State v. Imbriani

• Decision Date: 30 November 1994
• Citation: State v. Imbriani, 654 A.2d 1381, 280 N.J.Super. 304 (N.J. Super. 1994)
• Parties: STATE of New Jersey, Plaintiff, v. Michael R. IMBRIANI, Defendant.
• Court: New Jersey Superior Court

Page 304

280 N.J.Super. 304

654 A.2d 1381

STATE of New Jersey, Plaintiff, v.Michael R. IMBRIANI, Defendant.

Superior Court of New Jersey, Law Division Mercer County.

Decided Nov. 30, 1994.

Nancy L. Singer, Asst. Atty. Gen., for plaintiff.

Donald R. Belsole, Califon, for defendant.

LENOX, J.S.C.

This is an appeal by defendant, Michael R. Imbriani, from a rejection by the Program Director of his application for entry into the Mercer County Pretrial Intervention Program.Defendant, by written waiver of indictment, consented to prosecution under an accusation charging him with one count of theft by failure to make required disposition of property received, contrary to N.J.S.A. 2C:20-9, over a five-year period ending in 1992.After negotiation with the Office of the Attorney General, Division of Criminal Justice, defendant entered a plea of guilty under an agreement requiring him to make restitution; to pay approximately $173,002, of which $85,000 has been paid; to pay $5,314 in unpaid taxes to the State of New Jersey; and to perform 300 hours of community service.The Attorney General agreed that defendant could apply to the Pretrial Intervention Program, and that no objection would be made if the Program Director recommended the defendant for admission.The underlying facts are fully set forth in the Director's report and need not be repeated here.

A preliminary issue arose at oral argument of the appeal due to certain positions taken by the Attorney General at different stages of the proceedings.As a part of the negotiated plea, the Attorney General agreed not to oppose the pretrial intervention application.Following the Program Director's rejection and defendant's appeal, the Attorney General initially determined to take no position.The court, however, requested that the Attorney General either consent to or oppose defendant's appeal because of the resulting difference in the applicable standard for review.The Attorney General then objected to defendant's entry into the program and filed a brief in opposition.Defendant has argued that this was a change of position that violated the recorded plea agreement; whereas, the Attorney General has asserted that there is no inconsistency.The Attorney General's refusal to consent, if well taken, gives rise to a review standard of patent and gross abuse of discretion which is most difficult to establish.It is unnecessary to plunge into this thorny thicket as the determination of this motion would be the same under the more liberal standard applicable to cases in which the state consents.

Defendant's burden on this appeal is well settled.Guideline 8 of the Guidelines for Operation of Pretrial Intervention in New Jersey, approved for implementation by the Supreme Court pursuant to R. 3:28, amended effective December 1, 1982, provides, in pertinent part:

The challenge is to be based upon alleged arbitrary or capricious action, and the defendant has the burden of showing that the Program Director or Prosecutor abused his discretion in processing the application.

[Id.]

The record establishes no arbitrary action on the part of the Program Director which would constitute an abuse of the discretion vested in him.

In rejecting defendant's application for pretrial diversion, the Program Director's report relies upon the policy guidelines found in N.J.S.A. 2C:43-12, which he identified as subsections (a) 1, 2 and 3; (b); and (e) 1, 2, 7, 8, 14 and 17.However, in addition to the statutory guidelines referenced by the Director, the Supreme Court, by amended Order effective December 1, 1982, approved implementation of additional criteria in Guidelines for Operation of Pretrial Intervention in New Jersey.Guideline 3 thereof provides that consideration shall be given to "other relevant circumstances," including that in Guideline3(i)(4) which reads If the crime was ... a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected.

[Id.]

The Program Director neither relied upon nor mentioned a breach of the public trust as a ground for his decision.This is understandable in view of the dearth of New Jersey authority to support such a basis.Research has disclosed no reported decision in this State addressing the question of whether criminal activity committed by a judge other than during or related to the performance of his judicial duties, constitutes a breach of the public trust.This opinion decides that it does, and holds that defendant's criminal conduct in his personal affairs constituted a breach of the public trust and that his admission to a PTI program would deprecate the seriousness of his crime.The Code of Judicial Conduct and cases in other jurisdictions provide support for that conclusion.

What must be recognized, as it is of paramount significance, is that defendant was not an ordinary citizen.He was a Judge of the Superior Court, one to whom the citizens of New Jersey look for the highest level of honesty and integrity.It is true, as defendant argues, that his criminal conduct was unrelated to his performance of his judicial duties which at all times was exemplary.That fact does little to satisfy the public concern that one entrusted with the high obligation of determining the rights and liabilities of the citizenry, himself engaged in a long course of breach of trust and criminal conduct.One need look only to the Code of Judicial Conduct to learn that although committed in his private life, defendant's activities violated the obligations of the office he held.

Canon 1 of the Code recites that:

An independent and honorable judiciary is indispensable to justice in our society.A judge should participate in establishing, maintaining and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.

[Code of Judicial Conduct Canon 1 (1994).]

To that end, Canon 2(A) of the Code requires a judge to "respect and comply with the law and ... act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."These canons emphasize that the confidence of the people in the judicial branch of government may be shattered by the realization that a judge in whom the Governor and the Senate have placed the enormous responsibility of that office is himself a criminal.Testimony to this is found in the commentary to Canon 2 of the Code which explains that:

Public confidence in the judiciary is eroded by irresponsible or improper conduct of judges.A judge must avoid all impropriety and appearance of impropriety, and must expect to be the subject of constant public scrutiny.A judge must therefore accept restrictions on personal conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The standard of conduct required of a judge is but a recognition of the public expectation as to those who occupy judicial office.The public trust imposed upon a judge encompasses an obligation of comportment as a law abiding citizen.This thought is reflected in a speech by John F. Kennedy, to the Massachusetts State Legislature on January 9, 1961:

For those to whom much is given, much is required.And when at some future date the high court of history sits in judgment on each of us, recording whether in our brief span of service we fulfilled our responsibilities to the state, our success or failure, in whatever office we hold, will be measured by four questions: First, were we truly men of courage?Second, were we truly men of judgment?Third, were we truly men of integrity?Finally, were we truly men of dedication?

[In re Commission on Judicial Tenure and Discipline Proceedings against Justice Antonio S. Almeida, 611 A.2d 1375, 1389(R.I.1992).]

In the absence of guiding case law in New Jersey, reference to the decisions of other jurisdictions is appropriate.The Texas Supreme Court has held that criminal misconduct by a judge in his personal affairs constitutes a breach of the public trust.SeeIn re O.P. Carrillo, District Judge, 542 S.W.2d 105(Tx.1976).In that removal proceeding, the court was presented with various acts of misconduct by the judge.He defended on the ground that the action against him was without merit, as none of the alleged misconduct related to the discharge of his judicial duties.While in removing the judge from office, the court did not specifically refer to a breach of the public trust, the ruling shows that intention.The court stated:

It is entirely possible for the personal conduct of a judge while he is off the bench to be so willful, intemperate, or dishonest as to cause public disrespect for the office and the judiciary in general.It is wise that Section 1(a) of Article 5 holds a judge accountable for both his private and his judicial conduct whenever either are so willful or persistent as to cast public discredit upon the judiciary or the administration of justice.

[Id. at 111.]

It is noteworthy that the court found this standard to be so important that it was applicable to crimes committed prior to assuming the judicial office.

We hold that non-judicial acts, including misconduct committed but unknown to the public before a judge is elected to office, may be willful or persistent so as to cast public discredit upon the judiciary or administration of justice and serve as grounds for removal under this type of proceeding.The conduct constituting grounds for removal under Section 1(a) of Article V is not limited to judicial acts or acts performed during the term of office for which the judge is elected.

[Ibid.]

The court found authority for this conclusion in decisions from California and Louisiana:

In Geiler v. Commission on Judicial Qualifications, 10 Cal.3d. 270, 110 Cal.Rptr. 201, 515 P.2d 1(1973), much of the conduct of the judge under...