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State v. Sherwin

Decided: March 13, 1974.


Kolovsky, Fritz and Crane. The opinion of the court was delivered by Crane, J.A.D.


At the time of the occurrence of the events involved in this appeal, defendant Paul C. Sherwin was Secretary of State of New Jersey; defendant William C. Loughran was a solicitor of funds for the Republican Party, and the third defendant, Michael J. Manzo, headed a construction firm known as Manzo Contracting Co., Inc. Indictment No. SGJ9-72-11 of the statewide grand jury charged defendants with the following offenses: count I alleged that all three defendants conspired "to pervert and obstruct the due administration of the laws, that is, Title 27 of the New Jersey Statutes and the rules, regulations, and procedures of the Department of Transportation," in violation of N.J.S.A. 2A:98-1(h) and N.J.S.A. 2A:98-2. Count II charged that all defendants did corruptly counsel, invite and solicit John C. Kohl, Commissioner of Transportation of the State of New Jersey, and Russell H. Mullen, Assistant Commissioner for Highways, to engage in misconduct in their offices, in violation of N.J.S.A. 2A:85-1 and N.J.S.A. 2A:85-14. Count III charged Sherwin and Loughran with receiving a bribe, in violation of N.J.S.A. 2A:93-6 and N.J.S.A. 2A:85-14. Count IV charged Manzo with giving a bribe of $10,000 to Loughran to be transmitted to the Republican Finance Committee in order to procure the rejection of the lowest bid on a highway reconstruction contract and the giving of preferential treatment to the second lowest bidder, Manzo Contracting Company, Inc., in violation of N.J.S.A. 2A:93-6 and N.J.S.A. 2A:85-14.

All defendants were convicted of the conspiracy charged in the first count. Pursuant to the court's instructions, in the circumstances of a conspiracy conviction, no verdict was returned on the second count. Sherwin and Loughran were convicted of receiving a bribe on the third count and Manzo was convicted of bribery on the fourth count. All of the defendants received State Prison sentences and fines.

The essential facts in the State's case were as follows: In 1970 the State Department of Transportation decided to widen and resurface a portion of Route 46 in Warren County. As the result of invitations to bid and notice to contractors, three bids were submitted. D. Stamato & Co. bid, $632,800. Manzo Contracting Co., Inc. submitted a bid of $607,657.50. The lowest bid, $603,871, was submitted by Centrum Construction Company. All of the bidders had previously applied for and been granted a prequalification rating by the Department of Transportation. After the opening of the bids, Centrum was declared the apparent low bidder. It was subsequently declared the actual low bidder on September 28, 1970. A certificate of award was prepared and signed by departmental officials. Final acceptance of Centrum's bid awaited action of the Commissioner of Transportation, John C. Kohl.

On October 8, 1970 Loughran, who had previously visited the Manzo Contracting Co., Inc. offices, visited Sherwin at his office in the State House at Trenton. As a result of the meeting, Sherwin sent a letter by special delivery to Commissioner Kohl's home in which he urged that "the bids be rejected and a rebidding requested." Upon receipt of Sherwin's letter Commissioner Kohl telephoned Assistant Commissioner Mullen but was unable to reach him. He dictated a note for Mullen directing him to "Stop everything on the award of the contracts for Route 46." Kohl subsequently telephoned Sherwin who said it would be a distinct favor to one of the contractors, Manzo Contracting Company, if the bids were rejected because the contractor was "a friend, supporter, contributor to the party."

On October 20 or 21 Assistant Commissioner Mullen had a conversation with Sherwin about the possibility that an asphalt shortage might justify the rejection of bids. During the conversation Sherwin assured Mullen that the Manzo firm could guarantee a supply of asphalt and suggested disqualifying Centrum because of the absence of a guarantee

and awarding the bid to Manzo without rejecting all the bids and readvertising. On October 23, 1970 Mullen again called Sherwin and told him that all bids would be rejected and the job readvertised. Sherwin asked whether Centrum's bid could not be rejected and the contract awarded to the Manzo firm. Mullen stated that that could not be done but that "at least Mr. Manzo would get another opportunity to bid." On that same date Loughran called at the Manzo Company offices and picked up a check for $10,000 payable to the Republican State Finance Committee, the drawing of which had been authorized by Manzo through a telephone conversation with the office manager of the Manzo Company. Seeking to allay the concern of John A. Perucci, Sr., and John A. Perucci, Jr., who were associated with Manzo in the construction project as suppliers of asphalt, Manzo told them not to worry, that the bids were being thrown out and that he had to pay $10,000 to the Republican Party for it. On October 29 and 30 press statements announcing the rejection of the bids were released by Commissioner Kohl's office. Subsequently, on advice of the the Deputy Attorney General assigned to the Department of Transportation, Commissioner Kohl reversed his decision to reject the bids and on November 5 the contract was awarded to Centrum.

On appeal defendants have attacked the sufficiency of the evidence supporting the conspiracy charge. They contend that the prosecutor's comments in summation exceeded the bounds of propriety and they all complain that the court failed to give proper instructions to the jury. They also urge that motions for separate trials should have been granted.

Sherwin contends that there was insufficient evidence to convict him of receiving a bribe. Manzo asserts that the State's evidence was insufficient to justify his conviction for bribery; he contends also that the sentence imposed upon him was manifestly excessive. Loughran also attacks the bribery conviction on the ground of insufficiency of evidence and

contends that the trial judge committed several errors in the charge to the jury.

The Bribery Conviction of Manzo

We deal first with the bribery conviction of defendant Manzo under N.J.S.A. 2A:93-6. It is contended on behalf of Manzo that there was no evidence that the $10,000 check to the Republican Finance Committee was given to influence any action of the Department of Transportation and that the evidence did not show that preferential treatment was sought for the Manzo company as charged in the indictment.

The statements made by Manzo to John Perucci, Sr. and John Perucci, Jr. (about which more will be said infra in connection with the conspiracy charge) clearly articulated his purpose in making the contribution. The Peruccis were principals in a family-owned corporation known as Warren Limestone Company. They were Manzo's asphalt suppliers and they had agreed to supply asphalt for the Route 46 job. When the Peruccis found out that Manzo had submitted a bid based upon a price of $14 a ton for asphalt instead of $12 as the Peruccis had agreed, they were disturbed. Manzo told John Perucci, Jr. not to worry, the job was going to be thrown out. A few days after that he said that he had to pay $10,000 to the Republican Party to have the job thrown out. After the announcement was made by the Department of Transportation that the bids would be rejected, Manzo told John Perucci, Jr., "I told you it would be thrown out and it cost me ten big ones."

The closeness of the principal events in point of time is also significant. Payment of the $10,000 contribution to Loughran occurred on the same date that the decision to reject all bids was communicated to Sherwin. These facts bolstered Manzo's statements to the Peruccis and tended to generate a belief in their trustworthiness. The requirements of State v. Lucas, 30 N.J. 37 (1959), in this regard were satisfied. The testimony concerning Sherwin's efforts to have

Centrum's bid thrown out and the award made to Manzo Contracting Co., together with the testimony relating to the efforts to have all bids rejected, supported the allegations of the indictment relating to the giving of preferential treatment to Manzo Contracting Co. If either effort had succeeded, the net effect would have been preferential to Manzo Contracting Co. We find no merit to the attack on the sufficiency of the evidence.

Manzo contends, additionally, that the sentence imposed upon him, namely, that of one to two years on the first and fourth counts, to run concurrently, and a total fine of $2,000, was excessive. Defendant, a businessman, age 53 at the time of sentence, had never previously been convicted of a crime. His counsel points out that the crimes of which he was convicted did not involve violence and that defendant was known as a contributor to charity.

In stating his reasons for imposing custodial sentences on the defendants, the trial judge said:

We are mindful of the general policy that "sentencing judges should direct the punishments they impose to the goal of reformation." State v. Ward, 57 N.J. 75, 82 (1970). However, here the offenses were of such a character as to undermine the fundamental assumption that the affairs of government should be conducted in an atmosphere free of corrupt influences. "The social interest demands that official action should be free from improper motives of personal advantage." State v. Begyn, 34 N.J. 35, 48 (1961). The sentencing judge was properly permitted to consider factors

such as the deterrence of others and the probability that a lesser sentence of a noncustodial nature would unduly depreciate the seriousness of the offenses in the eyes of the public. See American Bar Association, Sentencing Alternatives and Procedures, ยง 2.5 at 81 (1967). We find no mistaken exercise of discretion. State v. Tyson, 43 N.J. 411, 417 (1964), cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

The Conspiracy Conviction

All three defendants were convicted of the charges contained in the first count, namely, that they had conspired to pervert and obstruct the due administration of the laws pertaining to the Department of Transportation. Each of the defendants attacks the sufficiency of the evidence. It is contended that proof of the existence of a conspiracy was not established, that it was error to admit the ...

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