COURT HOUSE – A Superior Court judge denied a defense motion to toss an indictment for official misconduct brought against a detective sergeant in the county prosecutor’s office.
Robert P. Harkins Jr., the defendant, was charged after he allegedly launched an unauthorized investigation into a hit-and-run parking lot fender bender in which his mother-in-law was the victim.
Harkins was not satisfied with the response from local law enforcement following the December 2019 incident and, according to the state, allegedly took matters into his own hands, issuing a subpoena to the Middle Township Walgreens where the accident occurred, failing to properly document his actions in an internal system used by the prosecutor’s office, and using his position to obtain nonpublic information from the New Jersey and Pennsylvania State Police.
After learning the identity of the fleeing driver through the allegedly unauthorized investigative techniques, the state said Harkins staked out the driver’s home and conducted nighttime surveillance. Harkins eventually provided his investigative findings to the Middle Township Police Department and allegedly included a memo criticizing the Middle Township officer assigned to respond to the accident.
Middle Township police then contacted Harkins’ superiors at the prosecutor’s office, according to the state’s case. He was charged by the attorney general and subsequently indicted by a state grand jury last year on charges of second-degree official misconduct, third-degree tampering with public records and fourth-degree falsifying or tampering with records.
Forgoing a Plea and Rolling the Dice
Prior to oral arguments on the motion, Deputy Attorney General Brian Uzdavinis, who is prosecuting the case, told the judge the state has made extensive efforts to try to resolve the matter and was offering probation in exchange for a guilty plea to the fourth-degree falsifying charge. The proposed deal also included Harkins signing a consent order for a lifetime ban on public service.
However, those negotiations proved unfruitful, Uzdavinis said, warning that the plea offer would escalate to a three-year flat state prison term and a guilty plea to the second-degree official misconduct charge once the motion to dismiss was litigated.
If Harkins is convicted of the official misconduct charge at trial, he would be facing a mandatory minimum of five years in state prison with no eligibility for parole.
Defense attorney Louis M. Barbone, appearing on behalf of Harkins, told the judge his client was aware of the consequences and wished to go forward and argue the motion. Barbone is the fourth separate attorney Harkins has retained in the case, replacing Megan Hoerner, Andrew Smith and his first lawyer, Michael Testa Sr.
Smith had previously argued a separate motion to dismiss the case on grounds that the prosecution was too trivial, but a different judge denied that motion in 2022.
In that motion, defense counsel pointed out that Harkins would lose his pension and employment despite a long career of public service if he were to plead guilty or be convicted.
An ‘Infected’ Grand Jury Proceeding
Barbone focused solely on the official misconduct count in arguing his motion, which is the only count that carries the five-year mandatory minimum. Barbone argued prosecutors did not meet all elements of the offense because nothing Harkins did violated a law or inherent duty, a requirement to make the action “unauthorized.”
Instead, Barbone argued, Harkins actions were violations of internal office procedures and policies and that violation of a law, statute, constitutional provision or rule or regulation promulgated pursuant to New Jersey Administrative Code is an essential element for charges of official misconduct.
“At the time of the grand jury presentation, the essence of information that is provided as establishing ‘an unauthorized act of the defendant’ are all alleged violations of that office’s internal office policies and procedures,” Barbone argued in court.
“What is the law? Nothing has been submitted by the state that says, ‘What are you stupid? Here’s the law. This is the law that was violated.’ There is no law that was violated. Instead, the state attaches internal policy manuals of the county prosecutor’s office,” the defense lawyer added.
Barbone acknowledged that in counts two and three of the indictment his client is accused of crimes, but 70% of the testimony and evidence included in the grand jury presentation has nothing to do with an allegation of illegal conduct.
“Those same concepts [from counts two and three] are incorporated into count one – the alleged falsification, the alleged tampering. They’re there. And I don’t dispute the fact that those two things can indeed support the elements of official misconduct. But what I’m here to say is if you put those two things in combination with a grand jury presentation with 10 other things that have absolutely nothing to do with a violation of law, you have thereby infected the grand jury proceeding,” Barbone argued.
The defense added that the facts presented to the grand jury, as elements of the official misconduct case, do not equate to dishonesty or lack of integrity, both things that are “inherent duties” of a police officer, but rather equate to violations of office policy, which should be handled in an administrative forum.
The ‘Plain Meaning’ of Unauthorized
However, in response, the state argued that it is unaware of any case law or statute that so narrowly restricts the definition of the word “unauthorized” to mean that the action has to violate a law or inherent duty.
“This is not some hyper-technical term of legalese or Latin. It’s the plain meaning of the word, which means without authorization, without approval, something you’re not allowed to do. It’s a nondiscretionary act for which you need someone else’s permission or approval to do. And if you don’t obtain that, then what you’ve done is unauthorized,” Uzdavinis argued in court.
He said that Harkins’ actions were in violation of criminal law and that on that basis alone there is more than enough for the grand jury to have properly indicted the defendant.
“The defendant’s acts not only constituted violations of policies and procedures of his employer, the Cape May County Prosecutor’s Office, but they also constituted violations of law and crimes themselves, for which the defendant was also charged in counts two and three of the indictment,” the deputy attorney general continued.
Uzdavinis added that by using his work email and fake case numbers to make official requests for nonpublic information from different agencies, Harkins violated the law.
“There was also the report that he generated this general investigation report that was sent to the local police department that falsely reported to be an official account of an official investigation that didn’t exist,” added the deputy attorney general.
The Judge Weighs In
In a written decision filed Thursday, Sept. 28, Presiding Judge Bernard E. DeLury Jr. denied the defense’s motion to dismiss, ruling that the state did present sufficient evidence to support the indictment.
The standard in dismissing an indictment is well established in New Jersey and was outlined by DeLury in his decision.
An indictment returned by a grand jury should only be dismissed on “the clearest and plainest ground.” The state is not obligated to present enough evidence to sustain a conviction, a much higher standard of beyond a reasonable doubt, but rather must present some evidence establishing each element of the crime.
In reviewing a grand jury record, the court should consider the evidence in a light most favorable to the state, and determine if a grand jury could reasonably believe that a crime occurred and the defendant is the one who committed it, according to the established standard.
DeLury found that “as a public servant, the defendant is bound to adhere to requirements and policies that are inherent to the job. Among these is the obligation to follow the prosecutor’s guidelines for conducting investigations.”
“The defendant’s self-serving conduct, which appears to have been undertaken with the intention to keep his actions from the attention of his supervisors, was clearly violative of policies, practices, and procedures of CMCPO. As such, they are tantamount to an unauthorized act as contemplated by the statute,” the judge added.
Harkins is listed for a status conference in front of DeLury Friday, Oct. 20.
Contact the author, Shay Roddy, at sroddy@cmcherald.com.
