State v. O'Donnell
| Docket Number | A-17-22 |
| Decision Date | 07 August 2023 |
| Parties | State of New Jersey, Plaintiff-Respondent, v. Jason M. O'Donnell, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Argued April 24, 2023
On certification to the Superior Court, Appellate Division whose opinion is reported at 471 N.J.Super. 360 (App. Div. 2022).
Leo J Hurley, Jr., argued the cause for appellant (Connell Foley attorneys; Leo J. Hurley, Jr., of counsel and on the briefs and Alexa C. Salcito and Brian K. Dempster, on the briefs).
Angela Cai, Deputy Solicitor General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Angela M. Cai, Jeremy M. Feigenbaum, Solicitor General, and Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the briefs).
Lawrence S. Lustberg argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Gibbons, attorneys; Lawrence S. Lustberg and William C. Martinez, on the brief).
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers whether the bribery statute, N.J.S.A. 2C:27-2, applies to a candidate for political office who is not an incumbent and is ultimately not elected.
Defendant Jason O'Donnell was a candidate for mayor of Bayonne in 2018. During the campaign, he allegedly accepted $10,000 in cash in a paper Baskin-Robbins bag from an individual. In exchange for the money, the State asserts, defendant promised to appoint the individual as tax counsel for the city. The State charged defendant under the bribery statute. Defendant did not win the election. He contends the law does not apply to him because it does not cover candidates who accept improper payments but are not elected.
The trial court dismissed the indictment, holding that N.J.S.A. 2C:27-2(d) did not apply to defendant. The Appellate Division reversed. 471 N.J.Super. 360, 375 (App. Div. 2022). The Court granted certification limited to the scope of the bribery statute. 252 N.J. 171 (2022).
HELD: The bribery statute applies to any "person" who accepts an improper benefit -- incumbents, candidates who win, and candidates who lose. N.J.S.A. 2C:27-2. The statute also expressly states that it is no defense to a prosecution if a person "was not qualified to act." Ibid. So even if a candidate is unable to follow through on a corrupt promise, the language of the bribery statute makes it a crime to accept cash payments for a promise of future performance. The bribery statute's history, relevant caselaw, and commentary from the Model Penal Code, on which the statute is modeled, confirm that the law extends to candidates.
1. The Court reviews the bribery statute, N.J.S.A. 2C:27-2. The indictment here tracks the language of subsection (d), under which "[a] person is guilty of bribery if" that person (1) directly or indirectly solicited, accepted, or agreed to accept a benefit from another (2) as consideration for the performance of official duties (3) and did so purposely. The State asserts that defendant accepted an unauthorized "benefit" of $10,000 as "consideration" for an official act in the future, appointing a particular person as tax counsel for the city. That allegation lines up with the text and elements of subsection (d) and does not call for an expansion of the law. (pp. 8-10)
2. Defendant's argument that the bribery statute does not explicitly apply to a candidate is unavailing. The law applies to any "person" who solicits or accepts a bribe. Also unavailing is defendant's suggestion that if the law applies to candidates, it applies only to candidates who are later elected. Under that interpretation, the offense is only complete if and when the person takes office. But the bribery statute focuses on the exchange of a benefit for a commitment to perform. That means the offense is complete when a benefit is solicited or accepted, not at a later point. Further, N.J.S.A. 2C:27-2(d) does not say the recipient must be able to perform any official duties at the time the bribe is paid; rather, it makes it a crime for "[a] person" to accept a bribe "as consideration for the performance of official duties." (emphasis added). "Consideration" includes conditional promises. As the State argues, imagine a candidate or an official who accepts a bribe in exchange for a promise to vote for a piece of legislation. If the bill is never posted for a vote, the person's conduct -- accepting a payment as consideration for the performance of official duties in the future -- is still an offense under the bribery statute. (pp. 10-13)
3. The bribery statute includes a no-defense provision: "It is no defense to prosecution . . . that a person . . . was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason." N.J.S.A. 2C:27-2. If anything, that provision rebuts defendant's argument that no crime has occurred if a person "had not yet assumed office" and therefore could not perform official duties. The law states it is not a defense if "a person whom the actor sought to influence was not qualified to act in the desired way . . . for any reason." Ibid. (pp. 13-14)
4. The Court reviews the bribery statute's history and relevant caselaw, which confirm that the law extends to candidates. The current bribery statute has its roots in the common law of bribery. More than 150 years ago, State v. Ellis explained that 33 N.J.L. 102, 105 (Sup. Ct. 1868). Decisions by the Appellate Division applying the former and current versions of the bribery statute affirmed the offense's reach. See State v. Ferro, 128 N.J.Super. 353, 357-60 (App. Div. 1974); State v. Schenkolewski, 301 N.J.Super. 115, 138-40 (App. Div. 1997). And because N.J.S.A. 2C:27-2 is modeled after the Model Penal Code, the Court reviews the relevant Code sections and commentary. They reveal that the bribery statute was meant to apply to candidates and that the no-defense provision applies to those who give as well as those who receive bribes. (pp. 14-20) 5. The Court does not give weight to the model jury charges for bribery to interpret the meaning of N.J.S.A. 2C:27-2. In general, the Court does not evaluate model jury charges other than when they are reviewed as part of an appeal. The model charges include the no-defense provision in the charge for bribe givers but not the one for bribe recipients. The Court asks the Committee on Model Jury Charges to revise the model charge to conform to this opinion. (pp. 20-21)
6. Courts do not rely on unsuccessful attempts to amend a statute in order to interpret it. Defendant focuses on legislative activity following United States v. Manzo, in which the United States District Court found the statute did not extend to candidates for office who are not elected. 851 F.Supp.2d 797, 811 (D.N.J. 2012). Afterward, legislators introduced various bills that would have added the phrases "a candidate for public office" and "any person elected but who has not yet assumed office" to the definition of "public servant." The current law was enacted in 1978 and amended in 1979. Recent, unsuccessful efforts to amend the bribery statute cannot reveal what the Legislature intended when it passed the law. (pp. 21-23)
7. The Court explains the rule of lenity, which does not apply here because the bribery statute is unambiguous. (pp. 23-24)
8. Turning to defendant's constitutional arguments, due process is satisfied when ordinary people can understand what conduct is prohibited, and when the offense is defined in a manner that does not encourage arbitrary and discriminatory enforcement. The bribery statute provides sufficient notice that no person -candidate or incumbent -- may accept unauthorized benefits "as consideration for the performance of official duties." See N.J.S.A. 2C:27-2(d). The law plainly states it is no defense that someone in defendant's position was not yet qualified to act. N.J.S.A. 2C:27-2. And ordinary people can understand that New Jersey's bribery statute does not allow them to accept a bag of cash in exchange for promising a future appointment to a city post. Although court rulings, like legislative enactments, can violate the ban on ex post facto laws when a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, the construction of the bribery statute outlined in the Court's opinion is not unexpected or indefensible. Rather, it flows from the plain language of the statute and is consistent with prior decisions by the Appellate Division and commentary to the Model Penal Code. (pp. 24-28)
AFFIRMED and REMANDED to the trial court.
JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE and JUDGE SABATINO (temporarily assigned) join in CHIEF JUSTICE RABNER's opinion.
Defendant Jason O'Donnell was a candidate for mayor of Bayonne in 2018. During the campaign, he allegedly accepted $10,000 in cash in a paper bag from an individual. In exchange for the money, the State asserts, defendant promised to appoint the individual as tax counsel for the city.
The State charged defendant under the bribery statute. The relevant part of the law states it is a crime for any "person" to accept "[a]ny benefit as consideration for the performance of official duties." N.J.S.A. 2C:27-2(d).
Defendant did not win the election. He contends the law does not apply to him because it does not cover candidates who accept improper payments but are not...
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