State v. Schenkolewski

• Decision Date: 23 April 1997
• Citation: 693 A.2d 1173,301 N.J.Super. 115
• Parties: STATE of New Jersey, Plaintiff/Appellant, v. Yisroel SCHENKOLEWSKI, Abraham Penzer, and Martin Buckley, Defendants/Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 115

301 N.J.Super. 115

693 A.2d 1173

STATE of New Jersey, Plaintiff/Appellant, v. Yisroel SCHENKOLEWSKI, Abraham Penzer, and Martin Buckley Defendants/Respondents.

Superior Court of New Jersey Appellate Division.

Argued Jan. 13, 1997.

Decided April 23, 1997.

Daniel J. Carluccio, Ocean County Prosecutor, for appellant (Mr. Carluccio, attorney; William J. Heisler and Ellen M. Torregrossa, Assistant Prosecutors, and Mr. Carluccio, on the brief).

Alan L. Zegas, West Orange, for respondent Schenkolewski (Edward J. Dauber, Newark, and Mr. Zegas, on the joint brief filed with respondents Penzer and Buckley).

Daniel L. Grossman, for respondent Penzer (Mr. Grossman and Novins, York & Pentony, attorneys; Robert F. Novins, Toms River, of counsel; Mr. Grossman, on the joint brief filed with respondents Schenkolewski and Buckley).

John J. Barry, Newark, for respondent Buckley (Barry & McMoran and Jerome A. Ballarotto, attorneys; Thomas F. Doherty, of counsel; Mr. Barry and Mr. Ballarotto, on the joint brief filed with respondents Schenkolewski and Penzer).

Before Judges LANDAU, WALLACE and KIMMELMAN.

The Opinion of the Court was delivered by

WALLACE, J.A.D.

The State appeals from the dismissal of its indictment against three defendants for bribery, official misconduct, and conspiracy. The indictment alleged that defendant Martin Buckley gave a substantial sum of money to defendant Rabbi Yisroel Schenkolewski, purportedly in exchange for the latter's agreement to support a controversial cogeneration facility that Buckley's company was proposing to build in the town of Lakewood. Defendant Schenkolewski was a religious leader in the community who wielded considerable political influence among his constituents, the Orthodox Jewish population of Lakewood. He was also chairman of Lakewood's zoning board. According to the indictment, Buckley's company paid $500,000 to a private religious school of which the Rabbi was the principal in exchange for the promise that the Rabbi would use his influence to have town council approve the sale of land for the project. Defendant Abraham Penzer was Rabbi Schenkolewski's lawyer and confidant in this transaction.

The indictment was dismissed because the Law Division judge found that the evidence before the grand jury did not present a prima facie case of either bribery or official misconduct. In addition, the judge found that the prosecutor had committed various acts of misconduct during the grand jury proceedings, which would have necessitated a dismissal of the indictment on two additional independent grounds.

The State contends that the indictment properly charged the crimes of conspiracy, bribery, and official misconduct and that there was no prosecutorial error in the grand jury proceedings to justify dismissal of the indictment. We hold that the evidence was sufficient to support the indictment for conspiracy, bribery and official misconduct. However, the prosecutor's failure to present information respecting possible bias of several grand jury members to the Assignment Judge mandated dismissal of the indictment. We therefore affirm the judgment dismissing the indictment.

I

Defendant Schenkolewski is a rabbi and the principal of a girls' religious high school in the town of Lakewood (Township). He was the chairman of the Zoning Board of Adjustment of Lakewood (Zoning Board) and also served as liaison to the Mayor on matters between the Zoning Board and the Planning Board of Lakewood (Planning Board).

In the spring of 1988 the Lakewood Industrial Commission (Industrial Commission), a community organization overseeing the development of the Lakewood Industrial Park, agreed to sell a parcel of land in the park to Edmund Bennett of Airport Associates. Bennett in turn had an agreement to sell the land to Lakewood Cogeneration, (Cogen), a limited partnership made up of CNG Energy, a subsidiary of Consolidated Gas of Pittsburgh, and Hydra-Co Enterprises (Hydra-Co), a subsidiary of Niagara Mohawk Power. Cogen intended to build a cogeneration facility on the land, which would transform natural gas into electricity through the use of turbines and would also generate steam. Jersey City Power & Light (JCP & L) ¹ had agreed to purchase power from Cogen's facility. However, as the land in question was actually owned by the Township, only the Township Committee (Committee) had the ultimate power to authorize its sale.

On December 6, 1988, Cogen filed an application with the Planning Board seeking site plan approval for its proposed project and received approval on February 26, 1989. A contract of sale between the Industrial Commission and Airport Associates for the purchase of the land for $3,676,713.50 was executed on June 23, 1989.

Meanwhile, Cogen tried to gain support for the project. Originally, it was CNG Energy's job to perform the necessary public relations. Kenneth Cuccinelli of CNG Energy met with various groups. Although Cuccinelli did not authorize any contributions, CNG Energy bought a table at a local fundraiser and tickets to Scout dinners, and purchased advertisements in local magazines. In addition, CNG Energy donated $12,500 to the United Way to fund a study to evaluate whether handicapped workers could work in the proposed greenhouse to be located on the property.

Cuccinelli spoke with the president of the Lakewood Residents' Association, who mentioned that Rabbi Schenkolewski was the leader of a large voting bloc and was very influential. Cuccinelli then met with Rabbi Schenkolewski in January 1990 and discussed the benefits of the project to the Township's tax base. Cuccinelli did not sense any opposition by Rabbi Schenkolewski to the project and asked him for whatever support he could give.

Cuccinelli also spoke to each of the Committee members, Robert Singer, Jerry Greenberg, Jose Alonso, John Franklin, and Richard Work, whose votes were needed. Singer, who was also a State senator, told Cuccinelli that the issue was really a political one for him because his constituents were opposed to what they viewed as a trash-burning facility.

Richard McClelland, a civil engineer for CNG Energy, coordinated the engineering aspects of the proposal. He suggested to Cuccinelli that Rabbi Schenkolewski should meet with Singer since the Rabbi influenced a major voting bloc in town.

As part of the requirements for the approval of a Cogen facility, it was necessary to identify a purchaser for the steam generated by the facility. In this regard, Cogen had secured a grower of hydroponic tomatoes to be the potential purchaser of its steam. Around the same time, the tomato grower filed a variance application with the Zoning Board for approval of this agricultural use on the property. On February 2, 1990, Airport Associates filed an application with the Planning Board for preliminary and final site plan approval for a horticultural production facility.

The Committee rejected the transfer of the land to the Industrial Commission on April 26, 1990 by a vote of 3 to 2, with Singer, Greenberg, and Franklin voting no. On May 17, 1990, Airport Associates filed suit in the Superior Court against the Township seeking to compel transfer of the land.

Although CNG Energy decided not to spend any more money on the project after the Committee's decision, defendant Martin Buckley of Hydra-Co began to take a more active role. Buckley was responsible for developing the Cogen project. He had broad authority to engage in contract negotiations, community relations, and financing.

In early June 1990 Cuccinelli and Buckley met with Rabbi Schenkolewski and defendant Abraham Penzer, who described his role as that of "assistant" to the Rabbi. Rabbi Schenkolewski and Penzer said they would think about ideas to move the project forward. Penzer stressed that Rabbi Schenkolewski was quite influential in the community.

A few days later at a Hydra-Co board meeting, Buckley mentioned the community opposition to the project and his meeting with Rabbi Schenkolewski. Irvin Mermelstein, vice president and general counsel of Hydra-Co, offered to meet with Rabbi Schenkolewski because Mermelstein had a cousin who had been head of a rabbinical college in Lakewood. At that time, Mermelstein did not know that Rabbi Schenkolewski was a member of the Zoning Board.

In preparation for Mermelstein's meeting with Rabbi Schenkolewski, McClelland drafted a memo with possible "discussion points." He noted specific questions that Mermelstein should ask the Rabbi, including what avenues could be used to influence the Township to settle, whether the Rabbi would be willing to be in a position to broker negotiations for a foundation or building fund, whether the Rabbi believed the Township would appeal if it lost the lawsuit, what the viability of the Township Committee would be after the next election, and who was influencing Committee member Greenberg.

Mermelstein met with Rabbi Schenkolewski on June 13, 1990. He solicited information from the Rabbi about the community and its views towards the project. Rabbi Schenkolewski told Mermelstein about the large population of Orthodox Jews and senior citizens. According to the Rabbi, the Jewish population was neutral-to-positive about the project, but the senior citizens and the neighboring citizens of Brick Township were opposed to it. Rabbi Schenkolewski advised Mermelstein to contact the senior citizens directly to address their health concerns and to meet with the Township Committee. Rabbi Schenkolewski did not ask Mermelstein for any compensation, and the subject of contributions was never discussed.

The hearings before the Zoning Board on the tomato grower's variance application continued. Rabbi Schenkolewski, as chairman of the Zoning Board, participated in these hearings. On June 14, 1990, the Zoning Board approved the variance application, conditioned upon the tomato grower's agreement not to purchase steam from Cogen. Rabbi Schenkolewski voted in favor of...