The appellate panel continued in relevant part: Instead, everything about N.J.S.A. 2C:27-2 suggests a legislative intent to criminalize in equal fashion both the giving and taking of bribes in all official and political matters. There are no expressed exemptions. Despite our prior holdings, which we have cited, that clearly expressed this, we are obligated to again examine N.J.S.A. 2C:27-2 only because the trial judge found, like the judge in Manzo, that somewhere in the statute a contrary intent could be found between the lines when it comes to candidates who don’t get elected. As we have explained, there is no spoken or unspoken intention that would support defendant’s theory or Manzo‘s conclusion. To eradicate corruption in public matters, the Legislature spoke only in broad and general terms that clearly envelop what defendant has been accused of. The four bribery areas described in subsections (a) through (d) are stated in the broadest of terms. And the no-defense provision, which expresses the irrelevance of the bribe receiver’s inability to perform his part of the bargain, is equally as broad, declaring that it is no defense that the bribe receiver “was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.” N.J.S.A. 2C:27-2 (emphasis added). Other than torturing the statutory language to suit his position, defendant offers nothing other than Manzo‘s erroneous interpretation, mistakenly followed by the trial judge here, that only bribe givers are subject to the no-defense provision.
Defendant alternatively argues that the rule of lenity requires dismissal of the indictment. Not so. The rule of lenity vindicates an aspect of due process that “no one shall be punished for a crime unless both that crime and its punishment are clearly set forth in positive law.” In re De Marco (1980). As a general matter, the rule’s application requires a determination that the statute charged is ambiguous and its ambiguity should be resolved in the defendant’s favor. State v. Regis (2011).
The trial court’s decision in the defendant’s favor further supports the defendant’s position on appeal. Still, the tone of the appellate panel’s opinion is that the defendant’s position is clearly erroneous.