                                NOT FOR PUBLICATION WITHOUT THE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-3070-17T1

STATE OF NEW JERSEY,

         Plaintiff-Appellant/
         Cross-Respondent,

v.

NEIL RACITI,

     Defendant-Respondent/
     Cross-Appellant.
_________________________

                   Argued December 13, 2018 – Decided March 19, 2019

                   Before Judges Simonelli, O'Connor and DeAlmeida.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 16-05-
                   0951.

                   Patrick F. Galdieri, II, Assistant Prosecutor, argued
                   the cause for appellant/cross-respondent (Andrew C.
                   Carey, Middlesex County Prosecutor, attorney; Patrick
                   F. Galdieri, II, of counsel and on the briefs).

                   Jeffrey S. Farmer argued the cause for
                   respondent/cross-appellant (Mazraani & Liguori, LLP,
              attorneys; Jeffrey S. Farmer, of counsel and on the
              brief).

PER CURIAM

        The State appeals from a January 2, 2018 order denying its motion to

compel the forfeiture of defendant's position as a sheriff's officer and to

permanently bar him from holding any position in the State or in any of its

administrative or political subdivisions, as well as from a March 5, 2018 1 order

denying its motion for reconsideration of that order. Defendant cross appeals

from a December 18, 2017 order denying his motion to vacate the verdict of

criminal mischief. We affirm.

                                          I

        Defendant waived his right to a trial by jury. We recount the relevant

evidence adduced during the bench trial. During the evening of March 29,

2015, A.M.2 was driving down a dark road in East Brunswick when he

admittedly began to tailgate a Mazda in front of him. A.M. hoped that by

tailgating, he would induce the driver of the Mazda to speed up. At one point,

the driver of the Mazda and A.M. came to a stop at an intersection. Because

1
   In its amended notice of appeal, the State indicates it is appealing from a
March 6, 2018 order. We assume the State intended to state it was appealing
from the March 5, 2018 order.
2
    Because A.M. is a victim, we use initials to protect his privacy.
                                        2
                                                                        A-3070-17T1
the trial court found the testimony of A.M. and the three passengers in his car

credible, we rely on their testimony to establish what ensued.

      A man, later identified as defendant, exited the right front door of the

Mazda, charged toward A.M.'s window, and screamed and cursed at A.M.

Afraid for his life, A.M. decided to drive away from the scene. In an effort to

avoid hitting defendant, A.M. slowly drove his car toward the shoulder so he

could drive around the Mazda and continue on his way. When A.M. began to

move, defendant punched and cracked A.M.'s windshield.

      Angry over the crack in his windshield, A.M. got out of his car and

verbally confronted defendant.    After the two exchanged words, defendant

attempted to place A.M. in what appeared to his passengers to be an "arrest

position." A.M. pushed defendant back, and A.M.'s passengers exited the car

to help A.M. defend himself.

      In response, defendant displayed a badge and stated, "I'm a cop. Don't

touch me." A.M. and his passengers immediately "backed up" when they saw

the badge.    Police arrived on the scene approximately one minute later.

Evidence established defendant was a sheriff's officer and his wife the drive r

of the Mazda. Neither A.M. nor his passengers knew defendant was a sheriff's

officer before he displayed his badge.

                                         3
                                                                      A-3070-17T1
      A police officer who responded to the scene testified defendant told him

that, after defendant exited the Mazda, A.M.'s car sped up and defendant

"guessed" he "must have punched the windshield with the back of [his] hand."

Cindy Glaser, an assistant prosecutor of the Middlesex County Prosecutor's

Office, testified she spoke to defendant the day after the incident. Defendant

told Glaser he and his wife felt threatened when they were being tailgated.

Because there was no shoulder on the road, his wife was unable to pull over to

permit A.M. to pass. Therefore, his wife stopped the Mazda and A.M. stopped

his vehicle.

      Defendant claimed he got out of the Mazda, immediately displayed his

badge to A.M., and identified himself as a police officer. In response, A.M.

sped off. To avoid being struck, defendant jumped out of A.M.'s way and, in

the course of doing so, his hand accidentally hit A.M.'s windshield, causing the

windshield to crack.

      Defendant signed various complaints against A.M. These complaints

were not included in the record, but from what we can glean from the record,

defendant alleged A.M. committed an act of aggravated assault against him

and engaged in the obstruction of justice. The charges against A.M. were

subsequently dismissed.

                                       4
                                                                       A-3070-17T1
      Thereafter, defendant was indicted on one count of fourth-degree falsely

incriminating another, N.J.S.A. 2C:28-4(a)3, and four counts of fourth-degree

unsworn falsification to authorities, N.J.S.A. 2C:28-3(a).      A.M. signed a

citizen's complaint-summons against defendant, alleging defendant committed

an act of disorderly persons criminal mischief, N.J.S.A. 2C:17-3(a)(2).

Specifically, A.M. claimed defendant purposely or recklessly tampered with

A.M.'s car so as to endanger A.M., as well as cause A.M. to sustain $300 in

property damages when defendant punched A.M.'s windshield.

      At the conclusion of the trial, defendant was acquitted of all five count s

in the indictment, but was found guilty of disorderly persons criminal

mischief. As previously stated, the trial court found A.M.'s and his passengers'

testimony credible. The court rejected defendant's claim he accidentally hit

the windshield. The court concluded that, when A.M. attempted to drive away


3
  At the time defendant was indicted, N.J.S.A. 2C:28-4(a) was a fourth-degree
offense. N.J.S.A. 2C:28-4(a) was subsequently amended and, as of January
11, 2016, this subsection states:

            A person who knowingly gives or causes to be given
            false information to any law enforcement officer with
            purpose to implicate another commits a crime of the
            third degree, except the offense is a crime of the
            second degree if the false information which the actor
            gave or caused to be given would implicate the person
            in a crime of the first or second degree.
                                         5
                                                                       A-3070-17T1
from him as he stood by A.M.'s window, defendant sought to stop A.M. by

knowingly punching the windshield, causing damage. The court commented :

                  It's highly doubtful that the defendant
            negligently or recklessly hit the windshield . . . .

                   When you're standing at the side of a . . .
            driver['s] side window and you are in the roadway,
            and then the car starts to pull out[,] I could understand
            how you could feel . . . that you were about to get
            [h]it.
                   But, human -- normal human behavior would
            then -- would then be to back away. And this [c]ourt's
            commonsense draws one to the conclusion that the
            damage done to the vehicle was not done as a result of
            a negligen[t] or reckless act because he believed that
            he was gonna get hit by a car. But, rather it was done
            [as] I suggested otherwise.

                  ....

                  And [the evidence] clearly established that the
            defendant punched the window in such a way, and
            under such circumstances that the only conclusion that
            can be made is that the defendant knowingly damaged
            the windshield of the car driven by [A.M.].

      The court subsequently sentenced defendant to a one-year term of

probation. Before sentencing, the State filed a motion to:       (1) compel the

forfeiture of defendant's position as a sheriff's officer, see N.J.S.A. 2C:51-

2(a)(2), and (2) permanently bar defendant from holding any position in the

State or in its administrative or political subdivisions, see N.J.S.A. 2C:51-2

                                       6
                                                                        A-3070-17T1
(d). In an oral decision issued on December 18, 2017, the court denied the

State's motion, entering an order on January 2, 2018.

         In its decision, the court noted that, at the time of the incident, defendant

was not on duty as a sheriff's officer, was in plain clothes, and was acting in

his personal capacity, motivated by a desire to protect his wife.            Further,

defendant did not mention to A.M. or his passengers that he was a sheriff's

officer or display his badge until after he damaged A.M.'s windshield, and then

did so only to gain control of "the situation, rather [than] perform any official

duty directly related to his responsibilities as [a] sheriff's officer." Citing State

v. Hupka, 203 N.J. 222 (2010), the court concluded that because the offense

defendant committed did not directly or specifically relate to his position as a

sheriff's officer, the court lacked the authority to grant the relief sought by the

State.

         The State filed a motion for reconsideration, essentially arguing the trial

court erred by relying on the Hupka Court's interpretation of N.J.S.A. 2C:51-2.

The trial court rejected the State's argument and denied the motion.

         Defendant filed a motion to vacate the conviction, arguing, among other

things, that he was not on notice the charge for criminal mischief was going to

be joined with the indictable offenses. In an oral decision issued on December

                                           7
                                                                            A-3070-17T1
18, 2017, the court denied defendant's motion, entering an order on January 2,

2018.

        The court's principal reason for denying defendant's motion was Rule

3:15-3(a) requires the court to "join any pending non-indictable complaint for

trial with a criminal offense based on the same conduct or arising from the

same episode." Because he knew or should have known of Rule 3:15-3, the

court found defendant was aware the criminal mischief charge was going to be

tried with the indictable offenses, and thus should have been prepared to

defend himself against the criminal mischief charge, accordingly.

                                        II

        On appeal, the State asserts the following argument for our

consideration.

              POINT I: BECAUSE DEFENDANT'S CONVICTION
              INVOLVED AND TOUCHED UPON HIS POSITION
              AS A SHERIFF'S OFFICER, [THE TRIAL COURT]
              ERRED IN DENYING THE STATE'S MOTION FOR
              FORFEITURE OF OFFICE AND PERMANENT
              DISQUALIFICATION.

        The trial court's decision to deny the State's motion to compel defendant

to forfeit his position as a sheriff's officer, as well as permanently bar him

from holding any position in this State or in a political subdivision, is not

entitled to deference, because that court's decision was based upon its
                                        8
                                                                        A-3070-17T1
"interpretation of the law and the legal consequences that flow from

established facts[.]" Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366,

378, (1995). Therefore, de novo review is required. See Hupka, 203 N.J. at

231.

       However, we affirm a trial court's factual findings if they "could

reasonably have been reached on sufficient credible evidence present in the

record" as a whole. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State

v. Johnson, 42 N.J. 146, 162 (1964)). Generally, we defer to a trial court's

factual findings because they are substantially influenced by such court's

"opportunity to hear and see the witnesses and have the 'feel' of the case,

which we do not enjoy upon appellate review." State ex. rel. D.M., 451 N.J.

Super. 415, 424 (App. Div. 2017) (quoting State ex rel. S.B., 333 N.J. Super.

236, 241 (App. Div. 2000)).

       N.J.S.A. 2C:51-2(a)(2) states in relevant part:

             a. A person holding any public office, position, or
             employment, elective or appointive, under the
             government of this State or any agency or political
             subdivision thereof, who is convicted of an offense
             shall forfeit such office, position or employment if:

                   ....

             (2) He is convicted of an offense involving or
             touching such office, position or employment[.]
                                        9
                                                                     A-3070-17T1
                 ....

           As used in this subsection, "involving or touching
           such office, position or employment" means that the
           offense was related directly to the person's
           performance in, or circumstances flowing from, the
           specific public office, position or employment held by
           the person.

           [(Emphasis added).]

     N.J.S.A. 2C:51-2(d) provides:

           In addition to the punishment prescribed for the
           offense, and the forfeiture set forth in subsection a. of
           N.J.S.2C:51-2, any person convicted of an offense
           involving or touching on his public office, position or
           employment shall be forever disqualified from holding
           any office or position of honor, trust or profit under
           this State or any of its administrative or political
           subdivisions. As used in this subsection, "involving
           or touching on his public office, position or
           employment" means that the offense was related
           directly to the person's performance in, or
           circumstances flowing from, the specific public office,
           position or employment held by the person.

           [(Emphasis added).]

     Thus, pursuant to the forfeiture statute, N.J.S.A. 2C:51-2(a)(2), an

employee convicted of a criminal offense must forfeit his position if he is

convicted of an offense involving or touching his employment. "Involving or

touching" a person's employment means the offense was related directly to his

                                      10
                                                                       A-3070-17T1
performance in, or circumstances flowing from, the specific public

employment held by the employee. N.J.S.A. 2C:51-2(a).

      Pursuant to the disqualification statute, see N.J.S.A. 2C:51-2(d), a

person convicted of an offense involving or touching on his public

employment shall be forever disqualified from holding any office or position

of honor, trust or profit under this State or any of its administrative or political

subdivisions. The definition of "involving or touching" in N.J.S.A. 2C:51-2(d)

is the same as that in N.J.S.A. 2C:51-2(a)(2).

      The language emphasized in the above-cited passages, which was added

by the Legislature in 2007, was closely examined by the Court in Hupka. In

that matter, the defendant, both a sheriff's officer and part-time police officer,

pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In

his plea allocution, the defendant admitted he touched the victim's intimate

parts, including her buttocks, without her consent for purposes of his own

sexual gratification. It was not disputed that, at the time of the incident, the

defendant was neither on duty nor in uniform.

      The defendant voluntarily resigned from his positions as a sheriff's

officer and police officer, but he did not agree to a statutory forfeiture of these

positions   pursuant    to   N.J.S.A.    2C:51-2(a)(2),    or   to   a   permanent

                                        11
                                                                          A-3070-17T1
disqualification of public employment pursuant to N.J.S.A. 2C:51-2(d). The

defendant and the State agreed the trial court would decide the applicability of

N.J.S.A. 2C:51-2(a)(2) and (d).

      The trial court determined the defendant's conviction was contrary to the

defendant's duty to protect and to serve the community he was to serve, and

ordered the defendant's forfeiture of and permanent disqualification from

public office pursuant to N.J.S.A. 2C:51-2.     A divided Appellate Division

panel reversed, see State v. Hupka, 407 N.J. Super. 489, 493 (App. Div. 2009),

and the Court affirmed the Appellate Division majority. 203 N.J. at 243.

      In its analysis of the subject language, the Court cited the legislative

history of the 2007 amendment to N.J.S.A. 2C:51-2, noting the Legislature had

explained the proposed language

            amends current law concerning forfeiture of public
            office to include a definition of the phrase concerning
            crimes and offenses "involving or touching" public
            office or employment, in accordance with the
            definition set forth by the New Jersey Supreme Court
            in McCann [v. Clerk of Jersey City,] 167 N.J. 311[,]
            [771 A.2d 1123] (2001). It provides that a crime or
            offense "involving or touching" public office or
            employment means that the crime or offense was
            related directly to the person's performance in, or
            circumstances flowing from, a specific public office or
            position held by the person. As the Supreme Court
            stated in McCann: "When an individual commits a
            crime wholly unrelated to his or her public office, the
                                      12
                                                                       A-3070-17T1
            crime ordinarily cannot be characterized as involving
            or touching on the public office."

            [Hupka, 203 N.J. at 234 (emphasis added) (quoting S.
            14, 212th Leg. (N.J. 2007); Assemb. 20, 212th Leg.
            (N.J. 2008)).]

       The Court concluded that a trial court considering an application for

forfeiture and disqualification for an offense "involving or touching public

office pursuant to N.J.S.A. 2C:51-2(a) and (d) must examine the relationship

between the exact offense committed and the particular position held by the

individual convicted in order to reach a conclusion that the commission of the

offense had some direct connection to the office held." Hupka, 203 N.J. at

233.

       Hupka further noted permanent disqualification from a public office or

employment should not be ordered merely because the criminal conduct at

issue appears to be incompatible with the traits of trustworthiness, honesty,

integrity and obedience to law and order that are expected of a public

employee. Id. at 237-39.

       In affirming the conclusion of the Appellate Division majority that

permanent forfeiture of office was unwarranted in Hupka, the Court quoted

with approval a portion of that opinion, in which we reasoned:



                                      13
                                                                     A-3070-17T1
            Turning to the circumstances of this case, we conclude
            that defendant's offense clearly did not directly relate
            to his "performance in" the position of sheriff's officer
            or police officer. The offense occurred while off-duty,
            in a private home involving someone defendant knew,
            as opposed to a member of the public, and had no
            nexus to his positions in law enforcement. Nor was
            defendant's offense "related directly to circumstances
            flowing from" his positions. Defendant did not use or
            threaten the use of his offices in any way to commit
            the offense. He did not display or utilize any indicia
            of his offices at any time. The offense was not related
            to any circumstance that flowed from defendant being
            a sheriff's officer or a police officer.

            [Id. at 239 (quoting Hupka, 407 N.J. Super. at 509-
            10).]

      The Court thus rejected the argument the commission of a sexual offense

by a police officer is "incompatible with his duty as a law enforcement

officer[,]" and thus requires the permanent forfeiture of office. Id. at 240. The

Court also rejected the State's argument that because the defendant engaged in

conduct incompatible with the traits of character expected of a police officer,

the offense necessarily "involved" or "touched upon" his office. Id. at 243.

The Court reasoned:

            [D]efendant's factual circumstances do not support an
            "involving or touching" conclusion in respect of his
            offense. Defendant did not use his office or its
            trappings in any way in the commission of his offense.
            We reject application of some ill-defined

                                       14
                                                                        A-3070-17T1
            incompatibility-with-duties analysis . . . untethered to
            its specific facts[.]

            [Id. at 242-43.]

      Here, in order to compel defendant's forfeiture of office and permanent

disqualification under N.J.S.A. 2C:51-2, the act found to be criminal mischief

– the punching of A.M.'s windshield – must have been one that was related

directly to his performance in, or circumstances flowing from, his employment

as a sheriff's officer. See N.J.S.A. 2C:51-2(a) and (d). We agree with the trial

court the requisite nexus does not exist.

      The trial court found as fact that, at the time he struck A.M.'s

windshield, defendant was not on duty and, when he emerged from his car to

confront A.M., his goal was to protect his wife.         The dispute between

defendant and A.M. was private.        The court did not find defendant was

performing any of his employment duties when he punched the windshield.

      Although there was testimony defendant himself claimed he had

announced he was a sheriff's officer and displayed his badge to A.M. before

striking the windshield, the court rejected such testimony and found otherwise.

The court credited A.M.'s and his passengers' testimony defendant did not

mention he was a sheriff's officer or flash his badge until after he had struck

the windshield and A.M. and his passengers exited A.M.'s car.
                                       15
                                                                       A-3070-17T1
      The court further found that when defendant subsequently stated he was

a sheriff's officer and displayed his badge, it was done with a purpose to

defuse rising tensions and attain control over "the situation, rather [than]

perform any official duty directly related to his responsibilities as [a] sheriff's

officer." We understand that stating he was a sheriff's officer and showing his

badge bore some relationship to his position, but it is defendant's act of

punching A.M.'s windshield that is at issue here, and that occurred before

defendant advised A.M. and his passengers of his occupation.

      Mindful that both the Legislature and our Supreme Court have endorsed

a narrow construction of the "touching and involving" provision of the

forfeiture statute, we cannot conclude the trial court erred. Committing the act

of criminal mischief under these particular facts did not fall within the scope

of N.J.S.A. 2C:51-2(a)(2) and (d), because the striking of A.M.'s windshield

was not "related directly to [defendant's] performance in, or circumstances

flowing from" his position as a sheriff's officer. Ibid.

      To the extent we have not addressed a specific argument advanced by

the State, it is because we deemed it to be without sufficient merit to warrant

discussion in a written opinion. See R. 2:11-3(e)(2).




                                        16
                                                                         A-3070-17T1
      In his cross appeal, defendant asserts the following for our

consideration:

            POINT I: FUNDAMENTAL PRINCIPLES OF DUE
            PROCESS DEMAND THAT THE GUILTY
            VERDICT BE VACATED AND THE MATTER BE
            REMANDED TO THE MUNICIPAL COURT FOR A
            NEW TRIAL

      As previously stated, in his motion before the trial court, defendant

argued he was prejudiced because he did not know the criminal mischief

charge was going to be tried with the indictable ones.      He contended the

circumstances warranted the conviction for criminal mischief be vacated and

the matter remanded to the municipal court for a new trial. On appeal, he

reprises essentially the same arguments.

      For substantially the same reasons articulated by the trial court in its

December 18, 2017 oral decision, we reject defendant's contentions and affirm

the trial court's order denying defendant's motion to vacate the conviction. We

merely note Rule 3:15-3(a)(1) requires joinder of any pending non-indictable

complaint with those offenses that are "based on the same conduct or arising

from the same episode," which was the case here. Defendant was on notice the

criminal mischief charge would be tried before the Superior Court along with

the indictable offenses.

                                      17
                                                                      A-3070-17T1
Affirmed.




            18
                 A-3070-17T1
