STATE OF NEW JERSEY VS. TERRI M. GROSS (13-09-0524, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-3010-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRI M. GROSS,

Defendant-Appellant.

________________________________________________________________

Submitted September 27, 2016 – Decided September 15, 2017

Before Judges Messano and Espinosa.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 13-
09-0524.

Law Office of Christian A. Pemberton, P.C.,
attorneys for appellant (Roland G. Hardy, Jr.,
on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Joseph A. Glyn,
Deputy Attorney General, of counsel and on the
brief).

PER CURIAM

Defendant Terri Gross appeals from her convictions for the

unlawful release of confidential Division of Youth and Family
Services (DYFS or the Division)1 records, N.J.S.A. 9:6-8.10(b), a

fourth-degree offense, and the disorderly persons offense of

obstructing the administration of law, N.J.S.A. 2C:29-1. For the

reasons that follow, we reverse her convictions and remand for

further proceedings on her conviction for the unlawful release of

DYFS records.

I.

Defendant was employed by the Salem City Police Department

(SCPD) as a clerk-typist. In addition to her other duties, she

was responsible for the filing of substantiated findings of child

abuse sent to the SCPD by DYFS and the maintenance of SCPD prisoner

logs. In May 2012, she gave copies of confidential DYFS documents

to Mayor Robert Davis regarding a person challenging him in a

primary election.

The report at issue, a "[DYFS] Report of Substantiated

Abuse/Neglect to Law Enforcement Agencies" (DYFS Report) consisted

of a cover letter and a one-page form. The cover letter stated

the "enclosed is information regarding children who reside within

your jurisdiction who were found to have been abused or neglected."

1
On June 29, 2012, the Governor signed into law A-3101, which
reorganized the Department of Children and Families, renaming DYFS
as the Division of Child Protection and Permanency. L., 2012, c.
16, eff. July 2, 2012. Because the events here occurred before
the effective date and references in the record are to DYFS, we
use that name throughout.

2 A-3010-14T3
In bold print, the letter stated, "Information provided by the

Division must be kept confidential by local and state police and

other law enforcement agencies in accordance with the law."

The word "CONFIDENTIAL" appeared at the top center of the

form. The form provided the full name, age and address of the

child and the name and address of the "perpetrator." The form

detailed that the child had suffered "abuse" and "sexual abuse,"

provided the dates of referral and investigation completion, and

stated: the case had been referred to the county prosecutor; DYFS

had "accepted this case for supervision"; and there had been prior

abuse/neglect referrals. The form also included a "statement of

conclusion" describing the abuse.

N.J.S.A. 9:6-8.10a(a) addresses the limited circumstances in

which the Department of Children and Families (DCF) may release

confidential DYFS records and states, in pertinent part:

All records of child abuse reports made
pursuant to [N.J.S.A. 9:6-8.10], all
information obtained by the Department of
Children and Families in investigating such
reports including reports received pursuant to
[N.J.S.A. 9:6-8.40], and all reports of
findings forwarded to the child abuse registry
pursuant to [N.J.S.A. 9:6-8.11] shall be kept
confidential and may be disclosed only under
the circumstances expressly authorized under
subsections b., c., d., e., f., and g. herein.
The department shall disclose information only
as authorized under subsections b., c., d.,
e., f., and g. of this section that is relevant
to the purpose for which the information is

3 A-3010-14T3
 required, provided, however, that nothing may
be disclosed which would likely endanger the
life, safety, or physical or emotional well-
being of a child or the life or safety of any
other person or which may compromise the
integrity of a department investigation or a
civil or criminal investigation or judicial
proceeding.

Nothing in [N.J.S.A. 9:6-8.10a et seq.] shall
be construed to permit the disclosure of any
information deemed confidential by federal or
State law.

[(Emphasis added).]

N.J.S.A. 9:6-8.10a(e) authorizes DCF to forward such

confidential documents to police in the jurisdiction where the

abused child resides and mandates, "The police or law enforcement

agency shall keep such information confidential."

It is undisputed that the SCPD received the DYFS Report

pursuant to N.J.S.A. 9:6-8.10a(e), and that defendant released

documents covered by N.J.S.A. 9:6-8.10a(a) to the mayor.

N.J.S.A. 9:6-8.10b states: "Any person who willfully permits

or encourages the release of the contents of any record or report

in contravention of this act shall be guilty of a misdemeanor and

subject to a fine of not more than $ 1,000.00, or to imprisonment

for not more than 3 years, or both."

II.

On June 14, 2012, Chief of Police John Pelura, III, learned

that a two-page DYFS Report and a page from the April 2003 prisoner

4 A-3010-14T3
log had been mailed to the Salem County Democratic Party treasurer

and members of the public. He contacted the Salem County

Prosecutor's Office (SCPO) and initiated an investigation.

Pelura testified that, as Chief of Police, he was the top of

the chain of command for the department. He stated unequivocally,

"[n]othing . . . should be disseminated without [his]

authorization." He was "very concerned" that confidential records

had been released from his department. Pelura acknowledged he

might authorize release of the prisoner log but "wouldn't authorize

the dissemination of this DYFS log" because it "contain[ed]

information of – of a child. Her age, her date of birth, and her

address; and, that information would never – would never be

released."

Pelura began searching the police station to locate the DYFS

Report and the 2003 prisoner log. The DYFS Report was located in

the filing cabinet in the Detectives' office, its proper storage

place, but the prisoner log was not in its usual location. On

June 15, 2012, Pelura looked again for the prisoner log and

discovered it in defendant's office in a banker's box filled with

case files on top of a file cabinet. Upon opening the binder,

Pelura found the reproduced page of the prisoner log at the very

back of the binder, out of chronological order with the remaining

entries.

5 A-3010-14T3
 Following this discovery, Pelura positioned one of the

closed-circuit cameras on the second floor to point at the

stairwell and defendant's office door. When defendant returned

from vacation on July 11, 2012, Pelura asked her to retrieve the

prisoner logs for the past ten years, which included the 2003

prisoner log, to ascertain whether she knew where it was located.

Sergeant Fred Parkell, an investigator from the SCPO assigned to

the investigation, observed defendant's movements on the camera

feed in Pelura's office. Pelura and defendant looked "in the main

area of the [police department], on the second floor of that common

area," finding several other prisoner logs, and then went

downstairs into the booking room. Defendant then suggested Pelura

"go in the basement to see if they were down there, while she went

back up to the second floor to do that." The closed-circuit camera

recorded defendant returning to the second floor and entering her

office; she retrieved the binder and gave it to Pelura.

On the following day, Parkell and another SCPO investigator

interviewed defendant. Parkell advised defendant that documents

maintained at the SCPD were being mailed to residents and asked

if she could identify some documents. Defendant replied she did

not know what he was talking about, that she had just returned to

work after a month and had nothing to do with it. Parkell showed

her a prisoner log for April 19, 2003, a DYFS referral letter to

6 A-3010-14T3
the Chief of Police and a DYFS Confidential Report of Substantiated

Abuse. She was asked several times if anyone inside or outside

the police department had asked her for copies of the documents.

Repeatedly, she denied making copies or that anyone had asked her

to do so.

On July 19, 2012, Parkell took a sworn statement from

defendant at the SCPO in the presence of her lawyer. Defendant

stated she had given erroneous answers in the first interview

because she "was getting confused."

Defendant explained that Davis called her in

"[a]pproximately . . . May 2012," between 6:00 p.m. and 7:30 p.m.

on her office line, and requested the "[a]rrest [l]og" and "DYFS

forms" relating to his primary challenger because he worked "around

children." Davis informed defendant he was going to "have a

special meeting" and "needed a copy of those documents." Defendant

said she knew Davis "all [her] life," but did not consider him a

friend.2

After she told him the records were privileged and could not

be provided to him, Davis responded that he was "the mayor and

[was] entitled to these documents and . . . everyone that works

2
Chief Pelura testified, however, that on an occasion in 2012 he
had observed defendant pull her car up in front of Davis's and get
into his Mercedes SUV.

7 A-3010-14T3
down [t]here at the police department works for [him]." Davis

told defendant the City Solicitor, David Puma, "had a letter that

was in place that [Davis] was entitled to receive privileged

information." Although Davis did not threaten to get defendant

fired, defendant "felt threatened and [] knew that he was over the

police department."3

Following the phone call, defendant retrieved the documents

and "made a copy." She did not tell anyone what she was doing.

After calling a second time to confirm defendant retrieved the

documents, Davis drove to the police department. Defendant walked

out and handed him the documents. Approximately one hour had

elapsed between the time Davis called and her delivery of the

documents to him. Defendant stated that, at the time she gave

Davis the documents, she believed she had done nothing wrong

because Davis was her "boss and head of the police department."

At trial, defendant gave an account consistent with her July

19 statement. She said, although the normal work hours for the

clerical staff were 8:30 a.m. to 4:30 p.m, it was not uncommon for

her to stay at work after hours to do homework. When Davis called

her in May 2012, between the hours of 6:30 and 8:00 p.m., he asked

3
Defendant subpoenaed Davis to testify at trial. He asserted
his Fifth Amendment privilege against self-incrimination and did
not testify.

8 A-3010-14T3
her to "search for arrest logs and DYFS records, any information

on [his primary challenger]." She "told the mayor that those

documents were confidential and that he wasn’t allowed to receive

those documents." She obtained the records he requested because

she felt threatened that she would lose her job and also believed

she was able to release them to him because he was her boss.

David Puma, the Solicitor for the City, testified Davis never

asked him for the release of a DYFS substantiation document or for

such an authorization. He testified further that, if asked, he

would have counseled that the documents are confidential and cannot

be released, "even to other City officials, except on a need to

know basis."

The jury convicted defendant as charged on the fourth-degree

revealing DYFS records charge, acquitted her on a fourth-degree

charge of obstructing the administration of law and convicted her

on the lesser included offense of disorderly persons obstructing

the administration of law. The trial judge sentenced her to

concurrent one-year terms of probation.

In her appeal, defendant presents the following arguments for

our consideration:

POINT I

DEFENDANT IS ENTITLED TO JUDGMENT OF
ACQUITTAL BECAUSE THE STATE FAILED
TO PROVE BEYOND A REASONABLE DOUBT

9 A-3010-14T3
THAT THE DEFENDANT RELEASED
CONFIDENTIAL INFORMATION IN
CONTRAVENTION OF N.J.S.A. 9:6-
8.10b.

A. SALEM CITY MUNICIPAL CODE
IDENTIFIES THE MAYOR AS THE HEAD OF
THE POLICE DEPARTMENT AND
APPROPRIATE AUTHORITY OVER THE
POLICE DEPARTMENT WITH DIRECT
RESPONSIBILITY AND AUTHORITY WITHIN
THE POLICE DEPARTMENT.

B. RELEASE OF CONFIDENTIAL
REPORT OF SUBSTANTIATED
ABUSE/NEGLECT TO THE MAYOR WAS
PERMITTED UNDER N.J.S.A. 9:6-
8.10a(1)(b)(13) AND (20) (PARTIALLY
RAISED BELOW).

C. THE STATE FAILED TO PROVE
THE REQUISITE STATE OF MIND TO
PURPOSELY CONTRAVENE THE STATUTE
(NOT RAISED BELOW).

POINT II

JURY INSTRUCTION AS TO ELEMENTS OF
N.J.S.A. 9:6-8.10a VIOLATION WAS
ERRONEOUS AND CONSTITUTES PLAIN
ERROR (NOT RAISED BELOW).

POINT III

THE FAILURE TO INSTRUCT THE JURY
THAT IF IT FOUND DEFENDANT'S BELIEF
THAT SHE WAS AUTHORIZED TO DISCLOSE
THE CONFIDENTIAL REPORT TO THE MAYOR
TO BE AN HONEST ONE, EVEN THOUGH
UNREASONABLE, IT COULD FIND THAT SHE
LACKED THE REQUISITE STATE OF MIND
REQUIRES REVERSAL (NOT RAISED
BELOW).

10 A-3010-14T3
 POINT IV

THE FAILURE TO INSTRUCT THE JURY ON
JUSTIFICATION AS A DEFENSE IS PLAIN
ERROR (NOT RAISED BELOW).

A. DEFENDANT PRESENTED
SUFFICIENT FACTS TO WARRANT A JURY
CHARGE WITH RESPECT TO
JUSTIFICATION AS DEFENSE.

POINT V

DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL SHOULD HAVE BEEN GRANTED.

A. STATE FAILED TO PROVE
THAT DEFENDANT COMMITTED AN
UNLAWFUL ACT AS DEFINED BY N.J.S.A.
2C:29-1(a) (NOT RAISED BELOW).

B. DEFENDANT'S CONVICTION
FOR OBSTRUCTING THE ADMINISTRATION
OF LAW WAS AGAINST THE WEIGHT OF THE
EVIDENCE.

The issues presented are questions of law, which we review

de novo. State v. Mann, 203 N.J. 328, 337 (2010).

Defendant's argument that the trial court committed plain

error in failing to instruct the jury on the "claim of right"

defense (Point IV) lacks any merit. This defense is "an

affirmative defense to prosecution for theft," N.J.S.A. 2C:20-

2(c)(2), and has no application here. See State v. Saavedra, 222

N.J. 39, 47 (2015) (noting that "claim of right" is "a form of

justification in prosecutions for theft").

11 A-3010-14T3
 Because we conclude the absence of a charge on mistake of law

had the clear capacity to bring about an unjust result, we reverse

defendant's conviction on N.J.S.A. 9:6-8.10b and need not address

the sufficiency of the State's proofs (Point I.C). For guidance

on remand, we address the legal question regarding the mayor's

status as the head of the police department. We also conclude

that defendant's conviction for obstruction of justice cannot

stand as a matter of law.

III.

In Point I, defendant argues her conviction must be reversed

because the trial court erred as a matter of law in ruling that

her release of the documents to the mayor was not sanctioned by

Title Nine. She presents three separate contentions to support

this argument. We conclude the first two of these contentions

lack merit: (1) there was no unlawful disclosure because the mayor

is identified as the head of the police department by the Salem

City municipal code, and (2) release of the documents to the mayor

was explicitly permitted by N.J.S.A. 9:6-8.10a(b)(13) and (20).

Defendant also argues the State's failure to prove she purposely

acted in contravention of the Act constituted plain error, an

issue we discuss in conjunction with her argument that the trial

court committed plain error in the jury instruction regarding the

elements of N.J.S.A. 9:6-8.10a (Point II).

12 A-3010-14T3
 The issue regarding the mayor's status under the municipal

code and the application of N.J.S.A. 9:6-8.10a(20) arose during

defense counsel's cross-examination of Parkell. Counsel stated

it was his intention to make this argument as part of a motion for

dismissal at the end of the State's case. The trial court elected

to address the legal issue as whether disclosure was authorized

to the mayor under the statute because it had an impact on the

permissible scope of cross-examination. Defense counsel did not

object to this procedure and renewed his argument in the form of

a motion to dismiss count one at the end of the State's case.

Defense counsel conceded, "obviously, [] the mayor is not a

police officer." Nonetheless, he argued disclosure was authorized

by N.J.S.A. 9:6-8.10a(b)(20), which authorizes DCF to release

confidential documents to "[a] federal, State, or local government

entity, to the extent necessary for such entity to carry out its

responsibilities under law to protect children from abuse and

neglect." Citing the municipal code, counsel argued the mayor had

the requisite status as the head of the police department and

wanted the documents for a sanctioned purpose because of concerns

that were raised regarding his primary challenger's work at a

children's facility. The assistant prosecutor argued that,

pursuant to N.J.S.A. 40A:61-4f, the mayor did not have the

authority to conduct law enforcement duties and responsibilities.

13 A-3010-14T3
The trial court concluded disclosure of the documents to the mayor

was not authorized by Title Nine.

A.

Defendant argues that disclosure to the mayor was authorized

by subsections (13)4 and (20) of N.J.S.A. 9:6-8.10a(b). That

statute provides no support for the disclosure here, however.

Subsection (b) of N.J.S.A. 9:6-8.10a sets forth the limited

exceptions in which DCF may release confidential records upon

written request to enumerated persons and entities for specific

purposes.5 We have repeatedly acknowledged the threshold

requirement of a written request for disclosure by DCF under the

statute. See, e.g., N.J. Div. of Youth & Family Servs. v. N.S.,

412 N.J. Super. 593, 637 (App. Div. 2010); In re East Park High

School, 314 N.J. Super. 149, 156-59 (App. Div. 1998); N.J. Div.

of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 399-402

(App. Div. 1998).

Because there was no written request to DCF and the release

was made by defendant, the statute provides no authorization for

defendant's release of the documents to Davis. Once the documents

4
Defendant relies on this subsection for the first time on appeal.
5
N.J.S.A. 9:6-8.10a was amended, effective July 31, 1997 (L.
1997, c. 175, § 16), to require a written request for information
before DCF can disclose confidential records.

14 A-3010-14T3
were released to SCPD pursuant to N.J.S.A. 9:6-8.10a(e), the

statutory requirement was to maintain their confidentiality.

N.J.S.A. 9:6-8.10a(e) provides no exceptions for the release of

these confidential records by the police department.

Even if the statute could be considered an appropriate

reference to provide guidance for the disclosure of the

confidential records, none of the limited exceptions for release

apply here.6 N.J.S.A. 9:6-8.10a(b) (13) and (20) permit the

department to release documents, upon written request, to:

(13) Any person or entity mandated by statute
to consider child abuse or neglect information
when conducting a background check or
employment-related screening of an individual
employed by or seeking employment with an
agency or organization providing services to
children;

. . . .

(20) A federal, State, or local government
entity, to the extent necessary for such
entity to carry out its responsibilities under
law to protect children from abuse and
neglect;

[(Emphasis added).]

6
Notably, although defendant argues the release of documents to
Davis was permissible given his status as the head of the police
department, she does not rely upon N.J.S.A. 9:6-8.10a(b)(2), which
authorizes release to "[a] police or other law enforcement agency
authorized to investigate a report of child abuse or neglect."

15 A-3010-14T3
 Subsection (13) is plainly inapplicable because Davis was

neither conducting a background check nor "mandated by statute to

consider child abuse or neglect information" in doing so.

Subsection (20) is similarly unavailing because the mayor had no

"responsibilities under law" to protect children from abuse and

neglect.

Finally, because the interpretation of N.J.S.A. 9:6-8.10a(b)

urged by defendant is clearly erroneous, the trial court did not

commit plain error by failing to sua sponte charge the jury on an

erroneous theory of law as argued in Point II.

B.

Defendant also argues the mayor was entitled to receive the

documents as a matter of law because he was the head of the police

department. In essence, the premise for this argument is that the

delivery of the documents to Davis was not a release at all, but

an internal sharing of confidential documents within the mandate,

"the police and law enforcement agency shall keep such information

confidential." N.J.S.A. 9:6-8.10a(e).

At first blush, there is support for defendant's argument in

the City of Salem's municipal code and, by reference, N.J.S.A.

40A:61-4(f). City of Salem, N.J., Code § 50-4, "Powers and duties

of Mayor," states, "[t]he Mayor shall, pursuant to N.J.S.A. 40A:61-

16 A-3010-14T3
4, be the head of the Police Department and shall have the power

to appoint, suspend or remove all employees of the Department."

But, this statement cannot be viewed in isolation. See Hubner

v. Spring Valley Equestrian Ctr., 203 N.J. 184, 195 (2010) (noting

that, in construing a statute, "the intention of the Legislature

is to be derived from a view of the entire statute and that all

sections must be read together in light of the general intent of

the act.")

N.J.S.A. 40A:14-118 states in pertinent part:

The governing body of any municipality, by
ordinance, may create and establish . . . a
police force . . . and provide for the
maintenance, regulation and control thereof.
Any such ordinance shall . . . provide for a
line of authority relating to the police
function . . . . The ordinance may provide
for the appointment of a chief of police . . .
and the prescription of [his] powers,
functions and duties, all as the governing
body shall deem necessary for the effective
government of the force. Any such
ordinance . . . shall provide that the chief
of police . . . shall be the head of the
police force and that he shall be directly
responsible to the appropriate authority for
the efficiency and routine day to day
operations thereof, and that he shall,
pursuant to policies established by the
appropriate authority:

a. Administer and enforce rules and
regulations and special emergency directives
for the disposition and discipline of the
force and its officers and personnel;

17 A-3010-14T3
 b. Have, exercise, and discharge the
functions, powers and duties of the force;

c. Prescribe the duties and assignments
of all subordinates and other personnel;

d. Delegate such of his authority as he
may deem necessary for the efficient operation
of the force to be exercised under his
direction and supervision; and

e. Report at least monthly to the
appropriate authority in such form as shall
be prescribed by such authority on the
operation of the force during the preceding
month, and make such other reports as may be
requested by such authority.

The statute provides that the "appropriate authority" is

established by ordinance and may be the mayor, the governing body,

"any designated committee or member thereof, or any municipal

board or commission established by ordinance for such purposes"

Ibid. The statute also directs, "Nothing herein contained shall

prevent the appropriate authority from examining at any time the

operations of the police force or the performance of any officer

or member thereof." Ibid.

The "Powers of the Mayor" are set forth in the municipal code

(City of Salem, N.J., Code § 3.2) and N.J.S.A. 40A-61-4 in

identical language:

A. The Mayor is the chief executive officer
of the city.

. . . .

18 A-3010-14T3
 F. The Mayor shall be the head of the Police
Department and shall have the power to
appoint, suspend or remove all employees of
the Police Department. He/She shall appoint
the Chief of Police and such captains and
sergeants as may be authorized by the
ordinance, with the advice and consent of the
Council. He/She shall control and direct the
police force of the city, and he/she may
appoint such special policemen as he/she may
deem necessary for the preservation of public
order. He/She shall enforce the laws of the
state and the ordinances of the city.

Chapter 50 of the City of Salem Code establishes the Police

Department. Section 50-3 states, in pertinent part,

The Police Department shall consist of the
following members, employees and personnel in
order of rank:

(1) A Chief of Police.
. . . .

The mayor is not included among the persons who compose the

police department and is mentioned in Section 50-3 only regarding

his authority to appoint all members of the department "subject

to the provisions of Title 40A and Title 11."

Section 50-5 identifies the role of the Chief of Police:

The Chief of Police shall head the Department
under the Mayor and pursuant to N.J.S.A. 40A-
118 shall be directly responsible to the Mayor
as the appropriate authority for the
efficiency and routine day-to-day operations
thereof and shall, pursuant to policies
established by the appropriate authority:

A. Administer and enforce rules
and regulations and special

19 A-3010-14T3
 emergency directives for the
disposition and discipline of the
Police Department and its officers
and personnel.

B. Have exercise and discharge
the functions, powers and duties of
the force.

C. Prescribe the duties and
assignments of all subordinates and
other personnel.

D. Delegate such of his authority
as he may deem necessary for the
efficient operation of the Police
Department to be exercised under his
direction and supervision.

E. Report at least monthly to the
Mayor as the appropriate authority
in such form as shall be prescribed
by such authority on the operation
of the force during the preceding
month and make such other reports as
may be requested by such authority.
A copy of any and all such reports
shall be provided to the Chairman of
the committee.7

[(Emphasis added).]

Reading these statutes together, the mayor has the authority

to exercise an executive role, setting policy for the police

department. In contrast, the Chief of Police is explicitly charged

with the day to day operations of the department. The chain of

7
Pursuant to Section 50-2, the City Council appoints a committee
to oversee the Police Department, which committee "act[s] as the
coordinator between the Council, the mayor and the Department."

20 A-3010-14T3
command for the police department establishes the chief of police

as the person in command; the mayor is not even included in the

chain of command. In our view, the obligation to maintain the

confidentiality of the DYFS records falls within the day to day

operations of the police department and not within the mayor's

role in setting policy. Indeed, the mayor lacks any authority to

create a policy regarding the confidentiality of these records

that differs from that established by the Legislature.

We note further that the mayor's purported reason for

obtaining the confidential records did not square with either his

role in setting policy for the department or the department's

obligation to maintain the confidentiality of the records.

According to defendant, the mayor said concerns had been expressed

regarding his primary challenger's association with a facility

that provided services to children, that he wanted to hold a

meeting with council members on this issue and wanted the

confidential records for that purpose. This would be an obvious

breach of confidentiality. Any effort to justify such activity

by claiming it fell within the penumbra of the exceptions

applicable to disclosure by DCF under N.J.S.A. 9:6-8.10a(b) is

unavailing.

21 A-3010-14T3
 We therefore conclude the mayor was not entitled to receive

the confidential DYFS records because of his relationship to the

police department under the circumstances here.

IV.

N.J.S.A. 9:6-8.10b makes it an offense to "willfully permit[]

or encourage[] the release of [confidential DYFS records] in

contravention of this act." In Points I.C and III, defendant

presents two arguments as plain error. R. 2:10-2. In Point I.C.,

defendant challenges the sufficiency of the proof to establish she

acted willfully "in contravention of the act." In Point III,

defendant argues it was plain error for the trial court to fail,

sua sponte, to instruct the jury that if defendant believed she

was authorized to disclose the DYFS report to Davis, the jury

could find she lacked the requisite state of mind to be found

guilty. Because we conclude the absence of a charge on mistake

of law had the clear capacity to bring about an unjust result, we

reverse defendant's conviction and need not address the

sufficiency of the State's proofs.

Defendant did not object to the charge or ask for Model Jury

Charge (Criminal), "Ignorance or Mistake, (N.J.S.A. 2C:2-4)"

(2007). The State counters her plain error argument, stating,

"[d]efendant's purpose in releasing the report is not an element

22 A-3010-14T3
of the offense, and her supposed belief that she was permitted to

release it is irrelevant."

Aside from requiring that an actor "willfully" release the

protected documents, N.J.S.A. 9:6-8.10b does not specify a

culpability requirement. As a result, N.J.S.A. 2C:2-2(c)(3)

requires the crime defined by the statute must be construed as

incorporating "knowingly," N.J.S.A. 2C:2-2(b)(2), as its

culpability requirement.

A person acts knowingly with respect to the
nature of his conduct or the attendant
circumstances if he is aware that his conduct
is of that nature, or that such circumstances
exist, or he is aware of a high probability
of their existence. . . . "Knowing," "with
knowledge" or equivalent terms have the same
meaning.

[Ibid. ]

Therefore, the State was required to prove defendant gave the

protected documents to the mayor, knowing that doing so was in

contravention of the statute. See N.J.S.A. 2C:2-2(c)(1)(providing

culpability requirement applies to all material elements of an

offense).

"[M]istake as to a matter of . . . law is a defense if the

defendant reasonably arrived at the conclusion underlying the

mistake and . . . [i]t negatives the culpable mental state

23 A-3010-14T3
required to establish the offense." N.J.S.A. 2C:2-4(a)(1).8 "The

mistakes of law . . . do not involve errors over whether actions

are criminal; they are mistakes concerning legal issues that are

relevant to proof of the elements of an offense." State v.

Wickliff, 378 N.J. Super. 328, 335 (App. Div. 2005).

The mistake of law at issue here is whether defendant knew

the release of documents to the mayor was in contravention of the

law. As the trial court observed, "if a sergeant or a lieutenant

or the chief had come to [defendant] and said, I need a copy of

[the confidential records], . . . [h]er giving that document to

them would not . . . as a matter of law, be a violation of the

statute . . . ."

There was evidence here to support the conclusion that

defendant was fully aware her release of the DYFS records to the

mayor contravened the statute. Her admitted initial response to

the request was that the mayor was not permitted to receive the

documents. The circumstances of the delivery — at night and

outside the police department — are highly irregular. She advised

no one in the police department of the request or her compliance.

Her denials regarding the release of the documents and any

8
The Supreme Court has stated that this basis for attacking the
State's proofs regarding a requisite state of mind is not limited
to a mistaken belief that is "reasonably arrived at." State v.
Pena, 178 N.J. 297, 315-19 (2004).

24 A-3010-14T3
knowledge regarding their release in the first interview are

consistent with a consciousness of guilt.

The thrust of the defense was that, although defendant was

aware of the requirement to maintain the confidentiality of the

records, she believed the release to Davis was authorized because

he was the head of the police department. This theme was presented

in defendant's testimony, the statement she gave in the presence

of her attorney and in defense counsel's argument to the jury.

It is a defendant's responsibility to come
forward with "some evidence" in order to
support a theory of mistake. However, because
mistake negates the culpable mental state,
once the defense is presented, the State bears
the burden of disproving it beyond a
reasonable doubt.

[State v. Cross, 330 N.J. Super. 516, 523
(App. Div. 2000) (citations omitted).]

Defendant's testimony satisfied her burden to present some

evidence that she acted under a mistake of law that negated the

culpable mental state. See State v. Pena, 178 N.J. 297, 307-13

(2004); State v. Sexton, 160 N.J. 93 (1999).

The trial court charged the jury as to the elements of the

offense and that the State had to prove each element, including

that defendant acted purposely, beyond a reasonable doubt. But,

as we have noted, the culpability requirement applicable to this

offense was "knowingly," which was not charged to the jury. And,

25 A-3010-14T3
given the defense presented by defendant, it was also necessary

to instruct the jury that, if it found defendant held the mistaken

belief that the release of the documents was not in contravention

of the law, she "could not have acted with the state of mind that

the State is required to prove beyond a reasonable doubt." Model

Jury Charge (Criminal), "Ignorance or Mistake," supra.

When a defendant fails to challenge jury instructions at the

time of trial, "it may be presumed that the instructions were

adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App.

Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). For

a jury instruction to rise to the level of plain error, the alleged

error must so substantially affect the rights of the defendant as

to "convince the court that of itself the error possessed a clear

capacity to bring about an unjust result." State v. Camacho, 218

N.J. 533, 554 (2014) (quoting State v. Adams, 194 N.J. 186, 207

(2008)). In ascertaining the prejudicial effect of a jury charge,

this court must evaluate the charge "in light of the totality of

the circumstances ‒ including all the instructions to the jury,

[and] the arguments of counsel." Adams, supra, 194 N.J. at 207

(citation omitted) (emphasis added).

If the jury accepted defendant's testimony that she believed

a release of the documents to the mayor was not in contravention

of the statute, there were grounds for an acquittal. Defendant

26 A-3010-14T3
presented sufficient evidence to trigger the State's burden to

prove her knowledge beyond a reasonable doubt. Because the mistake

of law was adequately presented, we conclude the omission of an

instruction on the legal significance of a mistake of law had the

clear capacity to bring about an unjust result, R. 2:10-2, which

was exacerbated by the failure to charge the jury on "knowingly,"

and requires the reversal of defendant's conviction.

V.

In Point V, defendant argues the trial court should have

granted her motion for judgment of acquittal on the obstruction

charge at the end of the State's case. We agree with the trial

court that there was sufficient evidence to present that charge

to the jury. State v. Reyes, 50 N.J. 454, 458-59 (1967). However,

defendant also argues, as plain error, R. 2:10-2, that the State

failed to prove she committed an unlawful act as defined by

N.J.S.A. 2C:29-1(a). In light of the jury verdict, we conclude

this argument has merit, requiring the reversal of her conviction.

The jury acquitted defendant of fourth-degree obstruction of

justice, N.J.S.A. 2C:29-1, and convicted her of the disorderly

persons offense under that statute.

N.J.S.A. 2C:29-1 provides:

a. A person commits an offense if he purposely
obstructs, impairs or perverts the
administration of law or other governmental

27 A-3010-14T3
 function or prevents or attempts to prevent a
public servant from lawfully performing an
official function by means of flight,
intimidation, force, violence, or physical
interference or obstacle, or by means of any
independently unlawful act. . . .

b. An offense under this section is a crime
of the fourth degree if the actor obstructs
the detection or investigation of a crime or
the prosecution of a person for a crime,
otherwise it is a disorderly persons offense.

To prove obstruction beyond a reasonable doubt, the State

must proffer evidence to satisfy three elements: (1) "that the

defendant . . . committed an unlawful act"; (2) "that the act was

committed for the purpose of . . . obstructing, impairing or

perverting the administration of law or other governmental

function"; and (3) "that in committing the act, the defendant did

[OR attempted to] . . . obstruct, impair or pervert the

administration of law or other governmental function." Model Jury

Instruction (Criminal), "Obstructing Administration of Law or

Other Governmental Function (N.J.S.A. 2C:29-1)" (2000).

The State's theory was that defendant committed "an

independently unlawful act," a violation of N.J.S.A. 2C:29-

3(b)(4), which provides: "A person commits an offense if, with the

purpose to hinder his own detection, apprehension, investigation,

prosecution, conviction or punishment for an offense . . . , he:

(4) Gives false information to a law enforcement officer."

28 A-3010-14T3
(Emphasis added). We agree that such a violation would constitute

an independently unlawful act.

However, it is an ineluctable conclusion that, in acquitting

defendant of the fourth-degree offense, the jury found defendant

did not "obstruct[] the detection or investigation of a crime or

the prosecution of a person for a crime." There was no evidence

of any other predicate act, i.e., "flight, intimidation, force,

violence, or physical interference or obstacle," to support a

conviction under this statute. Therefore, the jury verdict does

not support a conviction on this count.

In sum, we reverse defendant's conviction on the first count,

remand for further proceedings consistent with this opinion and

do not retain jurisdiction. We reverse defendant's conviction for

obstruction of justice. Any argument raised by defendant not

explicitly addressed in this opinion lacks sufficient merit to

warrant discussion. R. 2:11-3(e)(2).

29 A-3010-14T3