State of New Jersey v. L.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4008-14T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Appellant, January 28, 2016

v. APPELLATE DIVISION

L.D.,

Defendant-Respondent.

_______________________________

Argued October 19, 2015 - Decided January 28, 2016

Before Judges Lihotz, Fasciale and Higbee.1

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment

No. 14-06-0086.

Brian J. Uzdavinis, Deputy Attorney General,

argued the cause for appellant (John J.

Hoffman, Acting Attorney General, attorney;

Mr. Uzdavinis, of counsel and on the brief).

James J. Gerrow, Jr., argued the cause for

respondent (Sitzler and Sitzler, attorneys;

Mr. Gerrow, on the brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

1

Judge Higbee did not participate in oral argument. She

joins the opinion with counsel's consent. R. 2:13-2(b).

On our leave granted, the State appeals from a January 22,

2015 order dismissing count two of a Grand Jury indictment,

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

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

The State alleged defendant used information he received in his

official position as a local government official to purchase

farmland for the sole purpose of selling development rights

attached to the property to a developer undertaking a project in

the municipality.2 Defendant moved to dismiss this charge,

arguing his actions were based on public information and not

confidential facts gained through his official position. The

motion judge agreed and ordered dismissal of count two of the

indictment, without prejudice.

On appeal, the State seeks reversal, arguing:

THE STATE PRESENTED THE GRAND JURY WITH MORE

THAN SUFFICIENT EVIDENCE TO SUPPORT A PRIMA

FACIE CASE THAT DEFENDANT COMMITTED THE

CRIME OF SPECULATING OR WAGERING ON OFFICIAL

ACTION OR INFORMATION.3

2

Count one of the indictment charged second-degree official

misconduct, N.J.S.A. 2C:30-2(a), relating to defendant's alleged

official actions, including voting to adopt township ordinances

and planning board resolutions to aid the development, without

disclosing his personal relationship with the developer.

3

The State also contends the judge improperly made factual

findings unsupported by the record.

2 A-4008-14T1

For the reasons stated in our opinion, we affirm, concluding the

record shows the information allegedly used by defendant was

neither confidential nor disclosed solely to him. Accordingly,

the State failed to produce sufficient evidence before the grand

jury to establish a prima facie case that defendant has

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

(1996).

These facts, principally found in documentary evidence

gathered in an investigation by the Office of the State

Comptroller and presented by the State to an Investigative Grand

Jury, undergird the charges against defendant. Initially,

however, we provide background information necessary to

understand the context of the issue presented.

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

undeveloped land, participated in a pilot program known as the

Burlington County Transfer Development Rights Program. This

land management program clustered development in a specified

receiving area surrounded by agricultural and open space. The

agricultural and open space properties sold "transfer

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

with the land to landowners seeking to develop in the receiving

4

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

identifying information.

3 A-4008-14T1

area. The number of TDR credits associated with a parcel was

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

farmer could sell development rights, thereby preventing the

associated land from future development, preserving it as a

farm. An owner proposing development of land in the receiving

area was required to first amass a specific number of TDR

credits, depending on the size and density of its planned

building project. The Burlington County Transfer Development

Bank Board also owned TDR credits as part of its farmland

preservation efforts, which it would sell through auction to

facilitate development in the participating municipalities.

Overall, the program preserved open space and marshalled

residential and commercial development to designated areas of a

municipality.

Testifying witnesses before the Investigative Grand Jury

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

development corporation (the developer), which acquired

undeveloped land in the Township to construct a multiuse housing

and commercial development. The COO discussed the developer's

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

proceeding with construction. Finally, he explained the

developer's interactions with defendant.

4 A-4008-14T1

In early 2005, while defendant was serving as mayor and a

member of the Township Planning Board, the developer contracted

to purchase a large undeveloped parcel in the Township's

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

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

accompanied by its owner, met with Township officials, including

defendant. They discussed plans for the proposed development

and the need for acquisition of the approximately 240 TDR

credits for the project to move forward. The developer also

engaged a real estate broker to develop leads and assist its

efforts in convincing farmers to sell available TDR credits.

The developer closed on the property in May 2005.

The COO next recited the developer's unsuccessful efforts

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

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

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

the developer issued a mailing to approximately thirty or forty

entities, which disclosed its TDR credit needs and offered to

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

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

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

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

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

5 A-4008-14T1

others to join. The COO testified the response to the

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

three potential sellers, who had few credits and asked nearly

twice the offering price. This lackluster response concerned

the developer, which faced the prospect of being unable to

develop its property.

Defendant, as mayor, periodically inquired regarding the

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

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

efforts. Defendant, knowing the developer's difficulty,

approached the COO and suggested he intended to purchase a

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

wanted to sell the developer the associated TDR credits for

$65,000 per credit.

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

developer, through its subsidiary, to transfer all TDR credits

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

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

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

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

5

We are aware defendant and his wife were the designated

purchasers of the property and the named sellers of the TDR

credits to the developer. In our opinion, for clarity, we have

omitted specific references to defendant's wife.

6 A-4008-14T1

TDR credit allotment associated with the farm. If successful in

this effort, a contingency clause provided the price per credit

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

agreements to purchase TDR credits, the developer's contract

with defendant included a clause prohibiting its recording as a

public record.

Thereafter, defendant applied to increase the TDR credits

associated with the farm, from approximately twenty-six to

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

contract with the developer to sell the TDR credits associated

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

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

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

On August 9, 2006, Burlington County Land Use Office

officials were invited to participate in a Township Committee

meeting. During that meeting, defendant urged the County to

sell its TDR credits to the developer to allow the proposed

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

defendant, on behalf of the Township Committee, accompanied the

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

Transfer Development Bank Board. Ultimately, in 2007, the

County held a public auction of TDR credits. The developer

purchased thirty TDR credits during that sale.

7 A-4008-14T1

In April 2007, defendant introduced and voted on a

resolution to present Ordinance 2007-9 to the Township Planning

Board, designed to decrease the requisite TDR credits for

proposed residential development in the Township. The Ordinance

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

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

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

the Township, which would benefit from the Ordinance. Defendant

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

associated TDR credits to the developer. In the ensuing months

through April 2008, defendant participated in and voted on other

ordinances directly affecting the development.6 He also

privately corresponded with the developer suggesting it draft a

letter to other Township officials disclosing the difficulties

and asking for assistance to advance the proposed development.

At no time did defendant disclose his association.

Finally, on the Local Government Ethics Law Disclosure

Statements filed by defendant, he did not include his

transaction with the developer and its related entities, despite

6

On April 12, 2008, defendant was disqualified from

participating in any planning board actions regarding the

development because he had participated in and advocated issues

during discussions regarding the development's required TDRs.

8 A-4008-14T1

receipt of the deposit, a net profit upon sale of the credits,

and interim mortgage payments.

Defendant was later indicted. He moved to dismiss both

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

Specifically, regarding the crime of second-degree speculating

or wagering on official action or information, defendant argued

information he used was public information, not confidential

disclosures learned in his official capacity. The State

responded, arguing although the public was aware the developer

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

while acting in his official capacity, additionally learned the

developer experienced extreme difficulty in acquiring TDR

credits. Knowing the lack of TDR credits could scuttle the

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

information" to proceed to negotiate a personal deal with the

developer to sell credits associated with the farm.

The motion judge denied the request to dismiss count one,

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

supplemental written opinion, the judge granted defendant's

motion to dismiss count two, without prejudice. She determined

the developer publicly told Township officials in March 2005 of

its perceived difficulty to amass the required credits,

announced its intention, and engaged in solicitation efforts to

9 A-4008-14T1

purchase 240 TDR credits. She noted the developer "had already

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

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

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

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

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

knew each other and would have talked regularly as early as

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

mailer."

On the State's motion for reconsideration, it analogized

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

position is strengthened by knowledge an ordinary buyer could

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

information to which defendant had access through his official

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

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

for credits." The State emphasized the degree of the

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

a jury[.]"

The judge disagreed. Noting everyone knew of the

significant number of credits the developer needed to advance

its project, she found knowledge of the lackluster response to

the developer's public efforts was very subjective and too

10 A-4008-14T1

"nuanced" a point to support the change, stating "the only way

you can analyze degrees of want or need is through subjective

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

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

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

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

to purchase the farm defendant successfully bought. The judge

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

statute. The judge dismissed the charge without prejudice and

stayed the determination pending the State's application for

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

to appeal.

Our Supreme Court "has recognized the grand jury's

independence and has expressed a reluctance to intervene in the

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

seeking an indictment, the prosecutor's sole evidential

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

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

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

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

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

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

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

11 A-4008-14T1

court to question the strength of the case, its possible

deterrent value, or the government's enforcement priorities.

Ibid. Nonetheless, the reviewing court's responsibility remains

to examine whether "an indictment alleges all the essential

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

8, 19 (1984).

Recently, the Court expounded on the nature of judicial

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

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

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

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

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

A trial court deciding a motion to dismiss

an indictment determines "whether, viewing

the evidence and the rational inferences

drawn from that evidence in the light most

favorable to the State, a grand jury could

reasonably believe that a crime occurred and

that the defendant committed it." [State v.

Morrison, 188 N.J. 2, 13 (2006)] (citing

State v. Reyes, 50 N.J. 454, 459 (1967)). A

court "should not disturb an indictment if

there is some evidence establishing each

element of the crime to make out a prima

facie case." Id. at 12 (citing Hogan,

supra, 144 N.J. at 236; State v. Vasky, 218

N.J. Super. 487, 491 (App. Div. 1987)).

[Id. at 56-57.]

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

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

12 A-4008-14T1

v. Weleck, 10 N.J. 355, 364 (1952) ("[T]he ultimate question on

this appeal is whether the trial court abused its discretion in

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

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

discretionary power will not be disturbed on appeal unless it

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

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

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

Here, defendant was charged with the crime of speculating

or wagering on official action or information, which is

established by proving these elements:

A person commits a crime if, in

contemplation of official action by himself

or by a governmental unit with which he is

or has been associated, or in reliance on

information to which he has or has had

access in an official capacity and which has

not been made public, he:

a. Acquires a pecuniary interest in any

property, transaction or enterprise which

may be affected by such information or

official; or

b. Speculates or wagers on the basis of

such information or official action; or

c. Aids another to do any of the

foregoing, while in office or after leaving

office with a purpose of using such

information.

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

13 A-4008-14T1

The State made clear prosecution was based on defendant's

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

developer was desperate to acquire TDR credits.7

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

factual findings. The State challenges, as unfounded, the

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

each other and would have talked regularly as early as 2005

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

during oral argument, suggesting "these were farmers who dealt

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

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

about a group of people that had no interaction with this

before." Even though comments relating to an assumed

familiarity amongst farmers regarding possible shortcomings of

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

7

N.J.S.A. 2C:30-3 is written in the disjunctive and sets

forth alternative elements of the crime. The first alternative

includes acquiring pecuniary interest in any property,

transaction or enterprise in contemplation of official action by

a governmental unit with which he or she is associated, which

may be affected by such official action. The second sets forth

the use of non-public information gained in an official

capacity. Although the entire statute is included in the

indictment, the State's argument focused solely on this latter

provision. Therefore, we limit our review to this argument.

See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48

n.1 (App. Div. 1989) (noting that an issue not briefed is

waived).

14 A-4008-14T1

the judge's determination properly focused on the confidential

nature of the information.8

The narrow question for consideration is whether the State

presented evidence to establish defendant obtained and acted

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

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

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

argument the trial judge mistakenly characterized its theory of

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

TDR credits, not the aggregation of individual responses to the

solicitation, a matter the State maintains was not public

knowledge. We consider whether the response rate to the

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

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

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

8

The grand jury record contained no direct evidence, but

only the COO's statements that the developer assumed the farmers

were close knit. Accordingly, drawing inferential conclusions

from this limited evidence cannot support dismissal of the

charge. See Hogan, supra, 144 N.J. at 235 ("Credibility

determinations and resolution of factual disputes are reserved

almost exclusively for the petit jury."). Nevertheless, we

conclude the cited comments did not undergird the conclusion to

dismiss the indictment.

9

Defendant argues any interested individual could freely

obtain a list of TDR credit-owners by request, which was

maintained in various township and county records. We need not

examine whether this fact, if true, impacts the motion request.

15 A-4008-14T1

Although no New Jersey court has squarely addressed the

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

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

identical or nearly identical language can be found in

corresponding public official misconduct statutes in a host of

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

10

N.J.S.A. 2C:30-3 mirrors Model Penal Code § 243.2. "'When

a provision of the Code is modeled after the [Model Penal Code],

it is appropriate to consider the [Model Penal Code] and any

commentary to interpret the intent of the statutory language.'"

Saavedra, supra, 222 N.J. at 75 n.7 (quoting State v. Robinson,

217 N.J. 594, 606 (2014)). We note the commentary associated

with this section states:

Section 243.2 deals with a completely

different kind of defalcation by public

employees. Specifically, it covers

situations where personal gain is sought by

the acquisition of property or by financial

speculation in cases where the employee has

access to inside information by virtue of

his employment. It applies both to official

action to be taken by the public employee or

some governmental unit with which he is

associated and to information to which he

has access in his official capacity and that

has not been made public. It also applies

if the official aids any other person to

engage in the same type of activity on the

basis of inside information.

11

See Ala. Code § 13A-10-82 (2015) (Alabama); Ark. Code Ann.

§ 5-52-106 (2015) (Arkansas); Colo. Rev. Stat. § 18-8-402 (2015)

(Colorado); Del. Code Ann. tit. 11, § 1212 (2015) (Delaware);

Fla. Stat. § 839.26 (2015) (Florida); Ind. Code § 35-44.1-1-1

(2015) (Indiana); Ky. Rev. Stat. Ann. § 522.040 (LexisNexis

2015) (Kentucky); Mo. Rev. Stat. § 576.050 (2015) (Missouri);

Neb. Rev. Stat. § 28-925 (2015) (Nebraska); N.C. Gen. Stat. §

(continued)

16 A-4008-14T1

criminal statutes that have elucidated the nature of non-public

information as used in this context.

Pennsylvania's statute criminalizing the action of

speculating or wagering on official action or information is

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

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

identified information be "confidential information which was

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

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

(continued)

14-234.1 (2015) (North Carolina); Or. Rev. Stat. § 162.425

(2015) (Oregon); Tenn. Code Ann. § 39-16-404 (2015) (Tennessee);

Utah Code Ann. § 76-8-202 (LexisNexis 2015) (Utah).

12

18 Pa. Cons. Stat. § 5302, entitled "Speculating or

wagering on official action or information[,]" states:

A public servant commits a misdemeanor of

the second degree if, in contemplation of

official action by himself or by a

governmental unit with which he is

associated, or in reliance on information to

which he has access in his official capacity

and which has not been made public, he:

(1) acquires a pecuniary interest in

any property, transaction or enterprise

which may be affected by such information or

official action;

(2) speculates or wagers on the basis

of such information or official action; or

(3) aids another to do any of the

foregoing.

17 A-4008-14T1

information is accessible from other potential sources, it

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

Also, the Texas Legislature, in formulating a similar

statute, chose to expressly define "information that has not

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

public does not generally have access, and that is prohibited

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

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

13

The Texas statute entitled "Misuse of Official Information"

provides:

(a) A public servant commits an offense if,

in reliance on information to which the

public servant has access by virtue of the

person's office or employment and that has

not been made public, the person:

(1) acquires or aids another to

acquire a pecuniary interest in

any property, transaction, or

enterprise that may be affected by

the information;

(2) speculates or aids another to

speculate on the basis of the

information; or

. . . .

(d) In this section, "information that has

not been made public" means any information

to which the public does not generally have

access, and that is prohibited from

disclosure under Chapter 552, Government

Code.

. . . .

18 A-4008-14T1

this definition as having "two components[,] stated in the

conjunctive: information to which the public does not generally

have access; and that is prohibited from disclosure under the

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

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

reference to the state's public information law removes possible

vagaries when distinguishing what information a public official

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

subject him or her to prosecution under the statute.

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

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

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

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

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

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

look to the plain language of the statute,

"which is typically the best indicator of

intent." In re Plan for the Abolition of

the Council on Affordable Hous., 214 N.J.

444, 467 (2013). Statutory language is to

be interpreted "in a common sense manner to

accomplish the legislative purpose."

N.E.R.I. Corp. v. N.J. Highway Auth., 147

N.J. 223, 236 (1996). When that language

"'clearly reveals the meaning of the

statute, the court's sole function is to

enforce the statute in accordance with those

terms.'" McCann v. Clerk of Jersey City,

167 N.J. 311, 320 (2001) (quoting SASCO 1997

NJ, LLC v. Zudkewich, 166 N.J. 579, 586

(2001)).

19 A-4008-14T1

. . . .

[Where a] statute is penal[,] it must

. . . be strictly construed. State v. D.A.,

191 N.J. 158, 164 (2007). "The strict

construction doctrine, and its corollary,

the doctrine of lenity, mean[] that words

are given their ordinary meaning and that

any reasonable doubt . . . is decided in

favor of [the defendant]." Ibid. (quotation

omitted).

[State v. Olivero, 221 N.J. 632, 638-39

(2015) (fifth and sixth alterations in

original).]

Applying these principles to the matter under review, we

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

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

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

information revealed during and by virtue of his or her position

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

public. If no evidence is shown suggesting the identified

information was relayed to the public official in confidence or

that the information was not otherwise publicly disclosed, an

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

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

not intended to ensnare an individual for utilizing information

not conveyed in confidence because of his or her official

position.

20 A-4008-14T1

We recognize the State's argument to differentiate between

information regarding the developer's general need for TDR

credits and the lackluster response to its offers to purchase

available credits. However, neither the face of the indictment

nor a searching review of the grand jury testimony reveals any

suggestion the response rate itself was somehow confidential.

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

was directly informed about the developer's plight in soliciting

credits because he was the member of the Township Committee who

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

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

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

fact confidential and communicated solely to him by virtue of

his public position.

The grand jury did not elucidate a basis for its

conclusion, set forth in the indictment, stating defendant

obtained "information from [the developer] concerning a real

estate development project, which information was not yet made

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

the grand jury and rational inferences drawn from that evidence,

even in the light most favorable to the State, merely

established the information regarding the disappointing response

rate was conveyed to defendant by the developer. This record

21 A-4008-14T1

does not evince the additional element that the information was

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

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

the record shows the real estate broker engaged by the developer

knew many credits were still needed.

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

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

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

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

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

the facts alleged in the indictment and the evidence presented

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

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

order dismissing the indictment was properly entered.

Affirmed.

22 A-4008-14T1