State v. O'Donnell

• Citation: 471 N.J.Super. 360,273 A.3d 458
• Decision Date: 04 April 2022
• Docket Number: DOCKET NO. A-3118-20
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Jason M. O'DONNELL, Defendant-Respondent.
• Court: New Jersey Superior Court – Appellate Division

471 N.J.Super. 360

273 A.3d 458

STATE of New Jersey, Plaintiff-Appellant,

v.Jason M. O'DONNELL, Defendant-Respondent.

DOCKET NO. A-3118-20

Superior Court of New Jersey, Appellate Division.

Argued March 21, 2022

Decided April 4, 2022

Angela Cai, Deputy State Solicitor, argued the cause for appellant (Matthew J. Platkin, Acting Attorney General, attorney; Jeremy Feigenbaum, State Solicitor, Angela Cai, and Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the briefs).

Leo J. Hurley, Jr. argued the cause for respondent (Connell Foley LLP, attorneys; Leo J. Hurley, Jr., of counsel and on the brief).

Before Judges Fisher, DeAlmeida and Smith.

The opinion of the court was delivered by

FISHER, P.J.A.D.

N.J.S.A. 2C:27-2 imposes criminal liability on "person[s]" who offer or accept from another "[a]ny benefit as consideration" for, among many things, the performance of official duties. A grand jury charged defendant Jason M. O'Donnell with a violation of N.J.S.A. 2C:27-2 based on evidence that, during his 2018 campaign for the office of Bayonne Mayor, he agreed to accept from an attorney $10,000 in "street money" in exchange for becoming Bayonne's tax attorney once defendant was elected. Defendant wasn't elected.

Because he never took office and was never able to perform his part of this alleged corrupt bargain, defendant moved for a dismissal of the indictment, claiming N.J.S.A. 2C:27-2 does not criminalize an unsuccessful candidate's acceptance of a bribe. In granting the motion, the trial judge agreed with defendant's interpretation largely because that is how the statute was interpreted in United States v. Manzo, 851 F. Supp. 2d 797 (D.N.J. 2012). In rejecting both the trial judge's decision and the Manzo decision, we conclude N.J.S.A. 2C:27-2's plain language reveals an intent to render unlawful what defendant is alleged to have done and that the statute imposes criminal liability on bribe-accepting but unsuccessful candidates for public office.

The statute's text suggests a broad application. It first lists what constitutes an unlawful bargain by declaring that bribery occurs when a "person ... directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept [a benefit] from another." It then delineates in broad terms the types of benefits included, such as those offered or accepted for:

a. ... a decision, opinion, recommendation, vote or exercise of discretion of a public servant, party official or voter on any public issue or in any public election; or

b. ... a decision, vote, recommendation or exercise of official discretion in a judicial or administrative proceeding; or

c. ... a violation of an official duty of a public servant or party official; or

d. ... the performance of official duties.

[ N.J.S.A. 2C:27-2 ].

Subsection (a) criminalizes the purchasing of the votes of public servants, party officials and voters on "any" public issue or in "any" public election. Subsection (b) criminalizes the same conduct when its purpose is to obtain a ruling in a judicial or administrative proceeding. Subsection (c) applies when the unlawful agreement seeks a public servant's or public official's violation of an official duty. And subsection (d) criminalizes the offering or accepting of a benefit in exchange "for the performance of official duties."

To be sure, some of these categories are limited by their expressed terms. For example, subsections (a) and (c) refer to agreements that seek action or inaction by a "public servant" or a "party official." A "public servant" is defined as "any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses." N.J.S.A. 2C:27-1(g). Who may be a "party official" is broadly defined in N.J.S.A. 2C:27-1(e).

But other words and phrases undoubtedly reveal the Legislature's intent that there be no artificial or implicit exceptions from the statute's reach. The word "any," which appears in numerous instances, evinces an intent to include all persons or agreements not specifically identified. And the statute's imposition of criminal liability on "person[s]" – "[a] person is guilty of bribery if ...," N.J.S.A. 2C:27-2 – demonstrates a legislative intent that no individual or entity is exempt from its reach. See N.J.S.A. 1:1-2.¹

Having expansively expressed the statute's parameters, the Legislature included additional provisions to further amplify the statute's intended broad reach. The Legislature did this by negating claims or defenses that might be anticipated when a person accepts or agrees to accept a bribe even though not then capable of fulfilling the purchased promise:

It is no defense to prosecution under this section that a person whom the actor sought to influence 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.]

The obvious import of this paragraph (hereafter the "no-defense provision") is to explain that it behooves neither party to the corrupt bargain that the person to be influenced "was not qualified to act in the desired way," just as here defendant was not qualified to appoint the bribe giver as Bayonne's tax attorney because defendant never attained the position that would allow him to fulfill the alleged promise.

All these elements and declarations about what constitutes a bribe and who may be held criminally liable for offering or accepting a bribe find their genesis in the common law crime of bribery. More than 150 years ago, this State's former Supreme Court recognized that some even older authorities recognized that the common law crime of bribery could "only be predicated [on] a reward given to a judge or other official concerned in the administration of justice." State v. Ellis, 33 N.J.L. 102, 103 (Sup. Ct. 1868). The court, however, determined that the better rule was a broader rule proposed by authorities that defined bribery as "the taking or giving of a reward for offices of a public nature," and concluded that "[n]either upon principle nor authority can the crime of bribery be confined to acts done to corrupt officers concerned in the administration of justice." The court explained that limiting bribery to judicial corruption would result in, for example, "votes of members of council on all questions coming before them, could be bought and sold like merchandise in the market." Id. at 103-04. The court emphatically declared "[t]he law is otherwise." Id. at 104.

Ellis considered and rejected the argument that there is no offense if the bribe is offered or accepted by a public official who lacked jurisdiction to do that for which he was paid. Again, the court was clear in stating that the offense is "complete when an offer of reward is made to influence the vote or action of the official" and it "need not be averred, that the vote, if procured, would have produced the desired result, nor that the official, or the body of which he was a member, had authority by law to do the thing sought to be accomplished." Id. at 105.

Rarely does one encounter a more apt opportunity to invoke Justice Holmes's aphorism that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921). Ellis's limning of the common law offense of bribery is clearly reflected in every provision of N.J.S.A. 2C:27-2. Ellis held that the offense envelops and imposes criminal liability on both the offeror and offeree, the crime is completed when the agreement is reached, the public nature of the corrupt deal is not limited to narrow areas of public interest such as judicial administration, and it doesn't matter that the bribed individual was without jurisdiction or otherwise incapable of performing his part of the bargain. The "gist" of the offense, the Ellis court held, is "the tendency of the bribe to pervert justice in any of the governmental departments, executive, legislative, or judicial." Id. at 105. So, what's past is prologue; the meaning and scope of N.J.S.A. 2C:27-2 cannot be fully appreciated without acknowledging the voice of our predecessors in declaring the traditionally wide scope and reach of the crime of bribery.

As we have already observed – by merely quoting its words and phrases – N.J.S.A. 2C:27-2 casts a wide net. Despite that, defendant seeks to avoid the consequences of his alleged corrupt agreement by asserting the statute "does not, on its face, apply to unelected political candidates." He first claims that the plain text of the statute supports this view by alluding to the references in subsections (a) through (d) to "public servant," "party official," "judicial or administrative proceeding[s]," and "official duties," and by pointing out the absence of any reference to candidates for office. Our response to this textual argument is to repeat what we said in State v. Ferro, 128 N.J. Super. 353, 359, 320 A.2d 177 (App. Div. 1974) : if the Legislature intended to criminalize the acceptance of bribes only by public officials and public servants it would have directed its prohibition at public officials and public servants rather than using the broader word "persons." See also N.J.S.A. 1:1-2.

We also soundly rejected a similar argument twenty-five years ago in State v. Schenkolewski, 301 N.J. Super. 115, 138, 693 A.2d 1173 (App. Div. 1997), when, in speaking for this court, Judge (later Justice) Wallace held that under N.J.S.A. 2C:27-2 "neither the offeror nor the recipient of the bribe need be a public official to prove bribery."² Instead, we recognized it was "sufficient if the recipient created the understanding with the briber that he could influence matters in connection with an official duty, whether or not he was capable of actually effecting such an act." In other words, as held in State...