from performing a duty while
in the courtroom. A judge is exercising her official duties,
for example, while "on call" or on "emergent duty," outside of
the courtroom and after normal work hours. We have no doubt
that if, for example, a judge were to refrain from authorizing
a search warrant despite being presented with ample probable
cause because it involved a personal friend, she would have
committed official misconduct under N.J.S.A. 2C:30-2b. And,
certainly a judge may violate N.J.S.A. 2C:30-2a by affirmatively
committing acts unauthorized by his office or in an unauthorized
manner in many ways outside of the courthouse and at all hours.
N.J.S.A. 2C:30-2b criminalizes only the omissions of "a
[judge] 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." Kueny, supra, 411 N.J. Super. at 406 (emphasis added) (quoting FinalReport, supra, at 291
).
The State has cited no authority supporting the contention that
a judge has a non-discretionary duty to enforce the order of
another court, and it certainly has failed to demonstrate such a
duty is ever present, obligating the judge to perform the duty
40 A-0483-16T4
wherever he or she may be, twenty-four hours a day, 365 days per
year.
At oral argument, the State adopted the proposition that a
judge would commit official misconduct if, knowing an arrest
warrant based on a family member's failure to pay outstanding
parking tickets had issued, the judge refrained from notifying
police of that family member's whereabouts. No provisions of
the Code or any other authority, however broadly read, would
sustain a charge of official misconduct based on those facts.
The facts presented to this grand jury were not much different.
In affirming dismissal of the official misconduct count, we
do not condone in any way defendant's alleged conduct, nor does
it relieve defendant of the potential serious consequences if
convicted of the crime of hindering. The Court has repeatedly
exercised its power to discipline judges for their conduct,
criminal or unethical, official or otherwise. It has the power
to remove a judge from office "for misconduct in office, willful
neglect of duty, or other conduct evidencing unfitness for
judicial office, or for incompetence." N.J.S.A. 2B:2A-2. We
further note that if defendant were convicted of third-degree
hindering Prontnicki's apprehension, she would forfeit her
office. N.J.S.A. 2C:51-2a(1).
41 A-0483-16T4
We affirm the dismissal of count one of the indictment
charging defendant with official misconduct.
Affirmed in both appeals. We remand the matter to the Law
Division for further proceedings consistent with this opinion.
We do not retain jurisdiction.
42 A-0483-16T4