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December 06, 2011

Elizabeth cop charged with shaking down illegal immigrants

By NACE NAUMOSKI
     On New Jersey Law

   Rocco Malgieri, an Elizabeth police officer, was indicted last week by a Union County Grand Jury for purportedly shaking down undocumented immigrants for money. Law enforcement authorities are alleging that Malgieri threatened to turn undocumented immigrants in to immigration authorities if they did not pay him various amounts of money.  An indictment is merely an official accusation based on a finding of probable cause by a grand jury.  The probable cause standard is a much easier standard for the state to overcome than the proof beyond a reasonable doubt standard that is required for a jury to actually convict a defendant of a crime.

    Malgieri has been charged with 58 separate counts, alleging second degree theft by extortion, second degree attempted extortion, second and third degree pattern of official misconduct, second and third degree official misconduct, third degree bribery, and third degree receipt of unlawful benefit by a public servant.  If convicted, Malgieri faces up to 10 years in prison on each of the second degree counts and up to five years in prison on each of the third degree counts.

    Prosecutors are alleging that, beginning in February 2011, Malgieri would profile Hispanic men while on traffic patrol duty, and would make unwarranted motor vehicle stops.  Malgieri would then allegedly question the men about their immigration status and would threaten to report them to immigration authorities unless they paid him money. According to the prosecutor’s office, the payments ranged from $30 to $250.

    Official misconduct under N.J.S. 2C:30-2, bribery under N.J.S. 2C:27-2, and receipt of unlawful benefit under N.J.S. 2C:27-10, are all very similar crimes in that they involve a receipt of a benefit by a public servant, through the use of his public office, to which he is not otherwise entitled.  Official misconduct, bribery, and receipt of an unlawful benefit are all second degree crimes if the benefit obtained or sought by a public servant is over $200; otherwise, they are third degree crimes.

    Second degree crimes in New Jersey carry a presumption of imprisonment with a prison term between five and ten years.  However, in this particular case, it is likely that many of the 58 counts would merge because they involve officer Malgieri being charged with various crimes for the same exact conduct.  An interesting issue in this case will be the willingness of any alleged victims to step up and testify against the officer.  Generally, undocumented immigrants are usually easy victims because they are very hesitant to testify in court for fear of exposing their undocumented status, which could result in their deportation.

Nace Naumoski is a New Jersey criminal defense attorney, with offices in Totowa and Elizabeth.

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