STATE OF NEW JERSEY VS. CARLIA M. BRADYÂ (15-05-0240, SOMERSET COUNTY AND STATEWIDE)Â (CONSOLIDATED)(RECORD IMPOUNDED) ( 2017 )


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  •                        RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0483-16T4
    A-0484-16T4
    STATE OF NEW JERSEY,
    APPROVED FOR PUBLICATION
    Plaintiff-Appellant,
    September 11, 2017
    v.
    APPELLATE DIVISION
    CARLIA M. BRADY,
    Defendant-Respondent.
    __________________________________
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    CARLIA M. BRADY,
    Defendant-Appellant.
    ___________________________________
    Argued May 23, 2017 – Decided September 11, 2017
    Before Judges Messano, Espinosa and Suter.
    On appeal from the Superior Court of New
    Jersey,   Law  Division,   Somerset County,
    Indictment No. 15-05-0240.
    W. Brian Stack, Assistant Prosecutor, argued
    the cause for appellant in A-0483-16 and
    respondent   in    A-0484-16    (Michael   H.
    Robertson,   Somerset    County   Prosecutor,
    attorney; Mr. Stack, on the briefs).
    Timothy R. Smith argued the cause for
    respondent in A-0483-16 and appellant in A-
    0484-16   (Caruso,    Smith,   Picini,    PC,
    attorneys; Mr. Smith, of counsel and on the
    brief; Steven J. Kaflowitz, on the brief).
    The opinion of the court was delivered by
    MESSANO, P.J.A.D.
    These appeals require us to consider the inherent duties of
    a   judge   of   the   Superior   Court   of   New   Jersey,   whether   those
    duties include an obligation to take whatever steps necessary at
    any time to "enforce an arrest warrant," and if such a duty
    exists, what must a judge do to perform, and not refrain from
    performing, that duty.        A Somerset County grand jury indicted
    Carlia M. Brady, a judge assigned to the Middlesex Vicinage,
    charging her with second-degree official misconduct, N.J.S.A.
    2C:30-2b (count one); and two counts of third-degree hindering
    the apprehension or prosecution of Jason Prontnicki, N.J.S.A.
    2C:29-3a(1) and a(2) (counts two and three).              The Law Division
    judge granted defendant's motion to dismiss count one of the
    indictment but denied the motion as to counts two and three.
    The judge subsequently denied motions for reconsideration filed
    by defendant and the State of New Jersey.
    We granted the State's motion for leave to appeal (A-0483-
    16), as well as defendant's motion for leave to appeal (A-0484-
    16), and consolidated both appeals to issue a single opinion.
    We now affirm.
    2                              A-0483-16T4
    I.
    We summarize the evidence produced by the State before the
    grand jury, then consider the legal instructions the prosecutor
    gave     to     the     panel    and     the     judge's       reasoning   in     deciding
    defendant's motion.
    A.
    The Woodbridge Police Department initially commenced the
    investigation,           which     was        transferred       subsequently      to    the
    Somerset County Prosecutor's Office.1                      Prontnicki and defendant
    started       dating     in     late    2012     and    began     living   together       in
    defendant's home in Woodbridge by March 2013.                           Defendant took
    the oath of office as a Superior Court judge on April 5, 2013.
    On   April      29,    2013,     the    Old    Bridge    municipal     court     issued    a
    warrant for Prontincki's arrest, charging him with robbery of a
    pharmacy, possession of a weapon — a crowbar — for an unlawful
    purpose and unlawful possession of a weapon.
    Shortly after 10:00 a.m. on the morning of June 10, 2013,
    while    on     vacation,        defendant      went    to     the   Woodbridge    Police
    Department to report one of her cars was missing.                               Woodbridge
    Police        Officer    Walter        Bukowski,       along    with   Officer      Robert
    Bartko, interviewed defendant.
    1
    Because defendant was a sitting judge in Middlesex County,
    where the crimes allegedly occurred, venue for the prosecution
    was transferred to Somerset County.
    3                                 A-0483-16T4
    She advised police that Prontnicki originally told her he
    had loaned the car to his brother in Bayonne.                       However, when the
    brother      failed    to    return    the    car      by    2:00    a.m.,    she    and
    Prontnicki drove to Bayonne to recover the car.                            On the way,
    Prontnicki changed his story and told defendant that he lent the
    car    to    a    friend.    Together,       defendant       and    Prontnicki      drove
    around Hudson County for two hours, were unable to locate the
    car and returned to Woodbridge.                Prontnicki returned to Hudson
    County at 6:00 a.m. to continue the search, and defendant told
    him she would report the car stolen if she did not hear from him
    by 10:00 a.m.
    Utilizing various databases, police located the outstanding
    warrant for Prontnicki's arrest for the Old Bridge robbery, as
    well    as       another    outstanding       arrest        warrant.        They    also
    determined         Prontnicki's       driver's      license          was     suspended.
    Bukowski testified that he and Bartko told defendant
    [Y]ou're an officer of the court, you have
    an obligation or it would be in your best
    interest to let us know if [Prontnicki] is
    somewhere . . . now or if once we left, if
    she came back that . . . it would be her
    duty to call us and let us know if
    [Prontnicki] came home.
    Police tried unsuccessfully to locate Prontnicki's friend who
    allegedly had the car.            Defendant wanted to sign a complaint
    against the friend, but police told her she could only sign a
    4                                    A-0483-16T4
    complaint    against      Prontnicki,        who    actually       took      the      car.
    Defendant declined until she spoke to her family and attorney,
    and then left the police station.                  Police periodically rode by
    defendant's home afterwards and saw the missing car parked in
    her driveway at 9:35 p.m.         They knocked on her door, but no one
    answered.
    Investigators secured defendant's cellphone records as part
    of the investigation.       Between 12:36 p.m. and 12:43 p.m. on June
    10,   defendant    sent    text   messages         to   friends,       in    which     she
    acknowledged    police    told    her    of   the       robbery,   which         occurred
    after Prontnicki moved in with her and after defendant became a
    judge.   In one text, defendant wrote, "I can't have [Prontnicki]
    in my house [because] I [would] now be harboring a criminal.                              I
    [would] have to report him."
    Shortly      thereafter,          Prontnicki          called          defendant's
    cellphone.      Defendant     recounted       the       conversation        in    a   text
    message she sent to a friend at 1:37 p.m. on June 10:
    [Prontnicki] just called to tell me he got
    the car and will bring it home. I told him
    he can't stay with me [because] he has a
    warrant out for his arrest and I am required
    to notify authorities when I know someone
    has a warrant. So I told him he must leave
    after he drops the car off as I must go to
    the police.
    Prontnicki    corroborated        these      events    in    a   statement        to
    police after his arrest.          He arrived at defendant's home with
    5                                       A-0483-16T4
    the car, and defendant's father let him into the house.                He and
    defendant went into the garage and spoke for approximately one
    hour.    She told him she was "supposed to call the Woodbridge
    Police when he arrived," and Prontnicki told her to "do what you
    have to do."     Prontnicki refused defendant's offer of money for
    cab fare and left for his brother's house in Woodbridge.
    Defendant called Woodbridge police at 4:36 p.m. and asked
    to speak to Officer Bartko; he was unavailable, but defendant
    left the following voice mail:
    [T]his is Carlia Brady. . . .     I sat with
    you to fill out [an] incident report . . .
    with regard to the unlawful taking of my car
    . . . . I just wanted to report . . . that
    . . . Prontnicki, the suspect . . . actually
    returned it just now. . . .    [I]t is in my
    driveway.  I haven't inspected it yet cause
    it's raining and I didn't bring it into my
    house because I didn't want it in my house
    unless I can inspect it. . . .        I just
    wanted to let that be known.    Also, to let
    you know since there's a warrant out for his
    arrest, he is not with me, but he is in
    Woodbridge cause he left . . . my property
    so please give me a call back.    I, we need
    to know whether an amended report needs to
    be redone . . . or added, whatever I needed
    to do. Please give me a call back . . . .
    Defendant was also on vacation the next day, June 11.                That
    morning,   she   and   Prontnicki   had   a   two-hour   and   twenty-three
    minute   phone   conversation.      Prontnicki    told   police   he    asked
    defendant when she would be home because he needed to pick up
    some clothing; defendant told him she would be at the house
    6                             A-0483-16T4
    between 3:00 p.m. and 4:00 p.m.          Police, meanwhile, decided to
    surveil defendant's home.
    At 1:49 p.m., Prontnicki called defendant to confirm she
    would be in her house as planned.         At 2:14 p.m., defendant sent
    a text message to a friend, in which she repeated Prontnicki's
    denials of involvement in the robbery.        She also wrote:
    He . . . will turn himself in . . . when his
    lawyer is able to come with him and
    cooperate fully with the cops by giving them
    everything he knows.    He can't stay in my
    house cos (sic) he has an arrest warrant
    right now and I have a duty as a judge to
    report all crimes and anyone with an arrest
    warrant. So he is at his brother's house.
    At   3:31   p.m.,   defendant   again     called   police   and   left     a
    voicemail, advising that Prontnicki had returned her car and she
    wanted to know when she could obtain an amended report.           She did
    not tell police about her conversations with Prontnicki, or that
    she expected him at her home shortly.
    At 3:48 p.m., Prontnicki called defendant as he drove to
    defendant's home with his brother.         Undercover police stationed
    outside defendant's home observed Prontnicki exit the passenger
    side of his brother's car.      The garage door opened and defendant
    was standing on the threshold.          Prontnicki entered the garage,
    the door shut, and he stayed for approximately one hour.           Police
    then saw the garage door open, and defendant and Prontnicki
    appeared.     Holding a duffel bag, Prontnicki returned to his
    7                              A-0483-16T4
    brother's car, entered and drove away.                         Police stopped the car
    some distance from defendant's home and arrested Prontnicki.                                In
    the    bag   were      multiple    items       of      clothing       and     miscellaneous
    papers.      In his statement to police, Prontnicki said defendant
    prepared     a   bag    of   his    clothing           before    he    arrived,      and    he
    transferred the clothing to a duffel bag.
    In    text      messages    to      friends        sent        immediately       after
    Prontnicki left, defendant described his claims that there was
    no    outstanding      warrant     for    robbery,        he    was    only     wanted     for
    questioning, police arrested someone else for the crime and his
    driver's     license     was     not     suspended.            Minutes      later,    police
    arrived and arrested defendant at her home.
    The    grand      jurors        heard       a    recording        of    defendant's
    conversation with Bartko in the police vehicle as he took her to
    headquarters.          Among other things, defendant told the officer
    she was not trying to break the law and was only helping her
    boyfriend, who denied there was an outstanding warrant for his
    arrest.
    Defendant testified at length before the grand jury and
    confirmed many of these events.                    However, defendant claimed that
    during her visit to the police station on the morning of June
    10, police told her to call them only when she knew Prontnicki's
    exact whereabouts.           She told them he might be at her home as
    8                                     A-0483-16T4
    they spoke, because he had keys to the house, and offered police
    her keys.       She suggested they surveil her home, but they refused
    her offers.        Defendant was concerned for her safety and told
    police she did not want "to be in the middle."                     She would only
    call    them    when   it     was    safe,   i.e.,    when    Prontnicki   was   not
    present, which was why she waited until Prontnicki left before
    calling police after he returned her car.
    Defendant asked police to see a copy of the arrest warrant,
    but they refused.           She offered them photographs of the Hudson
    County street where she and Prontnicki searched for her car, but
    the officers were not interested.                    Defendant did not want to
    return to her home once she knew about the robbery warrant, but
    police would not let her stay at the police station.
    Defendant described in detail Prontnicki's return of the
    car and the one-hour long conversation she had with him in the
    garage.    Her father offered Prontnicki cab fare.
    Defendant insisted that the recordings of both her calls to
    the Woodbridge Police Department lacked critical information she
    had provided to the police.             The prosecutor instructed the grand
    jurors that both the State and defense had experts evaluate the
    accuracy and authenticity of the recordings, and there was a
    dispute between those experts.                   Defendant said that during the
    first    call    on    June    10,    she    told    police   Prontnicki   was    in
    9                             A-0483-16T4
    Woodbridge, staying at his brother's house, and described its
    location.      Defendant specifically remembered telling police she
    was    "attempting     to   discharge      any    reporting      obligations      per
    [their] instructions."
    She     again   challenged      the       accuracy   of     the    recorded
    conversation of her second phone call to police headquarters.
    Defendant claimed the recording omitted her statement that she
    wanted    to    confirm     that    police   had    received      the    update    of
    Prontnicki's whereabouts she had provided the day before.
    Defendant testified that on June 11, Prontnicki told her
    his brother would come over to pick up his things.                        Instead,
    Prontnicki opened the garage door with a remote control that he
    had.     He gathered some things, but defendant kept her distance
    and urged him to turn himself in to police.                       Defendant said
    Prontnicki left through the garage door, and, after she closed
    the door, she intended to go to the police station.                         Police
    arrived and arrested her, however, before she could leave.
    Other    witnesses    who    testified      after    defendant     directly
    contradicted      portions     of    her     testimony,     specifically,         the
    interactions with police at headquarters on June 10, and the
    events at defendant's home on June 11 when Prontnicki arrived
    and retrieved his clothing.
    10                                 A-0483-16T4
    B.
    Before      any    testimony,       the       prosecutor          advised     the       grand
    jurors        that    defendant       was        charged        in    two     complaints          with
    hindering by harboring Prontnicki, knowing he was a fugitive
    charged with robbery, N.J.S.A. 2C:29-3a(1), and by "deceiving
    law enforcement by not immediately notifying law enforcement of
    . . . Prontnicki's . . . whereabouts."                                N.J.S.A. 2C:29-3a(5).
    The prosecutor further advised that he would make a "direct
    presentation"          on   the    charge        of    official           misconduct,       in   that
    defendant "failed to perform a duty . . . inherent in the office
    of    [S]uperior       [C]ourt        judge,       that      is      to    enforce     an    arrest
    warrant for . . . Prontnicki by failing to adequately notify the
    .    .    .   Police       Department       of    .    .    .     Prontnicki['s]         intended
    appearance or presence at [defendant's] house."                                   He explained,
    the      State    contended       defendant        refrained          from    performing          this
    duty for her own benefit — to avoid the embarrassment of having
    her      boyfriend         arrested     —    and       for        Prontnicki's         benefit       —
    "avoiding jail."
    The prosecutor provided written instructions to the grand
    jury, including the elements of N.J.S.A. 2C:29-3a(1) and (2),2
    and      criminal      attempt,        N.J.S.A.            2C:5-1.           As   to     official
    2
    The prosecutor never charged the grand jury with respect to
    N.J.S.A. 2C:29-3a(5).
    11                                        A-0483-16T4
    misconduct, N.J.S.A. 2C:30-2b, the prosecutor began by generally
    following     Model   Jury      Charge    (Criminal),         "Official     Misconduct
    (N.J.S.A. 2C:30-2)" (Sept. 11, 2006).                     He then described "one of
    the central issues in this case."
    Is there a duty clearly inherent in the
    office of [S]uperior [C]ourt judge?      The
    first question is does a . . . judge have an
    inherent duty to enforce an arrest warrant?
    The second question would be what does that
    duty entail?      And, third, did . . .
    defendant refrain from performing that duty
    in this case?    These are all . . . issues
    for you to decide.
    [(Emphasis added).]
    The   prosecutor      told      the    grand       jury    "there   is   no      statute,
    decision or rule of law which expressly states a judge must
    enforce an arrest warrant."               However, he continued, "a [c]ourt
    may take judicial notice of [a judge's obligation]" if it is
    "inherent in the office of judge of the [S]uperior [C]ourt."
    The   prosecutor       discussed        "arrest      warrants."       He     said     a
    police officer "has a non-discretionary expressed obligation to
    arrest where he or she is aware of the existence of an arrest
    warrant."      However, referencing the Court's decision in In Re
    P.L. 2001, Chapter 362, 
    186 N.J. 368
    (2006), the prosecutor
    said,   "it    is   not   the    job     of    a   judge     to   execute     an    arrest
    warrant."       The   prosecutor         cited      provisions      of   the     Code     of
    Judicial Conduct (the Code), but cautioned, "these are general,
    12                                   A-0483-16T4
    general   obligations.         For   you   to     find   official     misconduct
    here[,] you must find a duty to enforce, . . . clearly inherent
    in the office of [S]uperior [C]ourt judge, not just a general
    duty to obey the law."         The prosecutor stated, "a judge may, and
    I emphasize may, have a duty to see that a warrant is executed
    if such a duty is clearly inherent in the office of [S]uperior
    [C]ourt judge."     (Emphasis added).           He repeated it was for the
    grand jurors to decide if a judge had "an inherent duty to
    enforce an arrest warrant[.]"
    After all testimony ended, the prosecutor again provided
    instructions   on   the   hindering        complaints.        As     to    official
    misconduct, he told the grand jurors there were three elements:
    whether defendant was a public servant; whether "she refrained
    from   performing   a   duty    imposed    upon    her   by   law,    or   clearly
    inherent in the nature of her office"; and, whether "her purpose
    in refraining from acting was to benefit herself or another or
    injure another."
    He continued,
    [W]ith regard to that duty, that duty must
    be official and nondiscretionary.       It's
    imposed upon a public servant by law such as
    a statute, municipal charter or ordinance or
    clearly inherent in the nature of her
    office.   The duty to act must be so clear
    that the public servant is on notice as to
    the standards she must meet.        In other
    words, the failure to act must be more than
    a failure to exhibit good judgment.
    13                                   A-0483-16T4
    The State has to prove that there's a
    clear duty of defendant to act as alleged,
    that is to say, there must have been a body
    of knowledge such as applicable law by which
    defendant could regulate the legality of her
    conduct.   She can't be convicted of . . .
    official misconduct[] if the official duties
    imposed upon her are themselves unclear.
    So that brings us to the question of,
    is there a duty clearly inherent in the
    nature of a [S]uperior [C]ourt judge, does
    she have an inherent duty to enforce an
    arrest warrant, what does that duty entail
    and, if so, did she refrain from performing
    that duty in this case for the purpose of a
    benefit herself or detriment of another.
    Again, . . . you have to remember, if
    you find a duty to enforce, it must be
    clear.   In this case, it must be clearly
    inherent in the office of a [S]uperior
    [C]ourt judge.
    During deliberations, the grand jurors asked several times for
    clarification regarding the law as to hindering apprehension but
    asked for no further instructions on the recommended official
    misconduct count.
    The indictment charged defendant with official misconduct
    in that, with the purpose to benefit herself "and/or another,"
    she "refrain[ed] from performing a duty clearly inherent in the
    nature of her office . . . , that is, . . . [she] knowingly . .
    . fail[ed] to enforce an arrest warrant . . . by failing to
    adequately notify the Woodbridge Police Department of . . .
    [Prontnicki's]   intended   appearance   or   presence   at    her
    14                        A-0483-16T4
    residence."       N.J.S.A. 2C:30-2b.               Count two charged defendant
    with     purposely      "hinder[ing]         the        detention,     apprehension,
    investigation, prosecution, conviction or punishment of . . .
    Prontnicki,"      by   "harbor[ing]     or       conceal[ing]"       him.     N.J.S.A.
    2C:29-3a(1).       The third count charged defendant with hindering
    by "offer[ing] to provide to or aid                            . . . Prontnicki in
    obtaining money, transportation and/or clothing as a means of
    avoiding     discovery        or   apprehension          or   effecting       escape."
    N.J.S.A. 2C:29-3a(2).
    C.
    In   her   written     decision,      the    motion    judge    rejected      the
    State's argument that a judge has "a duty inherent in her office
    to enforce an arrest warrant, or that there is a specifically
    required time limit in which [d]efendant was required to act."
    The judge also concluded that defendant was not "acting in her
    official capacity.          There is no connection between the duties
    inherent in the office of Judge and the . . . conduct here."
    The judge denied defendant's motion as to counts two and
    three.       Giving     the    State    the        benefit    of     all    reasonable
    inferences, she reasoned there was some evidence that defendant
    admitted     Prontnicki       into     her       home    knowing     there     was    an
    outstanding warrant for his arrest, permitted him to stay there
    "for   a    significant     period     of    time,      and   did    not    inform   the
    15                                 A-0483-16T4
    police."      As to the second hindering count, the judge concluded
    there   was    some     evidence      that    defendant         aided    Prontnicki     by
    allowing him into her home to "get his clothes and be offered
    cab fare."
    The       judge    found    no    reason           to   reconsider    her     earlier
    decision    in    denying    the     State's       and      defendant's    motions     for
    reconsideration.
    II.
    We review the trial court's decision on defendant's motion
    to dismiss the indictment for an abuse of discretion.                            State v.
    Saavedra, 
    222 N.J. 39
    , 55 (2015).                      "A trial court's exercise of
    this discretionary power will not be disturbed on appeal 'unless
    it has been clearly abused.'"                 
    Id. at 55-56
    (quoting State v.
    Warmbrun,     277     N.J.   Super.    51,        60    (App.   Div.    1994),    certif.
    denied, 
    140 N.J. 277
    (1995)).
    "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.'"                           
    Id. at 56-57
    (quoting State v. Morrison, 
    188 N.J. 2
    , 13 (2006)).                              "A trial
    court . . . should not disturb an indictment if there is some
    evidence establishing each element of the crime to make out a
    16                                  A-0483-16T4
    prima facie case."             
    Morrison, supra
    , 188 N.J. at 12 (citations
    omitted).      However, "[t]he absence of any evidence to support
    the charges would render the indictment 'palpably defective' and
    subject to dismissal."             
    Ibid. (citing State v.
    Hogan, 
    144 N.J. 216
    , 228-29 (1996)).             "[O]ur review of a trial judge's legal
    interpretations is de novo."                   State v. Eldakroury, 439 N.J.
    Super. 304, 309 (App. Div.) (citing State v. Grate, 
    220 N.J. 317
    , 329-30 (2015); State v. Drury, 
    190 N.J. 197
    , 209 (2007)),
    certif. denied, 
    222 N.J. 16
    (2015).
    A.
    In A-0484-16, defendant argues that, even if she allowed
    Prontnicki     into      her    home   with      knowledge    of    the    outstanding
    warrant, such "passive" conduct does not support an indictment
    for harboring or concealing a fugitive under N.J.S.A. 2C:29-
    3a(1).    She also argues that the State failed to demonstrate she
    acted with the purpose of hindering Prontnicki's apprehension
    because     the     overwhelming          evidence      was    to    the        contrary.
    Regarding count three, defendant essentially argues that even if
    she   offered      Prontnicki      aid,     whether      in   the   form    of    money,
    transportation          or   clothing,    it     was   insufficient        to    prove    a
    violation of N.J.S.A. 2C:29-3a(2).                     We reject these arguments
    and   affirm      the    judge's    order      denying    defendant's       motion       to
    dismiss counts two and three of the indictment.
    17                                   A-0483-16T4
    The statute provides:
    a. A person commits an offense if, with
    purpose    to     hinder    the   detention,
    apprehension,   investigation,  prosecution,
    conviction or punishment of another for an
    offense . . . he:
    (1)    Harbors or conceals the other;
    (2) Provides or aids in providing a weapon,
    money, transportation, disguise or other
    means of avoiding discovery or apprehension
    or effecting escape . . . .
    [N.J.S.A. 2C:29-3a(1) and (2).]
    As to subsection (1), the State must produce some evidence that
    defendant knew Prontnicki could or might be charged with an
    offense; that she harbored or concealed him; and her purpose in
    doing   so   was    to    hinder   Prontnicki's     detention,    apprehension,
    investigation,       prosecution,      conviction      or   punishment.      Model
    Jury Charge (Criminal), "Hindering Apprehension or Prosecution
    of   Another       (N.J.S.A.    2C:29-3a)"      (May    12,   2014)   (Hindering
    Charge).     Defendant "harbored or concealed" Prontnicki if she
    "hid, or protected, or sheltered or secreted [him] from the
    authorities."       
    Id. at 2.
    Because       of    the   lack   of   decisions    construing    subsection
    a(1), both sides rely on precedent interpreting an analogous
    provision of the United States Code, 18 U.S.C.A. § 1071, which
    provides:
    18                             A-0483-16T4
    Whoever harbors or conceals any person for
    whose arrest a warrant or process has been
    issued under the provisions of any law of
    the United States, so as to prevent his
    discovery   and  arrest,  after  notice   or
    knowledge of the fact that a warrant or
    process has been issued for the apprehension
    of such person, shall be fined under this
    title or imprisoned not more than one year,
    or both . . . .
    In    construing    a   predecessor         provision,         the       court    in     United
    States   v.     Shapiro,   said,      "To     conceal      .    .    .    means     to    hide,
    secrete, or keep out of sight.                To harbor . . . means to lodge,
    to care for, after secreting the [fugitive]."                        
    113 F.2d 891
    , 893
    (2d Cir. 1940) (quoting Firpo v. United States, 
    261 F. 850
    , 853
    (2d Cir. 1919)).
    Defendant    argues    the       analogous     federal            statute    requires
    "[s]ome affirmative, physical action" to "harbor or conceal,"
    United States v. Lockhart, 
    956 F.2d 1418
    , 1423 (7th Cir. 1992),
    and   allowing     Prontnicki      to    enter      her    home      was    insufficient.
    However, the Fifth Circuit held that the defendant's physical
    act of closing and locking the door where a fugitive was hiding
    after she saw federal marshals was sufficient to convict her of
    violating the statute.        United States v. Stacey, 
    896 F.2d 75
    , 77
    (5th Cir. 1990).
    Defendant    ignores     the      basic     proposition            that     "[i]n     the
    grand    jury    setting,     our       law      sharply       distinguishes           between
    evidence sufficient to support an indictment and the evidence
    19                                         A-0483-16T4
    necessary to establish guilt beyond a reasonable doubt."             State
    ex rel. A.D., 
    212 N.J. 200
    , 219 (2012).              "At the indictment
    stage, the State need not present evidence necessary to sustain
    a conviction, but only a showing sufficient for the grand jury
    to 'determine that there is prima facie evidence to establish
    that a crime has been committed.'"         
    Id. at 220
    (quoting Stave v.
    N.J. Trade Waste Ass'n, 
    96 N.J. 8
    , 27 (1984)).
    According        the   State    all    favorable     and   reasonable
    inferences,    the    evidence     established    that   defendant    knew
    Prontnicki was wanted for armed robbery and permitted him to
    enter her home on two occasions for significant periods of time.
    On June 11, she specifically told him when she would be home,
    knowing he intended to gather some of his belongings and leave.
    Nonetheless, she never told police he would be arriving.                The
    grand jurors were entitled to reject defendant's version of the
    events   on   June   11,   and   accept   that   defendant   affirmatively
    opened the garage door, closed it after Prontnicki entered the
    home, provided him with some of his belongings, including more
    clothing than was necessary for a short stay at his brother's
    house, and escorted him out through the garage until he left.
    Defendant argues she did not know police were looking for
    Prontnicki.    This ignores the reasonable inference to be drawn
    from defendant's own call to police the day earlier, in which
    20                           A-0483-16T4
    she told police Prontnicki had returned the car and, although
    not    with   her     at   that    moment,       was       somewhere       in    Woodbridge.
    Defendant     also    contends      that,       since      much     of   the     interaction
    occurred in the garage, she did not secrete Prontnicki from
    public observation.          That argument lacks any merit, since it is
    undisputed that on both June 10 and 11, Prontnicki spent more
    than   one    hour    inside      the    house,       where    he    was       shielded       from
    observation, or in the garage with the door shut.
    The    grand    jurors     were     also       free    to    reject       defendant's
    explanation of why she acted as she did, and conclude, based on
    reasonable      inferences,         that        her     purpose          was        to     hinder
    Prontnicki's apprehension.               See, e.g., Hindering 
    Charge, supra, at 4
    (explaining purpose is a "condition[] of the mind which
    cannot be seen and can only be determined by inferences from
    conduct, words or acts").                 We affirm the denial of the motion
    to dismiss count two of the indictment.
    As to count three charging defendant with harboring under
    subsection      a(2),      the    critical        issue       is    whether          there      was
    sufficient prima facie evidence that, with a similar purpose,
    defendant      "provided     (or        aided    in    providing)          .    .     .     money,
    transportation,         [and/or     clothing          as     a]     means       of       avoiding
    21                                            A-0483-16T4
    discovery or apprehension or affecting escape) to" Prontnicki.3
    
    Id. at 2.
    Defendant       appropriately     points    to   a    footnote   to    the
    Hindering Charge which provides:
    Providing a fugitive with funds is an act of
    equivocal significance. He may use it to
    escape or hide, to pay debts or go into
    business, or to support himself or his
    dependents, or to hire a lawyer. Paragraph b
    [now 3a(2)] is intended to require proof
    that money was furnished not merely pursuant
    to   a   general  desire   to   promote   the
    offender's plan to remain at large, but
    specifically to facilitate escape efforts.
    [Ibid. n.3 (quoting Final Report of the New
    Jersey Criminal Law Revision Commission,
    Vol. II at 284-85 (1971)).]
    The Model Penal Code (MPC) § 242.3 was a source for N.J.S.A.
    2C:29-3.      Cannel, New Jersey Criminal Code Annotated, comment 1
    on N.J.S.A. 2C:29-3 (2017).         Specifically, the commentary to the
    MPC includes nearly verbatim language to that which we just
    quoted.       See 
    MPC, supra
    , comment on 4 § 242.3 (Am. Law Inst.
    1980).     However, the MPC omitted providing money to a fugitive
    as one means by which the actor may hinder apprehension.                  
    MPC, supra
    ,    §   242.3.    Our   Legislature      rejected   that   course    and
    included money in N.J.S.A. 2C:20-3a(2).           The Revision Commission
    recognized that in providing money to a fugitive, the actor's
    3
    We modify the language of the Model Charge to include only the
    specific items contained in count three of the indictment.
    22                              A-0483-16T4
    "motivation[]       may     be    mixed      and    permit     conviction          where     the
    obstructive purpose was present."                  Final 
    Report, supra, at 284
    .
    Here, the evidence taken in the best light for the State
    indicates defendant offered Prontnicki money for cab fare, which
    he   refused.        The    State       concedes     that     at     most,    this     was    an
    attempt to hinder Prontnicki's apprehension, and it charged the
    grand jury with the law regarding attempt.                             We conclude that
    under    all    circumstances           presented,       the        State    adduced         some
    evidence that defendant's offer was an attempt to facilitate
    Prontnicki's        escape.         The      grand    jury      was       free    to    reject
    Prontnicki's        claim    that       he   intended        only    to     return     to    his
    brother's home, hire a lawyer and turn himself in, i.e., to
    remain "at large," as opposed to avoid prosecution.                                There was
    no independent proof that was his intention, and a reasonable
    inference can be drawn otherwise, particularly since the bag of
    clothing provided Prontnicki with numerous changes of clothing.
    The grand jurors could reasonably conclude the packed bag
    provided    Prontnicki           with   a    "means     of    avoiding       discovery        or
    apprehension        or     effecting         escape."          N.J.S.A.          2C:29-3a(2).
    Moreover,      as     already       noted,         defendant's         purpose         may    be
    determined      from       all    the     circumstances         presented,         including
    taking   these      actions       without     calling        police,      despite      knowing
    beforehand that Prontnicki was coming to her home.                                 We affirm
    23                                       A-0483-16T4
    the denial of defendant's motion to dismiss count three of the
    indictment.
    B.
    The       State's      appeal    presents        issues     of      significant
    importance     beyond     this   case.        We   tread   cautiously,      with   an
    express desire that our decision be limited only to the facts
    presented by this appeal and the arguments made by the State.
    N.J.S.A. 2C:30-2 is based upon New York Penal Law § 195.00.
    Cannel, supra, comment 1 on N.J.S.A. 2C:30-2.                        "Misconduct in
    office   or    official    misconduct     has      been    defined    as   'unlawful
    behavior in relation to official duties by an officer entrusted
    with the administration of justice or who is in breach of a duty
    of public concern in a public office.'"                     State v. Kueny, 
    411 N.J. Super. 392
    , 404 (App. Div. 2010) (quoting State v. Mason,
    
    355 N.J. Super. 296
    , 301 (App. Div. 2002)).
    N.J.S.A. 2C:30-2b provides:
    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[,] . . .
    [h]e knowingly refrains from performing a
    duty which is imposed upon him by law or is
    clearly inherent in the nature of his
    office.4
    4
    Few states have adopted the "clearly inherent" language found
    in subsection (b) of our statute. See Alaska Stat. § 11.56.850
    (2017); Ark. Code Ann. § 5-52-107 (1987); Del. Code Ann. tit.
    11, § 1211 (2017); Ky. Rev. Stat. Ann    § 522.030 (2017); Or.
    (continued)
    24                                 A-0483-16T4
    As we said in Kueny,
    The three elements required to establish a
    violation of N.J.S.A. 2C:30-2(b) are that
    "(1) the defendant was a public servant; (2)
    the   defendant  knowingly   refrained  from
    performing a duty which is imposed upon him
    or her by law or which is clearly inherent
    in the nature of the office; and (3) the
    defendant's purpose in so refraining was to
    benefit himself or herself or to injure or
    deprive another of a benefit."
    [411 N.J. Super. at 404 (quoting State v.
    Thompson, 
    402 N.J. Super. 177
    , 195-96 (App.
    Div. 2008)).]
    There   is    no   dispute    as   to   the   first   and   third   elements.
    Defendant is a public servant.           See N.J.S.A. 2C:27-1g (defining
    "[p]ublic servant" to include "judges").              A "'[b]enefit' means
    gain or advantage, or anything regarded by the beneficiary as
    gain or advantage, including a pecuniary benefit or a benefit to
    any other person or entity in whose welfare he is interested."
    N.J.S.A.     2C:27-1a.       Although   defendant     disputes   whether   her
    (continued)
    Rev. Stat. Ann. § 162.415 (2017); Tenn. Code Ann. 39-16-402
    (2017); Utah Code Ann. § 76-8-201 (2017).      Others limit the
    crime only to the actor's failure to perform a duty required by
    law.   See Colo. Rev. Stat. § 18-8-405 (1973); 720 Ill. Comp.
    Stat. 5/33-3 (2017); Iowa Code § 721.2 (2017); Mont. Code Ann.
    45-7-401 (2017); Wis. Stat. 946.12 (2017); Wyo. Stat. Ann. 6-5-
    107 (2017).    In People v. Beruman, 
    638 P.2d 789
    , 793 (Colo.
    1982), the court held the predecessor statute, which included
    the language "a duty . . . clearly inherent in the nature of his
    office," was unconstitutionally vague.
    25                           A-0483-16T4
    conduct     benefitted     herself      or    Prontnicki,         the     argument    lacks
    sufficient merit to warrant discussion.                      R. 2:11-3(e)(2); see,
    e.g., State v. Quezada, 
    402 N.J. Super. 277
    , 285 (App. Div.
    2008) (concluding "joy of responding to fires as a volunteer
    firefighter" was sufficient).                 Only the second element is at
    issue in this case.
    We must consider the duties of a Superior Court judge, not
    as "imposed by law," i.e., expressed in a statute, the Code or
    administrative policy or directive applicable to judges of the
    Superior Court.         See Schochet v. Schochet, 
    435 N.J. Super. 542
    ,
    545   n.3    (App.      Div.    2014)   (noting     policies            adopted   by    the
    Administrative Office of the Courts have the force of law).                             The
    State concedes none of those sources impose a duty upon a judge
    to    "enforce     an    arrest     warrant."          It        argues    instead     that
    decisional law, the Code, policies directed to other judiciary
    employees    and     common     sense   provide    guidance          regarding       duties
    "clearly     inherent      in     the   nature    of        [a     judge's]    office,'"
    N.J.S.A. 2C:30-2b, one of which is to enforce an arrest warrant.
    We therefore consider whether such a duty is inherent in the
    office based upon these other sources.
    "[N.J.S.A. 2C:30-2b] criminalizes the knowing failure to
    perform a duty.           The duty must be 'one that is unmistakably
    inherent in the nature of the public servant's office, i.e., the
    26                                   A-0483-16T4
    duty to act is so clear that the public servant is on notice as
    to the standards that he must meet.'"           
    Thompson, supra
    , 402 N.J.
    Super. at 198 (quoting State v. Hinds, 
    143 N.J. 540
    , 545-46
    (1996)).    "[T]he failure to act must be more than a mere breach
    of good judgment.       In the absence of a duty to act, there can be
    no conviction."        
    Kueny, supra
    , 411 N.J. Super. at 406 (quoting
    Final 
    Report, supra, at 291
    ).
    "Whether a statutory duty is imposed upon a public officer
    is a legal issue."        State v. Deegan, 
    126 N.J. Super. 475
    , 482
    (App. Div.), certif. denied, 
    65 N.J. 283
    (1974).               Yet, because
    it is practically impossible to spell out every duty imposed
    upon a public official, "[i]t is within the province of the
    court to 'take judicial notice of the duties which are inherent
    in the very nature of the office.'"             
    Thompson, supra
    , 402 N.J.
    Super. at 198 (quoting 
    Deegan, supra
    , 126 N.J. Super. at 492).
    Regardless from where the duty emanates, it is a question of law
    whether one actually exists.        State v. Grimes, 
    235 N.J. Super. 75
    , 79 (App. Div.), certif. denied, 
    118 N.J. 222
    (1989).
    1.
    In      opposing    the   State's     motion      for   reconsideration,
    defendant    argued    alternatively     that   the   first   count   of    the
    indictment should be dismissed because the prosecutor let the
    grand jury decide whether a Superior Court judge has an inherent
    27                                A-0483-16T4
    duty to "enforce an arrest warrant."                     The motion judge agreed
    that whether such a duty existed was a "question of law," and
    stated the grand jury "cannot make such a finding."                            Although,
    she did not specifically adopt defendant's argument, we do, and
    therefore affirm dismissal of the indictment on these grounds
    alone.
    "A    prosecutor     must    charge       the    grand    jury    'as     to   the
    elements of specific offenses.'"                  
    Eldakroury, supra
    , 439 N.J.
    Super. at 309 (quoting State v. Triestman, 
    416 N.J. Super. 195
    ,
    205   (App.     Div.    2010)).     "[A]n       indictment      will    fail    where    a
    prosecutor's instructions to the grand jury were misleading or
    an    incorrect       statement    of    law."         
    Ibid. (quoting Triestman, supra
    , 
    416 N.J. Super. at 205).                 In Eldakroury, we affirmed the
    trial       court's    dismissal    of     an    indictment,       concluding         "the
    State's instruction to the jury was 'blatantly wrong' and, in
    effect, relieved the State from having to establish defendant's
    mens rea as to a material element of the offense."                      
    Id. at 310.
    Here, it was incumbent on the prosecutor to specifically
    define the duty that defendant "refrain[ed] from performing" and
    which was "clearly inherent" in the office of a Superior Court
    judge.       N.J.S.A. 2C:30-2b.          Yet, on multiple occasions in his
    instructions, the prosecutor invited the grand jury to decide
    whether or not the obligation to "enforce an arrest warrant" was
    28                                   A-0483-16T4
    clearly inherent in the duties of a Superior Court judge.                        In
    Grimes, we reversed the defendant's conviction and dismissed the
    indictment, because, in part, the "law" as to the duties of the
    defendant's office as constable were "so uncertain that it was
    presented to the jury as a matter of disputed fact."                     235 N.J.
    Super. at 90.
    The grand jury is, of course, "an accusatory and not an
    adjudicative body."           
    Hogan, supra
    , 144 N.J. at 235.             We might
    assume the return of defendant's indictment implicitly reflects
    the grand jurors' conclusions that a duty existed and defendant
    refrained      from   performing       it.       Nevertheless,    in    the   first
    instance, the prosecutor must clearly and accurately explain the
    law to the grand jurors and not leave purely legal issues open
    to speculation by lay people who are simply performing their
    civic duty.
    Our   conclusion     is    not    a     criticism   of   the   prosecutor's
    presentation.         He attempted in good faith and in substantial
    detail to synthesize the law.                However, the prosecutor demurred
    in   telling    the   grand     jury   a     duty   existed.     That   hesitation
    reflects the exquisitely difficult task of trying to define the
    duty in the first instance, and what actions a judge must take
    to perform that duty, the avoidance of which could result in
    criminal culpability.
    29                            A-0483-16T4
    The prosecutor's quandary demonstrates why we are required
    to do more in this opinion.          Avoiding the question of whether it
    is the duty of a Superior Court judge to "enforce an arrest
    warrant," or face conviction for a second-degree crime if he or
    she refrains from performing that "duty," does a disservice to
    this defendant, other judges and the public-at-large.               We will
    not avoid deciding the merits of the State's case, because the
    issue will only arise again should the State simply present the
    same evidence with more definitive instructions to a new grand
    jury.
    2.
    The State argues that a judge has a non-discretionary duty,
    inherent   in   her   office,   to    enforce   an   arrest   warrant,   and,
    because a judge is always "on duty," defendant was criminally
    culpable for not notifying police when Prontnicki was either at,
    or on his way to, her home.           It further argues defendant's own
    statements make clear she was aware of this duty.5
    5
    The State also pre-emptively argues that imposing such a duty
    on a judge does not violate the constitutional separation of
    powers, discussed in In Re P.L. 2001. There, the Court held the
    Probation Officer Community Safety Unit Act, N.J.S.A. 2B:10A-1
    to -3; N.J.S.A. 2C:39-6(c)(17), which created a unit of
    probation officers authorized to carry firearms and arrest
    probation violators, breached the constitutional separation of
    powers. In re P.L. 
    2001, supra
    , 186 N.J. at 372-73, 394. The
    (continued)
    30                            A-0483-16T4
    This        second    point     lacks      sufficient     merit        to     warrant
    discussion.          R. 2:11-3(e)(2).          While defendant told friends it
    was her duty as a judge to notify police about Prontnicki's
    whereabouts,         those    statements        followed   her    interaction             with
    members of the Woodbridge Police Department, who told her that
    was    her    judicial       "duty."        Obviously,     defendant's         subjective
    belief that a duty exists, if none exists at law, cannot support
    an essential element of the crime of official misconduct.
    The     State        cites     various      decisions      to     support           the
    proposition that defendant refrained from performing an official
    duty     inherent       in    her     office;      however,    none      of        them   are
    persuasive under the facts of this case.                       For example, 
    Deegan, supra
    ,       126    N.J.     Super.    at   480,    predates     enactment           of    our
    (continued)
    Court stated, "[I]t is the duty of the many municipal, county,
    and state law enforcement agencies to execute arrest warrants,
    including those of probation violators.     Those are executive,
    not judicial, branch functions."    
    Id. at 391
    (emphasis added).
    While "the principle of separation of powers is not inconsistent
    with the notion of cooperation among the several branches toward
    the common goal of achieving responsible government[,]" 
    id. at 383,
    "the special role of the judiciary in our constitutional
    scheme requires that there be no entangling alliances between
    law enforcement and judiciary employees." 
    Id. at 388.
    The State argues that as a judge, defendant had an inherent
    duty to enforce an arrest warrant, not execute the warrant by
    actually arresting Prontnicki.    Because we are affirming for
    other reasons, we need not decide whether this is a meaningful
    distinction that renders In re P.L. 2001 unpersuasive authority
    for defendant's position.
    31                                     A-0483-16T4
    Criminal Code, and so does not address the very precise language
    of   N.J.S.A.    2C:30-2b.6          Our   opinion      in     Deegan      supports     the
    proposition     that    the    duties      of   a    public    office      need   not    be
    expressed in any statute, and "[t]he power to act imports a duty
    to act when the public interests suggest to the public officials
    that something should be done."                 
    Id. at 490
    (citing McDonough v.
    Roach,   
    35 N.J. 153
    ,    157    (1961)).         However,       in    Deegan,     the
    defendants' duties, although not expressed in a statute, were
    the very duties of the position, i.e., approving the award of
    disability pensions to only qualified candidates.                           
    Id. at 480.
    Defendants'     actions       or   omissions        involved    the   only    essential
    tasks they were empowered to perform.
    The same principle is at the core of State v. Weleck, 
    10 N.J. 355
    (1952), another pre-Code case.                  There, the defendant, a
    borough attorney, was charged with extorting payments from a
    citizen in return for agreeing to use his influence to secure
    the passage of a favorable zoning amendment.                          
    Id. at 364-65.
    Once again, the Court held that some duties are inherent in the
    6
    The defendants in Deegan were charged with violating N.J.S.A.
    2A:85-1 (repealed 1979), which read:
    Assaults, batteries, false imprisonments,
    affrays, riots, routs, unlawful assemblies,
    nuisances, cheats, deceits, and all other
    offenses of an indictable nature at common
    law, and not otherwise expressly provided
    for by statute, are misdemeanors.
    32                                     A-0483-16T4
    office of a public attorney.          
    Id. at 368-69.
          Those duties — to
    render uncorrupted legal advice and refrain from extortion in
    return for rendering that advice — are inseparable from properly
    performing the tasks of the office.          See, e.g., State v. Green,
    
    376 A.2d 424
    , 428 (Del. Super. Ct. 1977) ("The phrase 'a duty
    which . . . is clearly inherent in the nature of his office'
    means those unspecified duties that are so essential to the
    accomplishment of the purposes for which the office was created
    that they are clearly inherent in the nature of the office.")
    (quoting Del. Code Ann. tit. 11, § 1211(2)).              Neither Deegan nor
    Weleck support the State's position that defendant's official
    duties    included   a   non-discretionary        duty,   while    at   home   on
    vacation, to notify police of Prontnicki's whereabouts.                   It is
    only "unlawful behavior in relation to official duties" that
    give rise to the charge of official misconduct.                   
    Mason, supra
    ,
    355 N.J. Super. at 301 (emphasis added) (citing State v. Winne,
    
    12 N.J. 152
    , 176 (1953)).
    In Sheridan v. Sheridan, 
    247 N.J. Super. 552
    , 565 (Ch. Div.
    1990), while recognizing the absence of any controlling court
    rule or administrative directive, the Family Part observed that
    most judges report "illegal or improper activities . . . because
    it is the right thing to do and because it is repugnant to their
    oath     that   judges   sit   mute    in   the    face    of     acknowledged,
    33                                A-0483-16T4
    demonstrated or potential wrongdoing."                         Notably, in Sheridan,
    the   judge      became    aware      of   criminal         wrongdoing        during     sworn
    testimony in a case over which he was presiding, i.e., while the
    judge    was     performing      an   official         duty.     
    Id. at 563.
          More
    importantly, Sheridan was firmly rooted in a judge's ethical
    responsibilities,         see     
    id. at 563-66,
          and   the      court      never
    suggested that the judge's failure to make such a report would
    subject him or her to criminal culpability.
    The State next turns to Canons One and Two of the Code for
    support.         Canon    One    provides,           "An   independent     and   honorable
    judiciary is indispensable to justice.                       A judge therefore shall
    uphold     and    should        promote     the       independence,        integrity        and
    impartiality of the judiciary."                       Canon Two states, "[a] judge
    should avoid impropriety and the appearance of impropriety in
    all activities."          The Rules associated with Canon One require a
    judge to "personally observe[] high standards of conduct" and
    "respect and comply with the law."7
    7
    The State has not argued that defendant refrained from
    performing a duty inherent in her office — complying with the
    law — because she committed the crime of hindering.      We have
    rejected similar arguments involving other officials. See e.g.,
    
    Kueny, supra
    , 411 N.J. Super. at 406-08 (rejecting the
    proposition that every crime committed by a police officer,
    including refraining from returning stolen property, was
    official misconduct); 
    Thompson, supra
    , 402 N.J. Super. at 201
    ("reject[ing] the use of a general 'duty to perform other duties
    in good faith' as a means to impose criminal liability") (citing
    (continued)
    34                                    A-0483-16T4
    It is the duty of every judge "to abide by and enforce" the
    Code.     In re DiLeo, 
    216 N.J. 449
    , 467 (2014) (citing R. 1:18).
    In dicta, we recognized that the Code "specifically deal[s] with
    the duties of judicial office and could readily be used as a
    basis   for     describing   the     duties   inherent      in   that      office."
    
    Thompson, supra
    , 402 N.J. Super. at 201.                   However, the Court
    characterized     an    earlier    version    of   the    Code   as   "a    general
    statement of standards and goals, admirably serving the purpose
    of providing guidance to judges in all matters precisely because
    of the generality of its provisions." In re Alvino, 
    100 N.J. 92
    ,
    102 (1985) (emphasis added).              "While judges are expected to
    adhere to the Code, every breach 'does not mean . . . that
    judicial misconduct has occurred, or that discipline                    . . . is
    appropriate.'"        
    DiLeo, supra
    , 216 N.J. at 468 (quoting 
    Alvino, supra
    , 100 N.J. at 96).           It surely follows that not every breach
    of the Code subjects a judge to criminal prosecution.                        In the
    absence    of   any    reported    New   Jersey    case   holding     the     Code's
    "general statements" of ethical conduct are a declaration of
    (continued)
    People v. Garson, 
    848 N.E.2d 1264
    (N.Y. 2006); see also State v.
    Imbriani,   291  N.J.   Super.   171,  183   (App.  Div.   1996)
    (specifically refusing to consider whether "crimes committed by
    a Superior Court Judge outside of his official duties constitute
    a breach of the public trust" under guidelines for the Pre-trial
    Intervention Program).
    35                                 A-0483-16T4
    inherent judicial duties, we consider some decisions from our
    sister states.
    In People v. La Carrubba, the defendant judge was charged
    with refraining from performing a duty inherent in her office by
    improperly dismissing a friend's traffic ticket.           
    389 N.E.2d 799
    , 801 (N.Y. 1979).    In interpreting a provision identical to
    N.J.S.A.   2C:30-2b,   reversing   the   defendant's   conviction   and
    dismissing the indictment, the court said "the Code of Judicial
    Conduct and the Penal Law serve discrete, if in some respects
    complimentary, purposes."     
    Id. at 802.
         Recognizing the penal
    code clearly defined acts or omissions that violated the law,
    the court said:
    Couched in the subjunctive mood, the code is
    a compilation of ethical objectives and
    exhortations for the violation of which
    recourse has traditionally been had to
    disciplinary     rather     than    criminal
    proceedings. If in any instance the conduct
    proscribed by the canons also independently
    constitutes a criminal offense under the
    Penal Law (e.g., bribe receiving, [New York]
    Penal Law, § 200.12) then, of course, the
    sanctions of the Criminal Law are available
    and the coexistence of ethical impropriety
    would stand as no barrier to criminal
    prosecution. Taken alone, however, instances
    of     ethical      impropriety,    although
    unquestionably to be condemned, provide no
    predicate for the imposition of criminal
    penalties.
    [Ibid.]
    36                         A-0483-16T4
    In   Garson,        the    court     reversed      the     dismissal    of    an
    indictment charging the defendant judge with violating New York
    Penal Law § 200.25, receiving a reward for official misconduct
    by    violating     his    duty     as    a     public   servant,     but    affirmed
    dismissal of the indictment charging a violation of § 
    195.02(2). 848 N.E.2d at 1265
    .        In     that   case,    the    defendant    received
    various gifts from an attorney in return for referring cases, in
    violation of the Rules of Judicial Conduct enacted in New York
    following constitutional amendment and pursuant to an express
    legislative grant of power to the court.                       
    Id. at 1268,
    1272.
    The Garson court distinguished La Carrubba in two ways.
    First, the court recognized the mandatory nature of New
    York's Rules of Judicial Conduct, as opposed to the earlier code
    of conduct.       
    Id. at 1271-74.
             Second, the court recognized that
    § 200.25 rested "not on a violation of the Rules alone but on
    the   acceptance     of    a    benefit       for   violating    an   official     duty
    defined by the Rules."            
    Id. at 1273.
          "Had the judge as a public
    servant violated ethical duties alone -- without accepting a
    benefit for the violation -- and had the action not otherwise
    been prohibited by the Penal Law, the public servant would be
    subject    only     to    discipline      in    a   proceeding     brought    by    the
    Commission on Judicial Conduct."                
    Ibid. (emphasis added). 37
                                   A-0483-16T4
    Delaware, which also criminalizes the failure to perform a
    duty inherent in a public office, has limited the use of ethical
    standards to define criminal conduct.           See, e.g., 
    Green, supra
    ,
    376 A.2d at 428 (concluding a duty "inherent in the nature of [a
    public servant's] office . . . does not include the duty of
    avoiding violation of unspecified conflict-of-interest or other
    ethical standards").
    Some      states      that    criminalize       the   performance      of
    unauthorized acts or acts in excess of official powers, as does
    N.J.S.A.     2C:30-2a,     have      rejected   application   of     ethical
    guidelines to define the nature and scope of the official duties
    of an office.      See, e.g., State v. Serstock, 
    402 N.W.2d 514
    , 516
    (Minn. 1987) (concluding the code of professional responsibility
    and city ethics code could not be used to define the "lawful
    authority"    of    a    municipal     prosecutor   accused   of    official
    misconduct for dismissing a friend's traffic tickets); Clayton
    v. Willis, 
    489 So. 2d 813
    , 815-16 (Fla. Dist. Ct. App. 1986)
    (rejecting violations of the state Code of Judicial Conduct as a
    basis for judge's alleged criminal misconduct in fraudulently
    abusing and exceeding his powers).
    As the motion judge noted, the              Code does not expressly
    include a duty to enforce another court's warrant.                 The State
    cites Code of Conduct for Judiciary Employees, Canon 1G (2014),
    38                           A-0483-16T4
    which provides, "No court employee shall refuse to enforce or
    otherwise carry out any properly issued rule or order of court."
    However,     that     Code,       which      in   this       instance     directs        the
    ministerial duties of judiciary personnel, does not apply to a
    judge.       Similarly,          the   State's        reliance    on    Administrative
    Directive        #14-06,    "Probation        Field         Supervision      and    Safety
    Standards," (August 3, 2006), is unavailing.                           That directive,
    which     also    does     not     apply     to   judges,        instructs     probation
    officers to cooperate with law enforcement in the supervision of
    probationers and in effecting the arrest of violators.
    Unequivocally, "[i]t is the judge's obligation to see that
    justice is done in every case that comes before him [or her]."
    In re Yaccarino, 
    101 N.J. 342
    , 388 (1985) (quoting In re Albano,
    
    75 N.J. 509
    , 514 (1978)).                   A judge must live by this humble
    maxim, one that, as most sitting judges would agree, is more
    easily stated than realized.                 The Code codifies this ideal and
    provides guidance for the conduct of each judge as he or she
    performs    his     or     her    duties.         A    judge     who    refrains       from
    performing her official duty in a case that comes before her,
    coupled    with     the    purpose     to    bestow     a    benefit    on   herself      or
    another, subjects herself to criminal prosecution for official
    misconduct.       This is not such a case.
    39                                    A-0483-16T4
    We    do    not   mean   to   imply    that   a   judge    may   only    commit
    official misconduct by refraining from performing a duty while
    in the courtroom.        A judge is exercising her official duties,
    for example, while "on call" or on "emergent duty," outside of
    the courtroom and after normal work hours.                     We have no doubt
    that if, for example,        a judge were to refrain from authorizing
    a search warrant despite being presented with ample probable
    cause because it involved a personal friend, she would have
    committed   official     misconduct       under   N.J.S.A.     2C:30-2b.        And,
    certainly a judge may violate N.J.S.A. 2C:30-2a by affirmatively
    committing acts unauthorized by his office or in an unauthorized
    manner in many ways outside of the courthouse and at all hours.
    N.J.S.A.      2C:30-2b    criminalizes        only   the   omissions      of   "a
    [judge]   who   consciously       refrains    from    performing     an   official
    non-discretionary duty, which duty is imposed upon him by law or
    which is clearly inherent in the nature of his office.                             In
    addition, the public servant must know of the existence of such
    non-discretionary duty to act."              
    Kueny, supra
    , 411 N.J. Super.
    at 406 (emphasis added) (quoting Final 
    Report, supra, at 291
    ).
    The State has cited no authority supporting the contention that
    a judge has a non-discretionary duty to enforce the order of
    another court, and it certainly has failed to demonstrate such a
    duty is ever present, obligating the judge to perform the duty
    40                                   A-0483-16T4
    wherever he or she may be, twenty-four hours a day, 365 days per
    year.
    At oral argument, the State adopted the proposition that a
    judge would commit official misconduct if, knowing an arrest
    warrant based on a family member's failure to pay outstanding
    parking tickets had issued, the judge refrained from notifying
    police of that family member's whereabouts.                No provisions of
    the Code or any other authority, however broadly read, would
    sustain a charge of official misconduct based on those facts.
    The facts presented to this grand jury were not much different.
    In affirming dismissal of the official misconduct count, we
    do not condone in any way defendant's alleged conduct, nor does
    it relieve defendant of the potential serious consequences if
    convicted of the crime of hindering.              The Court has repeatedly
    exercised   its    power     to   discipline    judges   for   their   conduct,
    criminal or unethical, official or otherwise.              It has the power
    to remove a judge from office "for misconduct in office, willful
    neglect   of    duty,   or    other   conduct     evidencing     unfitness   for
    judicial office, or for incompetence."               N.J.S.A. 2B:2A-2.         We
    further note that if defendant were convicted of third-degree
    hindering      Prontnicki's       apprehension,    she   would    forfeit    her
    office.   N.J.S.A. 2C:51-2a(1).
    41                             A-0483-16T4
    We affirm the dismissal of count one of the indictment
    charging defendant with official misconduct.
    Affirmed in both appeals.     We remand the matter to the Law
    Division for further proceedings consistent with this opinion.
    We do not retain jurisdiction.
    42                      A-0483-16T4