State v. Botti

• Decision Date: 26 January 1983
• Citation: 458 A.2d 1333,189 N.J.Super. 127
• Parties: STATE of New Jersey, Plaintiff, v. Robert C. BOTTI, City of Union City, Board of Commissioners of the City of Union City and Hudson County Utilities Authority, Defendants.
• Court: New Jersey Superior Court

Page 127

189 N.J.Super. 127

458 A.2d 1333

STATE of New Jersey, Plaintiff, v. Robert C. BOTTI, City of Union City, Board of Commissioners of the City of Union City and Hudson County Utilities Authority, Defendants.

Superior Court of New Jersey, Law Division Hudson County.

Decided Jan. 26, 1983.

Eugene J. Sullivan, Asst. Atty. Gen., for plaintiff State of N.J. (Irwin I. Kimmelman, Atty. Gen., attorney; Mary C. O'Connell, Deputy Atty. Gen., on the brief).

S.M. Chris Franzblau, Newark, for defendant Botti (Franzblau & Falkin, Newark, attorneys).

George J. Kaplan, Union City, for defendants Union City and Union City Bd. of Com'rs.

John F. O'Donnell, Montclair, for defendant Hudson County Utilities Authority (O'Donnell, Vespole & Piechta, Montclair, attorneys).

O'BRIEN, A.J.S.C.

The following is an amplification of the court's oral opinion in this matter filed pursuant to R. 2:5-1(b). That decision was rendered on the return day of an order to show cause why defendant should not be declared to have forfeited his offices within the provisions of N.J.S.A. 2C:51-2 a.

Botti is and has been a Commissioner of the City of Union City, an elected public office established by N.J.S.A. 40:72-1. Pursuant to N.J.S.A. 40:72-10 he has been chosen mayor. He is also a member of the Board of Commissioners of the Hudson County Utilities Authority, an appointed position authorized by N.J.S.A. 40:14B-4, and a member of the Weekawken-Union City Trunk Sewer Board, all as disclosed in an affidavit filed by defendant pursuant to the court's direction.

On December 22, 1982 defendant was found guilty in the United States District Court of one count of conspiracy, in violation of 18 U.S.C.A. § 371; 15 counts of mail fraud, in violation of 18 U.S.C.A. § 1341 and 1342, and two counts of income tax evasion, in violation of 26 U.S.C.A. § 7201. He was sentenced on those convictions on January 24, 1983.

Notwithstanding the defenses contained in his answer, Botti concedes the applicability of N.J.S.A. 2C:51-2 a. From the outset he has conceded that all of the offenses involved dishonesty. Conversely, the Attorney General specifically does not contend in this action that the offenses involved or touched Botti's offices, position or employment, pursuant to subsection (2) of N.J.S.A. 2C:51-2 a. In fact, the Attorney General urged the court not to rule on the applicability of that section since it is not necessary to a decision, in view of Botti's concession that the offenses do come within subsection (1). Moreover, the State desires to reserve its right to urge that some of the offenses did involve or touch his office, position or employment, should the disqualification provided by N.J.S.A. 2C:51-2 c be urged as applicable to Botti at some time in the future. The court accepts that position by the State and specifically does not rule on the applicability of N.J.S.A. 2C:51-2 a(2) because it is not necessary to its decision.

The only matter before the court is a motion by defendant for a stay of the forfeiture pursuant to N.J.S.A. 2C:51-2 b(2). Subsection (b) of the statute deals with the time when forfeiture shall take effect. It provides:

b. The forfeiture set forth in subsection a. shall take effect:

(1) Upon finding of guilt by the trier of fact or a plea of guilty, if the court so orders; or

(2) Upon sentencing unless the court for good cause shown, orders a stay of such forfeiture. If the conviction be reversed, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.

Thus, the forfeiture may take effect when the jury returns its guilty verdict "if the court so orders." The United States District Court judge before whom Botti was convicted did not order the forfeiture to take effect upon the finding of guilt by the jury. In this case, then, the provisions of subsection (2) apply. In this section the Legislature has mandated forfeiture "upon sentencing." This is self-executing unless "the court for good cause shown, orders a stay of such forfeiture". The federal judge, upon sentencing defendant did not order a stay of forfeiture. Rather, he deferred to the state courts. Accordingly, defendant made his motion before this court for such a stay.

The burden is upon defendant to show good cause why the automatic forfeiture should be stayed. The reasons urged by defendant as "good cause" are as follows:

(1) he has been elected as commissioner by the citizens of Union City and as mayor by his fellow commissioners, and the will of the electorate should not be thwarted; and

(2) the offenses of which he was convicted did not involve his offices, as contrasted to the former commissioner and mayor of Union City whom he replaced (see State v. Musto, 187 N.J.Super. 264, 454 A.2d 449 (Law Div.1982), aff'd 188 N.J.Super. 106, 456 A.2d 114 (App.Div.1983)), but rather, they related to his private business transactions; and

(3) the amount of money alleged by the United States as having been obtained by defendant by his fraudulent conduct in using the mails was minimal; and

(4) in the event that his conviction should be reversed, it may not be "feasible" to restore him to his public offices. If he is restored, the municipality will pay two salaries. Defendant City of Union City joins in this argument.

The right to hold public office is a valuable one. Stothers v. Martini, 6 N.J. 560, 565, 79 A.2d 857 (1951), citing In re Ray, 26 N.J.Misc. 56, 56 A.2d 761 (Cir.Ct.1947). This court fully recognizes the right of the electorate to be governed by officials of their choice, even "the right to select unworthy candidates," Imbrie v. Marsh, 5 N.J.Super. 239, 245, 68 A.2d 761 (App.Div.1949), aff'd 3 N.J. 578, 71 A.2d 352 (1950). Of course, Botti had not been convicted of these offenses at the time he was elected and appointed to the offices that he occupies. Thus the voters may or may not have elected him, and the officials appointed him, had they known of these offenses.

Beyond that, the elected representatives of the people comprising the State Legislature have, by the enactment of N.J.S.A. 2C:51-2 a, mandated that public offices be forfeited upon certain convictions. Thus, we have the will of the people as expressed by their elected representatives overriding the alleged will of the electorate in Union City to continue Botti in his offices. The court concludes that the first reason urged by the defendant does not constitute good cause.

The contention by Botti that the offenses related to his private business transactions, as opposed to his official positions, may have been sufficient to exclude forfeiture under N.J.S.A. 2C:51-2 a(2), as offenses "involving or touching such office, position or employment" which, as stated above, is not necessary for the court's decision and therefore not ruled upon. However, as good cause to stay the forfeiture, the contention cannot withstand scrutiny.

The allegations of the indictment upon which defendant was convicted indicate, both in the conspiracy and mail fraud counts, that a scheme was utilized to feign compliance with N.J.S.A. 18A:18A-37 and the purchasing procedures of the Hudson County Vocational Technical School by submission of false and fraudulent written price quotations. Therefore the offenses committed by Botti involved fraudulent conduct with respect to public bidding procedures, even though he was acting in a private capacity as a salesman. Fraud requires a defrauder and a victim. Here the defrauder, although he was a public official, may or may not have used his public office to accomplish his fraud. However the victim is without dispute a public agency. In fact, it is an agency funded by the county government, which itself is funded by the citizens of the county, including the citizens of the community in which defendant serves as mayor and commissioner. There may even be some question as to whether the offenses do "involve or touch" Botti's offices, positions or employment.

The purpose of 18 U.S.C.A. § 1341 is to prevent the Postal Service from being used to carry out fraudulent schemes, regardless of what is the exact nature of the scheme and regardless of whether it happens to be forbidden by state law. United States v. States, 488 F.2d 761, 767 (8 Cir.1973). While it is not illegal to mail a letter, to do so pursuant to a scheme or artifice to defraud is a federal crime. Such fraud is also an offense in New Jersey, N.J.S.A. 2C:20-4. It is the use of the Postal Service which gives jurisdiction to the federal court to convict for that fraudulent conduct. As this court concluded in State v. Musto, supra 187 N.J.Super. at 277, 454 A.2d at 455:

The element of the use of mails and wires is purely jurisdictional. The underlying offense is the attempt to scheme or defraud or take money or property under false pretenses.

In United States v. States, supra, the court discussed the nature of the fraud necessary to constitute mail fraud, quoting the following language from Blachley v. United States, 380 F.2d 665, 671 (5 Cir.1967):

The crime of mail fraud is broad in scope.... The fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard ... Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "[t]he law does not define fraud; it needs no definition. It is as old as falsehood and as versable as human ingenuity."

There was no express power given to the court to stay the forfeiture under the predecessor statute, N.J.S.A. 2A:135-9. As originally proposed, the Penal Code read, in pertinent part:

b. The forfeiture set forth in Subsection a shall take effect upon sentencing unless the sentencing court or an appellate court, for good...