State v. Hinds

• Decision Date: 10 April 1996
• Citation: 674 A.2d 161,143 N.J. 540
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John F. HINDS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 540

143 N.J. 540

674 A.2d 161

STATE of New Jersey, Plaintiff-Appellant, v. John F. HINDS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 28, 1995.

Decided April 10, 1996.

Marcy H. Geraci, Deputy Attorney General, for appellant (Deborah T. Poritz, Attorney General, attorney).

Jay L. Wilensky, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney).

The opinion of the Court was delivered by

O'HERN, J:

The primary question in this appeal is whether an off-duty police officer who conspires with the private security manager of a store to engage in shoplifting may be found guilty of official misconduct. On the facts of this case, we hold that the officer's conduct was sufficiently related to his official status to constitute the crime of official misconduct. The secondary issue is one of accomplice liability. We find that the defendant in this case, who was the store's security manager, may be found guilty as an accomplice to the official misconduct committed by the off-duty police officer.

I

We accept generally the recital of testimony set forth in the defendant's Appellate Division brief. Of course, defendant disputes much of the testimony, but it could have formed the basis for the jury's verdict.

In December 1990, John Hinds was employed as the security manager of a Caldor department store in Holmdel. Co-defendant Michael T. Borsari was a twenty-one year member of the Holmdel police force who had reached the rank of detective sergeant and was in charge of the Detective Bureau. Borsari and Hinds had known each other for twenty years. Borsari admitted having taken merchandise from the Holmdel Caldor on three occasions--December 13, 1990, December 16, 1990, and one other date that he could not specifically recall. He denied that he committed theft on any other days. Borsari also denied that Hinds was aware of his activities, that Hinds conspired with him, or that Hinds received any money or merchandise as a result.

Thomas Keenan, the store manager, however, suspected that Borsari and Hinds were jointly involved in theft. Keenan noticed that Borsari was often in the store with Hinds for long periods of time. On one occasion, Keenan saw Borsari, who had a blue Rubbermaid container in his shopping cart, hold up two items of merchandise in Hinds' direction. He then saw Borsari leave the store with the merchandise in the cart and Hinds behind him. The manager knew that Borsari had not purchased the merchandise. Keenan alerted the Operations Manager of the store to the purported activities of Hinds and Borsari. The Operations Manager herself had noticed that Borsari was frequently in the store with Hinds. She suspected that Borsari had not paid for some merchandise removed from the store because she checked a register, although she conceded that there were many banks of registers in the store. Hinds had once introduced her to Borsari and when she commented that Borsari was in the store often, Borsari replied that he "helped Hinds catch shoplifters."

Two other employees described Borsari as being in the store almost "on a daily basis" to speak to Hinds. Shortly before Christmas in 1990, one employee observed Borsari in the parking lot with a cart filled to the top with merchandise that was neither "bagged nor tagged." He informed Hinds, who responded, "He better not have or I'll kick his ass." But Hinds took no steps to pursue Borsari or to see what was in the cart. When another employee mentioned to Hinds that Borsari had left with unpaid merchandise on a separate occasion, Hinds responded, "It can't be true and if it was [I] would punch Mike [Borsari] in the nose."

Ultimately, Caldor's Loss Prevention Department contacted the New Jersey State Police Corruption Department. An investigator for the State Police arranged for a security investigator from Caldor, not known in Holmdel, to perform a surveillance of the store. This investigator testified that he saw Hinds and Borsari pacing back and forth in the vestibule of the store with Borsari eventually pushing a cart loaded with merchandise out of the door without stopping at a cash register. Borsari conceded that he had taken merchandise from the store on that date but denied that Hinds was in the area of the vestibule when he left.

On another date, the Caldor investigator observed Hinds and Borsari standing together near the appliance department. Borsari then pushed a cart through the store, took various items, and placed them within a Rubbermaid container with items on top of it. Next, Borsari entered the shoe department out of the investigator's sight, with the merchandise no longer visible. Eventually Borsari reappeared in the parking lot with a shopping cart loaded with unpaid-for Caldor merchandise.

The State Police investigator testified that, when confronted, Borsari said that "he was also a police officer working with John Hinds, the store's security manager." There followed a disputed conversation about whether the State Police investigator threatened Borsari that he would lose his job and pension rights unless he implicated Hinds. Borsari has denied stating in this conversation that he was working with Hinds.

The jury convicted Hinds and Borsari of conspiracy, official misconduct, theft, and theft by receiving stolen property. On Hinds' appeal, the Appellate Division reversed his conviction of official misconduct. It also reversed the other convictions for trial errors and remanded those matters for a new trial. It held, however, that Hinds could not be re-tried on the charge of official misconduct because Borsari himself could not have been found to have committed an act of official misconduct on these facts. While we originally denied the State's petition for certification, 140 N.J. 276, 658 A.2d 300 (1995), we granted the State's petition for certification on its motion for reconsideration. 142 N.J. 452, 663 A.2d 1359 (1995).

II

Prior to the 1979 adoption of N.J.S.A. 2C:30-2, official misconduct was both a statutory crime and a common law crime. State v. Maioranna, 225 N.J.Super. 365, 368, 542 A.2d 510 (Law Div.1988), affirmed, 240 N.J.Super. 352, 573 A.2d 475 (App.Div.1990), and certif. denied, 127 N.J. 327, 604 A.2d 601 (1991). The contours of the common law crime were vague and elusive.

[T]he term "misconduct in office" is sometimes used in a generic sense to refer broadly to all official wrongdoing, thus including in its sweep the more particularized crimes of extortion, bribery and the like, as well as in the special sense, as here, to designate an offense which bears no other name and is comprised of elements differing in some particulars from those of the related crimes. Distinctions have become shadowy and labels imprecise and somewhat non-exclusive. There are many situations, like that before us, where essentially the same factual situation could properly ground a prosecution for more than one of these offenses.

[State v. Begyn, 34 N.J. 35, 45, 167 A.2d 161 (1961).]

In general, culpability for official misconduct at common law attached to

1) any act which is wrongful in itself--malfeasance, or 2) any lawful act performed in an unlawful manner--misfeasance, or 3) omission to do any act which is required of him by the duties of his office--nonfeasance. However, the precise sub-labeling is not always found and is not requisite. The gravamen of the charge of misconduct is malfeasance--the doing of an act which is positively unlawful or wrong.

[Maioranna, supra, 225 N.J.Super. at 369, 542 A.2d 510 (citation omitted).]

The 1979 Code of Criminal Justice abolished common law crimes. N.J.S.A. 2C:30-2 now defines official misconduct as follows:

Official Misconduct. 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:

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or

b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree.

The 1971 Commentary of the Criminal Law Revision Commission explains:

This is Section § 195.00 of the New York Code. It is intended to consolidate the law as to malfeasance and non-feasance by public servants....

....

Subsection a, which condemns aggressive action, requires that the "act" relate to the public servant's office and that it constitute an unauthorized exercise of his official functions. In addition, the public servant must know that such act is unauthorized ... because it is declared to be such by statute, ordinance, rule, regulation or otherwise.

Subsection b, the "omission to act" phase of this offense, has reference to a public servant 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. Thus, such duty must be either one that is imposed by law, or one that is unmistakably inherent in the nature of the public servant's office, i.e., the duty to act is so clear that the public servant is on notice as to the standards that he must meet. In other words, the 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.

The kind of culpability required by this Section is stated alternatively, i.e., the public servant's intent must be either (a) to obtain a...