Forfeiture of Public Office for d/p Offense – State v. Och

This morning’s Appellate Division decision in State v. Och is an important forfeiture case. In Och, the defendant, a school board employee (non-tenued maintenance man), was originally charged with indictable drug offenses. His case was resolved under a negotiated plea whereby he pled guilty to a disorderly persons offense of loitering for the purpose of obtaining CDS. At sentencing, the ass’t prosecutor represented that the State was not seeking a forfeiture of public employment.

Thereafter, defendant’s employer moved for forfeiture of public office, claiming that the d/p drug offense “touched upon” defendant’s office in that it violated the board’s zero-tolerance policy.

The Appellate Division held that in the absence of a formal application for waiver by the state, forfeiture is mandatory for an offense that touches upon public office. The decision to seek waiver is vested in either the attorney general or county prosecutor. However, the decision to grant waiver or determine if an offense touches upon public office is exclusively left to the judiciary.

Moreover, when the issue of forfeiture is not raised at sentencing, it may be subsequently raised by either the prosecutor or the public employer.

Finally, note that even though a forfeiture of public office is a collateral consequence, the court permitted defendant the option to withdraw his plea on grounds of fundamental fairness.

Download a copy of State v. Och

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