This is a motion on behalf of the defendant Frank La Vecchia for an order setting aside a verdict which found him guilty of the crime of conspiracy and directing the entry of a judgment of acquittal pursuant to R. 3:18-2.
The defendant La Vecchia was indicted for allegedly conspiring with two Newark police officers to obtain money in violation of law. All three were defendants named in the conspiracy indictment and no one else was named or described as a co-conspirator. The two police officers were charged in a separate indictment with the crime of receiving money in violation of N.J.S.A. 2A:105-1. The two cases were tried together. The jury acquitted both policemen of both charges. They convicted the defendant La Vecchia alone of the crime of conspiracy.
The defendant La Vecchia contends that his conviction cannot stand as a matter of law since all alleged co-conspirators were acquitted.
The State contends that the jury must have found that the defendant La Vecchia had conspired with a fourth person, David Powell, an undercover informant of a federal law enforcement agency. Powell testified that he participated in planning and executing the crimes to obtain information and evidence against the defendants. The State's argument concludes that the verdict of guilty should therefore be permitted to stand.
The gist of the crime of conspiracy is an unlawful agreement between two or more persons. N.J.S.A. 2A:98-1. Although proof of one or more overt acts done to effect the object of the agreement is required in some cases (N.J.S.A. 2A:98-2), the unlawful combination of persons is an essential ingredient of all criminal conspiracies. "The essence of the statutory crime of conspiracy is the joining together of the conspirators with an unlawful intent." State v. Moretti , 52 N.J. 182 (1968), cert. den. 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968) "A conspiracy * * * has generally been defined * * * as a combination between two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means." 15A C.J.S. Conspiracy § 35(1) at 721. "The essence of a criminal conspiracy, or the gist, or * * * the gravamen * * * is the unlawful agreement or combination," 15A C.J.S. § 36 at 726-728; State v. Carbone , 10 N.J. 329 (1952).
It is impossible for one person to conspire with himself alone. 15A C.J.S. Conspiracy § 37. In 16 Am. Jur. 2d, Conspiracy , § 33 at 144, it is said:
The rule does not apply where the indictment charges conspiracy with unknown persons as well as named persons and where alleged co-conspirators are referred to but not joined as defendants. 16 Am. Jur. at 144-145. It does not apply where "no disposition on the merits has been made of the charges against the other accused." State v. Goldman , 95 N.J. Super. 50 (App. Div. 1967). See also discussion by Judge Clapp in State v. Oats , 32 N.J. Super. 435 at 440-441 (App. Div. 1954).
The general rule applies forcefully in this case. The conspiracy indictment alleges that there were three conspirators and only three.*fn* Two of them were found not guilty by the jury. If they did not combine with La Vecchia in a criminal purpose, La Vecchia could not have so conspired with them.
The prosecutor's contention that the jury may have found a conspiracy to exist between the undercover agent and La Vecchia is speculative. Even if that were established, the verdict could not stand because the indictment did not
charge Le Vecchia with conspiring with Powell, nor with any other person except the ...