                           RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1449-12T4

STATE OF NEW JERSEY,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                              December 24, 2013
v.                                            APPELLATE DIVISION

IVONNE SAAVEDRA,

     Defendant-Appellant.
__________________________

          Argued September 11, 2013 – Decided December 24, 2013

          Before Judges Fuentes, Simonelli and
          Fasciale.

          On appeal from the Superior Court of New
          Jersey, Law Division, Hudson County,
          Indictment No. 12-05-0849.

          Mario M. Blanch argued the cause for
          appellant.

          Leo Hernandez, Special Deputy Attorney
          General/Acting Assistant Prosecutor,
          argued the cause for respondent (Gaetano
          T. Gregory, Acting Hudson County
          Prosecutor, attorney; Mr. Hernandez, on
          the brief).

     The opinion of the court was delivered by

FASCIALE, J.A.D.

     By leave granted, defendant Ivonne Saavedra appeals from an

order denying her motion to dismiss an indictment returned by a

Hudson   County    grand    jury   charging   her   with   second-degree
official misconduct, N.J.S.A. 2C:30-2a, and third-degree theft

of   movable      property      (public   documents),          N.J.S.A.       2C:20-3    and

N.J.S.A. 2C:20-2b(2)(g).             Because defendant attacks the facial

validity of the charges against her, we will review the evidence

presented by the State to determine whether there was probable

cause      for   the    grand    jury     to       find    that    these      crimes    were

committed and that defendant committed them.                             In re State ex

rel. A.D., 212 N.J. 200, 218 (2012).                      We affirm.

                                          I.

      Defendant took highly confidential original documents owned

by   her    employer,     contending      that       she     did   so    to   support    her

employment       discrimination         lawsuit.            Relying      on   Quinlan     v.

Curtiss-Wright Corp., 204 N.J. 239 (2010), defendant argues that

her acts are not criminally sanctionable.                           She contends that

because Quinlan purportedly establishes an absolute right for

employees        with   employment        discrimination            lawsuits     to     take

potentially incriminating documents from their                           employers, the

judge erred by denying her motion.                        We disagree.        Quinlan did

not establish such a bright-line rule as defendant suggests.

Quinlan, a civil employment discrimination case, enunciated a

seven-part        totality-of-the-circumstances                   test   (the    "Quinlan

analysis") to determine whether a private employer can terminate

its employee for the unauthorized taking of its documents.




                                               2                                   A-1449-12T4
       We hold, under the facts of this case, that a criminal

court judge is not required to perform a Quinlan analysis to

decide a motion to dismiss an indictment charging a defendant

with    official    misconduct     predicated     on    an   employment-related

theft of public documents.               Instead, the judge should apply

well-settled standards regarding whether to grant such motions.

That is, to survive a motion to dismiss an indictment, the State

need not produce evidence adequate to sustain a conviction; but

rather, the State must introduce sufficient evidence before the

grand jury to establish a prima facie case that defendant has

committed a crime.         State v. Hogan, 144 N.J. 216, 236 (1996).

Because    the     State   produced      such   evidence       here,   the     judge

properly    concluded      that    the    indictment     was     not   manifestly

deficient or palpably defective.             Id. at 228-29, 236.

       Whether a petit jury ultimately finds defendant guilty of

official misconduct and theft will depend on the State's ability

to prove beyond a reasonable doubt each and every element of

these    crimes.      If   there   is    sufficient      evidence      to    support

defendant's      contention   that    she    honestly    believed      she    had     a

right to the documents in question, she can raise such a claim

as an affirmative defense at trial.              The State then would have

the burden of proving, beyond a reasonable doubt, that defendant

did not act pursuant to a claim of right.




                                         3                                   A-1449-12T4
                                      II.

      The North Bergen Board of Education (the "Board") employed

defendant for several years as a clerk.1                  She started working in

the Board's payroll department and remained there for ten years.

She   was   thereafter    assigned    to    the     Board's    Special      Services

Department     and     became   a   clerk     for     a     child    study    team.2

Defendant's son also worked as a part-time employee for the

Board.

      In    November    2009,   one    year    before        the    Court    decided

Quinlan, defendant and her son filed a complaint against the

Board, her supervisor, an office manager, and a North Bergen




1
  Although not entirely clear from the record, we infer that
defendant's position of "clerk" appears to fall within the scope
of clerical or secretarial tenured positions, described in
N.J.S.A. 18A:17-2b as "[a]ny person holding any secretarial or
clerical position or employment under a board of education of
any school district or under any officer thereof."       N.J.S.A.
18A:17-2c protects individuals who have acquired tenure in such
a   position  "during   good   behavior  and   efficiency"   from
dismissal, suspension, or reduction in compensation, "except for
neglect, misbehavior or other offense . . . ."
2
  The child study team in a school is comprised of specified
professionals who can evaluate the particular needs of children
with learning disabilities.      "Each board of education [is
required to] provide for basic child study team services.    The
basic child study team shall consist of a school psychologist, a
learning disability teacher consultant and a school social
worker, and for the purposes of evaluation and classification
shall include pertinent information from certified school
personnel making the referral." N.J.S.A. 18A:46-5.1.




                                        4                                    A-1449-12T4
Township Commissioner.3          Defendant alleged that she was a victim

of gender, ethnic, and sex discrimination.                    The complaint also

alleged     that    the    Board       terminated    defendant's         son   because

defendant    voiced       what   she    understood    to     be    problems    in    her

workplace     regarding       alleged      pay    irregularities,         reimbursing

employees improperly for "unused" vacation time that they had

actually used, wrongful denial of employee unpaid family leave,

violations     of     child      study     team     regulations,         and   "unsafe

conditions."4        They     alleged,     among     other    causes      of   action,

employment      discrimination,           hostile     work        environment,       and

retaliatory     discharge,       in     violation    of    the     New    Jersey     Law

Against Discrimination (the "LAD"), N.J.S.A. 10:5-1 to -49, and

they sought punitive damages.5


3
  Defendant improperly identified in her civil complaint the
North Bergen Township Commissioner as a "councilman."
4
  Defendant alleged in her civil complaint against the Board that
the Board did not terminate her from employment because she is
tenured.
5
  The complaint contains the following counts: a violation of the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14
(Count One); a violation of public policy (Count Two); a
violation of Section 1983 of the Civil Rights Act, 42 U.S.C.A. §
1983 (Count Three); a violation of the New Jersey Civil Rights
Act, N.J.S.A. 10:6-1 to -2 (Count Four); civil rights conspiracy
(Count Five); violations of the Fair Labor Standards Act, 29
U.S.C.A. §§ 201-209 (Count Six); a violation of the New Jersey
Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38 (Count Seven);
hostile work environment, in violation of the LAD (Count Eight);
adverse employment action, in violation of the LAD (Count Nine);
                                                       (continued)


                                           5                                   A-1449-12T4
    Defendant's counsel in the civil case learned eventually

from defendant that defendant possessed hundreds of documents

owned by the Board.               Criminal defense counsel on this appeal

indicated         in   his   merits    brief       that   defendant's    civil     lawyer

"chose       to   use    the     documents     during     the    discovery      phase    of

[defendant's] pending lawsuit against [the Board]."                             (Emphasis

added).       Defendant's civil attorney turned over those documents

to counsel defending the Board in the employment discrimination

suit.         The      Board's    attorney         notified     the   Board's     general

counsel.           The   general       counsel      brought     the   matter     to     the

attention of the Hudson County Prosecutor, who determined that

the matter should be presented to a grand jury.

    The grand jury convened to hear evidence in this case in

April 2012, more than two and one-half years after defendant had

filed her civil complaint.               The State called the Board's general

counsel to testify as its only witness before the grand jury.

He testified that defendant had sued the Board and that "there

[was]    a    [civil]        lawsuit    outstanding."           The   general     counsel

testified that defendant had taken from the Board 367 documents,



(continued)
a violation of the New Jersey Family Leave Act, N.J.S.A. 34:11B-
1 to -16, and the Family Medical Leave Act, 29 U.S.C.A. § 2601
to -2654 (Count Ten); intentional infliction of emotional
distress (Count Eleven); respondeat superior (Count Twelve); and
punitive damages (Count Thirteen).



                                               6                                  A-1449-12T4
including at least sixty-nine original documents.                              He informed

the Board's defense counsel that "the information [contained] in

those    documents       was    highly    confidential,            very     sensitive,         and

[that    the    Board]    needed     to       act       on    [defendant's     decision         to

resort to self-help] immediately."                           He then described five of

the documents, focusing on the confidential nature of each one.

    The        first    document    is        a       bank   statement      that    a    parent

provided to the Board.              The Board used this bank statement to

verify whether that parent and the parent's child met the school

district's residency requirements.                           This document reveals the

parent's name and address, a bank account number, an account

balance, a description of the type of account (either a checking

or savings account), and a statement date.

    The        second    document        is       an     appointment      schedule        of     a

psychiatrist      who     treated    students            with    special     needs      in     the

district.         This    document        identifies            the   names    of       various

students whom the psychiatrist planned to treat, and it contains

a note that one named student "is on medication and needs [more]

medication."           Releasing     this          document      to   the     public      would

jeopardize the Board's ability to ensure that its students with

mental   health        issues    receive          psychiatric      treatment       and    would

violate the students' privacy rights.




                                                  7                                     A-1449-12T4
      The third document, which general counsel believed to be an

original, is entitled "Consent for Release of Information to

Access     Medicaid        Reimbursement           for         Health-Related       Support

Services."       This document discloses the name and private contact

information of a parent who agreed to participate in a Medicaid-

reimbursement         program,    and    it    identifies         the     student's     name,

date of birth, enrollment date, school, and grade level.                                  The

Board uses this type of document to seek reimbursement from

Medicaid      for     medical    and    other      services        that    students     with

special needs receive.               The Board faces liability exposure if

the   State     or    Federal    Government            performs    an     audit   and    this

document is missing.

      The fourth document, also believed to be an original, is a

signed     letter       from     a      parent         whose     child      is    receiving

confidential         services    for     the      child's        special     needs.        It

contains the family's private information, such as names of the

parents    and       student,    the    name      of    the     student's    school,      and

contact telephone numbers.

      The fifth document is an original letter from a different

parent     to    the     Director       of     Special         Services     regarding      an

emotional problem involving that parent's child.                           In the letter,

the parent indicated that her son "came off the bus soaked in




                                              8                                     A-1449-12T4
urine, very nervous, and his eyes were twitching."                  The document

reveals the identity of the student.

    General counsel testified that the documents in defendant's

possession    belonged   to   the     Board.      He    explained     that   Board

"employees are trained and informed[,] via internal policies[,]

guidelines[,] and regulations[,] that these documents are highly

confidential and are not to be disclosed or tampered with in any

way."     He stated that these documents are not to be "disclosed

[or] taken" by Board employees.

    In May 2012, the grand jury indicted defendant and charged

her with committing the crimes of official misconduct and theft.

Defendant then moved to dismiss the indictment.                     During oral

argument on that motion, the judge focused on whether the State

presented sufficient evidence to establish a prima facie case

that defendant committed these offenses.

    Defense counsel contended that defendant took the documents

for a lawful use, that the State failed to present exculpatory

evidence to the grand jury, and that the State was punishing

defendant for exercising improper judgment on the job.                   Defense

counsel     argued   that     "Quinlan     says        it's   legal     to   take

confidential    documents,"     and    that    preventing      defendant     from




                                       9                                 A-1449-12T4
taking the confidential documents would have a chilling effect

on future LAD cases.6

       The State maintained that it presented to the grand jury

sufficient     evidence    to     show   that    defendant     committed     these

crimes.       The     assistant    prosecutor     argued      that   defendant's

reliance on Quinlan was misplaced.                 He stated that Quinlan,

which he emphasized was decided in the context of a civil case

rather than on a motion to dismiss an indictment, did not create

a bright-line rule permitting a public servant such as defendant

to take highly confidential documents that did not belong to

her.    The State asserted that the indictment was not manifestly

deficient or palpably defective and there existed no exculpatory

evidence that squarely refuted an element of the offenses.

       In   October    2012,    the    judge    issued    a   thorough   written

decision agreeing with the State's arguments, and denied the

motion.     The judge recognized that on a motion to dismiss the

indictment,    the     State    need   not    produce    evidence    adequate     to

sustain a conviction, but rather, the State's evidence must be

sufficient to establish a prima facie showing that a crime has


6
  Defense counsel stated in his merits brief that defendant
dismissed her lawsuit against the Board.  The parties did not
produce a stipulation of dismissal, and the record is unclear
regarding when or why she dismissed her claims.    It is also
unclear whether the son continued with his claims against the
defendants in the civil case.



                                         10                                A-1449-12T4
been committed.        She acknowledged that defendant bears a "'heavy

burden' of demonstrating that the 'evidence is clearly lacking

to    support   the    charge[s].'"      The     judge   then   concluded    that

defendant did not meet her burden.

       Although the judge rejected the applicability of Quinlan,

she    performed      the   Quinlan   analysis    out    of   an   abundance    of

caution.    The judge concluded that the Quinlan factors weighed

heavily in favor of the Board.7             The judge then held that "an

employee's removal of documents from his or her employer for use

in a []LAD suit, is not per se lawful."             This appeal followed.

       On appeal, defendant raises the following points:

            POINT I
            THE INDICTMENT FOR "OFFICIAL MISCONDUCT"
            SHOULD BE DISMISSED AS THE STATE HAS FAILED
            TO PRESENT SUFFICIENT EVIDENCE TO THE GRAND
            JURY TO SUSTAIN A PRIMA FACIE CASE.

                   A. [Defendant] is not a Public
                   Servant for Purposes of Official
                   Misconduct.

                   B. The State has Failed to Show
                   any   "Purpose" to   "Obtain  a
                   Benefit."

                   C. The State has Failed to Show
                   Proof that [defendant] acted with
                   Purpose to Injure or Deprive.

                   D.   The    Indictment  Must   Be
                   Dismissed As There is No Evidence

7
  It appears that a Quinlan analysis was not performed by a judge
in the civil case because defendant dismissed her complaint.



                                       11                                A-1449-12T4
                   to Show that [defendant] Knew that
                   Her Actions Were Unauthorized.

           POINT II
           THE INDICTMENT SHOULD BE DISMISSED BECAUSE
           THE LEGISLATIVE INTENT IS NOT TO PUNISH
           EMPLOYEES FOR ALLEGEDLY IMPROPER JUDGMENT ON
           THE JOB.

           POINT III
           [DEFENDANT] CANNOT BE FOUND GUILTY OF THEFT
           AS SHE TOOK THE DOCUMENTS FOR A LAWFUL USE.

           POINT IV
           THE INDICTMENT MUST BE DISMISSED AS THE
           PROSECUTOR FAILED TO PRESENT EXCULPATORY
           EVIDENCE RELATING TO THE UNDERLYING SUIT
           [THAT DEFENDANT] HAD PENDING WITH THE BOARD
           OF EDUCATION OF NORTH BERGEN.

           POINT V
           ALLOWING THE PROSECUTION OF [DEFENDANT] TO
           CONTINUE WILL CREATE A CHILLING EFFECT TO
           POTENTIAL PLAINTIFFS IN LAD CLAIMS.

           POINT VI
           THE CRIMINAL PROSECUTION OF [DEFENDANT] IS
           UNJUST BECAUSE IT HAS ALLOWED THE ATTORNEYS
           FOR THE . . . BOARD OF EDUCATION TO VIOLATE
           THE CANONS OF ATTORNEY ETHICS.

                                    III.

    We     begin    by   addressing    whether    the     judge    abused      her

discretion    by    denying      defendant's     motion    to     dismiss      the

indictment.     We will not disturb the denial of such a motion

"unless [the judge's discretionary authority] has been clearly

abused."     State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div.

1994)   (quoting    State   v.    Weleck,   10   N.J.     355,    364   (1952)),




                                      12                                 A-1449-12T4
certif. denied, 140 N.J. 277 (1995).           Against this standard, we

conclude that there was no abuse of discretion.

       A judge should not dismiss an indictment               except on the

clearest and plainest ground, where it is "manifestly deficient

or palpably defective."       Hogan, supra, 144 N.J. at 228-29.            When

reviewing such motions, the court must construe the facts in the

light most favorable to the State.             State v. Fleischman, 383

N.J.   Super.   396,   398   (App.   Div.   2006),   aff'd,   189   N.J.     539

(2007).    "As long as an indictment alleges all of the essential

facts of the crime, the charge is deemed sufficiently stated."

State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.),

certif. denied, 151 N.J. 77 (1997).            We have stated that "the

quantum of this evidence . . . need not be great."             Ibid.

                                      A.

       The State produced sufficient evidence to establish a prima

facie case of theft of movable property.                N.J.S.A. 2C:20-3a

provides that "[a] person is guilty of theft if he unlawfully

takes, or exercises unlawful control over, movable property of

another with purpose to deprive him thereof."            Here, theft is a

third-degree offense pursuant to N.J.S.A. 2C:20-2b(2)(g).                     At

this stage in the case, we must look at the facts presented to

the grand jury in the light most favorable to the State.                   From

this perspective, the State introduced evidence that defendant




                                      13                               A-1449-12T4
violated    the    Board's    "internal         policies[,]        guidelines[,]            and

regulations[,]"        by   taking     its      highly       confidential            original

documents, which suggests that defendant did so with the purpose

to   deprive     the   Board.        The   State      also     introduced            evidence

suggesting that by taking these documents, defendant intended to

disrupt    the     psychiatric   treatment         of    students             with    special

needs, and also exposed the Board to liability in the event of a

state or federal Medicaid audit.

       Defendant's     counsel   contends,            like    he        did    before       the

criminal judge, that the State is unable to show that defendant

"unlawfully" took the documents because "Quinlan says it's legal

to take confidential documents."                 We disagree with defendant's

reading of Quinlan.         We also emphasize that the grand jury is an

accusatorial rather than an adjudicative body; grand jurors do

not determine guilt or innocence.                  Hogan, supra, 144 N.J. at

227.      A grand jury is simply "asked to determine whether 'a

basis exists for subjecting the accused to a trial.'"                                   Ibid.

(quoting    Trap    Rock    Indus.,    Inc.      v.    Kohl,       59    N.J.        471,   487

(1971), cert. denied, 405 U.S. 1065, 92 S. Ct. 1500, 31 L. Ed.

2d 796 (1972)).         Here, the record demonstrates that the grand

jury correctly performed its limited role.

       We agree with the trial judge that Quinlan is factually

distinguishable.        The plaintiff in Quinlan, a private individual




                                           14                                         A-1449-12T4
rather than a public employee like defendant, contended that her

employer     discriminated         against        her   when     it    promoted         a    less

qualified man to the position of supervisor.                             Quinlan, supra,

204   N.J.    at    244.         During     discovery       in    her    LAD       case,      her

employer,    a     private       company,    learned       that       Quinlan      had      taken

confidential        documents.            Ibid.         Thereafter,          her     employer

terminated her.          Ibid.

      The    Supreme        Court       framed      the     issue       in     Quinlan         as

"creat[ing]        the   appropriate        framework       against       which         [civil]

courts may weigh and consider whether, and to what extent, an

employee     who     finds,        copies,        and     discloses       an       employer's

otherwise confidential documents in the context of prosecuting a

discrimination       case    was       engaged     in   conduct       protected         by    the

LAD."      Id. at 245.           In undertaking that challenge, the Court

balanced     the     rights       of    "individual         plaintiffs          seeking        to

vindicate their rights and employers legitimately expecting that

they will not be required to tolerate acts amounting to self-

help or thievery."           Id. at 245-46.             The Court created a seven-

part analysis for use in a civil case, "a flexible, totality of

the circumstances approach."

      Civil judges apply this seven-part analysis by considering,

in part, such things as whether: "discovery of the document was

due   to    the    employee's       intentional         acts     outside       .    .    .    her




                                             15                                         A-1449-12T4
ordinary        duties";     the        document          "includes       personal         or

confidential         information    such       as   Social     Security       numbers      or

medical information about other people"; there is a "company

policy     on    privacy     or     confidentiality            that     the    employee's

disclosure       has    violated";       use    of       the   document       "is    unduly

disruptive to the employer's ordinary business"; the employee

can obtain the document by "describing it or identifying its

existence       to     counsel     so    that       it    might    be    requested         in

discovery"; and whether there is "a likelihood that the employer

would    not    maintain     it,    or    would      have      discarded      it    in    the

ordinary course of business, that it would have been destroyed,

or that its authenticity would be called into doubt."                               Id. at

269-71.    The Court applied this balancing test and stated that

               [a]pplying [the Quinlan analysis] to the
               documents   before   the   court,   we  find
               ourselves in agreement with the distinction
               that the trial court drew. The trial court
               correctly told the jury that plaintiff's act
               of taking the documents, . . . was not
               protected [activity] and that the employer
               was free to terminate her for doing so.

               [Id. at 273.]

    We reject defendant's argument that the holding in Quinlan

essentially prevents the State from introducing evidence before

the grand jury that demonstrates a prima facie showing that

defendant "unlawfully t[ook], or exercise[d] unlawful control

over" the documents.             Quinlan did not establish a bright-line



                                           16                                       A-1449-12T4
rule that automatically entitled defendant to take the Board's

highly confidential original documents.                     In fact, the Court in

Quinlan      made    clear    that     even    with   the    availability      of    its

multifaceted analysis, employees

              run the significant risk that the conduct in
              which they engage will not be found by a
              court to fall within the protection [the
              Quinlan analysis] creates.      The risk of
              self-help is high and the risk that a [petit
              civil]   jury  will   reject  a   plaintiff's
              argument that he or she was fired for using
              the document, rather than for finding it and
              taking it in the first place, will serve as
              an important limitation upon any realization
              of the fears that the employers have
              expressed to the Court.8

              [Id. at 272 (emphasis added).]

                                          B.

    The State produced sufficient evidence to establish a prima

facie     case      of   official        misconduct.         Here,    the     official

misconduct       charge      is    a     second-degree      offense       pursuant    to

N.J.S.A. 2C:30-2, because the State presented evidence to the

grand jury that defendant derived a non-pecuniary benefit.                           See

State   v.    Phelps,     187     N.J.    Super.   364,     375   (App.    Div.   1983)


8
  We emphasize that the Quinlan majority gave this warning when
it balanced the interests of plaintiffs seeking to vindicate
their rights against employers' legitimate expectation "that
they will not be required to tolerate acts amounting to self-
help or thievery."     Id. at 245-46.    Thus, the Court gave
sufficient notice to employees that by resorting to self-help,
their conduct may also be illegal.



                                            17                                 A-1449-12T4
(stating that "a person may be convicted of the second[-]degree

offense of official misconduct even though no pecuniary benefit

is involved"), aff’d, 96 N.J. 500 (1984).               Pursuant to N.J.S.A.

2C:30-2b, official misconduct is a third-degree offense "[i]f

the benefit obtained or sought to be obtained . . . is of a

value of [$200] or less."        The Court stated that

           the Legislature . . . intended to treat more
           moderately offenses which, by an objective
           standard, could be measured to be relatively
           less consequential in nature than would
           otherwise be the case. It carved out a type
           of    official    misconduct    for   lenient
           treatment.    But the Legislature did not in
           the   downgrading   provision  deal  with   a
           benefit     not    subject    to    pecuniary
           measurement.

           [Phelps, supra, 187 N.J. Super. at 375.]

Pursuant to N.J.S.A. 2C:30-2a,

           [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:

           a. He commits an act relating to his office
           but constituting an unauthorized exercise of
           his official functions, knowing that such
           act is unauthorized or he is committing such
           act in an unauthorized manner.

Thus,   pursuant   to     this   section     of   the     statute,    official

misconduct has three elements: (1) a defendant must be a "public

servant," (2) "who committed 'an act relating to his office,'

which   constituted     'an   unauthorized    exercise     of   his   official




                                     18                                A-1449-12T4
functions,' knowing that it was unauthorized or committed in an

unauthorized manner," and (3) had a purpose "to obtain a benefit

for himself or another" or "to injure or deprive another of a

benefit."     State v. Quezada, 402 N.J. Super. 277, 283 (App. Div.

2008).

    The State made a prima facie showing that defendant is a

"public servant," defined by N.J.S.A. 2C:27-1g as any "employee

of government, . . . [who performs] a governmental function[.]"

"The term 'public servant' is 'defined broadly for purposes of

[official] misconduct . . . for . . . offenses against public

administration.'"       State v. Perez, 185 N.J. 204, 206 (2005).                        As

long as defendant performed a "governmental function," she is

considered to be a public servant under this section of the

statute.     See Quezada, supra, 402 N.J. Super. at 283 (focusing

on the actor's performance of a governmental function); see also

Perez, supra, 185 N.J. at 207 (stating that a clerk of the North

Bergen     Department    of     Motor      Vehicle's       office    is     a     "public

servant"    because     she   performed         governmental     functions).            The

Board, which is itself a public entity under N.J.S.A. 59:1-3, is

unquestionably     a     "governmental           vehicle      through     which        [the

constitutional     obligation         to   provide     a]     mandatory         education

takes    place."      Tonelli    v.     Bd.     of   Educ.,    185   N.J.       438,    450

(2005).     Here, defendant performed a governmental function by




                                           19                                     A-1449-12T4
serving    public      school       students         with    special     needs       and   their

families    as   a     clerk       for    a    child     study    team    in    the    Board's

Special Services Department.

      The State also made a prima facie showing that defendant

committed "an act relating to [her] office" which constituted

"an unauthorized exercise of [her] official functions," knowing

that it was unauthorized or committed in an unauthorized manner.

General counsel testified that the Board trained and informed

its   employees,        "via       internal          policies[,]       guidelines[,]          and

regulations[,]       that      the       documents         defendant     took    are       highly

confidential and are not to be tampered with in any way."                                     He

asserted that these documents are not to be "disclosed [or]

taken" by Board employees.                    Giving the State the benefit of all

reasonable inferences, as we must on a motion to dismiss an

indictment,      the    State       showed       that       it   notified      defendant      in

writing that she was unauthorized to remove the five documents

presented to the grand jury.

      Finally,       the       State          produced       sufficient         evidence      to

establish a prima facie showing that defendant had a purpose "to

obtain a benefit for [herself] or another" or "to injure or

deprive    another      of     a    benefit."          A    "benefit"     is     a    "gain    or

advantage or anything so regarded by the beneficiary."                                 Phelps,

supra, 187 N.J. Super. at 375; see also N.J.S.A. 2C:27-1a.                                    The




                                                20                                     A-1449-12T4
statute    does     not     require       a   malicious         intent,    but    rather       an

"affirmative act."            State v. Kueny, 411 N.J. Super. 392, 404

(App. Div. 2010).           General counsel informed the grand jury that

defendant sued the Board and that defendant's civil case was

pending.       Looking at the facts in the light most favorable to

the State, Fleischman, supra, 383 N.J. Super. at 398, defendant

acted   with     the      purpose     to      derive      a     benefit    by    taking       the

documents      to   support       her      civil        lawsuit,    or     to    "injure       or

deprive" the Board of its ability to defend the allegations in

the civil suit.           Moreover, the removal of copies and original

Board   documents      exposed       the      Board      to     potential       liability      by

making the Board unprepared for an audit related to Medicaid

reimbursement, and by possibly disrupting psychiatric treatment

for students with special needs.

                                              IV.

    Defendant argues that "if she committed any wrongdoing,"

she made an "honest error."                   Defendant asserts that because she

may have exercised "improper judgment on the job," by taking

documents that may constitute an "unauthorized" act, the judge

erred     by   denying       her      motion        to     dismiss        the    indictment.

Defendant      equated      her    decision         to   remove     the    Board's       highly

confidential        financial       and       medical      records       with    that     of     a

janitor    erring      by    taking       home      a    mop.      The    premise       of    her




                                               21                                       A-1449-12T4
argument is that the Legislature did not intend to include her

conduct as activity that constitutes official misconduct.

      "The crime of official misconduct serves to insure that

those who stand in a fiduciary relationship to the public [such

as    defendant]      will     serve      with        the    highest    fidelity,        will

exercise   their       discretion        reasonably,          and   will     display     good

faith, honesty, and integrity."                     Schenkolewski, supra, 301 N.J.

Super. at 145-46.            As we have previously stated, "[a]s long as

an indictment alleges all of the essential facts of the crime,

the   charge     is    deemed       sufficiently            stated."       Id.    at     137.

Defendant stood in "a fiduciary relationship" to the public and

therefore was expected to serve with the "highest fidelity."

Thus, we reject defendant's contention that the Legislature did

not intend to include within the official misconduct statute the

activity    of        taking        highly      confidential           documents        while

performing a governmental function as a public servant.

      Defendant's "honest error" argument is not insignificant,

however, because it amounts essentially to a claim of right

defense.       The time to assert such a defense, though, is at

trial,   rather       than     as    a   basis        to    dismiss    the    indictment.

Pursuant   to    N.J.S.A.       2C:20-2c,            a     defendant   may    assert      the

affirmative      defense       that      she        "(1)    [w]as   unaware      that     the

property . . . was that of another; [or] (2) [a]cted under an




                                               22                                  A-1449-12T4
honest claim of right to the property . . . that [s]he had a

right to acquire or dispose of it as [s]he did."        The jury

charge for this defense states in part that

         [i]n addition to . . . her general denial of
         guilt, the defendant contends that . . . she
         is not guilty of [theft and official
         misconduct] because . . . she was acting
         pursuant to a claim of right to the
         property.

                    Our law provides that it is a
         defense to prosecution[9] for [theft] that
         the defendant acted under an honest claim of
         right to the property . . . or that . . .
         she had a right to acquire or dispose of the
         property as . . . she did. An honest claim
         is one that is genuinely, though not
         necessarily   correctly,  believed  by   the
         defendant.

                   This defense, you should note, is
         not limited to situations in which a
         defendant believed . . . she owned the
         property.[]     Rather, it includes those
         situations in which the defendant honestly,
         although not necessarily correctly, believed
         that . . . she had either the right or the
         authorization to receive, take, acquire, or
         dispose of the property.

                  As I have mentioned to you, since
         this is a criminal case the burden of proof
         is on the State.        The defendant is,

9
  Judges are reminded to omit the phrase "affirmative defense,"
to avoid any suggestion that the defendant bears the burden of
proof on a claim of right defense. Nevertheless, the defense is
an affirmative one, and the charge should only be given when
there is some evidence that would support it.    N.J.S.A. 2C:1-
13b(1); see State v. Ippolito, 287 N.J. Super. 375 (App. Div.)
(finding an evidential basis for giving this charge), certif.
denied, 144 N.J. 585 (1996).



                               23                        A-1449-12T4
            therefore, not required to prove that . . .
            she acted pursuant to a claim of right;
            rather the burden is on the State to prove
            that the defendant did not act pursuant to a
            claim of right. . . .

                  . . . .

            [I]f the State has failed to prove beyond a
            reasonable doubt . . . that the defendant
            did not honestly believe . . . she had a
            right to the property or was authorized to
            receive, take, acquire, or dispose of the
            property, then you must find the defendant
            not guilty.

     At    oral   argument   before   us,   counsel   addressed   questions

regarding    whether   the   judge    should   have   conducted   what    was

described as a "Quinlan hearing" to resolve whether to grant

defendant's motion to dismiss the indictment.10           Here, the judge

performed the Quinlan analysis out of an abundance of caution.

We are satisfied, however, that Quinlan does not apply directly

to the facts presented here because the Supreme Court did not

intend its holding in that civil case to act as a means of

mounting a facial challenge to the indictment in this criminal

case.     As we have discussed at length infra, the standards for


10
   We note that in general, prosecutors act independently from
the "civil system." See Div. of Youth & Family Servs. v. Robert
M., 347 N.J. Super. 44, 63-64 (App. Div. 2002) (indicating in
the context of a Title 9 abuse and neglect case that "the
criminal justice system acts separately . . . [from] the civil
system") (quoting State v. P.Z., 152 N.J. 86, 100 (1997))
(internal quotation marks omitted).




                                      24                            A-1449-12T4
assessing      the    sufficiency      of    an    indictment      are    well-settled.

Hogan, supra, 144 N.J. at 228-29.                   There is nothing in Quinlan

that signals any deviation from Hogan.

                                        V.

       Defendant contends that the indictment must be dismissed

because      the     State    failed        to    present     to    the     grand     jury

exculpatory evidence "relating to" her LAD lawsuit against the

Board.       Defense counsel argues that defendant's taking of the

documents to support her civil lawsuit against the Board "is

legal . . . under Quinlan," and that the assistant prosecutor

failed to present defendant's purported reason for taking the

documents.         Defendant    argues,          therefore,    that      this    evidence

would have negated her guilt.

       A prosecutor's duty to present exculpatory evidence to a

grand       jury     arises   "only     if        the    evidence        satisfies      two

requirements: it must directly negate guilt and must also be

clearly exculpatory."           Hogan, supra, 144 N.J. at 237.                   Limiting

the    prosecutor's      duty   to     presenting        "evidence       that    directly

negates . . . guilt" recognizes that "the sole issue before the

grand jury is whether the State has made out a prima facie case

of    the    accused's    guilt."       Ibid.           Exculpatory      evidence     must

"squarely refute[] an element of the crime."                        Ibid.       The Court

stated that




                                             25                                   A-1449-12T4
              [a]scertaining the exculpatory value of
              evidence at such an early stage of the
              proceedings can be difficult, . . . and
              courts should act with substantial caution
              before   concluding    that  a   prosecutor's
              decision in that regard was erroneous.     We
              emphasize that only in the exceptional case
              will a prosecutor's failure to present
              exculpatory   evidence    to a   grand   jury
              constitute   grounds    for  challenging   an
              indictment.

              [Id. at 238-39 (citation omitted).]

      Here, presenting evidence to the grand jury that defendant

took the documents to pursue her civil lawsuit against the Board

is not "clearly exculpatory."                Even if Quinlan were directly on

point,   which    it     is   not,     "what    the     employee        did    with    the

document" is only one factor to consider pursuant to the Quinlan

analysis.      Undertaking the Quinlan analysis is "a difficult . .

.   task,"    Quinlan,    supra,       204    N.J.    at   271,     and   defendant's

purported reason for taking the documents does not in and of

itself constitute "clearly exculpatory" evidence.

      There is also no credible evidence that the State deceived

the   grand    jury    during    its   presentment         of    this   matter.        See

Hogan, supra, 144 N.J. at 236 (maintaining that "the grand jury

cannot be denied access to evidence that is credible, material,

and so clearly exculpatory as to induce a rational grand juror

that the State has not made out a prima facie case against the

accused").        General       counsel      informed      the    grand       jury    that




                                          26                                     A-1449-12T4
defendant's lawsuit against the Board was "outstanding."                           In

fact, the grand jury at one point acknowledged that defendant

had     filed    a    suit     against    the   Board    and    discussed     among

themselves      the        possibility   that   she    took    the    documents    to

support her civil case.

            JUROR: Could I ask a question?

            MR. HERNANDEZ: Yes, ma'am.

            JUROR: What — I'm just curious. I thought I
            heard someone . . . say that she was going
            to sue the Board.

            MR. HERNANDEZ: Yes ma'am.

            JUROR: But how is that relevant . . . [?]

            (At this time, discussion occurs among Grand
            Jurors.)

            MR. HERNANDEZ: I believe you answered your
            own question.

      The       assistant        prosecutor      correctly      refrained       from

speculating about defendant's purported reason for taking the

documents.           See    ibid.   (stating    that   "the    prosecutor's     sole

obligation is to present a prima facie case that the accused has

committed a crime").             In fact, the grand jury was not expected

to resolve the credibility of a potential affirmative claim of

right     defense.             Ibid.     (indicating     that        "[c]redibility

determinations and resolution of factual disputes are reserved

almost exclusively for the petit jury").                 Therefore, presenting




                                          27                                A-1449-12T4
such evidence to the grand jury would not "squarely refute[] an

element     of        the   crime."         Thus,    the     assistant    prosecutor's

unwillingness to speculate about defendant's purported reason

for taking the documents did not interfere with the grand jury's

decision-making.

                                            VI.

    Defendant maintains that allowing the State to criminalize

her conduct through this prosecution will have a chilling effect

on "potential plaintiffs in LAD claims."                      Defendant implies that

prosecuting her for theft and official misconduct is against

LAD's     public        policy     of     rooting    out     discrimination   in     the

workplace.        This implication amounts to a request that we hold

it is against public policy to criminally prosecute employees

for taking employer public documents.

    At the outset, we note that whether to charge an individual

suspected        of     criminal        offenses    is     within   the   prosecutor's

discretion.           State v. DiFrisco, 118 N.J. 253, 265 (1990) (citing

State v. Hermann, 80 N.J. 122, 127 (1979)).                         "[T]he Executive

Branch has exclusive authority and absolute discretion to decide

whether to prosecute a case."                 United States v. Nixon, 418 U.S.

683, 693, 94 S. Ct. 3090, 3100, 41 L. Ed. 2d 1039, 1055 (1974),

superseded by statute, Fed. R. Evid. 104(a).                          "Beyond purely

constitutional concerns, the judiciary generally defers to the




                                              28                               A-1449-12T4
prosecuting attorney's discretion to charge or not to charge

because enforcement decisions are the product of prosecutorial

value   judgments   and   expertise,   and   [because]   courts   lack

standards by which to review these decisions."      DiFrisco, supra,

118 N.J. at 265 (alteration in original) (citation and internal

quotation marks omitted).

                                A.

    As an intermediate appellate court, we do not have the

power to determine, as a matter of public policy, what should be

considered criminally culpable conduct.      The framers of the New

Jersey Constitution expressed that

          [t]he powers of the government shall be
          divided among three distinct branches, the
          legislative, executive, and judicial.    No
          person   or    persons  belonging   to   or
          constituting one branch shall exercise any
          of the powers properly belonging to either
          of the others, except as expressly provided
          in this Constitution.

          [N.J. Const., art. III, ¶ 1.]

We discern no constitutional basis for the judiciary, much less

this court, to intrude into the policy-making arena, an area

traditionally reserved in our tripartite system of governance to

the legislative and executive branches.        As ably expressed by

Chief Justice Vanderbilt sixty-three years ago, "no deviation

from the . . . separation of powers [doctrine] will be tolerated

which impairs the essential integrity of one of the [three]



                                 29                           A-1449-12T4
branches of government."            Massett Bldg. Co. v. Bennett, 4 N.J.

53, 57 (1950).

       Our commitment to this fundamental principle of governance

has    been     reaffirmed    and   reflected   in   a   variety    of   opinions

issued by the Supreme Court as well as this court.                  See Ross v.

Transp. of N.J., 114 N.J. 132, 147 (1989) (refusing to carve out

an exception to the statutory framework governing governmental

limitations on tort liability); In re Closing of Jamesburg High

Sch., 83 N.J. 540, 550 (1980) (holding that "important policy

question[s]" should be left to the Legislature); Robinson v.

Zorn, 430 N.J. Super. 312, 324-25 (App. Div.) (declining to

create     an    exception     to   the    policy    governing      governmental

limitations       on   liability    reflected   in   the    Tort    Claims    Act,

N.J.S.A. 59:1-1 to -12.3), certif. denied, 216 N.J. 8 (2013); In

re Veto by Governor Christie, 429 N.J. Super. 277, 285-86 (App.

Div.    2012)     (refusing    to   "interven[e]"    where    the    Legislature

decided not to amend a 2001 statute that is related to and

arguably      inconsistent      with   comprehensive       2011    legislation),

certif. denied, 214 N.J. 116 (2013); Brick v. Spivak, 95 N.J.

Super. 401, 406 (App. Div.) (stating that "even if [the court]

were to assume that there was an inadvertent omission" in the

pertinent statute, the court "should not assume the function of

the Legislature and rewrite the law to include therein something




                                          30                              A-1449-12T4
which those charged with the legislative responsibility might

have    inserted     if    the    matter     had    been      called     to     their

attention"), aff'd o.b., 49 N.J. 400 (1967).                     Following this

well-settled       precedent,     we    leave      to   the     wisdom    of        the

Legislature further consideration of whether to amend the theft

and official misconduct statutes.               State ex rel. B.P.C., 421

N.J. Super. 329, 347 (App. Div. 2011) ("Our role as a court is

not to question the wisdom of legislative enactments, but to

enforce them as long as they are not contrary to constitutional

principles.").

                                       B.

       Although defendant couches her argument broadly, contending

that the State's prosecution will have a chilling effect on

"potential      plaintiffs       in    LAD   claims,"      we    consider          this

contention under the facts of this case.                The Court in Quinlan

considered the potential concern that an employer would destroy

inculpatory documents or that otherwise relevant documents would

become unobtainable if an employee did not resort to self-help

measures   to    acquire    confidential      documents       pertinent       to    the

employee's LAD case.         But here there is no evidence to suggest

that the documents necessary to prove defendant's case against

the Board would have been unobtainable by using the ordinary

lawful means for securing discovery.               Defendant does not argue




                                        31                                    A-1449-12T4
that   she   limited     her   self-help    measures    to    a   document       or

documents that were clearly inculpatory, so-called "smoking gun"

evidence, to support her claims.            Nor does defendant assert on

appeal     that   she   took   the    documents   because      "there      was     a

likelihood that the [Board] would not maintain [them], or would

have discarded [them] in the ordinary course of business, that

[they] would have been destroyed, or that [their] authenticity

would be called into doubt."           Quinlan, supra, 204 N.J. at 271.

Likewise, she does not contend that the documents would have

been   unavailable      if   she   described   them    or    identified     their

existence to the lawyer representing her in the civil case so

that he might demand them in discovery.

       Rather, defendant asserts in general that permitting the

State's prosecution of her for official misconduct and theft

would have a chilling effect on "potential plaintiffs in LAD

claims."     (Emphasis added).         A plaintiff in a discrimination

case such as this, however, has a variety of options by which to

obtain information that is reasonably calculated to lead to the

discovery of admissible evidence, including, but not limited to

(1) seeking, under certain circumstances, to preserve evidence

through taking depositions and obtaining documents before filing

a lawsuit (R. 4:11-1); (2) requesting documents pursuant to a

protective order (R. 4:10-3); (3) taking depositions after the




                                       32                                 A-1449-12T4
commencement of the action (R. 4:14-1); (4) subpoenaing non-

party    witnesses      for   depositions       (R.     4:14-7);     (5)   propounding

interrogatories        (R.    4:17);     (6)    serving       document     demands       (R.

4:18); (7) propounding requests for admissions (R. 4:22-1); (8)

obtaining      orders    to    make    discovery        (R.    4:23);      (9)    seeking

sanctions for failure to comply with court orders (R. 4:23-2);

and     (10)   obtaining       further    sanctions        for     failure       to     make

discovery (R. 4:23-5).           There is no credible suggestion in this

case that any of these lawful discovery avenues were unavailable

to defendant.

      There     are    also    safeguards       in    place    for   employees          like

defendant who might believe that their employers will hide or

destroy evidence.            For example, a trial judge in a civil case

may   give     an   adverse    inference       charge    to    the   jury,       that   the

destroyed or concealed evidence would have been unfavorable to

the employer.         Under certain circumstances, a judge might issue

sanctions against the employer or its counsel, and a party may

bring a new cause of action based on the tort of fraudulent

concealment.        Robertet Flavors, Inc. v. Tri-Form Constr., Inc.,

203 N.J. 252, 272-74 (2010); see also Bldg. Materials Corp. of

America v. Allstate Ins., 424 N.J. Super. 448, 472 (App. Div.)

(explaining         various     methods        of    addressing       spoliation          of

evidence), certif. denied, 212 N.J. 198 (2012).




                                          33                                      A-1449-12T4
      There are other safeguards in place to deter employers from

pursuing criminal prosecution unfairly against employees.                            For

instance, an aggrieved party may bring a claim for malicious

prosecution if she can show that "(1) a criminal action was

instituted by [the] defendant against [her]; (2) the action was

motivated by malice; (3) there was an absence of probable cause

to prosecute; and (4) the action was terminated favorably to the

plaintiff."       LoBiondo     v.   Schwartz,      199     N.J.    62,    90    (2009)

(citing   Lind    v.    Schmid,     67    N.J.    255,     262    (1975)).         And,

importantly, pursuant to R.P.C. 3.4(g), a lawyer runs the risk

of ethics charges if that lawyer "present[s], participate[s] in

presenting, or threaten[s] to present criminal charges to obtain

an   improper    advantage     in   a    civil   matter."         See    Ruberton     v.

Gabage, 280 N.J. Super. 125, 134 (App. Div.) (indicating that

"counsel walks a fine line in view of R.P.C. 3.4(g)"), certif.

denied, 142 N.J. 451 (1995).

      Moreover, defense counsel has not contended that defendant

photocopied or took a document that "clearly indicates that the

[Board] was engaged in illegal conduct."                    Quinlan, supra, 204

N.J. at 282.        Although defense counsel states generally the

policy concern that indicting employees who take such documents

would   undermine      LAD's   purpose     of    rooting    out    discrimination,

counsel does not point to any "smoking gun" document in this




                                          34                                   A-1449-12T4
case.    Nor does counsel explain why the documents were relevant

to defendant's civil claims.              Instead, counsel has noted that

defendant's counsel in her civil case merely "chose" to use the

documents.      As Justice Albin stated in his dissent in Quinlan,

in the circumstance of "classic whistle-blowing activity," "[a]

test    to   balance   the    competing        interests   of     an   employee    and

employer and the public good, . . . may well be required."

Ibid.    Although an affirmative defense of a claim of right would

also be available to an employee who took, for example, the

"smoking gun," we need not reach what consequence, if any, such

a potential balancing test would have on the State's ability to

establish before a grand jury a prima facie case of official

misconduct or theft because that question is not squarely before

us.

                                      VII.

       Our   dissenting      colleague     concludes       that    the    indictment

should be dismissed with prejudice based on fundamental fairness

grounds.     She maintains that it is unfair to prosecute employees

who reasonably believe that they are entitled to take employer

documents     to   support    LAD   and    CEPA    claims.        To     dismiss   the

indictment as suggested by our colleague, however, would amount

to the judiciary establishing a public policy that employees

must be categorically insulated from criminal prosecution under




                                          35                                 A-1449-12T4
the   theft    and    official      misconduct     statutes    if    they     take

confidential    employer     documents      to   support   potential    LAD    and

CEPA claims.     Such an approach violates the separation of powers

doctrine and requires a sweeping application of the fundamental

fairness doctrine beyond that currently adopted by our Supreme

Court.    As we have stated in Point VI A, we leave that policy

question to the wisdom of the Legislature.

      The fundamental fairness doctrine applies "when the scope

of a particular constitutional protection has not been extended

to protect a defendant."           State v. Yoskowitz, 116 N.J. 679, 705

(1989) (emphasis added); see, e.g., State v. Johnson, 127 N.J.

458, 473-74, 483 (1992) (recognizing an entrapment defense based

on    fundamental      fairness,     but    reversing      dismissal    of     the

indictment under the facts of the case); State v. Gaffey, 92

N.J. 374, 388-89 (1983) (permitting dismissal of an indictment

where a defendant has been deemed incompetent to stand trial,

institutionalized for an "adequate period of time," and remains

unfit to stand trial); State v. Sugar, 84 N.J. 1, 14 (1980)

(stating that a prosecutor's eavesdropping on attorney-client

communications       would   violate   fundamental      fairness);     State    v.

Riley, 242 N.J. Super. 113, 118 (App. Div. 1990) (dismissing

indictment where prosecutor breached an agreement not to use

defendant-informant's statement against him); State v. Calvacca,




                                       36                               A-1449-12T4
199 N.J. Super. 434, 440-41 (App. Div. 1985) (vacating part of a

sentence to prevent "fundamentally unfair dual punishment").

       Similarly, our Supreme Court has stated when a court may

apply fundamental fairness to dismiss an indictment, such as

when    protections         against        double          jeopardy      do     not        apply,

successive trials have not resulted in conviction, and the court

determines        that    "the      chance        of    the      State's       obtaining           a

conviction upon further retrial is highly unlikely."                                  State v.

Abbati, 99 N.J. 418, 435 (1985) (stating that a dismissing court

must    "accord        careful     consideration            to    the      status      of       the

individual        defendant"       with     regard         to     listed      factors,          and

remanding the case for a determination on whether dismissal was

warranted based on the specific circumstances of the case); see

also   State      v.    Dunns,     266    N.J.    Super.        349,    381    (App.       Div.),

certif. denied, 134 N.J. 567 (1993).                            Cf. State v. Cruz, 171

N.J.    419,      432     (2002)         (holding      that       dismissal         based        on

fundamental       fairness        was     unwarranted           after    one       jury     trial

resulted in a hung jury); State v. Ruffin, 371 N.J. Super. 371,

386    (App.    Div.      2004)     (reversing         a    trial       court's      dismissal

because     the    elements        of     fundamental           fairness      in    favor        of

dismissal      were      "wholly    absent");          State      v.    Torres,      328      N.J.

Super. 77, 94-95 (App. Div. 2000) (holding that prosecutorial




                                             37                                           A-1449-12T4
misconduct resulting in a mistrial did not warrant dismissal of

the defendant's indictment).

       The Court has declined to adopt a broader application of

the doctrine.         State v. Del Fino, 100 N.J. 154, 160 (1985)

(stating     that    "it   is     by    no    means      clear   that      the     Appellate

Division was correct in concluding that, as a matter of policy,

'fundamental fairness' itself dictates that each of [multiple]

charged      conspirators       must    receive         identical     treatment,"         such

that    an    indictment     dismissed         as       defective     as      to    one     co-

conspirator      must      also    be    dismissed         as    to     the      other      co-

conspirator).

        After carefully considering the record and the briefs, we

conclude      that   defendant's         remaining         arguments       are      "without

sufficient merit to warrant discussion in a written opinion."

R. 2:11-3(e)(2).           On this record, we therefore conclude that

there   was    probable      cause      for       the    grand   jury      to      find   that

defendant committed the crimes of theft and official misconduct.

       Affirmed.




                                             38                                       A-1449-12T4
_____________________________________

SIMONELLI, J.A.D., dissenting.

       Although       a    defendant      seeking     dismissal       of   an   indictment

bears a heavy burden, the indictment in this case should be

dismissed       with       prejudice.           It   is    fundamentally        unfair   to

criminally      prosecute          and    imprison        an   individual       for   theft,

N.J.S.A. 2C:20-3a, and official misconduct, N.J.S.A. 2C:30-2a1

for    taking    or       copying      confidential        employer    documents      while

engaged    in    protected            activity   pursuant       to   the   Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14,2 and the

New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-49.    The law gives no fair warning the conduct is illegal.

       I   begin          with    a     brief    review        of    the   prohibitions,

protections and encouragements the Legislature established in

the LAD and CEPA.                "[T]he essential purpose of the LAD is the

1
  The grand jury indicted Ivonne Saavedra for second-degree
official misconduct, N.J.S.A. 2C:30-2a.   A second-degree crime
carries a presumption of imprisonment.       N.J.S.A. 2C:44-1d.
Thus, Saavedra faces a five- to ten-year term of imprisonment if
convicted of this crime. Ibid.
2
  Saavedra raised her CEPA claim in the first count of her
complaint, alleging she was subjected to retaliation and
harassment as a result of her complaints about her employer's
violations   of    law  and   public   policy,   including   pay
irregularities, employee abuse of vacation time, and violations
of the Family Medical Leave Act, 29 U.S.C.A. §§ 2601-2654, the
New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16, and child
study regulations.
'eradication        of   the     cancer     of       discrimination.'"        Quinlan    v.

Curtiss-Wright Corp., 204 N.J. 239, 258 (2010) (quoting Fuchilla

v. Layman, 109 N.J. 319, 334, cert. denied 488 U.S. 826, 109 S.

Ct.    75,    102   L.    Ed.    2d   51   (1988))        (internal    quotation    marks

omitted).      The LAD protects not only the aggrieved employee, but

also    the    public's         strong     interest       in   a    discrimination-free

workplace,      and      acknowledges       a        well-established    tenet    of    New

Jersey jurisprudence that freedom from discrimination is one of

the fundamental principles of our society.                         Fuchilla, supra, 109

N.J. at 334-35.

       The    LAD     prohibits       employment         discrimination       because   of

race, religion, sex, or other protected status.                         Cutler v. Dorn,

196 N.J. 419, 430 (2008).                  The LAD also makes it unlawful to

retaliate against a person who

              has opposed any practices or acts forbidden
              under [the LAD] or because that person has
              filed a complaint, testified or assisted in
              any proceeding under [the LAD] or to coerce,
              intimidate, threaten or interfere with any
              person in the exercise or enjoyment of, or
              on account of that person having aided or
              encouraged any other person in the exercise
              or enjoyment of, any right granted or
              protected by [the LAD].

              [N.J.S.A. 10:5-12d.]

Our    Supreme      Court      has    emphasized        that   the    LAD's   protection

against retaliation




                                                 2                               A-1449-12T4
               is broad and pervasive, and must be seen as
               necessarily   designed    to   promote   the
               integrity       of       the      underlying
               antidiscrimination policies of the [LAD] by
               protecting against reprisals any person who
               has sought to protect his or her own rights
               not to be discriminated against or who has
               acted to support such conduct.

               [Quinlan, supra, 204 N.J. at 259 (quoting
               Craig v. Suburban Cablevision, Inc., 274
               N.J. Super. 303, 310 (App. Div. 1994),
               aff'd,   140  N.J.   623   (1995)) (internal
               quotation marks omitted).]

       In conjunction with the LAD, the Legislature designed CEPA

to provide broad protections against employer retaliation for

employees      acting   within     the   public    interest.         D'Annunzio    v.

Prudential Ins. Co. of Am., 192 N.J. 110, 114 (2007); Racanelli

v. Cnty. of Passaic, 417 N.J. Super. 52, 56-57, 59 (App. Div.

2010).          CEPA    promotes     "the      'strong      public     policy'     of

'reaffirm[ing] . . . this State's repugnance to an employer's

retaliation against an employee who has done nothing more than

assert statutory rights and protections.'"                  Yurick v. State, 184

N.J.     70,    77-78   (2005)     (alterations        in   original)      (quoting

Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431

(1994)) (internal quotation marks omitted).

       CEPA's "purpose is to protect and encourage employees to

report     illegal      or   unethical        workplace     activities      and    to

discourage public and private sector employers from engaging in

such   conduct."        Abbamont,    supra,      138   N.J.   at     431   (emphasis


                                          3                                 A-1449-12T4
added).     "The object of CEPA is not to make lawyers out of

conscientious         employees       but    rather       to     prevent    retaliation

against those employees who object to employer conduct that they

reasonably believe to be unlawful or indisputably dangerous to

the public health, safety or welfare."                         Mehlman v. Mobil Oil

Corp., 153 N.J. 163, 193-94 (1998).                     Accordingly, CEPA makes it

"unlawful for an employer to retaliate against an employee who

report[s] illegal or unethical workplace activities,"                             Donelson

v.   DuPont      Chambers       Works,       206     N.J.       243,    256-57     (2011)

(alteration in original) (quoting Dzwonar v. McDevitt, 177 N.J.

451, 461-62 (2003)), and subjects employers, both public and

private, to penalties, including punitive damages.                               Abbamont,

supra,    138    N.J.    at    426.        "CEPA   is    a     remedial    statute    that

'promotes a strong public policy of the State' and 'therefore

should be construed liberally to effectuate its important social

goal.'"     Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,

555 (2013) (quoting Abbamont, supra, 138 N.J. at 431).

     CEPA clearly encourages employees to report, object to, or

refuse    to     participate          in    an     employer's      or      co-employee's

activity, policy or practice the employees reasonably believe

violates "a law, or a rule or regulation promulgated pursuant to

law," or "is fraudulent or criminal."                    N.J.S.A. 34:19-3a(1)-(2),

c(1)-(2);       see     also   Donelson,         supra,      206   N.J.     at     255-56;



                                             4                                    A-1449-12T4
Abbamont, supra, 138 N.J. 431.                   "The sine qua non of a CEPA

claim is not the actual occurrence of a violation of promulgated

authority    or       public    policy,    but    rather     the    existence    of    a

reasonable belief to the effect that such authority or policy

has been breached."            Mehlman v. Mobil Oil Corp., 291 N.J. Super.

98, 123 (App. Div. 1996), aff'd, 153 N.J. 163 (1998).

    CEPA also clearly encourages whistleblowing employees to

provide     information         about     illegal       or   unethical      workplace

activities      and    protects    them    from       retaliation    for    doing    so.

N.J.S.A.    34:19-3b.           Employees       often    provide    information       by

taking     or     copying        confidential          employer     documents        and

transmitting the documents to their attorneys, which Saavedra

did in this case.

    I now turn to the pertinent criminal statutes.                          "A person

is guilty of theft if he unlawfully takes, or exercises unlawful

control    over,       movable    property       of    another     with    purpose    to

deprive him thereof."            N.J.S.A. 2C:20-3a.          A person 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
            commits an act relating to his office but
            constituting an unauthorized exercise of his
            official functions, knowing that such act is
            unauthorized or he is committing such act in
            an unauthorized manner.

            [N.J.S.A. 2C:30-2a.]


                                            5                                 A-1449-12T4
"Unlike most crimes, as to which ignorance of the law is not

material,       .    .     .    an    essential        element      of    .   .     .    official

misconduct is defendant's knowledge that the act he commits is

unauthorized."            State v. Grimes, 235 N.J. Super. 75, 89 (App.

Div.) (citations omitted), certif. denied, 118 N.J. 222 (1989).

In order for a public servant to be aware that he or she is

committing       an       unauthorized          act    and     thereby    "fairly         expose"

himself    or       herself      to       prosecution        for    official        misconduct,

"there    must       be    an   available        body    of     knowledge      by       which   the

[public servant] had the chance to regulate his conduct.                                         The

law must give a person of ordinary intelligence fair warning

what conduct is proscribed, so that he may act accordingly."

Id. at 89-90 (emphasis added).                        Thus, where an area of law or

regulation          is    so    amorphous        and    uncertain        that       persons       of

ordinary intelligence have no fair warning their conduct was

illegal,     such          conduct        cannot       be      punished       with       criminal

prosecution.             See State v. Kittrell, 145 N.J. 112, 130 (1996)

(holding that criminal statutes must "clearly define the conduct

prohibited and the penalties imposed" in order to satisfy the

notice    requirements               of   the   Due     Process      Clause).            We     have

emphatically and in no uncertain terms held that where the law

gives a person of ordinary intelligence no fair warning what

conduct     is       proscribed,           "[i]n       those       circumstances,          it     is



                                                  6                                       A-1449-12T4
fundamentally     unfair    to     subject    a   defendant          to    a   criminal

prosecution."      Grimes, supra, 235 N.J. Super. at 90.                    Similarly,

our Supreme Court has held that

              [a] penal statute should not become a trap
              for a person of ordinary intelligence acting
              in good faith, but rather should give fair
              notice of conduct that is forbidden.       A
              defendant should not be obliged to guess
              whether his conduct is criminal. Nor should
              the statute provide so little guidance to
              the police that law enforcement is so
              uncertain as to become arbitrary.

              [State v. Lee, 96 N.J.              156,    166    (1984)
              (citations omitted).]

       Neither the theft statute nor the public official statute

give   fair    warning    that     the   taking    or     copying         confidential

employer documents while engaged in CEPA- and/or LAD-protected

activity is "unlawful" or criminally "unauthorized."3                          The LAD

and CEPA give no fair warning as well.                   In fact, CEPA does not

define the word "information" or prohibit or limit disclosure of

information contained in confidential employer documents.

       By   contrast,    Quinlan    permits   employees         to    take     or   copy

confidential     employer    documents       under   certain         circumstances,

3
  Likewise, the Board's alleged policies and regulations relating
to its confidential documents, which the State presented to the
motion judge but not the grand jury, do not warn employees of
any    consequences,   let   alone   criminal   prosecution   and
imprisonment.    The State never presented any evidence to the
grand jury that Saavedra received or was actually aware of these
alleged documents.



                                         7                                     A-1449-12T4
which    the     majority      declined      to    characterize             as    a    "theft."

Quinlan,   supra,       204    N.J.   at     268-72.4         Further,           Quinlan      only

warned employees of the "significant risk" of adverse employment

action, such as termination, for their self-help activities, not

criminal       prosecution      and   imprisonment.              Id.     at       272.        Even

Justice    Albin    recognized        that    employees        may       be      justified      in

taking    or    copying       confidential        employer       documents            where    the

documents "clearly indicate[] that the employer was engaged in

illegal conduct."             Id. at 282 (Albin, J., dissenting).                              And

there are cases where whistleblowing employees prevailed while

relying on confidential employer documents.                       See, e.g., Mehlman,

supra, 153 N.J. at 174, 176; Parker v. M & T Chemicals, Inc.,

236 N.J. Super. 451, 453-54 (App. Div. 1989).

    Under       these    circumstances,           the   law    is      so     amorphous        and

uncertain that lay persons of ordinary intelligence acting in

good faith pursuant to CEPA and/or the LAD have no fair warning

it is a crime to take or copy confidential employer documents

they may reasonably believe are relevant to their claims and

transmit        those     documents          to     their        private           attorneys.

Accordingly,       it    is     fundamentally           unfair      to        subject       these




4
  The Court also upheld the punitive damages award, in part,
because the employer "branded [Quinlan] a thief." Id. at 276.


                                             8                                           A-1449-12T4
individuals       to   criminal       prosecution      for    theft     and   official

misconduct.

       The majority does not dispute that the law gives no fair

warning the conduct at issue here is illegal.                           Instead, the

majority    states      that     the    judiciary       should    not    expand     the

doctrine of fundamental fairness to this case and that applying

the    doctrine    "would      amount    to     the   judiciary       establishing     a

public policy" categorically insulating employees who took or

copied employer documents to support their LAD and CEPA claims

from    criminal       prosecution       under        the    theft     and    official

misconduct statutes.         Supra at ___ (slip op. at 35-38).

       I do not seek to "intrude into the policy-making arena", as

the majority suggests.            Supra at ___ (slip op. at 29).               Rather,

because the law, including the theft and official misconduct

statutes,   provides        no    warning       the   conduct    is    proscribed,     I

suggest that the judiciary expand and apply the doctrine of

fundamental       fairness       in    order     to   ensure     justice      for   all

employees who act in good faith pursuant to the LAD and/or CEPA.

See Zehl v. City of Elizabeth Bd. of Educ., 426 N.J. Super. 129,

137 (App. Div. 2012) (holding that "[t]he judiciary has more

than a significant stake in ensuring that it is able to operate

in a manner and under circumstances to meet the same policy




                                            9                                 A-1449-12T4
objective for which remedial legislation strives, that is, to

ensure justice for all litigants").

      The majority states, and I agree, that we must "leave to

the wisdom of the Legislature further consideration of whether

to amend the theft and official misconduct statutes."                     Supra at

___ (slip op. at 31) (emphasis added).                It appears that applying

these statutes as presently written to the circumstances of this

case conflicts with the policies, prohibitions, protections and

encouragements the Legislature established in the LAD and CEPA. 5

Criminal   prosecution       and   the   threat       of   imprisonment   seem    to

interfere with and deprive employees of their clear rights and

protections     under   the    LAD   and      CEPA,   and   improperly    insulate

employers from what may be entirely legitimate claims exposing

illegal or unethical conduct.              See Quinlan, supra, 204 N.J. at

268   (noting   that    an    employer     cannot     insulate   itself    from    a

legitimate claim of discrimination by accusing the employee of

theft of documents).           Only the Legislature can resolve this

5
  This conflict may also extend to the New Jersey False Claims
Act (FCA), N.J.S.A. 2A:32C-1 to -17.        The FCA encourages
employees to disclose confidential employer information for the
purpose of filing lawsuits alleging fraud of or by State-funded
entities, such as the Board in this case. As with the LAD and
CEPA, the Legislature has prohibited employers from taking
adverse employment action against employees who disclose
confidential employer information pursuant to the FCA. N.J.S.A.
2A:32C-10b.    However, there is nothing prohibiting criminal
prosecution   of   these  employees  for   theft   and official
misconduct.


                                         10                               A-1449-12T4
conflict.   Until the Legislature does so, however, the doctrine

of   fundamental   fairness   should   apply   to   preclude   criminal

prosecution in this case.

     For these reasons, I respectfully dissent.




                                  11                           A-1449-12T4
