State v. Perez

• Court: New Jersey Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State v. Perez, 883 A.2d 367, 185 N.J. 204 (N.J. 2005)
• Decision Date: 13 October 2005
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Luis PEREZ, Defendant-Appellant.

883 A.2d 367

185 N.J. 204

STATE of New Jersey, Plaintiff-Respondent, v. Luis PEREZ, Defendant-Appellant.

Supreme Court of New Jersey.

Argued September 13, 2005.

Decided October 13, 2005.

George T. Taite, Jersey City, argued the cause for appellant (De Luca & Taite, attorneys; Samuel R. De Luca, on the brief).

Robert E. Bonpietro, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney).

PER CURIAM.

Defendant Luis Perez was charged in a multi-count indictment with taking part in a scheme to obtain fraudulent motor vehicle documents. Reserving his right to appeal, Perez entered a plea of guilty to second-degree conspiracy to commit official misconduct, in violation of N.J.S.A. 2C:5-2 and 2C:30-2 (Count 1), as part of a plea agreement that called for dismissal of all other counts against him. Prior to entering his plea, Perez had moved to dismiss both the conspiracy count and a charge of accomplice to official misconduct (Count 2). Perez had argued that he could be neither a co-conspirator nor an accomplice to official misconduct because his co-defendant, who was central to the official misconduct alleged, was not a "public servant" within the meaning of N.J.S.A. 2C:30-2. The trial court rejected Perez's argument and, on appeal, the Appellate Division affirmed. We granted defendant's petition for certification, State v. Perez, 182 N.J. 429, 866 A.2d 986 (2005), and now, for reasons that require only brief discussion, affirm his conviction.

Perez's co-defendant, Maria Elena Vijande, held the position of Head Clerk at the North Bergen Department of Motor Vehicle (DMV) office, which was authorized to issue motor vehicle licenses and vehicle registrations in the name of the State of New Jersey. Defendant and other co-defendants were charged with conspiring with Vijande to issue false DMV documents based on fraudulent applications. At the time of the events leading to the indictment, the North Bergen DMV was one of numerous local motor vehicle agencies that had been privatized pursuant to Reorganization No. 002-1995 filed by Governor Christine Todd Whitman. See generally Communications Workers of America v. Whitman, 335 N.J.Super. 283, 286, 762 A.2d 284 (App.Div.2000) (describing history of public versus private operation of DMV agencies), certif. denied, 167 N.J. 636, 772 A.2d 937 (2001). As a consequence of the privatization, the clerks at the North Bergen DMV, Head Clerk Vijande included, were not employed by the State. Rather, they were employed by a corporate entity with whom the State had contracted to operate the North Bergen DMV agency. Perez advances the argument that because Vijande was not a State employee at the time of the alleged misconduct she did not meet the definition of "public servant" and, therefore, could not be charged with official misconduct. For that reason, there was an insufficient basis for Perez's plea to conspiracy to commit official misconduct.

We disagree. In pertinent part, N.J.S.A. 2C:30-2 provides that

[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[.]

The statute's purpose plainly is to prevent the perversion of governmental authority. In furtherance of that end, the term "public servant" is defined broadly for purposes of misconduct in office, as well as for other offenses against public administration, to encompass individuals who are authorized to perform a governmental function, irrespective of whether they hold a position of public employment.

"Public servant" means 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:27-1g].

One does not escape the statute's reach merely because one is not an employee of government. See Cannel, Criminal Code Annotated (2005), Comment 2 to N.J.S.A. 2C:27-1 at 744 (noting term's broad...