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State v. Ferrante

Decided: August 7, 1970.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ANTHONY FERRANTE, ALFRED SALERNO, THOMAS BONFONTI, RAYMOND MASSARO, KENNETH LUCIANIN, RICHARD REAN, AND SALVATORE LOCASCIO, DEFENDANTS-RESPONDENTS



Goldmann, Lewis and Matthews. The opinion of the court was delivered by Matthews, J.A.D.

Matthews

The State appeals from the dismissal of an indictment charging the seven defendants with conspiracy to obstruct justice (N.J.S.A. 2A:98-1 and 2A:98-2).

In May 1967 Detective Decker of the State Police was assigned to the Passaic County Prosecutor's office to handle gambling investigations. Several months thereafter he was approached by defendant Massaro, also a policeman, who allegedly solicited his complicity in an arrangement with gambling interests. Decker immediately reported the proposal to his superiors and was instructed to play along. Massaro then introduced Decker to defendant Salerno, who explained that the detective would receive certain sums of money for keeping the gamblers informed as to planned raids to be made by the police, and for suppressing other information turned up in his investigations. The grand jury testimony reveals a long series of conferences and communications

among Decker and defendants Salerno, Ferrante and Massaro over the course of the succeeding months.

Massaro, Ferrante and Salerno were indicted by a Bergen County grand jury for bribery and conspiracy to bribe. They pleaded guilty to the conspiracy charges and were sentenced to prison. Subsequently, the Passaic County grand jury indicted the same defendants, along with three members of the Passaic Police Department's anti-gambling squad, on charges of conspiracy to obstruct justice and the due administration of the laws. N.J.S.A. 2A:98-1; N.J.S.A. 2A:98-2. Defendants Massaro and Ferrante (but not Salerno) moved to have the indictments dismissed on the grounds that they constituted double jeopardy. The trial judge found that both the Bergen and Passaic indictments arose from the same conspiracy and therefore granted defendants' motions.

Shortly thereafter defendants Lucianin, Rean and Locascio moved to have the indictment dismissed as to them on the ground that there had been no legal or competent evidence submitted to the Passaic County grand jury on which to base it. The judge concluded that, having read the record, he was "unable to find sufficient testimony produced before the grand jury which would substantiate and justify the return of an indictment against defendants Rean, Locascio, and Lucianin, charging each or any of them with conspiracy." Accordingly, he granted the motions for dismissal.

I. Dismissal of Indictments -- Double Jeopardy

The State first urges that the prior conviction of three of the defendants for conspiracy to commit bribery should not preclude later indictments for conspiracy to obstruct justice and the due administration of the laws. The Passaic County indictment essentially charges defendants with a broad conspiracy to withhold official information and secretly to transmit such information to the criminal element, including

but not limited to the bribery of Detective Decker. The State argues that the indictments charged separate and distinct offenses, thereby avoiding the defense of double jeopardy. Defendants counter by urging that both of the alleged conspiracies arose out of the same transaction and would be proved by the same evidence; alternatively, they contend that, in any event, one continuous conspiracy cannot be split up into separate conspiracies for the purpose of multiple prosecutions.

In State v. Currie , 41 N.J. 531 (1964), the court rejected strict adherence to either the "same evidence" test or the "same transaction" test, opting instead for a broader analysis of the multiple prosecutions in view of the policies underlying the double jeopardy proscription. Here the second indictment, if proved, covers a conspiracy of greater dimensions than the bribery of Detective Decker. In fact, while the sole witness would be the same, the State's case might well revolve around the alleged bribery of other police officers and therefore be distinct from the Bergen County prosecution. However, to the extent that the Passaic County prosecution is based on the bribery of Decker, the case involves a second trial on the same offense, no matter how variously it might be labeled.

Nonetheless, it is well established that the State may not carve up a single conspiracy into smaller conspiracies for the purpose of multiple prosecutions. See Scarlett v. State , 201 Md. 210, 93 A.2d 753 (Ct. App. 1953); United States v. Cohen , 197 F.2d 26 (3 Cir. 1952); United States v. Palermo , 410 F.2d 468 (7 Cir. 1964). If, in fact, the alleged ...


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