State May Appeal Trial Court’s Denial of Mandatory Forfeiture of Convicted Criminal Defendant’s Public Employment

State v. Kennedy, 419 N.J. Super. 475 (App. Div. 2011).  Under N.J.S.A. 2C:44-1(f)(2), the State can appeal a criminal sentence only under limited circumstances.  The defendant in this case, an employee of the Morristown Public Works Department, was indicted on heroin charges, as well as for hindering his own apprehension and tampering with physical evidence.  He entered into a plea bargain under which he pleaded guilty to the tampering charge, a fourth degree offense.  The other charges were dismissed.

The parties then argued the issue of whether tampering with physical evidence is “an offense involving dishonesty” that would require defendant to forfeit his public employment under N.J.S.A. 2C:51-2(c)(1).  The trial judge determined that it was not such an offense.  The State appealed.  Defendant moved to dismiss the appeal on the grounds that the State had no right to appeal from a sentence for a fourth degree offense.

In an opinion by Judge Skillman, the Appellate Division denied dismissal.  “[F]orfeiture of public employment is a ‘collateral’ rather than a ‘penal’ consequence of a criminal conviction.  [Citation].  Therefore, the general limitations upon the State’s right to appeal from criminal convictions do not apply to mandatory collateral consequence of a qualilfying conviction.”  Judge Skillman then noted that although the statutes did not expressly authorize such an appeal, “our courts have entertained such appeals as appeals from illegal sentences.”  Thus, the State’s appeal could go forward. 

On the merits, the panel rightly concluded that tampering with physical evidence is “an offense involving dishonesty.”  Accordingly, the court remanded the matter for entry of an amended conviction that includes forfeiture of defendant’s public employment.