                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5380-17T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JOSEPH TOLOTTI, TOMASZ
KWINTIUK, and STEPHEN
HOUBARY,

     Defendants-Respondents.
____________________________

                   Argued November 13, 2018 – Decided February 20, 2019

                   Before Judges Sumners and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 17-10-
                   0909.

                   Harold B. Shapiro, First Assistant Prosecutor, argued
                   the cause for appellant (Jennifer Webb-McRae,
                   Cumberland County Prosecutor, attorney; Harold B.
                   Shapiro and Andre R. Araujo, Assistant Prosecutor, of
                   counsel and on the brief).
            Robert M. Perry argued the cause for respondent
            Stephen Houbary (Daniel M. Rosenberg & Associates,
            LLC, attorneys; Robert M. Perry, on the brief).

            Michael L. Testa argued the cause for respondent
            Tomasz Kwintiuk (Testa, Heck, Testa & White, PA,
            attorneys; Michael L. Testa, on the brief).

            Vincent J. Pancari argued the cause for respondent
            Joseph Tolotti (Capizola, Pancari, Lapham & Fralinger,
            attorneys, join in the briefs of respondents Stephen
            Houbary and Tomasz Kwintiuk).

PER CURIAM

      In this appeal, the State contends the Law Division misapplied the law in

dismissing indictment counts charging second-degree conspiracy to commit

official misconduct and second-degree official misconduct (collectively official

misconduct charges) against defendants, Vineland Police Department (VPD)

police officers, Tomasz Kwintiuk and Stephen Houbary, and New Jersey

Department of Corrections (DOC) officer, Joseph Tolotti. The charges stem

from allegations that defendants falsely reported a golf cart accident while they

were all off-duty.

      As to Kwintiuk and Houbary, we conclude that because regulations

covering their employment required them to truthfully report the accident even

though they were off-duty, their alleged conduct constitutes a prima facie case

of the official misconduct charges. As to Tolotti, his alleged conduct would not

                                                                         A-5380-17T4
                                       2
constitute a prima facie case of the official misconduct because guidelines

covering his employment imposed no similar requirement while he was off-duty

and his role as an accomplice in the conspiracy was not presented to the grand

jury. We therefore affirm the dismissal of the official misconduct charges as to

Tolotti, but reverse the dismissal of the official misconduct charges as to

Kwintiuk and Houbary and remand them for trial.

                                          I

      The Accident

      One afternoon in March 2016, while off-duty, Kwintiuk and fellow VPD

Officer Jose Torres, met at Tolotti's Vineland home at 001 Trento Avenue, for

an afternoon social get together. Riding on Tolotti's two-person golf cart, the

three friends traveled approximately 1.7 miles on a paved public street and dirt

road to the Double Eagle Bar. Houbary, another off-duty VPD officer, and

Christian Kirschner, a retired VPD officer, later joined them at the bar. After a

few hours of drinking, Kwintiuk, Tolotti and Torres got back on the golf cart to

return to Tolotti's house.

      Moments later, a motorist observed the golf cart entering the public

highway at top speed from a dirt roadway when the cart driven by Tolotti

suddenly "veered toward the center of the road so as to [jerk] left and . . . rip the


                                                                             A-5380-17T4
                                         3
wheel right" with a "hard cut" onto the farmland at 002 Trento Avenue. As the

cart rode over the dip between the paved highway road and the dirt driveway of

002 Trento Avenue, Torres, who was riding on the back of the golf cart in the

storage space for golf bags, fell off onto the ground and hit his head. The

motorist stopped his vehicle and yelled at the golf cart's two remaining

occupants as it continued to drive away, seemingly unaware that Torres had

fallen off the golf cart.

      Within minutes, the golf cart drove back to where Torres was lying

motionless on the ground.     Tolotti and Kwintiuk, while laughing, told the

motorist that Torres was okay and "faking it." The motorist did not think so,

telling them that Torres was badly injured and insisting that they call for

emergency medical services (EMS). However, Tolotti and Kwintiuk continued

laughing and said, "[h]e's alright. He's okay."

      At some point, Houbary and Kirchner arrived at the accident scene. The

motorist subsequently left when they arrived and Houbary took charge. Torres,

still unconscious, was placed onto the golf cart and transported to Tolotti's

house, which was about 800 feet from the accident scene.




                                                                      A-5380-17T4
                                        4
       The Reporting of the Accident

       At approximately 5:13 p.m., Houbary called VPD dispatch, stating, "[h]ey

yo, it's Houbary. Do me a favor. Dispatch an ambulance to Trento in front of

[002] for a possible concussion. Yeah, [002] Trento." Less than two minutes

later, Houbary called back, stating, "[h]ey, do me a favor. Wrong address. [001]

Trento. [001] for concussion." When the dispatcher called Houbary back asking

how the accident occurred, he replied that the injured person "[f]ell off golf cart

on the driveway . . . ."

       When EMS arrived at Tolotti's house, Torres was sitting upright in the

golf cart, unresponsive, lethargic and confused. They observed swelling and a

hematoma on the back of his head. In response to an EMS responder's questions

about the accident, one of the defendants replied that Torres "fell off a golf cart

traveling at unknown speed, lost consciousness, and hit his head on blacktop[.]" 1

There was, however, no blacktop at the residence. Torres was transported to a

helicopter landing zone, placed on life support and flown by MedEvac to the

hospital.




1
    The record does not reflect which defendant made the statement.



                                                                           A-5380-17T4
                                        5
      At the helicopter landing zone, VPD Officer Makos 2 interviewed

defendants regarding the accident. They relayed the same story. Tolotti and

Kwintiuk stated that Torres fell off the golf cart while they were driving around

on the grass of Tolotti's private residence. While still at the Double Eagle a few

minutes after Tolotti, Kwintiuk and Torres had left, Houbary stated he received

a call from someone informing him that Torres was injured. He immediately

left the bar and went straight to Tolotti's house.

      VPD Sergeant Flores also interviewed Kwintiuk and Houbary at the

helicopter landing zone. Kwintiuk professed that, "he did not know . . . how or

why Torres fell off the golf cart[.]" Houbary reiterated what he told Makos

earlier. Later, while on duty at the police station and being questioned by Sgt.

Flores, Houbary reported that upon his arrival at Tolotti's house, he asked

Kwintiuk and Tolotti if anyone called for medical assistance, and they said no.

Neither defendant mentioned that the accident actually occurred at 002 Trento

Avenue rather than Tolotti's house.

      A few hours later, around 9:24 p.m., VPD Lieutenant Adam Austino

contacted Kwintiuk to determine where Torres fell off the cart. After giving



2
  The record does not disclose his first name nor that of the later mentioned
Sergeant Flores.
                                                                          A-5380-17T4
                                         6
vague answers, Kwintiuk eventually said Torres had fallen at Tolotti's house

near the patio and grill "onto gravel . . . and the golf cart immediately came to a

stop near the patio[.]" Austino's investigation, however, revealed that there were

no tire impressions on the grass between the patio and the driveway, and no

other evidence (vomit or disturbances) indicating an accident at the location.

      Torres was diagnosed at the hospital with intracranial bleeding,

hemorrhaging and an eye fracture.

      The Indictment/Dismissal of Official Misconduct Charges

      About three weeks later, an investigation by the Cumberland County

Prosecutor's Office Professional Standards Unit concluded that evidence was

tampered with and the accident location was falsely reported as occurring on

Tolotti's property instead of a public roadway. Hence, defendants were later

indicted for fourth-degree conspiracy, N.J.S.A. 2C:5-2(a)(1), (2) (count one);

fourth-degree endangering another person, N.J.S.A. 2C:24-7.1(a)(2) (count

two); fourth-degree false reports to law enforcement, N.J.S.A. 2C:28-4(b)(1)

(count three); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1)

(count four); fourth-degree obstructing administration of law or other

governmental function, N.J.S.A. 2C:29-1(a) (count five); second-degree

conspiracy to commit official misconduct, N.J.S.A. 2C:5-2(a)(1), (2) and


                                                                           A-5380-17T4
                                        7
N.J.S.A. 2C:30-2(b) (count six); and second-degree official misconduct,

N.J.S.A. 2C:30-2(b) (count seven).

      Defendants subsequently filed a motion to dismiss the entire indictment.

The motion judge entered an order dismissing the official misconduct charges,

but he declined to dismiss the remaining less serious fourth-degree charges. In

his written decision, the judge cited State v. Hinds, 143 N.J. 540, 549 (1996),

for the proposition that defendants, as law enforcement officers, cannot be liable

"for official misconduct whenever they violate the law . . . ."        The judge

recognized that the regulations provided to the grand jury governing Kwintiuk

and Houbary's employment "establish that [they] were on notice regarding their

behavior [off-duty]." The regulations mandated that they "were required to be

truthful at all times, whether [they were] under oath or not[,]. . . not interfere

with the proper administration of justice[, and] . . . not provide false

communications in any investigation when it was reasonable to expect that it

would be relied upon by the" investigators. As for Tolotti, the judge noted that

the grand jury was provided a regulation stating that no corrections officer shall

violate the laws, statutes or ordinances of the United States or any State.

      The judge, however, granted the motion to dismiss the charge of official

misconduct as to all defendants because even though the regulations "provide


                                                                          A-5380-17T4
                                        8
direction . . . [and] behavior that would also be clearly inherent in the nature of

their offices," they would also apply equally to all citizens and, therefore, were

not enough to sustain the indictment. The judge pointed out that the questioning

of defendants took place while they were off-duty "and, should the trier of fact

believe the State's version of the events, they lied to the [VPD investigating]

officers regarding where the accident happened." 3 The judge reasoned, "[t]he

[private] behavior of the [defendants] did not touch nor involve their official

positions . . . . To punish [them] for official misconduct with the facts as alleged

leads the [c]ourt down the slippery slope of punishing off-duty officers for all

criminal acts that might occur."      In support, the judge referred to Justice

Weintraub's concurrence in State v. Cohen, 32 N.J. 1, 13-15 (1960), in holding

that finding defendants' allegedly private misconduct as sufficiently related to

their public office so as to establish official misconduct would open a "pandora's

box" of criminal claims for seemingly anything a police officer does off -duty.

      With respect to the charge of conspiracy to commit official misconduct,

the judge explained that since the allegations "do not support liability for




3
 Houbary also made false statements when he was on-duty later that same day.
Because we find that he and Kwintiuk had a duty to be truthful at all times, even
while off-duty, we need not consider these later statements.
                                                                            A-5380-17T4
                                         9
[official misconduct], . . . for the same reasons, [they] do not support" conspiracy

to commit official misconduct.

      The State's appeal followed.

                                         II

      We begin with the principles that guide our review of a motion judge's

order to dismiss indictment charges. We then address how these principles apply

to the dismissal of the official misconduct charges in this case.

      An indictment is presumed valid and should only be dismissed if it is

"manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 229

(1996). We review a judge's decision on a motion to dismiss an indictment for

a clear abuse of discretion. State v. Zembreski, 445 N.J. Super. 412, 424 (App.

Div. 2016). "However, if a trial court's discretionary decision is based upon a

misconception of the law, a reviewing court owes that decision no particular

deference." Ibid. (quoting State v. Lyons, 417 N.J. Super. 251, 258 (App. Div.

2010)).

      In our review of the judge's decision, we recognize that granting a motion

to dismiss an indictment should occur only in limited circumstances. As we

have stated:

               One of the guiding principles to be followed by a court
               when considering a motion to dismiss an indictment is

                                                                            A-5380-17T4
                                        10
            that "a dismissal of an indictment is a draconian remedy
            and should not be exercised except on the clearest and
            plainest ground." State v. Williams, 441 N.J. Super.
            266, 271 (App. Div. 2015) (alteration omitted) (quoting
            State v. Peterkin, 226 N.J. Super. 25, 38 (App. Div.
            1988)). Therefore, once returned by a grand jury, an
            indictment should be disturbed "only when [it] is
            manifestly deficient or palpably defective." State v.
            Hogan, 144 N.J. 216, 228-29 (1996).

            [Zembreski, 445 N.J. Super. at 424-25.]

      A. Official Misconduct

      The State contends that the judge misapplied the law in dismissing the

charge of official misconduct. The State maintains that it established a prima

facie claim of official misconduct because defendants are public officials 4 who

breached an inherent duty and a duty under their respective employers' (VPD

and DOC) work regulations, which were submitted to the grand jury, "to report

their fellow participating law enforcement officers for crimes occurring in their

presence and with their knowledge and participation." In particular, the State

asserts defendants: endangered Torres; gave fictitious reports to law

enforcement;    tampered    with   physical   evidence;    and   obstructed    the

administration of justice. By breaching their duties, the State argues despite the


4
   There is no doubt that defendants are public officials. "[C]ourts have
consistently found that police officers are public officials . . . ." Costello v.
Ocean Cty. Observer, 136 N.J. 594, 613 (1994).
                                                                          A-5380-17T4
                                       11
fact that defendants did not ask the investigating law enforcement officers for

special favors, they used their official status to convey a benefit on themselves

and Tolotti to avoid criminal charges.

      Defendants contend the court's dismissal of the official misconduct

charges was consistent with the law. During the entire incident in question, they

were acting as private citizens and, therefore, "subject to all of the same

penalties, as any other private citizen" and not as public officials. Houbary

individually argues that his additional statements made while on-duty, do not

subject him to liability for official misconduct.

      Defendants further argue that they did not commit official misconduct by

failing to adhere to VPD and DOC regulations and, even if their conduct could

be considered a breach of these regulations, the grand jury was not presented

with sufficient documentation to establish a clearly inherent duty.        They

maintain that their employment regulations are not sufficient to establish legal

duties because, based on State v. Thompson, 402 N.J. Super. 177, 201-202 (App.

Div. 2008), generic rules and regulations, including employment rules, "do not

necessarily impose a legal duty for the purposes of [o]fficial [m]isconduct " as

they were not "acting under the color of their office." They also rely upon State

v. Brady, 452 N.J. Super. 143, 150, 173 (App. Div. 2017), where this court


                                                                         A-5380-17T4
                                         12
recently held that a Law Division judge, who was home on vacation, could not

be liable for official misconduct by not enforcing an arrest warrant against her

live-in boyfriend by contacting police to advise that he returned home because

she did not have an inherent duty as a judge to do so.

      Lastly, defendants contend they received no benefit from their actions. In

particular, Houbary contends that since he did not witness the accident, he did

not seek any special favors, and there was no evidence that his actions were done

to benefit himself or others, he did not receive a benefit from his alleged actions.

      Official misconduct is defined by N.J.S.A. 2C:30-2(b), which 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:

                   ....

            (b) He knowingly refrains from performing a duty
            which is imposed upon him by law or is clearly inherent
            in the nature of his office.

      An official misconduct conviction can be supported by establishing that

the defendant's omission relates to expressed or inherent official duties and

obligations. State v. Kueny, 411 N.J. Super. 392, 407 (App. Div. 2010); State

v. DeCree, 343 N.J. Super. 410, 418 (App. Div. 2001); State v. Schenkolewski,

301 N.J. Super. 115, 144 (App. Div. 1997). Even if not imposed by law, the


                                                                            A-5380-17T4
                                        13
duty may be "clearly inherent or implicit in the nature of the office[.]" State v.

Maioranna, 225 N.J. Super. 365, 371 (Law Div. 1988); Schenkolewski, 301 N.J.

Super. at 144; State v. Lore, 197 N.J. Super. 277, 282 (App. Div. 1984). A

clearly inherent duty is "one that is unmistakably inherent in the nature of the

public servant's office, i.e., the duty to act is so clear that the public servant is

on notice as to the standards that he must meet." Kueny, 411 N.J. Super. at 406

(quoting II Final Report of the New Jersey Criminal Law Revision Commission,

commentary to N.J.S.A. 2C:30-2, at 291 (1971)). Whether a duty is imposed

upon a defendant is a legal question, it is up to the court to determine the

question, not a grand jury. Brady, 452 N.J. Super. at 164-165.

      In Kueny, this court overturned the defendant police officer's conviction

of official misconduct because the record did not establish any specific statute,

police department standard operating procedure, order, oath of office, rule or

regulation that would require him to return money he obtained from an

unauthorized automatic teller machine withdrawal from the victim's bank

account. 411 N.J. Super. at 405-06.          Previously, in Thompson, this court

specified the types of regulations that establish a duty. 402 N.J. Super. at 201-

202. The Conflicts of Interest Law and Code of Ethics were insufficient to

impose a breach of duty for official misconduct purposes. Id. Specifically, the


                                                                             A-5380-17T4
                                        14
two codes were generic in nature because they applied to everyone in the

department and not specifically required in that particular office, and

enforcement would result in strict criminal liability for mere ethical violations.

Id. Moreover, the ethical and moral codes at issue in Thompson did not comply

with procedural due process concerns since they did not "'set[] forth the

principle that the law must give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited . . . .'" Id. at 203 (quoting State v. Lisa,

391 N.J. Super. 556, 578 (App. Div. 2007)).

      More recently in Brady, this court recognized that the judge, who was

home on vacation and not performing the duties of her office, did not have a

non-discretionary duty, inherent in the office, to enforce an arrest warrant

against her live-in boyfriend by alerting the police when he arrived home. 452

N.J. Super. at 149, 173.     We further held that although ethical and moral

obligations may indicate the judge should enforce a warrant, the Judicial Code

of Conduct did not require enforcement of arrest warrants by the judge under

the circumstances of the case. Id. at 173.




                                                                           A-5380-17T4
                                       15
     (1) Kwintiuk and Houbary

     The grand jury was presented with the following VPD regulations that the

State claimed imposed an off-duty obligation upon Kwintiuk and Houbary,

which they violated:

           3:1.2 Action Off-Duty
           . . . while off-duty, police officers shall take any police-
           related action or any other action which may touch
           upon their position with the [VPD]; shall notify the
           highest ranking officer on-duty as soon as possible, and
           shall submit a written report . . .

           3:1.4 Withholding Information
           Employees shall report any and all information
           concerning suspected criminal activity of others.

           3:1.7 Providing False Information
           Employees shall not knowingly lie, give false or
           misleading information, or provide a false oral/written
           communication in any investigation when it is
           reasonable to expect that the information may be relied
           upon by the Department.

           3:9.1 Compromising Criminal Cases/ Investigation
           Employees shall not interfere with the proper
           administration of criminal justice . . . .

           3:13.5 Truthfulness
           Employees are required to be truthful at all times,
           whether under oath or not.




                                                                          A-5380-17T4
                                      16
These regulations are distinguishable from those relied upon by the State in

Thompson and Brady to support charges of official misconduct, which were

dismissed.

      First, the VPD regulations were sufficient to give Kwintiuk and Houbary

notice of what off-duty conduct is forbidden for Vineland police officers.

Despite dismissing the official misconduct charge against them, the judge

recognized that they had an obligation–even while off-duty–to be truthful in any

police investigation. The judge determined:

             The [c]ourt agrees that the regulations do establish that
             the officers were on notice regarding their behavior
             [off-duty]. The officers were required to be truthful at
             all times, whether under oath or not[,] . . . to not
             interfere with the proper administration of justice[,]
             . . . to not provide false communications in any
             investigation when it [is] reasonable to expect that it
             would be relied upon by the Department. While [off-
             duty], [Kwintiuk and Houbary] were to take any police
             related action[,] which may touch upon their position
             with the [VPD].

      Unlike in Thompson and Brady, the VPD regulations were not simply

ethical or moral obligations imposed upon its police officers. Rather, they

specifically delineate the appropriate action officers must take if something

occurs while off-duty that touches on police-related matters. They prohibit

police officers from withholding information, providing false information, being


                                                                         A-5380-17T4
                                       17
dishonest at all times, and not compromising criminal investigations. They

should not be reduced to mere suggestions simply because they outline conduct

that, theoretically, every citizen should follow.

       We continue to abide by Hinds, which, as noted, held that not all private

conduct by a police officer rises to the level of official misconduct. 143 N.J. at

549.    We are also mindful and appreciate the judge's citation of Justice

Weintraub's concurrence in Cohen, regarding concerns that a police officer's

private misconduct would expose the officer to criminal charges for seemingly

anything done while off-duty. Neither, however, alters our thinking, given that

the VPD regulations detailing the off-duty responsibility of Houbary and

Kwintiuk are applicable to the alleged conduct. As the majority in Cohen,

stated, "[a] police officer must not himself violate the laws he is sworn to enforce

. . . ." 32 N.J. at 10.

       A golf cart accident in which someone is seriously injured, and where the

accident occurred, is undoubtedly a matter for police investigation. The VPD

regulations clearly require Houbary and Kwintiuk to make truthful statements

during a police investigation regardless of whether they were on- or off-duty as

police officers. The regulations require off-duty officers to take any police

action that "may touch upon their position" and they "shall notify the highest


                                                                            A-5380-17T4
                                        18
ranking officer on-duty as soon as possible." Doing so is consistent with the

understanding that police officers are cloaked with a special responsibility in

our society, unlike private citizens, to protect the public and enforce the law

essentially at all times. Either Houbary or Kwintiuk could have reported to their

respective supervisors the alleged false reporting and cover-up that was being

committed regarding the accident. Thus, there was probable cause that Houbary

and Kwintiuk chose to act in a way that completely disregarded their duty as

police officers.

      Furthermore, the grand jury could have found that Kwintiuk and Houbary

derived a "benefit" from their actions as required by N.J.S.A. 2C:30-2(b) to

constitute official misconduct. A "benefit" in a chapter 30 offense "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:27-1(a).

      In our view, the State presented prima facie evidence to the grand jury that

Kwintiuk sought a benefit to avoid possible discipline by not reporting the

accident arrest when it occurred,5 and not truthfully reporting where and how



5
  Houbary reported the accident when he arrived at the accident scene after the
accident.
                                                                          A-5380-17T4
                                      19
the accident occurred. The State's grand jury prima facie evidence against

Houbary established that his action of covering up the accident with defendants

was beneficial to aid Kwintiuk from possible summons and internal discipline

for numerous traffic offenses. See State v. Corso, 355 N.J. Super. 518, 526

(App. Div. 2002) (upholding a conviction where the jury could find the

defendant, an off-duty police officer, who did not arrest individuals committing

a crime in his presence, was a benefit to himself or to the individuals). In short,

the "joint criminal activity" of Kwintiuk and Houbary suggests that they were

protecting each other from possible criminal and employment responsibility.

See Hinds, 143 N.J. 551.

      (2) Tolotti

      We reach a different conclusion as to the regulations that the State claimed

govern Tolotti's employment as a corrections officer and his off-duty behavior.

The responsibility of DOC corrections officers is to "ensure the custody, safety,

and care of criminal offenders confined in [s]tate correctional facilities." 6 The

State presented the grand jury with a DOC regulation providing: "Article [one],

Section [one], [n]o officer shall violate the laws, statutes, or ordinances of the



6
  STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS, CAREERS
IN CORRECTIONS, https://www.state.nj.us/corrections/pages/careers2.shtml.
                                                                           A-5380-17T4
                                       20
United States . . . or any State of the United States or of any political subdivision

thereof" and "[s]ection [seven] . . . , [n]o officer shall make or cause to be made

any false or misleading statements.       No officer shall intentionally omit or

misrepresent facts or information known to the officer."

      A corrections officer's duties are confined to the supervision of inmates

under the care and control of the DOC. As a corrections officer, Tolotti did not

have the authority to enforce our criminal laws as Kwintiuk and Houbary did as

police officers. There was no nexus between Tolotti's off-duty misconduct and

his position as a corrections officer because the DOC regulations do not impose

a responsibility on him to truthfully report the accident. He, therefore, cannot

be charged with official misconduct as a public official, and can only be charged

as a private citizen. Consequently, we agree with the judge's dismissal of the

charge against Tolotti.

      B. Conspiracy to Commit Official Misconduct

      The grand jury indicted defendants with conspiracy under N.J.S.A. 2C:5-

2(a)(1), which provides:

             a. Definition of conspiracy. A person is guilty of
             conspiracy with another person or persons to commit a
             crime if with the purpose of promoting or facilitating
             its commission he:



                                                                             A-5380-17T4
                                        21
                      (1) Agrees with such other person or
                      persons that they or one or more of them
                      will engage in conduct which constitutes
                      such crime or an attempt or solicitation to
                      commit such crime[.]

      The State asserts that the judge erred in dismissing the charge of

conspiracy to commit official misconduct because there was more than enough

evidence presented to the grand jury to establish a prima facie offense of official

misconduct. The State points to the cell phone calls defendants made to each

other the night of the accident, in order, as co-conspirators, to maintain the false

narrative that the accident occurred on Tolotti's property and not the public

roadway.

      On the other hand, defendants urge that there was insufficient evidence of

a conspiratorial goal to sustain the charge. Specifically, they maintain there was

no evidence of any agreement between the parties to further a criminal goal.

      It is well settled that a conspiracy may be proven by circumstantial

evidence. State v. Phelps, 96 N.J. 500, 509 (1984). Generally, circumstantial

evidence is tested:

            by the rules of ordinary reasoning such as govern
            mankind in the ordinary affairs of life. While certain
            actions of each of the defendants, when separated from
            the main circumstances and the rest of the case, may
            appear innocent, that is not significant and undoubtedly
            appears in every case of criminal conspiracy.

                                                                            A-5380-17T4
                                         22
            [State v. Samuels, 189 N.J. 236, 246 (2007) (quoting
            State v. Graziani, 60 N.J. Super. 1, 13-14 (App. Div.
            1959)).]

Hence, "[a]n implicit or tacit agreement may be inferred from the facts and

circumstances[,]" State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div. 1992),

because co-conspirators generally act in silence and secrecy, State v. Cagno, 211

N.J. 488, 512 (2013).

      (1) Kwintiuk and Houbary

      The grand jurors heard evidence that defendants falsely reported the

accident location and created a false accident scene to mislead investigators to

believe that the incident took place on private property, Tolotti's house, rather

than the public road where it actually occurred. As mentioned, this allegation

establishes a prima facie case of official misconduct against Kwintiuk and

Houbary. The evidence of the phone calls between defendants the night of the

accident was presented to the grand jury as evidence to support the charge of

conspiracy to commit official misconduct–the cover-up of the accident location.

      As the judge stated in his written decision, "a fair inference may be drawn

that [defendants] discussed with each other the accident and their individual

statements to the officers."     Therefore, there was sufficient prima facie

circumstantial evidence of a conspiracy by Kwintiuk and Houbary to agree to,


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aid in the planning of, solicit, and commit the criminal charges outlined in counts

one through five and seven of the indictment.

      (2) Tolotti

      The indictment charges Tolotti with violating N.J.S.A. 2C:5-2(a)(2),

which defines conspiracy as promoting or facilitating the commission of a crime

with another person or persons by "[a]gree[ing] to aid such other person or

persons in the planning or commission of such crime or of an attempt or

solicitation to commit such crime." The State argues that his purposeful actions

as an accomplice constitute conspiracy to commit official misconduct to the

same extent as Kwintiuk and Houbary. The State explains that even if Tolotti's

misconduct does not fall under official misconduct because the DOC employs

him, he may be a conspirator as a private person with his co-defendants in their

acts of official misconduct.

      In State v. Bryant, 257 N.J. Super. 63, 68 (App. Div. 1992), we recognized

that "[m]isconduct by public officials frequently is encouraged, aided and

facilitated by persons outside government and, therefore, accomplice liability is

consistent with the statutory aims of deterrence and punishment implicit in

N.J.S.A. 2C:30-2." Yet, in order for liability for conspiracy to commit official

misconduct to attach to Tolotti, whose conduct did not constitute official


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misconduct, the State must show that Tolotti "acted with the purpose of

promoting or facilitating the substantive offense for which he is charged as an

accomplice." Hinds, 143 N.J. at 551.

      Again, we reach a different result concerning Tolotti. The inference that

applied to Kwintiuk and Houbary from the telephone calls to establish a prima

facie charge of conspiracy of official misconduct, did not apply to Tolotti even

though he also participated in the calls. He is a corrections officer, not a VPD

police officer, and the State presented no evidence to the grand jury that he was

aware of the regulations governing Kwintiuk and Houbary's employment as

police officers. Hence, there was no prima facie evidence that he "aided" in

their plans to falsely report how and where the accident happened with the

understanding that doing so violated their obligation as police officers, despite

being off-duty, not to interfere with the proper administration of justice and

make false reports in a police investigation. Therefore, the judge properly

dismissed the conspiracy charge against Tolotti.

      Affirmed as to the dismissal of indictment counts six and seven against

Tolotti. Reversed as to the dismissal of indictment counts six and seven against

Kwintiuk and Houbary.




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