State v. Stevens

• Decision Date: 19 February 1988
• Citation: 222 N.J.Super. 602,537 A.2d 774
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Gary STEVENS, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 602

222 N.J.Super. 602

537 A.2d 774

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Gary STEVENS, Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 25, 1987.

Decided Feb. 19, 1988.

Alfred A. Slocum, Public Defender, for defendant-appellant and cross-respondent (Thomas R. Ryan, Designated Counsel, of counsel and on the brief).

W. Cary Edwards, Atty. Gen., for plaintiff-respondent and cross-appellant (John J. Scaliti, Deputy Atty. Gen., of counsel and on the brief).

Before Judges FURMAN, BRODY and SCALERA.

The majority opinion of the court was delivered by

SCALERA, J.A.D.

Defendant was a Westampton police officer who appeals his jury convictions for two counts of second degree official misconduct contrary to N.J.S.A. 2C:30-2(a), (counts one and three) and one count of third degree criminal coercion contrary to N.J.S.A. 2C:13-5, (count two). He was sentenced to consecutive three year terms of imprisonment on counts one and three, a concurrent 18-month term on count two and was required to pay an aggregate fine of $22,500 as well as a $75 penalty to the Violent Crimes Compensation Board.

Defendant was indicted and tried on the basis of two incidents one of which occurred on January 1, 1982 ¹ involving one Jeanette Potter and the other on February 22, 1982 involving one Jane A. Petroski. The evidence involving those offenses indicated the following:

On January 1, 1982 Jeanette Potter, along with her sister and brother-in-law, visited Roy Smitherman at the Howard Johnson Motel in Mount Holly. After driving away, they were stopped by policemen, including defendant and escorted back to the motel. After a search of the purses of Potter and her sister all were taken to Westampton police headquarters. There Potter gave a written statement to defendant. He then left the room with the statement, returned, locked the door and advised her that she was being detained in connection with a drug investigation of Smitherman. Potter denied being in possession of any drugs but defendant insisted that he had to search her for needle marks. He looked at her arms and advised Potter that because some people shoot drugs in their stomach he had her remove her blouse. He then told her to expose the rest of her stomach which she did so by letting her pants fall. Defendant told her that if she proved she was not a drug addict, he would let her entire group go home. Eventually, defendant did release all of them.

Defendant testified at trial that he recalled arresting Potter but denied that he attempted to search her or required her to undress. He said that he went to Potter's residence subsequent to the incident to obtain more drug information from her. Defendant claimed that Potter never accused him of having strip searched her.

On February 22, 1982, Patrolman Michael Mahalachek of the nearby Willingboro Township Police Department issued a ticket to Jane Anne Petroski at approximately 3:40 a.m. for going through a red light. She produced her credentials and because he smelled no odor of alcohol on her breath Mahalachek released her. Subsequently Mahalachek learned that Petroski had been driving while on the revoked list so he issued her another ticket and went to Westampton Police Station where he had been informed she was. Since the parking lot there was deserted, he left the summons on her car dashboard.

Actually, Petroski had run out of gas near the Westhampton police station and had coasted into the parking lot to use the emergency phone to get help. Burlington County Central Communications issued a radio message that there was a stranded female at the station. Defendant and his rookie partner, Officer Harvey Montijo, as well as several other officers, heard the dispatch on their way to the Burlington City Diner for breakfast. Defendant told Montijo to continue on and that he would answer the call.

Upon arriving at Westampton police headquarters, defendant asked Petroski for her driving credentials. She acknowledged that she had been drinking so he took her inside to perform balance tests. After she performed them he told her she had failed and would have to be searched. He picked up the phone to call a matron, but Petroski never actually saw him dial it. He then told her it would be a long time before someone could perform the search. Petroski was frightened and asked if defendant could perform the search, not realizing it would involve undressing. Petroski had not been informed that she was under arrest. Initially, he had her remove her socks and boots. Defendant then told her he wanted to see if she had anything between her breasts and requested that she take off her shirt. She did not know what to do, but gathered up her shirt, not removing it. Defendant then told her he had to see if she had anything taped between her legs. He instructed her to drop both her jeans and panties. She complied out of fear of him and of losing her driver's license. He then made her sit in a chair facing him with her legs spread; then, standup, bend over and spread her legs again. After she dressed defendant told her he would not remove her license for driving while intoxicated but would issue her a ticket for driving while on the revoked list. However, defendant never issued such a summons. Thereafter, defendant then drove Petroski home. As she got out of the car, he said, "Don't screw me and I won't screw you."

The defendant's version of the Petroski incident was that he had seen a vehicle speeding down Rancocas Road but did not stop it. Subsequently, that same car broke down and defendant received a call regarding the disabled vehicle. He went directly to headquarters and met with the driver, Petroski. She produced driving credentials but she had blood on her hands and a rear window was broken; she indicated that she had been in a fight at the Washington House and that someone had broken her window. However, Petroski said that she did not want to report it because, "all pigs are the same."

Petroski asked the defendant if she could use the bathroom inside headquarters, so he let her in. He then called the dispatcher and found out that Willingboro Police had stopped Petroski earlier but had let her car go, not knowing that she had been driving on the revoked list. When Petroski came out of the bathroom, he asked her if she wanted to take a breathalyzer test since she looked like she was drunk. She asked to make a telephone call, adding that she wanted to call an assistant prosecutor for whom her mother worked. Instead, the defendant told Petroski that he would not give her a ticket but would give her a ride home.

He was in the station with her about 15 minutes and in the parking lot for an equal amount of time. Petroski told him that he was a "really nice guy" for driving her home. He denied touching or searching her in any way. However, she had invited him to look into her purse. When he did he saw a small bag of marijuana which he had her dump in the parking lot. While this was going on, Montijo had been at the Burlington Diner eating breakfast with some other local policemen.

At one point defendant had communicated with Montijo and requested his assistance. The defendant eventually decided not to issue a summons to Petroski because of the various personal problems she mentioned as well as the tickets which had previously been issued to her that evening from the Willingboro Police. Eventually he decided to take Petroski home at 4:45 a.m. when Montijo failed to show up.

The incident came to light when Petroski subsequently called her stepmother, her father and her sister the same day and told them of the incident. Later that morning, Petroski's mother reported it to the Chief of the Westhampton Police Department, Russell Minuto. As a result, Chief Minuto telephoned defendant and questioned him concerning the incident. Defendant denied the allegations claiming that the girl was drunk or under the influence of drugs. Defendant insisted that Montijo was with him at all times and could verify his account of what had transpired.

After he had been contacted by Chief Minuto, defendant telephoned Montijo and advised him of the Chief's call and that he had advised the Chief that Montijo was present with him at the station with the girl. Defendant then requested that Montijo verify his version should the Chief inquire but Montijo refused.

Defendant testified that subsequently the Chief told him that the complaint was not being pursued any further. He denied requesting Montijo to lie for him. He added that the Chief also told him that Petroski's mother had called him back later and said that if her daughter had taken her clothes off, she had done so willingly. He denied ever telling the Chief that Montijo had been with him the entire time that he was with Petroski.

On April 30, 1982, defendant was arrested by members of the Burlington County Prosecutor's Office concerning the strip search of Petroski. On May 20, 1982, defendant was again arrested, this time as a result of a complaint concerning the strip search of Potter. On that day, after being advised of his rights, defendant told Captain Neil Forte of the prosecutor's office, "off the record, Neal, I hear you're the guy that's trying to stick it up my a__. What's it going to take to get me out of this?" Defendant then offered to resign from the police department or plead guilty to a disorderly persons offense if Forte would terminate the investigation. Forte advised defendant that he could not speak to him with respect to the case since defendant had not waived his rights, and that Forte could not get involved in any type of plea bargaining.

Defendant's version of the post arrest discussions was that he never indicated a willingness to resign or plead guilty to a reduced charge. Rather, he said he was informed that if he resigned the charges would be dismissed. However, he refused to accept this...