NOT FOR PUBLICATION WITHOUT THE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