The opinion of the court was delivered by: WHIPPLE
By way of the instant motion, defendants herein are applying to this Court for an order setting aside the judgment of conviction and seeking a new trial or a dismissal of the indictment based upon new evidence and perjury committed by the main government witness, Vincent J. Rapisardi, Jr.
During a bail restoration hearing approximately one year prior to trial, the government called as a witness Vincent J. Rapisardi, Jr., the alleged victim of the crimes enumerated in the instant indictment. Rapisardi testified regarding phone calls he had received and recorded on FBI-supplied equipment. The conversation of interest in the instant proceedings was received and recorded by Rapisardi approximately two weeks prior to the February 20, 1975 bail restoration hearing. According to Rapisardi's testimony regarding that phone call, an unknown person stated that "Lenny", implying one of the defendants, Leonard Cohen, would burn his, Rapisardi's, place down if the tenant in the back did not pay up money that was owed. On February 22, 1975, two days after he had testified, Rapisardi's sub shop was burned down.
During the trial, which commenced in February, 1976, Rapisardi did not testify regarding the anonymous call nor was the tape recording of that call played to the jury. Defense counsel submit that they declined to ask Rapisardi any questions about the fire or the anonymous call "because of the damaging and prejudicial result of Rapisardi's answer as to the threat of Lenny" (page 2 of Defendants' Memorandum of Law in Support of Their Motion) which Rapisardi made during the bail restoration hearing.
After the trial, at which defendants were convicted, defense counsel discovered that Rapisardi had been indicted for the arson of his sub shop by the Somerset County Grand Jury based upon a sworn statement, dated January 8, 1976, by a Steven Murphy. Upon learning of the indictment and the contents of Murphy's sworn statement, the defendants brought the instant motion, pursuant to which a hearing was held in this Court on October 12, 1976. Murphy testified that he made the anonymous call at Rapisardi's direction and read a pre-arranged script concerning the threatened arson. Murphy further testified that it was he who set fire to the sub shop with direction, aid and financial remuneration supplied by Rapisardi.
Defendants' counsel now claim that this new evidence clearly indicates that Rapisardi committed perjury at the bail restoration hearing and that, had they known this at the time of trial, they could have introduced it as circumstantial evidence in order to impeach Rapisardi's credibility and to show that he may have tampered with other tapes introduced as evidence by the prosecution or falsified the surrounding circumstances thereof, as was done with the "Murphy-arson" tape.
Having thoroughly considered all the factual allegations and legal issues concerning the case sub judice, it is the opinion of this Court that the defendants' claim has sufficient merit to warrant the granting of a new trial. To withhold the newly discovered evidence regarding Rapisardi's alleged perjury would be a mockery of justice and a denial of the fundamental fairness which is the foundation of our judicial system. While evidence discovered after trial may not always satisfy the criteria necessary for the granting of a new trial, the nature of the newly discovered evidence herein, as it relates to the credibility of the government's main witness, Rapisardi, and the authenticity of the tapes put into evidence by the government, dictates that this evidence should be properly put before the jury in a new trial.
In order for a new trial to be granted on the basis of newly discovered evidence, the following criteria must be completely satisfied:
(1) The evidence must have been discovered after the trial;
(2) The failure to learn of the evidence must not have been caused by defendants' lack of diligence;
(3) The new evidence must not be merely cumulative or impeaching;
(4) It must be material to the principal issues involved; and
(5) It must be of such a nature that in a new trial it would probably ...