Fritz, Lynch and McGowan. The opinion of the court was delivered by Lynch, J.A.D.
[126 NJSuper Page 324] Defendants appeal from their conviction after jury trial on a five count indictment returned by the State Grand Jury on July 1, 1970. The first count charged that*fn2 on or about July 1, 1965 and on or about April 8, 1970,
"at the Town of West New York, in the County of Hudson; at the City of Jersey City, in the County of Hudson; and elsewhere," defendants Louf, Zicarelli and Mallamaci conspired to have defendant Louf, a Captain of detectives in the Hudson County Prosecutor's Office, commit the crime of misconduct in office, "that is, that the said RAY R. LOUF would use his said public office to keep safe from investigation, detection, and prosecution an illegal gambling enterprise which JOSEPH ZICARELLI then and there controlled and supervised * * *." It was charged that, as part of the conspiracy, Zicarelli would pay Louf $100 per month, that Louf would not fulfill his duties as Captain of Detectives and would provide and furnish information about and warning of law enforcement activity directed at the said illegal gambling enterprise "which JOSEPH ZICARELLI controlled and supervised." Of the three overt acts alleged, two represented payments of $100 each to Louf on March 4, 1970 and March 31, 1970, both occurring in West New York. The third alleged a telephone conversation between Louf and Peter J. Policastro in Hudson County on April 4, 1970. The second and third counts of the indictment charged Louf with accepting the bribes on March 4, and 31, 1970 and the fourth and fifth counts charged Zicarelli and Mallamaci with bribery on said dates in West New York.
Having been found guilty, Louf was sentenced to State Prison for a term of 16 to 18 months on each of the three counts to run consecutively and was fined $3,000. Zicarelli was sentenced to consecutive prison terms totalling 6 to 7 1/2 years and a fine of $1,000 on each of three counts. The prison term, however, was to run concurrently with the sentence of 12 to 15 years previously imposed upon Zicarelli under indictments charging him, Mallamaci, and others with conspiracy involving payoffs to Mayor Armellino of West New York, for protection of Zicarelli's gambling enterprise. See State v. Zicarelli, 122 N.J. Super. 225 (App. Div. 1973),
certif. den. 63 N.J. 252 (1973). Mallamaci was sentenced to consecutive terms of 20 to 22 months on each count, said sentences to run concurrently with the sentence imposed in State v. Zicarelli, supra, and he was fined $1,000 on each count, or a total of $3,000.
On appeal, Zicarelli makes the following contentions: (I) double jeopardy as well as due process considerations barred the trial of these charges; (II) the venue of the within indictment was improperly laid in Burlington County; (III) the court erred in permitting the tape recording of a conversation between Policastro and Zicarelli to be received in evidence and in allowing the jury to use a State-prepared transcript of that recording as a listening aid; (IV) defendant's motion for judgment of acquittal should have been granted as to the substantive counts; (V) the court erred in its charge; (VI) the court erred in permitting testimony that Zicarelli was in custody during part of the time covered by the indictment; (VII) the court erred in permitting the State to proceed with its proofs on the basis that Fluccari was a co-conspirator; (VIII) the court erred in permitting the State to adduce testimony that Fluccari could not be found; (IX) the court erred in permitting a police officer to express his opinion that in a gambling operation as described in this case there must be bribes to public officials; (X) the court improperly permitted evidence of other crimes to be introduced at trial; (XI) the prosecutor's summation was so highly prejudicial as to deny defendant a fair trial; and (XII) the court's action in sustaining an objection during the summation by Zicarelli's attorney and then reprimanding counsel was highly prejudicial.
In substance, Mallamaci makes the same contentions, except for Points II, VI, X and XII. He further argues: (VII) the trial judge abused his discretion by failing to grant [his] motions for mistrial; (VIII) the defense motions for a judgment of acquittal should have been granted;
(IX) the trial court should have granted [his] motion for a severance during the course of the trial; and (X) [his] sentence and fine are manifestly excessive and should be reduced.*fn3
Louf also contends that the designation of venue in Burlington County was improper and that the transcripts of the tapes should not have been submitted to the jury. In addition, he makes the following separate contentions: (I) the court erroneously permitted testimony concerning conspiracies separate from that conspiracy set forth in the indictment in this case; (II) the court erroneously instructed the jury concerning the elements of the crime of bribery; (IV) the court erroneously submitted recordings to the jury without deleting irrelevant but prejudicial material; (VI) the court improperly limited the attempts to impeach the credibility of the State's key witness; (VII) the court improperly permitted a police officer to testify that in his opinion some public officials in Hudson County were receiving payoffs; and (VIII) the sentence imposed upon him was arbitrary.
Zicarelli's points II, III, VI, VII and VIII, and those raised by Mallamaci which correspond thereto, were previously made and disposed of in this court on appeal in the prior prosecution of Zicarelli and Mallamaci, Mayor Armellino of West New York, and others. State v. Zicarelli, supra, 122 N.J. Super. 225. That opinion is incorporated herein by reference and said points may be considered as disposed of thereby.
We shall first consider the remaining contentions of defendants Zicarelli and Mallamaci under Subheading "A." Defendant Louf's contentions will be later discussed under Subheading "B."
CONTENTIONS OF DEFENDANTS ZICARELLI AND MALLAMACI
Double jeopardy and denial of due process of law
Defendants Zicarelli and Mallamaci contend that the conspiracy herein charged against them was the same conspiracy which was prosecuted and resulted in the earlier decision in State v. Zicarelli, supra (SGJ-2-70-8H), here called "the Armellino indictment." There it was charged that Zicarelli and Mallamaci conspired with Mayor John Armellino of West New York, and others named, between on or about November 4, 1965 and on or about April 8, 1970. That conspiracy was said to have been committed "at the Town of West New York, in the County of Hudson; at the City of Hoboken, in the County of Hudson; and elsewhere * * *," and had for its object that John Armellino, Mayor of West New York, would illegally engage in misconduct in office by using his office "to keep safe from investigation, detection, and prosecution an illegal gambling enterrise with [ sic ] JOSEPH ZICARELLI, FRANK MALLAMACI, WILLIAM C. FOURGEREL, SR., WILLIAM C. FOURGEREL, JR. and LUDWIG BRUSCHI, also known as NINI, then and there controlled, supervised and operated * * *." It was further charged that Zicarelli, Mallamaci, and the others named would "control, supervise, and operate an illegal gambling enterprise * * *" and that, as part of the conspiracy, Zicarelli would pay to Mayor Armellino the sum of $1,000 per week in return for the Mayor's failing to fulfill his duties to enforce the criminal laws of New Jersey. Eight overt acts in furtherance of the conspiracy were also charged, six of which were payments to Armellino in West New York and two of which were conversations on February 20, 1970 and March 9, 1970, between Zicarelli and Policastro at Hoboken, New Jersey, and Mallamaci and Policastro at West New York, respectively.
At the beginning of the trial herein, defendants Zicarelli and Mallamaci moved for dismissal of the conspiracy count in the indictment on grounds of double jeopardy, and denial of due process of law by reason of the harassment involved in the prosecution herein of the same conspiracy (so they argued) as that upon which they had already been convicted with Armellino. The State responded that the motion was untimely under R. 3:10-2 which requires that such motions are to be made prior to trial.*fn4
As to the merits of the motion, the State argues that the instant conspiracy is a separate conspiracy from that in the Armellino case and that, while both "conspiracies" had a common nucleus (Zicarelli and Mallamaci), the interests and motives of the various persons named as conspirators in the two trials were separate and distinct, and depended on different evidence. Defendants' contention in support of the defense of double jeopardy is that a single conspiracy was involved with a common object, i.e., the protection of the gambling enterprise controlled and supervised by Zicarelli, and encompassing both the prior and instant indictments. Thus, say Zicarelli and Mallamaci, they have been tried and convicted twice for the same offense in violation of the Fifth Amendment of the United States Constitution. They also urge the due process argument grounded in the harassment involved.
While denied by defendant Louf as to his own involvement when he testified on his defense in this case, the evidence produced by the State tended to establish the following facts. First, the dramatis personae : Zicarelli was the "overall" boss of gambling in Hudson County, and it was necessary for the
protection of his gambling enterprise to pay "protection money" to various public officials. Mallamaci was his "right-hand man," through whom his "payoffs" were channeled. He also acted on Zicarelli's behalf while the latter was absent from Hudson County and confined at Yardville in another matter. William Fourgerel, Sr. was the supervisor of the North Hudson phase of Zicarelli's gambling enterprise.*fn5 Peter Policastro, the State's principal witness, was a courier for Zicarelli for the purpose of paying money to the public officials who could, and would, "protect Zicarelli's gambling enterprise."
Policastro testified that he paid money on Zicarelli's behalf to the Mayors of West New York (Armellino), Guttenberg (Klein), North Bergen (Sarubbi), and also to John Theurer, Republican County Chairman of Hudson County.*fn6 There was also evidence that Zicarelli's "empire" extended into Bayonne, though no evidence was produced of payments to officials there. On the county level, Policastro made payments to defendant Raymond Louf, Captain of detectives of the Hudson County Prosecutor's Office, and to Detective Walczak, also of that office, as well as to Theurer.
Policastro had been a policeman in West New York for 23 years, reaching the rank of Detective-Sergeant by 1962, at which time he retired on a disability pension on the advice of Mayor Armellino. In the 1940's he had received $25 per week in a "protection" phase of a gambling operation. That activity, however, so far as appears, predated and was not connected with Zicarelli or his organization. After his retirement in 1962, Policastro opened a private detective agency which proved unsuccessful. In an effort to sustain
it, he went into debt for over $100,000, including substantial loans from a bank, with collateral for the loans being supplied by Zicarelli, whom he had known for approximately 15 years.
In 1963, Louf spoke to Policastro and asked if he would approach Zicarelli about Louf providing information concerning gambling enforcement on a county level. Louf was then put "on the payroll" at $25 per week. In 1965, Policastro began to carry protection money for Zicarelli to certain "public officials." Louf's "pay" was later adjusted to $100 per month. At a meeting on March 4, 1970, Policastro made a payment to Louf stating that he had received the $100 from Mallamaci, who was acting for Zicarelli after he had left Hudson County for his confinement as set forth above. The last payment was made on March 31, 1970, at Salerno's Restaurant in West New York.
Louf provided Policastro with information that the Prosecutor was using a small, white car with Massachusetts plates in gambling raids. On another occasion, after Mallamaci called Policastro concerning a raid made the night before at the main office of the gambling operation, Policastro called Louf to ask why the raid had taken place and was advised that it was probable that a man named "Ziggy" in the Prosecutor's office had led the raid. Policastro in turn relayed this information to Mallamaci. Louf told Policastro that the "little man," J. V. Kenny, was asked by Chief Kropke of the Hudson County Police to take "Ziggy" out of the prosecutor's office. By way of further information, on March 4, 1970, Louf told Policastro that a raid might take place in West New York. Whether it did or not does not appear. Finally Policastro agreed to become an informer for the State and taped several conversations with Zicarelli, Mallamaci, Theurer and defendant Louf.
Policastro had given substantially the same testimony (except as to defendant Louf's involvement) in the prior Armellino trial. Additionally, except for the tapes of conversations between him and Louf introduced in the instant
trial, tapes which were introduced in the prior trial and which recorded several conversations between Policastro, Zicarelli and Mallamaci, were also introduced in evidence in the subject trial. Further, all witnesses who appeared in the instant case had also testified in the prior trial. Thus, Zicarelli and Mallamaci contend that in both the Armellino matter and in this case the State prosecuted a single conspiracy -- that which was formed to keep safe from investigation, detection and prosecution the gambling enterprise which was controlled and supervised by Zicarelli in Hudson County, of which Armellino and Louf were merely "spokes" in the "wheel" with Zicarelli its core.
It is now 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. 310, 93 A. 2 d 753 (Ct. App. 1953); United States v. Cohen, 197 F. 2 d 26 (3rd Cir. 1952); United States v. Palermo, 410 F. 2 d 468 (7th Cir. 1969). If, in fact, the alleged conspiracy is but one overall collusive arrangement, it must be treated as such by the prosecution. State v. Ferrante, 111 N.J. Super. 299, 303 (App. Div. 1970). If there be a "single conspiracy," it is one crime, for which a defendant may be prosecuted but once. If it is split up into several conspiracies, a defendant would be convicted and punished for several crimes though he has committed only one. United States v. Palermo, supra 410 F. 2 d at 470. There it was said:
The government is not free to arbitrarily decide whether there is one agreement or several. If the agreement
United States v. Kissel, 218 U.S. 601, 607, 31 S. Ct. 124, 54 L. Ed. 1168 (1910). To convict a party severally for being part of two conspiracies when in reality he is only involved in one overall
conspiracy would be convicting him of the same crime twice. Short v. United States, 91 F.2d 614 (4th Cir. 1937); United States v. American Honda Motor Company, 271 F. Supp. 979 (N.D. Calif. 1967).
Here, there were not only the Armellino and Louf indictments but also separate indictments involving Zicarelli and Mallamaci with Klein, the Mayor of Guttenberg, with Theurer, the Hudson County Republican Chairman, and Detective Walczak of the Hudson County Prosecutor's office, all of whom allegedly received "payoffs" for protection of Zicarelli's gambling enterprise. Were these five separate conspiracies, or only a single one? Specifically here, were the Armellino and Louf conspiracies separate and distinct so that Zicarelli and Mallamaci can be prosecuted, convicted and punished for both? The answer lies basically in an understanding of the seeming dichotomy born of the decisions in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946) and Blumenthal v. United States, 332 U.S. 539, 68 S. Ct. 248, 92 L. Ed. 154 (1947).
The State leans heavily on Kotteakos in equating the Armellino and Louf indictments to the separate conspiracies there involved. The defense relies on Blumenthal as demonstrating a single conspiracy with Zicarelli as its "core."
Kotteakos involved an indictment naming 32 defendants who sought to obtain FHA loans in a fraudulent manner. All were processed through one Brown who was the common and key figure, as was Zicarelli here. Brown acted as broker in placing the loans, presumably for modernization and renovation of the home involved. He charged a 5% commission for his services. He knew, when he obtained the loans, that they would not be used for the purposes stated in the application. All defendants were indicted for a single conspiracy and seven were convicted. None of the applicants had any connection with one another though all dealt through Brown as their agent. The Government conceded on appeal that though only one conspiracy was charged, at least eight
separate ones were proved. The Supreme Court held that it was prejudicial to prosecute a single conspiracy against all defendants. Here, the State contends that the Armellino and Louf "schemes" were, as the eight in Kotteakos, separate conspiracies and that it would have been prejudicial to have prosecuted Louf as a defendant with Armellino in the first case. That being so, it follows, says the State, that here there were separate conspiracies and not a single one.
Blumenthal distinguished and explained the real meaning of Kotteakos. In Blumenthal, the indictment charged a single conspiracy in a single count. Its object was to effect the illegal sale of whiskey at prices above the ceiling set by the OPA in violation of the Emergency Price Control Act. To accomplish this purpose, several sales persons participated. The Court found that there really were two "agreements" -- (as the State contends there were two here, Armellino's and Louf's) -- but that they "were merely steps in the formation of the larger and ultimate more general conspiracy." 332 U.S. at 558, 68 S. Ct. at 257. The Court said:
In that view it would be a perversion of justice to regard the salesmen's ignorance of the unknown owner's participation as furnishing adequate ground for reversal of their convictions. Nor does anything in the Kotteakos decision require this. The scheme was in fact the same scheme; the salesmen knew or must have known that others unknown to them were sharing in so large a project; and it hardly can be sufficient to relieve them that they did not know, when they joined the scheme, who those people were or exactly the parts they were playing in carrying out the common design and object of all. By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common single goal.
The case therefore is very different from the facts admitted to exist in the Kotteakos Case. Apart from the much larger number of agreements there involved, no two of those agreements were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result. On the contrary each separate agreement had its own distinct, illegal end. Each loan was an end in itself, separate from all others, although all were ...