For affirmance in part and reversal in part -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. Opposed -- None.
[64 NJ Page 174] This case grows out of an investigation by the State Grand Jury of an illegal gambling enterprise in Hudson County, controlled and supervised by Joseph Zicarelli. Several indictments were returned. The particular indictment here involved, SGJ2-70-8E, is in five counts and is against Zicarelli, his associate Frank Mallamaci, and Ray Louf who was captain of detectives in the Hudson County Prosecutor's office. The first count charged all three defendants with protecting Zicarelli's gambling operation from investigation, detection and prosecution. The second and third counts charged Louf with having accepted a $100 bribe from Zicarelli on each of two specified dates as a pecuniary reward for his misconduct. The fourth and fifth counts charged Zicarelli and Mallamaci with aiding, abetting, inducing,
procuring and causing the payment to Louf of $100 on each of the dates mentioned. Following a lengthy trial, defendants were convicted on all counts. Appeals were duly prosecuted on their behalf.
The Appellate Division in an opinion reported at 126 N.J. Super. 321 (1973) affirmed the conviction of Louf for conspiracy and accepting bribes, rejecting all of his contentions as to alleged error. However, it reversed the convictions of Zicarelli and Mallamaci. On the conspiracy count, the Appellate Division held that there was but a single conspiracy embracing Zicarelli's gambling enterprise throughout Hudson County, and that the corrupt agreement with Louf was part of this overall conspiracy. Since Zicarelli and Mallamaci, along with others, had already been tried and convicted of this conspiracy, insofar as it involved other public officials in Hudson County,*fn1 the Appellate Division ruled that these defendants could not be tried again for the same conspiracy, even though the bribery of a different person was here involved.*fn2
The Appellate Division also held that "[S]ince testimony which was admissible only on the conspiracy count, and which would not have been admissible on the substantive counts (IV and V) against Zicarelli and Mallamaci, was admitted at the trial below," their convictions on these counts would have to be reversed. A new trial was ordered as to these counts.
Louf filed a petition for certification seeking review of his conviction. The State filed its petition for certification as to the reversal of Zicarelli's and Mallamaci's convictions
on the substantive counts; however, it did not challenge the dismissal of the conspiracy charge against Zicarelli and Mallamaci. This Court granted certification on both petitions, 63 N.J. 556, 557 (1973), and at the same time ordered acceleration and consolidation of the two matters.
We first consider the Louf appeal. He argues, as he did before the Appellate Division, that the trial court erroneously instructed the jury concerning the elements of the crime of bribery, the designation of venue in Burlington County was improper and erroneous, the trial court improperly permitted a police officer to testify that in his opinion a gambling operation of the size that existed in Hudson County could not continue without paying off public officials, and the sentence he received was arbitrary and excessive. The Appellate Division found no merit or substance to these contentions. We likewise reject them for substantially the same reasons given by the Appellate Division in its opinion.
It is further argued that "The Appellate Division should have granted Ray Louf a new trial when it granted Zicarelli and Mallamaci a new trial on the substantive counts of their indictment." As heretofore noted, the Appellate Division ordered a new trial for Zicarelli and Mallamaci on the substantive counts holding that evidence had been admitted which related only to the conspiracy, and was not competent or admissible with regard to the substantive charges. Louf argues that he was not charged with or tried for being a member of a conspiracy with other public officials and that it was prejudicial to permit testimony concerning "these other conspiracies."
This contention is also lacking in merit. The Appellate Division found that there was but a single overall conspiracy involved and that Louf was a part of it. The evidence in question was admissible against Louf on the conspiracy charge against him and was also properly received in evidence on the substantive charges growing out of the conspiracy. State v. Yormark, 117 N.J. Super. 315, 336
(App. Div. 1971), certif. den. 60 N.J. 138 (1972), cert. den. Mulvaney v. New Jersey, 407 U.S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d 812 (1972). Louf's ...