State of New Jersey v. L.D. , 444 N.J. Super. 45 ( 2016 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4008-14T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Appellant, January 28, 2016
v. APPELLATE DIVISION
L.D.,
Defendant-Respondent.
_______________________________
Argued October 19, 2015 - Decided January 28, 2016
Before Judges Lihotz, Fasciale and Higbee.1
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 14-06-0086.
Brian J. Uzdavinis, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General, attorney;
Mr. Uzdavinis, of counsel and on the brief).
James J. Gerrow, Jr., argued the cause for
respondent (Sitzler and Sitzler, attorneys;
Mr. Gerrow, on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
1
Judge Higbee did not participate in oral argument. She
joins the opinion with counsel's consent. R. 2:13-2(b).
On our leave granted, the State appeals from a January 22,
2015 order dismissing count two of a Grand Jury indictment,
charging defendant L.D. with second-degree speculating or
wagering on official action or information, N.J.S.A. 2C:30-3.
The State alleged defendant used information he received in his
official position as a local government official to purchase
farmland for the sole purpose of selling development rights
attached to the property to a developer undertaking a project in
the municipality.2 Defendant moved to dismiss this charge,
arguing his actions were based on public information and not
confidential facts gained through his official position. The
motion judge agreed and ordered dismissal of count two of the
indictment, without prejudice.
On appeal, the State seeks reversal, arguing:
THE STATE PRESENTED THE GRAND JURY WITH MORE
THAN SUFFICIENT EVIDENCE TO SUPPORT A PRIMA
FACIE CASE THAT DEFENDANT COMMITTED THE
CRIME OF SPECULATING OR WAGERING ON OFFICIAL
ACTION OR INFORMATION.3
2
Count one of the indictment charged second-degree official
misconduct, N.J.S.A. 2C:30-2(a), relating to defendant's alleged
official actions, including voting to adopt township ordinances
and planning board resolutions to aid the development, without
disclosing his personal relationship with the developer.
3
The State also contends the judge improperly made factual
findings unsupported by the record.
2 A-4008-14T1
For the reasons stated in our opinion, we affirm, concluding the
record shows the information allegedly used by defendant was
neither confidential nor disclosed solely to him. Accordingly,
the State failed to produce sufficient evidence before the grand
jury to establish a prima facie case that defendant has
committed the crime charged. State v. Hogan, 144 N.J. 216, 236
(1996).
These facts, principally found in documentary evidence
gathered in an investigation by the Office of the State
Comptroller and presented by the State to an Investigative Grand
Jury, undergird the charges against defendant. Initially,
however, we provide background information necessary to
understand the context of the issue presented.
In 2005, the Township,4 which contained many farms and
undeveloped land, participated in a pilot program known as the
Burlington County Transfer Development Rights Program. This
land management program clustered development in a specified
receiving area surrounded by agricultural and open space. The
agricultural and open space properties sold "transfer
development rights" (TDR), described as "credits," associated
with the land to landowners seeking to develop in the receiving
4
In accordance with Rule 1:38-3(c)(4), we have omitted
identifying information.
3 A-4008-14T1
area. The number of TDR credits associated with a parcel was
based on its size and quality for development. For example, a
farmer could sell development rights, thereby preventing the
associated land from future development, preserving it as a
farm. An owner proposing development of land in the receiving
area was required to first amass a specific number of TDR
credits, depending on the size and density of its planned
building project. The Burlington County Transfer Development
Bank Board also owned TDR credits as part of its farmland
preservation efforts, which it would sell through auction to
facilitate development in the participating municipalities.
Overall, the program preserved open space and marshalled
residential and commercial development to designated areas of a
municipality.
Testifying witnesses before the Investigative Grand Jury
included the Chief Operating Officer (the COO) of a real estate
development corporation (the developer), which acquired
undeveloped land in the Township to construct a multiuse housing
and commercial development. The COO discussed the developer's
need to acquire a designated number of TDR credits, prior to
proceeding with construction. Finally, he explained the
developer's interactions with defendant.
4 A-4008-14T1
In early 2005, while defendant was serving as mayor and a
member of the Township Planning Board, the developer contracted
to purchase a large undeveloped parcel in the Township's
receiving area. In March 2005, prior to closing and in the
course of performing due diligence, the developer's COO,
accompanied by its owner, met with Township officials, including
defendant. They discussed plans for the proposed development
and the need for acquisition of the approximately 240 TDR
credits for the project to move forward. The developer also
engaged a real estate broker to develop leads and assist its
efforts in convincing farmers to sell available TDR credits.
The developer closed on the property in May 2005.
The COO next recited the developer's unsuccessful efforts
to acquire TDR credits. The developer had approached "a handful
of large credit owners," expressing a willingness to pay more
per credit for large blocks of TDR credits. In October 2005,
the developer issued a mailing to approximately thirty or forty
entities, which disclosed its TDR credit needs and offered to
pay $55,000 to $60,000 per credit, depending on the terms of the
transaction, which was a price "10 to 20 percent more than
anyone had ever offered . . . ." The developer also "assumed
that in the farming community everyone tends to know each other"
and believed if one farmer was engaged, he or she could convince
5 A-4008-14T1
others to join. The COO testified the response to the
developer's mailing inquiry was "terrible," consisting of two or
three potential sellers, who had few credits and asked nearly
twice the offering price. This lackluster response concerned
the developer, which faced the prospect of being unable to
develop its property.
Defendant, as mayor, periodically inquired regarding the
status of the developer's credit acquisition and, in March 2006,
the COO personally told him of the "dismal" response to its
efforts. Defendant, knowing the developer's difficulty,
approached the COO and suggested he intended to purchase a
roughly 100-acre parcel (the farm), adjacent to his home, and
wanted to sell the developer the associated TDR credits for
$65,000 per credit.
On May 3, 2006, defendant executed a contract with the
developer, through its subsidiary, to transfer all TDR credits
associated with the farm.5 The developer agreed to buy the
parcel's TDR credits for $65,000 per credit. The contract terms
also provided defendant a $150,000 non-refundable deposit and
gave him the right to file an appeal to increase the designated
5
We are aware defendant and his wife were the designated
purchasers of the property and the named sellers of the TDR
credits to the developer. In our opinion, for clarity, we have
omitted specific references to defendant's wife.
6 A-4008-14T1
TDR credit allotment associated with the farm. If successful in
this effort, a contingency clause provided the price per credit
would be increased to $70,000. Finally, unlike its other
agreements to purchase TDR credits, the developer's contract
with defendant included a clause prohibiting its recording as a
public record.
Thereafter, defendant applied to increase the TDR credits
associated with the farm, from approximately twenty-six to
thirty-six. In his application, defendant did not disclose his
contract with the developer to sell the TDR credits associated
with the farm. One month later, the Township Planning Board
approved the application. On July 12, 2006, defendant completed
the $2 million purchase, taking title to the farm.
On August 9, 2006, Burlington County Land Use Office
officials were invited to participate in a Township Committee
meeting. During that meeting, defendant urged the County to
sell its TDR credits to the developer to allow the proposed
developer to move forward. Thereafter, on September 6, 2006,
defendant, on behalf of the Township Committee, accompanied the
developer's officers to present a similar proposal to the County
Transfer Development Bank Board. Ultimately, in 2007, the
County held a public auction of TDR credits. The developer
purchased thirty TDR credits during that sale.
7 A-4008-14T1
In April 2007, defendant introduced and voted on a
resolution to present Ordinance 2007-9 to the Township Planning
Board, designed to decrease the requisite TDR credits for
proposed residential development in the Township. The Ordinance
was adopted by the Township Committee on April 26, 2007; its
adoption was moved by defendant, who also voted on its passage.
At that time, the developer was the primary active developer in
the Township, which would benefit from the Ordinance. Defendant
did not disclose his acquisition of the farm or his plan to sell
associated TDR credits to the developer. In the ensuing months
through April 2008, defendant participated in and voted on other
ordinances directly affecting the development.6 He also
privately corresponded with the developer suggesting it draft a
letter to other Township officials disclosing the difficulties
and asking for assistance to advance the proposed development.
At no time did defendant disclose his association.
Finally, on the Local Government Ethics Law Disclosure
Statements filed by defendant, he did not include his
transaction with the developer and its related entities, despite
6
On April 12, 2008, defendant was disqualified from
participating in any planning board actions regarding the
development because he had participated in and advocated issues
during discussions regarding the development's required TDRs.
8 A-4008-14T1
receipt of the deposit, a net profit upon sale of the credits,
and interim mortgage payments.
Defendant was later indicted. He moved to dismiss both
charges, challenging the quantum of the State's evidence.
Specifically, regarding the crime of second-degree speculating
or wagering on official action or information, defendant argued
information he used was public information, not confidential
disclosures learned in his official capacity. The State
responded, arguing although the public was aware the developer
sought to purchase a large amount of TDR credits, defendant,
while acting in his official capacity, additionally learned the
developer experienced extreme difficulty in acquiring TDR
credits. Knowing the lack of TDR credits could scuttle the
development, the State argued defendant used this "non-public
information" to proceed to negotiate a personal deal with the
developer to sell credits associated with the farm.
The motion judge denied the request to dismiss count one,
and reserved her decision with respect to count two. In a
supplemental written opinion, the judge granted defendant's
motion to dismiss count two, without prejudice. She determined
the developer publicly told Township officials in March 2005 of
its perceived difficulty to amass the required credits,
announced its intention, and engaged in solicitation efforts to
9 A-4008-14T1
purchase 240 TDR credits. She noted the developer "had already
reached out to . . . a lifetime farmer and licensed real estate
broker, in 2005, to approach other farmers and large landowners
to try to encourage them to sell their credits . . . . and by
early 2006 all of the public gestures had been made." Further,
the judge found "all the farmers in town, including [defendant],
knew each other and would have talked regularly as early as
2005, and by late 2005 [the developer] had already sent a mass
mailer."
On the State's motion for reconsideration, it analogized
defendant's conduct to insider-trading, where a seller's
position is strengthened by knowledge an ordinary buyer could
not obtain elsewhere. The State suggested "the non-public
information to which defendant had access through his official
capacity was not that [the developer] was looking for credits,
but it was the mindset with which [the developer] was looking
for credits." The State emphasized the degree of the
developer's desperation was "a matter of factual resolution for
a jury[.]"
The judge disagreed. Noting everyone knew of the
significant number of credits the developer needed to advance
its project, she found knowledge of the lackluster response to
the developer's public efforts was very subjective and too
10 A-4008-14T1
"nuanced" a point to support the change, stating "the only way
you can analyze degrees of want or need is through subjective
analysis . . . ." Further, she noted Township farmers would
have been well-informed about the developer's difficulties. For
example, the realtor hired by the developer was a farmer and
knew of the difficulties. In fact, the realtor first attempted
to purchase the farm defendant successfully bought. The judge
concluded the facts did not support a prima facie case under the
statute. The judge dismissed the charge without prejudice and
stayed the determination pending the State's application for
interlocutory review. We granted the State's motion for leave
to appeal.
Our Supreme Court "has recognized the grand jury's
independence and has expressed a reluctance to intervene in the
indictment process." Hogan, supra, 144 N.J. at 228. "In
seeking an indictment, the prosecutor's sole evidential
obligation is to present a prima facie case that the accused has
committed a crime." Id. at 236. "'[T]he decision whether or
not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in [the prosecutor's]
discretion.'" State v. Perry, 124 N.J. 128, 168 (1991) (quoting
Bordenkircher v. Haye, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54
L. Ed. 2d 604, 611 (1978)). It is not the role of a reviewing
11 A-4008-14T1
court to question the strength of the case, its possible
deterrent value, or the government's enforcement priorities.
Ibid. Nonetheless, the reviewing court's responsibility remains
to examine whether "an indictment alleges all the essential
facts of the crime[.]" State v. N.J. Trade Waste Ass'n, 96 N.J.
8, 19 (1984).
Recently, the Court expounded on the nature of judicial
review of a challenge to a grand jury indictment, noting "[t]he
grand jury 'is an accusative rather than an adjudicative body,'
whose task is to 'assess whether there is adequate basis for
bringing a criminal charge.'" State v. Saavedra, 222 N.J. 39,
56 (2015) (quoting Hogan, supra, 144 N.J. at 229-30).
A trial court deciding a motion to dismiss
an indictment determines "whether, viewing
the evidence and the rational inferences
drawn from that evidence in the light most
favorable to the State, a grand jury could
reasonably believe that a crime occurred and
that the defendant committed it." [State v.
Morrison, 188 N.J. 2, 13 (2006)] (citing
State v. Reyes, 50 N.J. 454, 459 (1967)). A
court "should not disturb an indictment if
there is some evidence establishing each
element of the crime to make out a prima
facie case." Id. at 12 (citing Hogan,
supra, 144 N.J. at 236; State v. Vasky, 218
N.J. Super. 487, 491 (App. Div. 1987)).
[Id. at 56-57.]
A trial court's decision on a motion to dismiss an
indictment involves an exercise of discretion. Id. at 55; State
12 A-4008-14T1
v. Weleck, 10 N.J. 355, 364 (1952) ("[T]he ultimate question on
this appeal is whether the trial court abused its discretion in
granting the defendant's motion to dismiss the indictments.").
In our review, "'[a] trial court's exercise of this
discretionary power will not be disturbed on appeal unless it
has been clearly abused.'" Saavedra, supra, 222 N.J. at 55-56
(quoting State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div.
1994), certif. denied, 140 N.J. 277 (1995)).
Here, defendant was charged with the crime of speculating
or wagering on official action or information, which is
established by proving these elements:
A person commits a crime if, in
contemplation of official action by himself
or by a governmental unit with which he is
or has been associated, or in reliance on
information to which he has or has had
access in an official capacity and which has
not been made public, he:
a. Acquires a pecuniary interest in any
property, transaction or enterprise which
may be affected by such information or
official; or
b. Speculates or wagers on the basis of
such information or official action; or
c. Aids another to do any of the
foregoing, while in office or after leaving
office with a purpose of using such
information.
[N.J.S.A. 2C:30-3 (emphasis added).]
13 A-4008-14T1
The State made clear prosecution was based on defendant's
acquisition of the farm. Using the non-public information, the
developer was desperate to acquire TDR credits.7
Initially, we address the State's challenge to the judge's
factual findings. The State challenges, as unfounded, the
finding "all the farmer[]s in town including [defendant], knew
each other and would have talked regularly as early as 2005
. . . ." We note this finding reiterates the judge's comments
during oral argument, suggesting "these were farmers who dealt
in credits on a daily basis, had dealt with this development
before and knew exactly what that meant. We aren't talking
about a group of people that had no interaction with this
before." Even though comments relating to an assumed
familiarity amongst farmers regarding possible shortcomings of
the developer's pursuit of TDR credits were uttered, we conclude
7
N.J.S.A. 2C:30-3 is written in the disjunctive and sets
forth alternative elements of the crime. The first alternative
includes acquiring pecuniary interest in any property,
transaction or enterprise in contemplation of official action by
a governmental unit with which he or she is associated, which
may be affected by such official action. The second sets forth
the use of non-public information gained in an official
capacity. Although the entire statute is included in the
indictment, the State's argument focused solely on this latter
provision. Therefore, we limit our review to this argument.
See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48
n.1 (App. Div. 1989) (noting that an issue not briefed is
waived).
14 A-4008-14T1
the judge's determination properly focused on the confidential
nature of the information.8
The narrow question for consideration is whether the State
presented evidence to establish defendant obtained and acted
upon "information to which he has or has had access in an
official capacity and which has not been made public," as
proscribed by N.J.S.A. 2C:30-3. We are cognizant of the State's
argument the trial judge mistakenly characterized its theory of
the case by focusing on the developer's public solicitation for
TDR credits, not the aggregation of individual responses to the
solicitation, a matter the State maintains was not public
knowledge. We consider whether the response rate to the
developer's public mass mailer and the developer's "mindset" to
this response was the type of non-public information, the use of
which was criminal pursuant to N.J.S.A. 2C:30-3.9
8
The grand jury record contained no direct evidence, but
only the COO's statements that the developer assumed the farmers
were close knit. Accordingly, drawing inferential conclusions
from this limited evidence cannot support dismissal of the
charge. See Hogan, supra, 144 N.J. at 235 ("Credibility
determinations and resolution of factual disputes are reserved
almost exclusively for the petit jury."). Nevertheless, we
conclude the cited comments did not undergird the conclusion to
dismiss the indictment.
9
Defendant argues any interested individual could freely
obtain a list of TDR credit-owners by request, which was
maintained in various township and county records. We need not
examine whether this fact, if true, impacts the motion request.
15 A-4008-14T1
Although no New Jersey court has squarely addressed the
meaning of "information . . . which has not been made public,"
N.J.S.A. 2C:30-3, the language used is not unique.10 In fact,
identical or nearly identical language can be found in
corresponding public official misconduct statutes in a host of
other states.11 We mention the review by two states with similar
10
N.J.S.A. 2C:30-3 mirrors Model Penal Code § 243.2. "'When
a provision of the Code is modeled after the [Model Penal Code],
it is appropriate to consider the [Model Penal Code] and any
commentary to interpret the intent of the statutory language.'"
Saavedra, supra, 222 N.J. at 75 n.7 (quoting State v. Robinson,
217 N.J. 594, 606 (2014)). We note the commentary associated
with this section states:
Section 243.2 deals with a completely
different kind of defalcation by public
employees. Specifically, it covers
situations where personal gain is sought by
the acquisition of property or by financial
speculation in cases where the employee has
access to inside information by virtue of
his employment. It applies both to official
action to be taken by the public employee or
some governmental unit with which he is
associated and to information to which he
has access in his official capacity and that
has not been made public. It also applies
if the official aids any other person to
engage in the same type of activity on the
basis of inside information.
11
See Ala. Code § 13A-10-82 (2015) (Alabama); Ark. Code Ann.
§ 5-52-106 (2015) (Arkansas); Colo. Rev. Stat. § 18-8-402 (2015)
(Colorado); Del. Code Ann. tit. 11, § 1212 (2015) (Delaware);
Fla. Stat. § 839.26 (2015) (Florida); Ind. Code § 35-44.1-1-1
(2015) (Indiana); Ky. Rev. Stat. Ann. § 522.040 (LexisNexis
2015) (Kentucky); Mo. Rev. Stat. § 576.050 (2015) (Missouri);
Neb. Rev. Stat. § 28-925 (2015) (Nebraska); N.C. Gen. Stat. §
(continued)
16 A-4008-14T1
criminal statutes that have elucidated the nature of non-public
information as used in this context.
Pennsylvania's statute criminalizing the action of
speculating or wagering on official action or information is
nearly identical to our own. See 18 Pa. Cons. Stat. § 5302(2015).12 That law has been interpreted to require the
identified information be "confidential information which was
obtained by virtue of the actor's official position."
Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983). Where
(continued)
14-234.1 (2015) (North Carolina); Or. Rev. Stat. § 162.425(2015) (Oregon); Tenn. Code Ann. § 39-16-404 (2015) (Tennessee);
Utah Code Ann. § 76-8-202 (LexisNexis 2015) (Utah).
12
18 Pa. Cons. Stat. § 5302, entitled "Speculating or
wagering on official action or information[,]" states:
A public servant commits a misdemeanor of
the second degree if, in contemplation of
official action by himself or by a
governmental unit with which he is
associated, or in reliance on information to
which he has access in his official capacity
and which has not been made public, he:
(1) acquires a pecuniary interest in
any property, transaction or enterprise
which may be affected by such information or
official action;
(2) speculates or wagers on the basis
of such information or official action; or
(3) aids another to do any of the
foregoing.
17 A-4008-14T1
information is accessible from other potential sources, it
cannot satisfy the non-public element of the statute. Ibid.Also, the Texas Legislature, in formulating a similar
statute, chose to expressly define "information that has not
been made public" to include "any information to which the
public does not generally have access, and that is prohibited
from disclosure under [the Texas Public Information Act]." Tex.
Penal Code Ann. § 39.06(d) (2015).13 Texas courts interpreted
13
The Texas statute entitled "Misuse of Official Information"
provides:
(a) A public servant commits an offense if,
in reliance on information to which the
public servant has access by virtue of the
person's office or employment and that has
not been made public, the person:
(1) acquires or aids another to
acquire a pecuniary interest in
any property, transaction, or
enterprise that may be affected by
the information;
(2) speculates or aids another to
speculate on the basis of the
information; or
. . . .
(d) In this section, "information that has
not been made public" means any information
to which the public does not generally have
access, and that is prohibited from
disclosure under Chapter 552, Government
Code.
. . . .
18 A-4008-14T1
this definition as having "two components[,] stated in the
conjunctive: information to which the public does not generally
have access; and that is prohibited from disclosure under the
Open Records Act." State v. Ford, 179 S.W.3d 117, 122 (Tex.
Crim. App. 2005). Notably, defining the phrase by direct
reference to the state's public information law removes possible
vagaries when distinguishing what information a public official
may learn in day-to-day activities that would, if acted upon,
subject him or her to prosecution under the statute.
When this court engages in statutory interpretation, "[o]ur
task . . . is to discern and give effect to the" Legislature's
intent. State v. O'Driscoll, 215 N.J. 461, 474 (2013). "To
begin, we look at the plain language of the statute." State v.
Munafo, 222 N.J. 480, 488 (2015) (citing State v. Frye, 217 N.J.
566, 575 (2014)). In so doing, we are directed to
look to the plain language of the statute,
"which is typically the best indicator of
intent." In re Plan for the Abolition of
the Council on Affordable Hous., 214 N.J.
444, 467 (2013). Statutory language is to
be interpreted "in a common sense manner to
accomplish the legislative purpose."
N.E.R.I. Corp. v. N.J. Highway Auth., 147
N.J. 223, 236 (1996). When that language
"'clearly reveals the meaning of the
statute, the court's sole function is to
enforce the statute in accordance with those
terms.'" McCann v. Clerk of Jersey City,
167 N.J. 311, 320 (2001) (quoting SASCO 1997
NJ, LLC v. Zudkewich, 166 N.J. 579, 586
(2001)).
19 A-4008-14T1
. . . .
[Where a] statute is penal[,] it must
. . . be strictly construed. State v. D.A.,
191 N.J. 158, 164 (2007). "The strict
construction doctrine, and its corollary,
the doctrine of lenity, mean[] that words
are given their ordinary meaning and that
any reasonable doubt . . . is decided in
favor of [the defendant]." Ibid. (quotation
omitted).
[State v. Olivero, 221 N.J. 632, 638-39
(2015) (fifth and sixth alterations in
original).]
Applying these principles to the matter under review, we
conclude the language of N.J.S.A. 2C:30-3 is not ambiguous and,
when read in a "common sense manner[,]" Olivero, supra, 221 N.J.
at 639, penalizes a person for conduct taken in reliance on
information revealed during and by virtue of his or her position
as a public official, which was not otherwise disclosed to the
public. If no evidence is shown suggesting the identified
information was relayed to the public official in confidence or
that the information was not otherwise publicly disclosed, an
essential element of the statute is not satisfied. Thus, we
conclude the plain meaning of N.J.S.A. 2C:30-3 reflects it was
not intended to ensnare an individual for utilizing information
not conveyed in confidence because of his or her official
position.
20 A-4008-14T1
We recognize the State's argument to differentiate between
information regarding the developer's general need for TDR
credits and the lackluster response to its offers to purchase
available credits. However, neither the face of the indictment
nor a searching review of the grand jury testimony reveals any
suggestion the response rate itself was somehow confidential.
Perhaps the fact was not widely known and, certainly, defendant
was directly informed about the developer's plight in soliciting
credits because he was the member of the Township Committee who
dealt directly with the developer's COO. Yet, nothing supports
a conclusion the "dismal" or "terrible" response rate to the
offer to buy credits was conveyed to him in confidence or was in
fact confidential and communicated solely to him by virtue of
his public position.
The grand jury did not elucidate a basis for its
conclusion, set forth in the indictment, stating defendant
obtained "information from [the developer] concerning a real
estate development project, which information was not yet made
available to the public[.]" Rather, the evidence presented to
the grand jury and rational inferences drawn from that evidence,
even in the light most favorable to the State, merely
established the information regarding the disappointing response
rate was conveyed to defendant by the developer. This record
21 A-4008-14T1
does not evince the additional element that the information was
private, confidential, or non-public. Although the extent to
which the information was known is not clear, at the very least,
the record shows the real estate broker engaged by the developer
knew many credits were still needed.
Where there is no evidence to support a charge, "the
indictment is 'palpably defective' and subject to dismissal."
Saavedra, supra, 222 N.J. at 56 (quoting Morrison, supra, 188
N.J. at 12). Here, the confidential nature of the aggregate
response to the developer's mailer was "clearly lacking" in both
the facts alleged in the indictment and the evidence presented
to the grand jury. State v. Collette, 257 N.J. Super. 557, 566
(App. Div. 1992), certif. denied, 133 N.J. 430 (1993). The
order dismissing the indictment was properly entered.
Affirmed.
22 A-4008-14T1