For affirmance in part and reversal in part -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned.
This appeal emanates from a petition for certification by defendant and a cross-petition by the State, both granted by the court, 68 N.J. 496 (1975), to review a judgment of the Appellate Division partly affirming and partly reversing a series of convictions of defendant arising from a number of connected occurrences. The trial was before a Law Division judge, sitting without a jury, largely based upon a stipulated record consisting of testimony taken on a preliminary motion to suppress certain statements, given to the Mercer County Prosecutor by defendant, and certain documents. The court filed a written opinion finding defendant guilty of all counts of the indictment.
The evidence adduced on the State's case indicates that defendant, a Trenton lawyer, suggested to a certain underworld figure that the house of one Dr. Gordon in Trenton was a likely target for a successful breaking and entering or burglary, as large amounts of cash were kept there. Defendant expected to share in the gains. As a result, there
was an armed robbery at that home about a year later. While attempting to evade the police, who had been alerted to the affair, the perpetrators abducted members of the family and injured two policemen. They were caught and arrested. Subsequently defendant was lured by the police into providing money for a purported but fictitious effort to release one of the arrestees on bail so that he might supposedly flee the country.
As a result of all of the foregoing defendant was indicted on counts of (a) conspiracy to steal currency; (b) armed robbery, assaults with an offensive weapon, kidnapping, kidnapping while armed and assaults upon a police officer; and (c) obstruction of justice and conspiracy to obstruct justice. Defendant was convicted on all counts and sentenced concurrently to terms of imprisonment aggregating 30 years to 30 years and one day.
The Appellate Division affirmed all the convictions except those for assault with an offensive weapon, kidnapping, kidnapping while armed, assault upon a police officer and obstruction of justice, those being set aside. In addition to affirming the other convictions, the appellate court also determined that while defendant could not be guilty of obstruction of justice on the evidence, he was guilty of an attempt to obstruct justice, and it entered a conviction thereof. One judge dissented in part, being of the view that the counts for obstruction of justice and conspiracy to obstruct justice should be vacated on grounds of entrapment.
Subject to amplified comment hereinafter, the factual background of this matter is adequately set out in the Appellate Division opinion as follows:
On March 17, 1972 Testa and Stasio, impersonating police officers, gained entrance to the Trenton home of Dr. Arnold Gordon. The pair produced pistols and demanded money and jewelry from Gordon. While Testa and Stasio obtained $470 from Gordon and bound him and his wife Edith, a maid telephoned the police. When the police arrived, the robbers took Edith and her 14 year old daughter Shelly from the house at gunpoint as hostages and attempted an escape at high speed in a getaway car. A chase ensued. Ultimately, the getaway car crashed into a police car barrier, seriously injuring
two police officers. The police arrested Testa and Stasio and freed Edith and Shelly. Bail was set at $250,000 for Testa and $100,000 for Stasio.
Subsequent investigation aroused the suspicions of the county prosecutor as to the possible involvement of others in the crime. Testa testified before the grand jury as follows: In September 1971 Joe Bradley introduced him to Pontani. Pontani gave Testa particulars about the layout of the Gordon home. Pontani wanted to be sure the children were not in the house at the time of the robbery. Pontani, Testa and Bradley met three times between September and October 18, 1971, the date of Bradley's death. Tassone was present on a few occasions. Testa stated that from the outset it was intended that the crime would be an armed robbery. Although burglary had been initially discussed, it was discarded as an impossibility. After Bradley's death, Pontani spoke to a lawyer who guaranteed the amount of money that would be in the house, the movements of the family and the layout of the telephone system. Pontani had indicated that the lawyer was "Jewish" and a close friend of the Gordons. Testa was present when Pontani telephoned the lawyer. The latter advised Pontani that $200,000 would be found in the house.
On May 9, 1973, after Testa testified, a plan of action was formulated by Assistant Prosecutor Farkas and various law enforcement personnel, including Detectives Moaba and Logan and Investigator Diszler, to determine the extent of the involvement of Stein and Pontani. Moaba called Pontani and, posing as Testa's friend, demanded that Pontani and his lawyer friend come up with $6,000 so that Testa could make bail and flee the country. Moaba stressed that Testa had not implicated Pontani or the lawyer. Pontani emphasized that he had not had any dealings with Testa and that he had given the information months earlier to Bradley.
On May 11, Moaba, still posing as a friend of Testa, again telephoned Pontani. Pontani stated that he had spoken with his lawyer friend, who said he was going to see what he could do. On May 15, Moaba, equipped with a body transmitter and recorder, met with Pontani at Pontani's home. Pontani indicated that his friend would come up with $5,000 within a week. Pontani told Moaba that he had nothing to do with Testa, that he had done business with Bradley and that Testa had used the information without informing Pontani. Moaba advised Pontani to "press" defendant for the money but Pontani said he had to be careful because this "guy's a legitimate stiff." Pontani told Moaba that a friend of his would visit Testa in jail on Saturday. The police relayed this information to Testa.
On May 18, Moaba called Pontani. Pontani arranged to meet Moaba with the money at a shopping center in Monmouth on May 21.
On Saturday May 19, the prosecutor's office conducted a photographic surveillance of the Mercer County Jail. A man identified
as Vincent Fiore, sent by Pontani, visited Testa and checked Moaba's story with him.
Surveillance of defendant was conducted on Monday, May 21. Stein carried a manila envelope to his office. He left his office and met Pontani at Stein's car. Pontani then entered Stein's office and exited with the envelope.
At noon, Moaba saw Pontani at the agreed upon location. Moaba identified himself as De Angelis from New York. Pontani advised Moaba that they would have to go to Trenton to get the money.
At 1:15 p.m. Moaba, posing as De Angelis, called Stein. He informed Stein that he had not received the money, that Pontani wanted him to follow him back to Trenton and that he thought "they're going to do the job on me." Stein said they would not and that he had given Pontani the money.
At 2:20 p.m. on May 21, Pontani was arrested and $5,000 was found on his person. He was jailed in lieu of $250,000 bail.
At 10 p.m. that day, Logan and Diszler spoke with Stein at his home. Logan told defendant that they were investigating Pontani and that the police had found $5,000 on his person. Defendant volunteered that he had given Pontani $5,000 in an envelope that very morning. He stated that he had helped out Pontani, a former client, in the past and that Pontani approached him for the money in order to help a friend. Logan stated that Pontani was in deep trouble and involved in a kidnapping and robbery. Stein expressed surprise. Logan asked Stein to come to the prosecutor's office the next day. Stein said that he had an appointment out of town the next day and would call Logan in the afternoon when he returned.
Prosecutor Bruce Schragger, who was personally acquainted with Stein, unsuccessfully attempted to meet him on the next day, May 22. Schragger wanted to give Stein the opportunity to explain his role in the matter.
At 3 p.m. on May 23, two criminal complaints against defendant were obtained from Judge Moore by Schragger and Diszler. One complaint charged Stein with aiding and abetting armed robbery and kidnapping, and conspiracy to commit armed robbery. The other charged him with obstruction of justice and conspiracy to obstruct justice in connection with the proposed flight of Testa from prosecution. Bail was fixed by the judge at $50,000. At the same time, complaints were also issued against Tassone, Farinella and Fioravanti, who were all arrested later in the afternoon. However, Schragger testified that he never had directed anyone to serve the complaints against Stein. He was hoping that Stein would make himself available for questioning. He wanted to have the complaints ready "in the event Mr. Stein continued to avoid our attempts."
At about 4 p.m. on the same day, May 23, Detective Toth telephoned Stein at a business establishment in Stroudsburg. Toth told Stein that Schragger wished to speak to him in his office at 9 a.m. the next day about the "Pontani matter." Stein agreed to be there. He immediately thereafter telephoned George Pelletieri, a Trenton
attorney, advised him that he had been asked to appear at the prosecutor's office and requested Pelletieri's assistance. Pelletieri agreed to accompany him. Stein was to meet him at his office prior to going to the prosecutor.
Stein called his wife from Stroudsburg and told her to be prepared for a little trouble. She testified that he seemed upset and frightened. At Mrs. Stein's request, a friend Herbert Gross and her brother Jack Lichstein came to the Stein home. Gross spoke to Stein on the telephone and was informed that Stein was to be at the prosecutor's office the next morning "and that George Pelletieri was representing him."
That evening Pelletieri spoke with Schragger at a testimonial dinner. Pelletieri told Schragger that he had spoken to Stein and would bring him to into the office in the morning. Pelletieri asked Schragger if Stein was a "target." Schragger responded that "it was possible that he was a target", but did not tell Pelletieri that complaints had been prepared.
On May 24, the next morning, after briefly conferring with each other, Stein and Pelletieri went to Assistant Prosecutor Richard Altman's office. Altman had conducted the entire investigation into the Gordon robbery. At the time of this meeting with Stein, Altman had concluded that Stein was involved in attempted obstruction of justice and was guilty of the original conspiracy to steal money from Gordon. His "primary purpose" was
to bring him in and to see if I could elicit from him a voluntary confession that would be admissible in the Court of Law, and the reason why I was doing that at that time is that he was a prominent figure in the community. He was an attorney * * * I did not want to be in a position where the Mercer County Prosecutor's Office indicted a man, and we did not have a strong case. So, I, one of the reasons that I wanted to bring him in, in the event to obtain a confession which I believed would be voluntary and admissible in a court of law.
Altman's secondary purpose was to give Stein an opportunity to explain and to obtain his cooperation.
Altman had set up a recording device that, unknown to Pelletieri and Stein, taped the entire conversation in his office that morning. Present at the meeting were Altman, Sergeant Logan, Pelletieri and defendant.
Pelletieri asked Altman what he wanted with defendant, saying "I'm here as a friend of his not as an attorney." Altman answered that "it's hard to distinguish between friend and attorney at this moment," and stated,
what I had to tell Mr. Stein, I preferred to tell him in private and what I have to tell him I think is for his own welfare, his own best interests * * *. I mean that I am going to tell him something rather than to ask him to tell me something.
Pelletieri objected to this "rather unusual procedure." He stated that Schragger had informed him that Stein might be a "target."
He further stated that because of this, he would represent Stein and did not represent anybody else in the case "as of now that I know of"; that he would not represent Testa, although Testa had asked him for such representation, and that he would not represent Pontani even though he had already spoken to Pontani. Altman said that he understood that Pelletieri was also representing Tassone. Pelletieri stated that he represented Tassone in another matter, a false swearing case, and asked what Tassone was charged with in connection with defendant. Altman said that Tassone was charged with everything Testa was. He also stated that his interest in Stein was different from that in Tassone, Pontani, Farinella and Fioravanti, since Stein was an attorney and the others were ...