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State v. Fera

Decided: May 19, 1960.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JOSEPH LA FERA, SR., WILBUR W. BLAUVELT, RICHARD N. DINALLO, ANTHONY P. MIELE, AND PHILLIP R. SALVATORE, DEFENDANTS



Waugh, A.j.s.c.

Waugh

The five named defendants move to dismiss both counts of indictment No. 85. Each count charges a conspiracy. Count one charges a conspiracy contrary to N.J.S. 2 A:98-1(h) to prevent the due administration of the laws of New Jersey, namely N.J.S.A. 58:14-22, which latter is a public bidding statute covering contracts to be let by the Passaic Valley Sewerage Commissioners, a body politic and corporate (see N.J.S.A. 58:14-2). Count two charges a conspiracy contrary to N.J.S. 2 A:98-1(f) to obtain money by false pretenses from the Passaic Valley Sewerage Commissioners.

Since the actual conspiracy alleged in each count is short, it will be helpful to set each forth in full.

COUNT I.

"Joseph La Fera, Sr., Wilbur W. Blauvelt, Richard N. Dinallo, Anthony P. Miele and Phillip R. Salvatore, on divers days beginning on or about the 29th day of November 1954 and ending on or about the 10th day of September 1956, did commit the crime of conspiracy in that they unlawfully and corruptly did conspire, combine, confederate and agree together to pervert and obstruct the due administration of the laws of the State of New Jersey, namely, N.J.S. 58:14-22, with respect to the awarding by the Passaic Valley Sewerage Commissioners of a certain contract, to wit, Contract 355, Newark Bay Sedimentation Basin Improvements and Sludge Handling Facilities, by agreeing in advance of bidding on said contract which companies represented by them would bid on said contract, and in what amounts."

COUNT II.

"Joseph LaFera, Sr., Wilbur W. Blauvelt, Richard N. Dinallo, Anthony P. Miele and Phillip R. Salvatore, on divers days beginning

on or about the 29th day of November 1954 and ending on or about the 10th day of September 1956, did commit the crime of conspiracy in that they unlawfully and corruptly did conspire, combine, confederate and agree together to obtain money by false pretenses from the Passaic Valley Sewerage Commissioners by willfully and knowingly falsely pretending to the Passaic Valley Sewerage Commissioners that certain bids submitted on September 10, 1956 on a certain contract, to wit, Contract 355, Newark Bay Sedimentation Basin Improvements and Sludge Handling Facilities, by Geo. M. Brewster & Son, Inc. and Terminal Construction Corp. were competitive bids, knowing such bids were not in fact competitive bids, but were the result of Joseph La Fera, Sr., Wilbur W. Blauvelt, Anthony P. Miele and Phillip R. Salvatore agreeing in advance of the submission of such bids which company or companies represented by them would bid on such contract, and in what amounts."

It is noted here and more will be said later about the fact that in Count II, while named as one of the conspirators, Richard N. Dinallo is not alleged to have agreed with the other four defendants "in advance of the submission of such bids which company or companies represented by them would bid on such contract and in what amounts."

Each count of the conspiracy indictment is followed by the allegation of eight overt acts, identical as to each count.

At the outset it is well to note that the State concedes it can prove only one conspiracy -- not two. In other words, that the indictment splits a single conspiracy into two counts is conceded.

For reasons which are not apparent to the court, the indictments are couched in most terse terms. This may have been done by choice or because, as was suggested by the State at oral argument, the State has little direct proof of the conspiracy and depends mainly upon circumstantial evidence.

If terseness is from choice, it would seem inadvisable despite the outcome of this motion. Courts should not have to search out jurisdiction. Jurisdiction and the facts supporting it should be clearly alleged. One conspiracy should not be split into two. The law is clear that one conspiracy may have several objectives. The law books and court files are filled with conspiracy indictments which have withstood

preliminary motions and appeals after judgments of conviction. In civil cases, Justice Burling (then a Circuit Judge) said: "It is hornbook admonition that where statutory procedure is being followed, it is advisable to hew to the line and not attempt debatable authority"; and Chief Justice Vanderbilt said: "The new rules should not deceive one into believing that the essentials of sound pleading at law or in equity have been abandoned." These caveats apply equally and probably with more force to the criminal law, especially to indictments. State v. Lefante , 12 N.J. 505 (1953), cited by the State, is not to the contrary.

But the court is called upon here to determine

(1) Whether or not the two counts, terse as they are,

(a) state the essential elements of a conspiracy under N.J.S. 2 A:98-1(h) and (f) so as to comply with Art. I, par. 10 of our 1947 Constitution , and R.R. 3:4-3;

(b) state jurisdiction sufficiently; and

(2) If the admitted splitting of the conspiracy is fatal to the indictment, or whether the State may amend so as to charge one conspiracy with two objects, or proceed only on one count of the indictment.

In determining these questions the court finds the following cases controlling: State v. Winne , 12 N.J. 152, at page 177 (1953):

"Our State Constitution guarantees that 'No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury,' Art. I, par. 8. Our rules of court provide that 'The indictment or accusation shall be a written statement of the essential facts constituting the offense charged.' Rule 2:4-11(a). The purpose of the indictment is to inform the accused of the nature of the offense charged so as to enable him to make an adequate defense as well as to avail himself of his conviction or acquittal to avoid the threat of double jeopardy. State v. Morano , 134 N.J.L. 295 (E. & A. 1946). The indictment also serves to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be obtained, U.S. v. Hess , 124 U.S. 483, 8 S. Ct. 571, 31 L. Ed. 516 (1888). The indictment must be examined in the light of the constitutional provisions, the rules of court and the decisions."

And at page 181:

"The power to quash an indictment rests in the sound discretion of the trial judge, but this discretion should not be exercised 'except on the plainest ground,' State v. Ellenstein , 121 N.J.L. 304, 325 (Sup. Ct. 1938), or on 'the clearest and plainest ground,' as it was put in State v. Davidson , 116 N.J.L. 325, 328 (Sup. Ct. 1936), or unless the indictment is 'palpably defective,' State v. Russo , 6 N.J. Super. 250, 254 (App. Div. 1950), especially where the statute of limitations has run, State v. Tilton , 104 N.J.L. 268, 274 (Sup. Ct. 1928), State v. Acton , 9 N.J. Misc. 55, 58 (Sup. Ct. 1931). Our courts have repeatedly held that 'discretion ought not to be exercised in a case like this where injustice may be done thereby to the state and where the refusal to exercise it deprives the defendants of no substantial rights,' State v. Lehigh Valley Railroad Company , 90 N.J.L. 372, 376 (Sup. Ct. 1917)."

State v. Daly , 3 N.J. Super. 247 (App. Div. 1949); Linden Park Blood Horse Association v. State , 55 N.J.L. 557 (E. & A. 1893); State v. Lefante , 12 N.J. 505, at pages 509-510 (1953):

"The sufficiency of an indictment is to be determined in the light of the pertinent rules of court and judicial decisions. Rule 2:4-11, dealing with the nature and contents of an indictment, reads, so far as it is pertinent here, as follows: 'The indictment or accusation shall be a written statement of the essential facts constituting the offense charged. * * * Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state for each count the official or customary citation of the statute or statutes which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.'

"'The primary purpose of an indictment is to inform the defendant of the nature of the offense charged against him, so that he may adequately prepare his defense, while a second function is to serve as a shield from another indictment for the same offense.' State v. Lefante , 12 N.J. 505, 509 (1953)."

Turning now to a conspiracy indictment, the crime here involved, 11 Am. Jur., Conspiracy , 562-63, states:

"Sec. 29. Manner and Sufficiency of Charging Offense. * * * The unlawful agreement must be set out. The unlawful purpose or the unlawful means to obtain a lawful purpose must be clearly stated. An imperfect averment of the facts constituting the description of the offense is not aided by introductory matter of the indictment, the qualifying epithets attached to the facts, or the alleged injurious consequences of such facts. It is, however, neither necessary nor proper to set forth the evidence by which the conspiracy is to be proved or to negative possible theories of defense." (Emphasis supplied)

A criminal conspiracy, then, is an agreement "to do an unlawful act, or to do a lawful act by unlawful means." State v. Carbone , 10 N.J. 329, 336 (1952). Justice Heher, speaking for our Supreme Court in that case, said at page 337:

"It is not requisite, in order to constitute a conspiracy at common law, that the acts agreed to be done be such as would be criminal if done; it is enough if the acts agreed to be done, although not criminal, be wrongful, i.e., amount to a civil wrong." (Emphasis added)

In State v. Herbert , 92 N.J.L. 341 (Sup. Ct. 1918), the court, after distinguishing between two types of conspiracy, i.e. , agreement to commit a crime and divide proceeds and agreement to do a lawful act by unlawful means or means injurious to the public, states, at page 355:

"The fact that pleader charges that the combination was also 'to pervert and obstruct the due administration of said laws of this state relating to husband and wife, by conniving and seeking to

entrap Charles A. Knittel into an endeavor to commit adultery,' &c., adds no legal force to the indictment. The words 'or to commit any act for the perversion or obstruction of justice or the due administration of the laws,' found in section 37 of the Crimes act (Comp. Stat., p. 1757), are descriptive of the character of the act necessary to be committed, in order to make such act indictable. It would not be a valid indictment which charged in the language just quoted without setting forth the illegal act complained of. What the pleader has done, in the present case, is to set out in the indictment the results flowing from the criminal means used to accomplish the object of the agreement -- that is, the divorce."

This indictment does set forth the illegal act, namely, the agreement in advance of bidding, and the agreement is alleged to be "corrupt," a word defined in State v. Western Union Telegraph Co. , 13 N.J. Super. 172, 204 (County Court 1951), affirmed 12 N.J. 468 (1953). See also Wood v. State , 47 N.J.L. 461 (Sup. Ct. 1885).

The statute under consideration in the Herbert case was section 37 of the Crimes Act, Comp. Stat. p. 1757, the source of N.J.S. 2 A:98-1.

But the defendants lay great emphasis upon the statutory language in N.J.S. 2 A:98-1(h), "to commit any act for the perversion or obstruction of justice or the due administration of the law," it being their contention that since the statute allegedly perverted or obstructed, N.J.S.A. 58:14-22, lays duties only upon "commissioners" and none upon "non commissioners," then "non commissioners acting alone cannot conspire to violate the statute."

It is not necessary to this indictment that the defendants have any official duties under the bidding statute here in question. In State v. Kollarik , 22 N.J. 558 (1956), and in other cases such as State v. Ellenstein , 121 N.J.L. 304 (Sup. Ct. 1938), municipal officials having duties to perform were co-defendants. But in State v. Shipley , 10 N.J. Super. 245 (App. Div. 1950), none of the defendants indicted for conspiracy to pervert and obstruct the administration of certain election laws is indicated as being a public official. The indictment charged that the defendants removed registration

and record of voting forms from the clerk's office, had them signed at times and places other than during office hours in the clerk's office, and then returned them. It appears from the opinion that neither the city clerk nor any of his functionaries were charged with violating their statutory duty; they did not improperly register ineligible voters. Nevertheless, the court held that the indictment was a proper one.

The due administration of the statute here in question can be obstructed by bidders having no ...


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