State v. Boncelet
| Decision Date | 17 November 1969 |
| Parties | The STATE of New Jersey, Plaintiff-Respondent, v. Charles G. BONCELET, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Frank P. Villanova, Newark, for appellant.
Fred Kieser, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).
Before Judges KILKENNY, LABRECQUE and LEONARD.
Defendant Charles G. Boncelet appeals from his conviction on an indictment for violations of N.J.S.A. 40A:4--57 and 58 and N.J.S.A. 2A:135--5.
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, 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 N.J.S.A. 40A:4--57 and 2A:135--5. Counts three and four charged that, in voting to transfer funds from two other line item appropriations on December 29, 1965 to make up the overexpenditures cited above, he overexpended the two appropriations by some $834.82, in violation of N.J.S.A. 40A:4--58 and 2A:135--5.
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 N.J.S.A. 40A:4--58, which transfers resulted in the overexpenditure of two other line items: Administrative and Executive, Other Expenses, $174.40, and Collection of Taxes, Other Expenses, $660.42.
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, N.J.S.A. 40A:4--1 et seq., was intended to control municipal expenditures by line item. N.J.S.A. 40A:4--57 provides that, with certain exceptions not here relevant, no officer, board, body or commission shall during any fiscal year (1) spend any money, (2) incur any liability, or (3) enter into any contract which by its terms involves an expenditure of money, For any purpose for which no appropriation is provided, or in excess of the amount appriated For that purpose. The line item designates the purpose of the expenditure. A contract made in violation of this section of the statute is declared null and void and payment thereon is enjoined. Emergency appropriations are strictly limited. N.J.S.A. 40A:4--46 to 55.17. An unexpended balance in an appropriation may be cancelled by resolution, N.J.S.A. 40A:4--60, or transferred to another line item under certain circumstances. N.J.S.A. 40A:4--58. It is clear that the legislative restrictions imposed by N.J.S.A. 40A:4--57 would be of doubtful effectiveness were their application to be limited to the total budget, as distinguished from line item appropriations. A reading of State v. Brom, 78 N.J.L. 222, 224, 73 A. 71 (Sup.Ct.1909), decided under section 31 of the Crimes Act, L.1898, c. 235, p. 803, from which N.J.S.A. 2A:135--5 was derived, would appear to confirm this interpretation.
N.J.S.A. 40A:4--57 superseded R.S. 40:2--29. The basic idea behind it is that the municipality shall make ends meet within its fiscal years; hence, budget expenditures during a fiscal year should not depart from the budget of that year. 405 Monroe Co. v. City of Asbury Park, 40 N.J. 457, 470, 193 A.2d 115 (1963). Here the State's proofs adequately supported the conclusion that there had been such overexpenditures prior to the December 29 transfers.
These overexpenditures were not rendered legal by the transfers from other accounts. N.J.S.A. 40A:4--58, which authorizes such transfers, provides:
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 transfer the amount of such excess to those appropriations deemed to be insufficient * * *. (Emphasis added)
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, N.J.S.A. 2A:85--1, here based upon defendant's violation of N.J.S.A. 40A:4--57 and 58 (). State v. Begyn, 34 N.J. 35, 49--50, 167 A.2d 161 (1961). However, to establish intent it was not necessary to adduce proofs from which it could be inferred that the defendant intended to profit or otherwise benefit from the over-expenditures. It was sufficient if there was an intent to commit the act which the law forbade, State v. Gleitsmann, 62 N.J.Super. 15, 20--21, 161 A.2d 747 (App.Div.1960), and a finding that defendant's conduct was unlawful and willful would support a charge of bad faith, State v. Williamson, 54 N.J.Super. 170, 184--185, 148 A.2d 610 (App.Div.1959), aff'd 31 N.J. 16, 155 A.2d 7 (1959).
We find the proofs adequate to estabish 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 N.J.S.A. 2A:135--5 for overexpenditures. Each of the councilmen, including defendant, received a disbursement sheet monthly which showed the balance in the several accounts and, where there was an overexpenditure, that item was shown in red. Defendant knew that the red ink indicated that the account was overdrawn but nevertheless continued to vote to authorize additional payments. He testified, 'I was aware that more had been spent in certain accounts than had been appropriated, and transfer in some of these cases had not been made,' and 'the (treasurer's) report showed that more money was spent than was budgeted in many of these accounts * * *.' Additionally, the attention of the council had been directed to N.J.S.A. 2A:135--5 by a letter from the Director of Local Government which preceded the making of the transfers on which the third and fourth counts of the indictment were...
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