STATE OF NEW JERSEY VS. RICHARD W. BERNARDI, SR., ET AL. (16-02-0014, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0752-17T3)
By leave granted, the State appeals from the dismissal of second-degree false representations for a government contract, N.J.S.A. 2C:21-34(b), and second-degree theft by deception, N.J.S.A. 2C:20-4(a), charges in a multi-count indictment. The indictment alleged the New Jersey Department of Environmental Protection (NJDEP) entered into an Administrative Consent Order (ACO) with defendants in reliance on their misrepresentations concerning their financial condition and ability to operate a solar power generation facility on a landfill. The ACO authorized defendants' operation of the landfill and collection of millions of dollars in tipping fees and anticipated revenue from the solar power generation facility. The ACO required that defendants deposit portions of the fees and revenue in escrow for remediation of the landfill, but they failed to do so after entering into the ACO.
The trial court dismissed the count alleging second-degree false representations for a government contract, finding the ACO was not a government contract within the meaning of N.J.S.A. 2C:21-34(b) because it was not a contract for the procurement of goods and services. The trial court further dismissed the second-degree theft by deception charge, finding the contract did not have a value permitting the grading of the offense.
The court reverses, holding N.J.S.A. 2C:21-34(b)'s coverage is not limited to government contracts for goods and services, finding the ACO constitutes a government contract under the statute and determining there was sufficient evidence presented to the grand jury supporting the charge that defendants procured the ACO by making false representations to the NJDEP. The court also reverses the dismissal of the theft by deception charge, finding the evidence shows defendants procured contract rights – to operate the landfill and collect tipping fees and other revenue – that were worth millions of dollars and over which the NJDEP had a legal interest.
