                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4008-14T1


STATE OF NEW JERSEY,                 APPROVED FOR PUBLICATION

     Plaintiff-Appellant,               January 28, 2016

v.                                      APPELLATE DIVISION


L.D.,

     Defendant-Respondent.
_______________________________

         Argued October 19, 2015 - Decided January 28, 2016

         Before Judges Lihotz, Fasciale and Higbee.1

         On appeal from Superior Court of New Jersey,
         Law Division, Burlington County, Indictment
         No. 14-06-0086.

         Brian J. Uzdavinis, Deputy Attorney General,
         argued the cause for appellant (John J.
         Hoffman, Acting Attorney General, attorney;
         Mr. Uzdavinis, of counsel and on the brief).

         James J. Gerrow, Jr., argued the cause for
         respondent (Sitzler and Sitzler, attorneys;
         Mr. Gerrow, on the brief).

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.




1
     Judge Higbee did not participate in oral argument.         She
joins the opinion with counsel's consent. R. 2:13-2(b).
      On our leave granted, the State appeals from a January 22,

2015 order dismissing count two of a Grand Jury indictment,

charging   defendant     L.D.   with        second-degree     speculating       or

wagering on official action or information, N.J.S.A. 2C:30-3.

The State alleged defendant used information he received in his

official position as a local government official to purchase

farmland   for   the   sole   purpose       of   selling   development    rights

attached to the property to a developer undertaking a project in

the   municipality.2     Defendant      moved      to   dismiss   this   charge,

arguing his actions were based on public information and not

confidential facts gained through his official position.                       The

motion judge agreed and ordered dismissal of count two of the

indictment, without prejudice.

      On appeal, the State seeks reversal, arguing:

           THE STATE PRESENTED THE GRAND JURY WITH MORE
           THAN SUFFICIENT EVIDENCE TO SUPPORT A PRIMA
           FACIE CASE THAT DEFENDANT COMMITTED THE
           CRIME OF SPECULATING OR WAGERING ON OFFICIAL
           ACTION OR INFORMATION.3




2
     Count one of the indictment charged second-degree official
misconduct, N.J.S.A. 2C:30-2(a), relating to defendant's alleged
official actions, including voting to adopt township ordinances
and planning board resolutions to aid the development, without
disclosing his personal relationship with the developer.
3
     The State also contends the judge improperly made factual
findings unsupported by the record.



                                        2                                A-4008-14T1
For the reasons stated in our opinion, we affirm, concluding the

record shows the information allegedly used by defendant was

neither confidential nor disclosed solely to him.                                 Accordingly,

the State failed to produce sufficient evidence before the grand

jury    to     establish        a    prima     facie      case     that      defendant         has

committed the crime charged.                  State v. Hogan, 144 N.J. 216, 236

(1996).

       These    facts,      principally         found      in     documentary           evidence

gathered       in    an    investigation           by    the     Office      of       the     State

Comptroller and presented by the State to an Investigative Grand

Jury,    undergird        the       charges    against         defendant.             Initially,

however,       we     provide        background          information         necessary           to

understand the context of the issue presented.

       In    2005,    the    Township,4        which      contained       many        farms     and

undeveloped land, participated in a pilot program known as the

Burlington      County      Transfer      Development          Rights     Program.            This

land    management        program      clustered        development       in      a    specified

receiving area surrounded by agricultural and open space.                                       The

agricultural         and     open       space           properties        sold         "transfer

development rights" (TDR), described as "credits," associated

with the land to landowners seeking to develop in the receiving


4
     In accordance with                 Rule    1:38-3(c)(4),           we     have         omitted
identifying information.



                                               3                                        A-4008-14T1
area.    The number of TDR credits associated with a parcel was

based on its size and quality for development.                             For example, a

farmer   could      sell    development          rights,      thereby    preventing        the

associated      land   from       future    development,         preserving         it    as   a

farm.    An owner proposing development of land in the receiving

area    was   required      to    first     amass    a     specific        number    of    TDR

credits,      depending      on    the     size    and     density      of    its    planned

building project.            The Burlington County Transfer Development

Bank    Board   also    owned      TDR     credits       as    part   of     its    farmland

preservation efforts, which it would sell through auction to

facilitate      development         in     the    participating         municipalities.

Overall,      the    program       preserved        open      space     and     marshalled

residential and commercial development to designated areas of a

municipality.

       Testifying witnesses before the Investigative Grand Jury

included the Chief Operating Officer (the COO) of a real estate

development         corporation          (the      developer),          which       acquired

undeveloped land in the Township to construct a multiuse housing

and commercial development.                The COO discussed the developer's

need to acquire a designated number of TDR credits, prior to

proceeding      with       construction.            Finally,      he       explained       the

developer's interactions with defendant.




                                             4                                       A-4008-14T1
      In early 2005, while defendant was serving as mayor and a

member of the Township Planning Board, the developer contracted

to    purchase      a    large       undeveloped        parcel      in    the   Township's

receiving area.               In March 2005, prior to closing and in the

course      of   performing          due   diligence,         the    developer's        COO,

accompanied by its owner, met with Township officials, including

defendant.       They discussed plans for the proposed development

and   the    need       for    acquisition       of   the     approximately       240    TDR

credits for the project to move forward.                            The developer also

engaged a real estate broker to develop leads and assist its

efforts in convincing farmers to sell available TDR credits.

The developer closed on the property in May 2005.

      The COO next recited the developer's unsuccessful efforts

to acquire TDR credits.              The developer had approached "a handful

of large credit owners," expressing a willingness to pay more

per credit for large blocks of TDR credits.                              In October 2005,

the developer issued a mailing to approximately thirty or forty

entities, which disclosed its TDR credit needs and offered to

pay $55,000 to $60,000 per credit, depending on the terms of the

transaction,      which        was   a   price    "10    to   20    percent     more    than

anyone had ever offered . . . ."                      The developer also "assumed

that in the farming community everyone tends to know each other"

and believed if one farmer was engaged, he or she could convince




                                             5                                    A-4008-14T1
others     to   join.       The    COO    testified     the    response    to     the

developer's mailing inquiry was "terrible," consisting of two or

three potential sellers, who had few credits and asked nearly

twice the offering price.             This lackluster response concerned

the   developer,      which   faced      the   prospect   of    being    unable    to

develop its property.

      Defendant, as mayor, periodically inquired regarding the

status of the developer's credit acquisition and, in March 2006,

the COO personally told him of the "dismal" response to its

efforts.         Defendant,       knowing      the   developer's        difficulty,

approached      the   COO   and   suggested     he    intended    to    purchase    a

roughly 100-acre parcel (the farm), adjacent to his home, and

wanted to sell the developer the associated TDR credits for

$65,000 per credit.

      On May 3, 2006, defendant executed a contract with                          the

developer, through its subsidiary, to transfer all TDR credits

associated with the farm.5               The developer agreed to buy the

parcel's TDR credits for $65,000 per credit.                   The contract terms

also provided defendant a $150,000 non-refundable deposit and

gave him the right to file an appeal to increase the designated


5
     We are aware defendant and his wife were the designated
purchasers of the property and the named sellers of the TDR
credits to the developer. In our opinion, for clarity, we have
omitted specific references to defendant's wife.



                                          6                                A-4008-14T1
TDR credit allotment associated with the farm.                  If successful in

this effort, a contingency clause provided the price per credit

would   be    increased       to   $70,000.        Finally,    unlike    its     other

agreements     to     purchase     TDR    credits,    the   developer's   contract

with defendant included a clause prohibiting its recording as a

public record.

    Thereafter, defendant applied to increase the TDR credits

associated      with    the    farm,      from    approximately    twenty-six         to

thirty-six.      In his application, defendant did not disclose his

contract with the developer to sell the TDR credits associated

with the farm.          One month later, the Township Planning Board

approved the application.             On July 12, 2006, defendant completed

the $2 million purchase, taking title to the farm.

    On       August    9,   2006,     Burlington      County   Land     Use     Office

officials were invited to participate in a Township Committee

meeting.       During that meeting, defendant urged the County to

sell its TDR credits to the developer to allow the proposed

developer to move forward.                Thereafter, on September 6, 2006,

defendant, on behalf of the Township Committee, accompanied the

developer's officers to present a similar proposal to the County

Transfer     Development       Bank      Board.      Ultimately,   in    2007,      the

County held a public auction of TDR credits.                       The developer

purchased thirty TDR credits during that sale.




                                            7                                 A-4008-14T1
    In    April     2007,     defendant      introduced     and     voted      on    a

resolution to present Ordinance 2007-9 to the Township Planning

Board,   designed      to    decrease    the   requisite     TDR    credits         for

proposed residential development in the Township.                  The Ordinance

was adopted by the Township Committee on April 26, 2007; its

adoption was moved by defendant, who also voted on its passage.

At that time, the developer was the primary active developer in

the Township, which would benefit from the Ordinance.                    Defendant

did not disclose his acquisition of the farm or his plan to sell

associated TDR credits to the developer.                In the ensuing months

through April 2008, defendant participated in and voted on other

ordinances   directly        affecting       the    development.6        He     also

privately corresponded with the developer suggesting it draft a

letter to other Township officials disclosing the difficulties

and asking for assistance to advance the proposed development.

At no time did defendant disclose his association.

    Finally,      on   the    Local     Government    Ethics      Law   Disclosure

Statements   filed      by     defendant,      he     did   not     include         his

transaction with the developer and its related entities, despite




6
     On April 12, 2008, defendant was disqualified from
participating in any planning board actions regarding the
development because he had participated in and advocated issues
during discussions regarding the development's required TDRs.



                                         8                                  A-4008-14T1
receipt of the deposit, a net profit upon sale of the credits,

and interim mortgage payments.

      Defendant was later indicted.                   He moved to dismiss both

charges,    challenging     the     quantum      of     the    State's     evidence.

Specifically, regarding the crime of second-degree speculating

or wagering on official action or information, defendant argued

information    he   used   was    public      information,       not    confidential

disclosures    learned     in     his    official       capacity.         The   State

responded, arguing although the public was aware the developer

sought to purchase a large amount of TDR credits, defendant,

while acting in his official capacity, additionally learned the

developer     experienced       extreme       difficulty       in   acquiring     TDR

credits.      Knowing the lack of TDR credits could scuttle the

development, the State argued defendant used this "non-public

information" to proceed to negotiate a personal deal with the

developer to sell credits associated with the farm.

      The motion judge denied the request to dismiss count one,

and reserved her decision with respect to count two.                            In a

supplemental    written     opinion,       the    judge       granted    defendant's

motion to dismiss count two, without prejudice.                     She determined

the developer publicly told Township officials in March 2005 of

its   perceived     difficulty      to        amass     the    required     credits,

announced its intention, and engaged in solicitation efforts to




                                          9                                 A-4008-14T1
purchase 240 TDR credits.          She noted the developer "had already

reached out to . . . a lifetime farmer and licensed real estate

broker, in 2005, to approach other farmers and large landowners

to try to encourage them to sell their credits . . . . and by

early 2006 all of the public gestures had been made."                        Further,

the judge found "all the farmers in town, including [defendant],

knew each other and would have talked regularly as early as

2005, and by late 2005 [the developer] had already sent a mass

mailer."

      On the State's motion for reconsideration, it analogized

defendant's     conduct     to    insider-trading,         where       a    seller's

position is strengthened by knowledge an ordinary buyer could

not   obtain   elsewhere.        The   State      suggested     "the       non-public

information to which defendant had access through his official

capacity was not that [the developer] was looking for credits,

but it was the mindset with which [the developer] was looking

for   credits."       The     State    emphasized         the   degree       of    the

developer's desperation was "a matter of factual resolution for

a jury[.]"

      The    judge   disagreed.         Noting      everyone       knew      of    the

significant number of credits the developer needed to advance

its project, she found knowledge of the lackluster response to

the   developer's    public      efforts    was    very    subjective        and   too




                                       10                                    A-4008-14T1
"nuanced" a point to support the change, stating "the only way

you can analyze degrees of want or need is through subjective

analysis . . . ."           Further, she noted Township farmers would

have been well-informed about the developer's difficulties.                        For

example, the realtor hired by the developer was a farmer and

knew of the difficulties.         In fact, the realtor first attempted

to purchase the farm defendant successfully bought.                       The judge

concluded the facts did not support a prima facie case under the

statute.     The judge dismissed the charge without prejudice and

stayed    the    determination    pending       the   State's      application     for

interlocutory review.         We granted the State's motion for leave

to appeal.

    Our      Supreme    Court     "has        recognized     the     grand      jury's

independence and has expressed a reluctance to intervene in the

indictment      process."     Hogan,     supra,       144   N.J.    at   228.      "In

seeking    an     indictment,     the         prosecutor's      sole     evidential

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

committed a crime."         Id. at 236.          "'[T]he decision whether or

not to prosecute, and what charge to file or bring before a

grand    jury,    generally     rests    entirely      in    [the    prosecutor's]

discretion.'"      State v. Perry, 124 N.J. 128, 168 (1991) (quoting

Bordenkircher v. Haye, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54

L. Ed. 2d 604, 611 (1978)).             It is not the role of a reviewing




                                         11                                  A-4008-14T1
court     to   question      the    strength     of       the   case,       its    possible

deterrent      value,   or    the    government's          enforcement       priorities.

Ibid.     Nonetheless, the reviewing court's responsibility remains

to   examine     whether     "an    indictment      alleges      all    the       essential

facts of the crime[.]"             State v. N.J. Trade Waste Ass'n, 96 N.J.

8, 19 (1984).

      Recently, the Court expounded on the nature of judicial

review of a challenge to a grand jury indictment, noting "[t]he

grand jury 'is an accusative rather than an adjudicative body,'

whose task is to 'assess whether there is adequate basis for

bringing a criminal charge.'"                 State v. Saavedra, 222 N.J. 39,

56 (2015) (quoting Hogan, supra, 144 N.J. at 229-30).

               A trial court deciding a motion to dismiss
               an indictment determines "whether, viewing
               the evidence and the rational inferences
               drawn from that evidence in the light most
               favorable to the State, a grand jury could
               reasonably believe that a crime occurred and
               that the defendant committed it." [State v.
               Morrison, 188 N.J. 2, 13 (2006)] (citing
               State v. Reyes, 50 N.J. 454, 459 (1967)). A
               court "should not disturb an indictment if
               there is some evidence establishing each
               element of the crime to make out a prima
               facie case."     Id. at 12 (citing Hogan,
               supra, 144 N.J. at 236; State v. Vasky, 218
               N.J. Super. 487, 491 (App. Div. 1987)).

               [Id. at 56-57.]

      A    trial    court's        decision    on     a    motion      to    dismiss       an

indictment involves an exercise of discretion.                      Id. at 55; State




                                          12                                       A-4008-14T1
v. Weleck, 10 N.J. 355, 364 (1952) ("[T]he ultimate question on

this appeal is whether the trial court abused its discretion in

granting the defendant's motion to dismiss the indictments.").

In   our   review,    "'[a]     trial    court's   exercise   of      this

discretionary power will not be disturbed on appeal unless it

has been clearly abused.'"       Saavedra, supra, 222 N.J. at 55-56

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

1994), certif. denied, 140 N.J. 277 (1995)).

     Here, defendant was charged with the crime of speculating

or   wagering   on   official   action    or   information,   which     is

established by proving these elements:

           A   person    commits   a   crime   if,   in
           contemplation of official action by himself
           or by a governmental unit with which he is
           or has been associated, or in reliance on
           information to which he has or has had
           access in an official capacity and which has
           not been made public, he:

           a.   Acquires a pecuniary interest in any
           property, transaction or enterprise which
           may be affected by such information or
           official; or

           b.   Speculates or wagers on the basis of
           such information or official action; or

           c.   Aids   another    to   do    any   of  the
           foregoing, while in office or after leaving
           office   with  a    purpose    of   using  such
           information.

           [N.J.S.A. 2C:30-3 (emphasis added).]




                                   13                          A-4008-14T1
The   State    made     clear      prosecution         was   based   on    defendant's

acquisition of the farm.             Using the non-public information, the

developer was desperate to acquire TDR credits.7

      Initially, we address the State's challenge to the judge's

factual     findings.        The    State    challenges,        as    unfounded,      the

finding "all the farmer[]s in town including [defendant], knew

each other and would have talked regularly as early as 2005

. . . ."      We note this finding reiterates the judge's comments

during oral argument, suggesting "these were farmers who dealt

in credits on a daily basis, had dealt with this development

before and knew exactly what that meant.                          We aren't talking

about   a   group     of   people    that        had   no    interaction    with    this

before."        Even       though    comments          relating      to    an   assumed

familiarity amongst farmers regarding possible shortcomings of

the developer's pursuit of TDR credits were uttered, we conclude




7
     N.J.S.A. 2C:30-3 is written in the disjunctive and sets
forth alternative elements of the crime. The first alternative
includes   acquiring   pecuniary  interest   in  any   property,
transaction or enterprise in contemplation of official action by
a governmental unit with which he or she is associated, which
may be affected by such official action. The second sets forth
the use of non-public information gained in an official
capacity.    Although the entire statute is included in the
indictment, the State's argument focused solely on this latter
provision.   Therefore, we limit our review to this argument.
See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48
n.1 (App. Div. 1989) (noting that an issue not briefed is
waived).



                                            14                                  A-4008-14T1
the judge's determination properly focused on the confidential

nature of the information.8

       The narrow question for consideration is whether the State

presented    evidence    to     establish      defendant         obtained    and     acted

upon   "information     to    which     he    has    or   has     had    access     in   an

official    capacity    and     which    has     not      been    made    public,"       as

proscribed by N.J.S.A. 2C:30-3.               We are cognizant of the State's

argument the trial judge mistakenly characterized its theory of

the case by focusing on the developer's public solicitation for

TDR credits, not the aggregation of individual responses to the

solicitation,    a     matter    the     State       maintains      was     not     public

knowledge.      We     consider    whether          the   response       rate     to     the

developer's public mass mailer and the developer's "mindset" to

this response was the type of non-public information, the use of

which was criminal pursuant to N.J.S.A. 2C:30-3.9


8
     The grand jury record contained no direct evidence, but
only the COO's statements that the developer assumed the farmers
were close knit.    Accordingly, drawing inferential conclusions
from this limited evidence cannot support dismissal of the
charge.    See Hogan, supra, 144 N.J. at 235 ("Credibility
determinations and resolution of factual disputes are reserved
almost exclusively for the petit jury.").       Nevertheless, we
conclude the cited comments did not undergird the conclusion to
dismiss the indictment.
9
     Defendant argues any interested individual could freely
obtain a list of TDR credit-owners by request, which was
maintained in various township and county records. We need not
examine whether this fact, if true, impacts the motion request.



                                         15                                       A-4008-14T1
     Although no New Jersey court has squarely addressed the

meaning of "information . . . which has not been made public,"

N.J.S.A. 2C:30-3, the language used is not unique.10          In fact,

identical    or   nearly   identical   language   can   be   found    in

corresponding public official misconduct statutes in a host of

other states.11   We mention the review by two states with similar


10
     N.J.S.A. 2C:30-3 mirrors Model Penal Code § 243.2. "'When
a provision of the Code is modeled after the [Model Penal Code],
it is appropriate to consider the [Model Penal Code] and any
commentary to interpret the intent of the statutory language.'"
Saavedra, supra, 222 N.J. at 75 n.7 (quoting State v. Robinson,
217 N.J. 594, 606 (2014)).    We note the commentary associated
with this section states:

            Section   243.2  deals   with   a  completely
            different kind of defalcation by public
            employees.       Specifically,    it   covers
            situations where personal gain is sought by
            the acquisition of property or by financial
            speculation in cases where the employee has
            access to inside information by virtue of
            his employment. It applies both to official
            action to be taken by the public employee or
            some governmental unit with which he is
            associated and to information to which he
            has access in his official capacity and that
            has not been made public.     It also applies
            if the official aids any other person to
            engage in the same type of activity on the
            basis of inside information.
11
     See Ala. Code § 13A-10-82 (2015) (Alabama); Ark. Code Ann.
§ 5-52-106 (2015) (Arkansas); Colo. Rev. Stat. § 18-8-402 (2015)
(Colorado); Del. Code Ann. tit. 11, § 1212 (2015) (Delaware);
Fla. Stat. § 839.26 (2015) (Florida); Ind. Code § 35-44.1-1-1
(2015) (Indiana); Ky. Rev. Stat. Ann. § 522.040 (LexisNexis
2015) (Kentucky); Mo. Rev. Stat. § 576.050 (2015) (Missouri);
Neb. Rev. Stat. § 28-925 (2015) (Nebraska); N.C. Gen. Stat. §
                                                     (continued)


                                  16                           A-4008-14T1
criminal statutes that have elucidated the nature of non-public

information as used in this context.

     Pennsylvania's        statute      criminalizing       the     action      of

speculating or wagering on official action or information is

nearly identical to our own.             See 18 Pa. Cons. Stat. § 5302

(2015).12     That   law    has      been   interpreted     to    require     the

identified information be "confidential information which was

obtained    by   virtue      of   the       actor's    official     position."

Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983).                       Where



(continued)
14-234.1 (2015) (North Carolina); Or. Rev. Stat. § 162.425
(2015) (Oregon); Tenn. Code Ann. § 39-16-404 (2015) (Tennessee);
Utah Code Ann. § 76-8-202 (LexisNexis 2015) (Utah).
12
     18 Pa. Cons. Stat. § 5302, entitled "Speculating                          or
wagering on official action or information[,]" states:

            A public servant commits a misdemeanor of
            the second degree if, in contemplation of
            official   action   by   himself   or   by  a
            governmental   unit    with   which   he   is
            associated, or in reliance on information to
            which he has access in his official capacity
            and which has not been made public, he:

                 (1) acquires a pecuniary interest in
            any property, transaction or enterprise
            which may be affected by such information or
            official action;

                 (2) speculates or wagers on the basis
            of such information or official action; or

                 (3) aids     another       to   do   any   of    the
            foregoing.



                                       17                               A-4008-14T1
information     is    accessible   from       other    potential    sources,       it

cannot satisfy the non-public element of the statute.                    Ibid.

       Also,   the    Texas    Legislature,      in    formulating      a   similar

statute, chose to expressly define "information that has not

been   made    public"    to   include    "any   information       to    which    the

public does not generally have access, and that is prohibited

from disclosure under [the Texas Public Information Act]."                       Tex.

Penal Code Ann. § 39.06(d) (2015).13                  Texas courts interpreted


13
     The Texas statute entitled "Misuse of Official Information"
provides:

              (a) A public servant commits an offense              if,
              in reliance on information to which                  the
              public servant has access by virtue of               the
              person's office or employment and that               has
              not been made public, the person:

                     (1) acquires or aids another            to
                     acquire a pecuniary interest            in
                     any   property,   transaction,          or
                     enterprise that may be affected         by
                     the information;

                     (2) speculates or aids another to
                     speculate on the basis of the
                     information; or

                     . . . .

              (d) In this section, "information that has
              not been made public" means any information
              to which the public does not generally have
              access,   and  that   is   prohibited  from
              disclosure under Chapter 552, Government
              Code.
                   . . . .



                                         18                                 A-4008-14T1
this    definition   as    having   "two    components[,]   stated    in    the

conjunctive: information to which the public does not generally

have access; and that is prohibited from disclosure under the

Open Records Act."         State v. Ford, 179 S.W.3d 117, 122 (Tex.

Crim.    App.   2005).      Notably,   defining   the   phrase   by    direct

reference to the state's public information law removes possible

vagaries when distinguishing what information a public official

may learn in day-to-day activities that would, if acted upon,

subject him or her to prosecution under the statute.

       When this court engages in statutory interpretation, "[o]ur

task . . . is to discern and give effect to the" Legislature's

intent.     State v. O'Driscoll, 215 N.J. 461, 474 (2013).                  "To

begin, we look at the plain language of the statute."                State v.

Munafo, 222 N.J. 480, 488 (2015) (citing State v. Frye, 217 N.J.

566, 575 (2014)).        In so doing, we are directed to

            look to the plain language of the statute,
            "which is typically the best indicator of
            intent."   In re Plan for the Abolition of
            the Council on Affordable Hous., 214 N.J.
            444, 467 (2013).    Statutory language is to
            be interpreted "in a common sense manner to
            accomplish    the    legislative    purpose."
            N.E.R.I. Corp. v. N.J. Highway Auth., 147
            N.J. 223, 236 (1996).     When that language
            "'clearly   reveals   the   meaning  of   the
            statute, the court's sole function is to
            enforce the statute in accordance with those
            terms.'"   McCann v. Clerk of Jersey City,
            167 N.J. 311, 320 (2001) (quoting SASCO 1997
            NJ, LLC v. Zudkewich, 166 N.J. 579, 586
            (2001)).



                                       19                             A-4008-14T1
                 . . . .

                 [Where a] statute is penal[,] it must
            . . . be strictly construed. State v. D.A.,
            191 N.J. 158, 164 (2007).      "The strict
            construction doctrine, and its corollary,
            the doctrine of lenity, mean[] that words
            are given their ordinary meaning and that
            any reasonable doubt . . . is decided in
            favor of [the defendant]." Ibid. (quotation
            omitted).

            [State v. Olivero,         221 N.J. 632, 638-39
            (2015) (fifth and          sixth alterations in
            original).]

      Applying these principles to the matter under review, we

conclude the language of N.J.S.A. 2C:30-3 is not ambiguous and,

when read in a "common sense manner[,]" Olivero, supra, 221 N.J.

at 639, penalizes a person for conduct taken in reliance on

information revealed during and by virtue of his or her position

as a public official, which was not otherwise disclosed to the

public.     If   no   evidence   is    shown    suggesting   the   identified

information was relayed to the public official in confidence or

that the information was not otherwise publicly disclosed, an

essential element of the statute is not satisfied.                     Thus, we

conclude the plain meaning of N.J.S.A. 2C:30-3 reflects it was

not intended to ensnare an individual for utilizing information

not   conveyed   in   confidence      because    of   his   or   her   official

position.




                                      20                                A-4008-14T1
       We recognize the State's argument to differentiate between

information     regarding      the    developer's    general      need     for    TDR

credits and the lackluster response to its offers to purchase

available credits.       However, neither the face of the indictment

nor a searching review of the grand jury testimony reveals any

suggestion the response rate itself was somehow confidential.

Perhaps the fact was not widely known and, certainly, defendant

was directly informed about the developer's plight in soliciting

credits because he was the member of the Township Committee who

dealt directly with the developer's COO.                 Yet, nothing supports

a conclusion the "dismal" or "terrible" response rate to the

offer to buy credits was conveyed to him in confidence or was in

fact confidential and communicated solely to him by virtue of

his public position.

       The   grand    jury     did    not    elucidate     a     basis     for    its

conclusion,     set    forth    in    the    indictment,    stating      defendant

obtained     "information      from   [the   developer]     concerning      a    real

estate development project, which information was not yet made

available to the public[.]"            Rather, the evidence presented to

the grand jury and rational inferences drawn from that evidence,

even    in   the     light     most   favorable     to     the    State,     merely

established the information regarding the disappointing response

rate was conveyed to defendant by the developer.                     This record




                                        21                                 A-4008-14T1
does not evince the additional element that the information was

private, confidential, or non-public.            Although the extent to

which the information was known is not clear, at the very least,

the record shows the real estate broker engaged by the developer

knew many credits were still needed.

    Where   there    is    no   evidence   to   support   a   charge,   "the

indictment is 'palpably defective' and subject to dismissal."

Saavedra, supra, 222 N.J. at 56 (quoting Morrison, supra, 188

N.J. at 12).    Here, the confidential nature of the aggregate

response to the developer's mailer was "clearly lacking" in both

the facts alleged in the indictment and the evidence presented

to the grand jury.        State v. Collette, 257 N.J. Super. 557, 566

(App. Div. 1992), certif. denied, 133 N.J. 430 (1993).                   The

order dismissing the indictment was properly entered.

    Affirmed.




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