STATE OF NEW JERSEY VS. BRIAN L. BRADY (12-02-0029, MERCER 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NOT FOR PUBLICATION WITHOUT THE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 binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3172-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/
Cross-Appellant,

v.

BRIAN L. BRADY,

Defendant-Appellant/
Cross-Respondent.
__________________________

Argued December 20, 2017 – Decided August 31, 2018

Before Judges Fuentes, Koblitz and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
12-02-0029.

Mario A. Iavicoli argued the cause for
appellant/cross-respondent.

Sarah Lichter, Deputy Attorney General, argued
the cause for respondent/cross-appellant
(Christopher S. Porrino, Attorney General,
attorney; Sarah Lichter, of counsel and on the
brief).

PER CURIAM
 Defendant Brian Brady was a former captain of the Human

Services Police (HSP). On February 17, 2012, a State Grand Jury

returned an indictment against defendant charging him with three

counts of second degree official misconduct, N.J.S.A. 2C:30-2,

second degree pattern of official misconduct, N.J.S.A. 2C:30-7,

third degree theft by deception, N.J.S.A. 2C:20-4, two counts of

third degree tampering with public records or information,

N.J.S.A. 2C:28-7(a)(1), and second degree as well as third degree

computer theft, N.J.S.A. 2C:20-25(a), N.J.S.A. 2C:20-25(e), and

N.J.S.A. 2C:20-25(g).

Defendant waived his constitutional right to a jury trial1

and was tried before a Superior Court Judge over twenty-five days

beginning on May 9, 2014, and ending on July 22, 2014. The court

acquitted defendant of seven out of the nine counts in the

indictment. The judge found defendant guilty of one count of

second degree official misconduct and second degree computer

theft. On November 10, 2014, the judge denied defendant's motion

for judgment of acquittal notwithstanding the verdict.

1
Rule 1:8-1(a) provides, in pertinent part: "Criminal actions
required to be tried by a jury shall be so tried unless the
defendant, in writing and with the approval of the court, after
notice to the prosecuting attorney and an opportunity to be heard,
waives a jury trial."

2 A-3172-14T4
 On March 6, 2015, the judge conducted a sentencing hearing

in which he downgraded both second degree convictions to third

degree offenses for sentencing purposes, and imposed a one-year

term of unsupervised probation on each offense, to run concurrent

to each other, and imposed the mandatory statutory financial

penalties. The judge also ordered the forfeiture of defendant's

public office and pension. The State appeals arguing the

noncustodial sentence imposed by the judge violates the minimum

mandatory sentence required under 2C:20-25(h) for second degree

computer theft where the victim is a government agency, and the

mandatory minimum sentence required under N.J.S.A. 2C:43-6.5 for

second degree official misconduct.

Defendant filed a cross-appeal arguing the State failed to

prove beyond a reasonable doubt that he committed these computer

related crimes. Defendant also argues he established, by clear

and convincing evidence, the affirmative defense codified in

N.J.S.A. 2C:20-33. In response to the State's appeal, defendant

argues the sentence imposed by the trial judge was valid because

he was actually convicted of two third degree offenses.

On the State's direct appeal, we vacate the sentence and

remand the matter for resentencing. The imposition of two

concurrent probationary terms for these two specific second degree

offenses constitutes an illegal sentence because it violates the

3 A-3172-14T4
mandatory minimum terms of imprisonment required under 2C:20-25(h)

and N.J.S.A. 2C:43-6.5. On defendant's cross-appeal, we conclude

the State proved these two second degree crimes beyond a reasonable

doubt.

We limit our factual recitation to the part of the record

that relates to defendant's conviction for second degree official

misconduct and second degree computer theft.

I

In December 2007, defendant, as Captain of the HSP, was

"responsible for the day-to-day operation of the law enforcement

entity for the Department of Human Services." Denis James Kuchta,

a retired Lieutenant of the HSP, was assigned to the Department

of Youth and Family Services (DYFS).2 In this official capacity,

Kuchta was authorized to access certain HSP databases that included

individuals' personal information and criminal records. Kuchta

accessed those databases to complete DYFS investigations, to

locate missing persons, and to determine suitability for foster

care or emergency care. Defendant outranked Kuchta.

On December 17, 2007, defendant sent Kuchta an email

requesting that Kuchta access the HSP data base to check on a

person named Lioubov Plotnikova. Defendant provided Kuchta with

2
Now the Division of Child Protection and Permanency.

4 A-3172-14T4
Plotnikova's home address, vehicle information, license plate

number, and her health aid state license number. Kuchta followed

defendant's instructions3 and ran a search on Plotnikova in the

HSP data base. He did not ask defendant to explain or identify

the purpose of this computer search.

Imelda Richinsin was a Senior Communication Operator with the

HSP. She worked as a dispatcher and was authorized to access

restricted government databases such as the National Criminal

Information System (NCIC), the Administrative Office of the Courts

(AOC) Tele, a data base used by the court system, the Department

of Motor Vehicles (DMV),4 and the Criminal Justice Information

System (CJIS). Richinsin testified that besides her, the

dispatchers and Sergeant Baez were the only other people in the

HSP to have access to the CJIC and NCIC databases.

On June 19, 2008, defendant called Richinsin and asked her

"to run lookups" in the HSP data base for a list of names that he

was to email to her at a later time. Defendant requested Richinsin

to look "specifically" for "warrants" and "DUIs." It was customary

in the HSP to record all telephone calls with Communication

3
Kuchta testified at trial that for most of his career at the
HSP, defendant was "one rank above [him]."
4
Now the Motor Vehicle Commission (MVC).

5 A-3172-14T4
Operators. A recording of the telephone conversation between

defendant and Richinsin was played for the trial judge.

Later that day, defendant emailed Richinsin a list of names

and personal information of players and three coaches of a minor

league baseball team called the Sussex Skyhawks (Skyhawks).

Richinsin testified that she did not ask defendant about the

purpose for these computer searches. At the time, she thought the

subjects of the search "were going to be police officers disbursing

to different stations." In the audio recording of defendant's

conversation with Richinsin, defendant tells her: "all these are

actually out of state. They are mostly Florida, California,

Pennsylvania I guess, or something like that. I don't know if

these people are going to a facility or what." (Emphasis added).

The prosecutor asked Richinsin what the word "facility" meant to

her, and she responded: "Oh well, like Ancora, Greystone or either

they could have [gone] into a DYFS station, too." Stated

differently, Richinsin thought defendant was asking her to perform

background searches on HSP police officers stationed at various

DHS facilities.

Richinsin carried out her assignment as defendant instructed

and ran searches in NCIC, the DMV, and AOC Tele for all of these

individuals. She told defendant the results of the searches in

three subsequent phone calls and one email. In one of the phone

6 A-3172-14T4
calls, Richinsin told defendant: "Nothing came up on any of them."

In her email to defendant, Richinsin stated: "all of the lookups

were negative with the exception of three, because I needed the

date of birth."

According to defendant, he had a friendly relationship with

Hal Lanier, the general manager of the Skyhawks, and Brooks Carey,

the pitching coach of the team. He authenticated the email he

sent to Richinsin that listed the names of the Skyhawks players

and coaches. He ordered the HSP staff to search these confidential

government databases in response to a request from Brooks Carey

and Hal Lanier. As defendant conceded:

A. Well, prior to obtaining this information
I was approached by Brooks Carey and Hal
Lanier and asked if it would be possible to
see if any of the players had any active
warrants or multiple DUIs which would prevent
them from entering from the United States into
Canada. They explained to me that this has
been done in the past with every team that
they've been affiliated with and that this was
for them a normal procedure. And that if
players were prevented from entering, they
would be detained at the border and they had
made this request. I told them I would get
back to them when they initially asked about
it.

Q. What was the request that they made?

A. That the players and themselves just be
checked for anything active that would prevent
them from entering into Canada from the United
States.

7 A-3172-14T4
Defendant eventually contacted Carey and Lanier and told them he

needed "the individuals' names, Social Security number[s] and

date[s] of birth."

The evidence at trial is undisputed on the following facts:

(1) defendant admitted he requested Richinsin to run searches on

the names of baseball players who had no connection to the HSP;

(2) defendant admitted that he misrepresented the nature of the

computer data search when he told Richinsin that these were names

of "employees that were going to be hired;" and (3) defendant

admitted that he directed Kuchta to run a search on the HPS data

base for Plotnikova, a health care worker whom defendant's brother

was considering hiring to care for their mother.

II

In the cross-appeal, defendant raises the following specific

arguments:

POINT I

BRIAN BRADY DID NOT COMMIT A COMPUTER RELATED
CRIME IN COUNT 8 UNDER N.J.S.A. 2C:20-25(a)
or 2C:20-25(e) SINCE BRADY WAS NOT A HACKER
BUT WAS AN INSIDER EMPLOYEE POLICE OFFICER WHO
DID NOT ACCESS THE COMPUTER SYSTEM'S "WITHOUT
AUTHORIZATION" OR "IN EXCESS OF
AUTHORIZATION," AS REQUIRED BY N.J.S.A. 2C:20-
25(a) and 2C:20-25(e) AS AN ELEMENT OF THE
CRIME, AND DID NOT COMMIT OFFICIAL MISCONDUCT
IN COUNT 3. SAID ANOTHER WAY, BRADY HAD
PERMISSION TO ACCESS THE COMPUTER SYSTEM [AND]
THERFORE BRADY DID NOT COMMIT A COMPUTER
RELATED CRIME. AND SINCE A CONVICTION OF A

8 A-3172-14T4
 COMPUTER RELATED CRIME WAS THE PREDICATE FOR
THE CONVICTION OF OFFICIAL MISCONDUCT IN COUNT
3 [. . .] THIS COURT SHOULD REVERSE AND DISMISS
BOTH CONVICTIONS.

POINT 2

AS FURTHER EVIDENCE THAT THE CONVICTIONS
SHOULD BE DISMISSED AS PER N.J.S.A. 2C:20-
33[,] THE VALUE OF THE COMPUTER ACTIVITY WAS
TRIVIAL, THAT IS, IT WAS CLEARLY AND
CONVINCINGLY NOT MORE THAN $1,000 IN RETAIL
VALUE AND THUS, NO CRIME WAS COMMITTED.

POINT 3

ASSUMING THIS COURT DOES NOT REVERSE AND
DISMISS THE CONVICTIONS THE TRIAL JUDGE DID
NOT COMMIT ERROR IN SENTENCING THE DEFENDANT
TO PROBATION.

A. BRADY WAS CONVICTED OF VIOLATING
N.J.S.A. 2C:30-2 UNDER COUNT 3.

B. BRADY WAS CONVICTED UNDER COUNT
8 OF VIOLATING N.J.S.A. 2C:20-25(a)
WHICH IS A CRIME OF THIRD DEGREE AND
NOT N.J.S.A. 2C:20-25(e).

We reject these arguments and affirm. N.J.S.A. 2C:20-25(a)

provides:

A person is guilty of computer criminal
activity if the person purposely or knowingly
and without authorization, or in excess of
authorization:

a. Accesses any data, data base, computer
storage medium, computer program, computer
software, computer equipment, computer,
computer system or computer network . . . .

9 A-3172-14T4
 Defendant argues he cannot be held criminally responsible

under the plain reading of N.J.S.A. 2C:20-25(a) because he had

authorization to access the computer databases at issue here. We

disagree. Defendant's "authorization" to access these law

enforcement databases, whether directly or through a subordinate

employee adhering to his instructions, was expressly related to

his duties and authority as a Captain in the HSP. He was not at

liberty to access this highly sensitive data to advance his

personal interest, including performing a "favor" for two men with

whom he appeared to have had a social relationship, or to

investigate the background of a person he and his brother planned

to hire to care for their mother. The Supreme Court has

emphasized:

As a general rule, when the language of a
statute is clear on its face, the sole
function of the courts is to enforce it
according to its terms. Nevertheless, we also
have stressed that where a literal
interpretation would create a manifestly
absurd result, contrary to public policy, the
spirit of the law should control.

[Hubbard v. Reed, 168 N.J. 387, 392 (2001)
(citations omitted).]

Defendant admitted he misrepresented his true intent when he

directed a subordinate to conduct a comprehensive search of law

enforcement databases for purely personal purposes. Such a

manifest abuse of authority to access confidential computerized

10 A-3172-14T4
information falls well within the scope of the statute's reach.

Defendant's concealment of his true purpose when he ordered

subordinates to conduct these computer searches revealed, beyond

a reasonable doubt, that he acted with the requisite "purposely

or knowingly" state of mind.

Defendant also argues that pursuant to N.J.S.A. 2C:20-33, he

did not commit a computer related crime under N.J.S.A. 2C:20-25(e)

because the value of the two accesses to the computer system

amounted to less than $1000 in retail value. Defendant contends

that information about the criminal records can be accessed on the

internet for a nominal cost; therefore, the retail value of the

information is "way, way less than [$1000]." Defendant

characterized his actions as a "trivial, de minimis activity."

The State argues defendant is procedurally barred from

raising N.J.S.A. 2C:20-33 as an affirmative defense because he did

not raise the issue before trial. The State specifically cites

Rule 3:10-2(c), which provides:

The defense of double jeopardy and all other
defenses and objections based on defects in
the institution of the prosecution or in the
indictment or accusation, except as otherwise
provided by [Rule] 3:10-2(d) (defenses which
may be raised only before or after trial) and
[Rule] 3:10-2(e) (lack of jurisdiction), must
be raised by motion before trial. Failure to
so present any such defense constitutes a
waiver thereof, but the court for good cause
shown may grant relief from the waiver.

11 A-3172-14T4
 [R. 3:10-2(c) (emphasis added).]

Defendant's affirmative defense under N.J.S.A. 2C:20-33 is

predicated on the value of the information he criminally accessed.

A general amorphous claim that this highly sensitive, confidential

data can be acquired on the internet for a nominal cost that is

less than $1000 is clearly not competent evidence. Defendant's

affirmative defense had to be factually supported at trial by

clear and convincing evidence. It cannot be raised for the first

time on appeal. The record developed at trial also makes it

impossible for this court to ascertain whether this type of

oversight by defense counsel should be reviewed on the plain error

standard. R. 2:10-2. Defendant may raise this issue in a post-

conviction relief petition based on a claim of ineffective

assistance of counsel. In this petition, defendant will be able

to present evidence that lies outside the trial record. See State

v. Preciose, 129 N.J. 451, 460 (1992). We thus discern no legal

basis to disturb defendant's conviction.

III

State's Appeal

We turn now to the State's direct appeal challenging the

noncustodial, probationary sentence imposed by the trial court.

The trial judge, sitting as the trier of fact, found defendant

guilty of second degree official misconduct. Both N.J.S.A. 2C:20-

12 A-3172-14T4
25(h) and N.J.S.A. 2C:43-6.5 required the trial court to impose a

mandatory minimum sentence of imprisonment. We start by quoting

N.J.S.A. 2C:20-25(h) directly:

Every sentence imposed upon a conviction
pursuant to this section shall, if the victim
is a government agency, include a period of
imprisonment. The period of imprisonment
shall include a minimum term of one-third to
one-half of the sentence imposed, during which
term the defendant shall not be eligible for
parole. The victim shall be deemed to be a
government agency if a computer, computer
network, computer storage medium, computer
system, computer equipment, computer program,
computer software, computer data or data base
that is a subject of the crime is owned,
operated or maintained by or on behalf of a
governmental agency or unit of State or local
government or a public authority. The
defendant shall be strictly liable under this
subsection and it shall not be a defense that
the defendant did not know or intend that the
victim was a government agency, or that the
defendant intended that there be other victims
of the crime.

[Ibid. (emphasis added).]

N.J.S.A. 2C:43-6.5 provides, in relevant part:

[A] person who serves or has served as a public
officer or employee under the government of
this State, or any political subdivision
thereof, who is convicted of a crime that
involves or touches such office or employment
. . . shall be sentenced to a mandatory minimum
term of imprisonment without eligibility for
parole as follows . . . for a crime of the
second degree, five years . . . As used in
this subsection, "a crime that involves or
touches such office or employment" means that
the crime was related directly to the person's

13 A-3172-14T4
 performance in, or circumstances flowing from,
the specific public office or employment held
by the person.

[Ibid. (emphasis added).]

A second degree crime carries a term of imprisonment between

five to ten years. N.J.S.A. 2C:43-6(a)(2). A second degree crime

carries a presumption of imprisonment, which can only be overcome

if "having regard to the character and condition of the defendant,

it is of the opinion that his imprisonment would be a serious

injustice which overrides the need to deter such conduct by

others." N.J.S.A. 2C:44-1(d). The Supreme Court provided the

guidance needed in determining whether the record supports

overcoming the presumption of imprisonment:

[W]here the court is clearly convinced that
the mitigating factors substantially outweigh
the aggravating factors and where the interest
of justice demands, the court may sentence a
person convicted of a crime of the first- or
second-degree within the sentencing ranges of
crimes one degree lower. N.J.S.A. 2C:44-
[1(f)(2)]. The presumption of imprisonment
for first- and second-degree crimes, however,
comes into play regardless [of] whether a
defendant has led a crime-free or blameless
life.

. . . .

The presumption of imprisonment is not
dispelled merely because the trial court is
clearly convinced that the mitigating factors
substantially outweigh the aggravating
factors and the interests of justice justify

14 A-3172-14T4
 downgrading a first- or second-degree offense
pursuant to N.J.S.A. 2C:44-[1(f)(2)].

[State v. Evers, 175 N.J. 355, 388 (2003)
(alteration in original) (emphasis added).]

In Evers, Justice Albin also provided excellent guidance to

trial judges on how to address the so-called idiosyncratic

defendant:

In deciding whether the "character and
condition" of a defendant meets the "serious
injustice" standard, a trial court should
determine whether there is clear and
convincing evidence that there are relevant
mitigating factors present to an extraordinary
degree and, if so, whether cumulatively, they
so greatly exceed any aggravating factors that
imprisonment would constitute a serious
injustice overriding the need for deterrence.
We do not suggest that every mitigating factor
will bear the same relevance and weight in
assessing the character and condition of the
defendant; it is the quality of the factor or
factors and their uniqueness in the particular
setting that matters.

[Id. at 393-394 (emphasis added).]

In State v. Nance, the Court reaffirmed the principles

articulated in Evers: "The 'serious injustice' exception to the

presumption of imprisonment applies only in 'truly extraordinary

and unanticipated circumstances,' where the 'human cost' of

punishing a particular defendant to deter others from committing

his offense would be 'too great[.]'" State v. Nance, 228 N.J.

378, 395 (2017) (first quoting State v. Jabbour, 118 N.J. 1, 7

15 A-3172-14T4
(1990) and then quoting Evers, 175 N.J. at 389)); see also State

v. Jarbath, 114 N.J. 394 (1989).

Here, the judge found aggravating factor four applied: "A

lesser sentence will depreciate the seriousness of the defendant's

offense because it involved a breach of the public trust . . . or

the defendant took advantage of a position of trust or confidence

to commit the offense . . . ." N.J.S.A. 2C:44-1(a)(4). The judge

also found aggravating factor nine applied: "The need for deterring

the defendant and others from violating the law . . . ." N.J.S.A.

2C:44-1(a)(9). With respect to mitigating factors, the judge

found the following applied: N.J.S.A. 2C:44-1(b)(1), "defendant's

conduct neither caused nor threatened serious harm;" N.J.S.A.

2C:44-1(b)(2), "defendant did not contemplate that his conduct

would cause or threaten serious harm;" N.J.S.A. 2C:44-1(b)(7), no

history of prior delinquency of criminal activity; N.J.S.A. 2C:44-

1(b)(8), defendant's conduct was the result of activities that are

unlikely to reoccur; N.J.S.A. 2C:44-1(b)(9), defendant's character

and attitude indicates he is unlikely to commit another offense;

and N.J.S.A. 2C:44-1(b)(10), that defendant is likely to respond

affirmatively to probationary treatment.

The record contains a large number of letters attesting to

defendant's character. The judge also noted that the official

16 A-3172-14T4
misconduct statute provides a mechanism for overcoming the minimum

mandatory terms of imprisonment:

If the court finds by clear and convincing
evidence that extraordinary circumstances
exist such that imposition of a mandatory
minimum term would be a serious injustice
which overrides the need to deter such conduct
in others, the court may waive or reduce the
mandatory minimum term of imprisonment
required by subsection a. of this section. In
making any such finding, the court must state
with specificity its reasons for waiving or
reducing the mandatory minimum sentence that
would otherwise apply.

[N.J.S.A. 2C:43-6.5(c)(2) (emphasis added).]

After reviewing the numerous letters of support for

defendant, the judge found:

We know that there's a very narrow window [of]
opportunity for escaping incarceration for
[the] official misconduct offenses such as
[what] we're talking about, and only in the
rarest of cases. They talk about the
idiosyncratic cases, unique cases, and those
have been talked about.

. . . .

In my mind, this is such a case. I cannot
impose a prison term on the official
misconduct charge on defendant Brady. I
believe that he is, for all the reasons that
have been expressed on the record that unique
person. If I haven't seen this in some 50
years, that's pretty rare. I've seen an
awful, awful, awful, lot of stuff, but I
think, as I mentioned before, he is absolutely
the real deal, and I base my decision-making
on those sort of three pillars. The one
. . . situation that he found himself in. The

17 A-3172-14T4
 impossible situation. The dysfunctional Human
Service Police Department with a captain who
refused to do any work for eight years and
thrust the burden on Captain Brady, along with
others. The lack of leadership. The lack of
anyone to report to to get counsel from was
totally missing and inexplicably nothing was
done about it other than to give him his
paycheck and an office for eight years.
That's important.

The judge's findings do not address or relate to the standard

in N.J.S.A. 2C:43-6.5(c)(2) or the factors the Court articulated

in Evers. The judge's analysis with respect to the mandatory

minimum sentence provision in N.J.S.A. 2C:20-25(h) is equally

flawed. There is no factual or legal support for the imposition

of a one-year unsupervised probationary sentence. Defendant's

conduct exhibited an unabashed indifference to the high ranking

law enforcement position he held. He misused the power of his

public office for petty personal matters, and embroiled

unsuspecting subordinates in his misdeeds. This court has noted:

The need for dispassionate, evenhanded conduct
is most acute in the sentencing phase of a
criminal trial. For it is in this critical
phase of the criminal process that the judge's
role changes, from an arbitrator of legal
disputes that arise in the course of the
trial, to the dispenser of society's justice.
In this role, the judge must act in a manner
that reassures all affected - defendant and
his family, the victims and their families,
and society at large - that he or she will be
guided exclusively by the factors established
by law and not by the judge's personal code
of conduct.

18 A-3172-14T4
 [State v. Tindell, 417 N.J. Super. 530, 571
(App. Div. 2011).]

Here, the sentence imposed by the trial judge is not guided

by these principles and is not grounded in the Criminal Code and

the decision of the Supreme Court. Our only choice is to remand

this matter for resentencing.

Defendant's conviction is affirmed. The matter is remanded

for resentencing. We do not retain jurisdiction.

19 A-3172-14T4