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State v. Lavary

Decided: July 29, 1977.


Arnone, J.s.c.


[152 NJSuper Page 416] Defendant brings this motion seeking a number of different post-conviction remedies. She seeks (1) the merger of the three counts of the indictment; (2) a new trial pursuant to R. 3:20-1, or (3) dismissal of the indictment.

Briefly, the evidence indicated that defendant had gone to Maryland at the request of New Jersey law enforcement authorities for whom she had been working as an informant from time to time. The purpose of the trip was to ascertain if defendant could provide evidence against her former husband who was suspected of involvement in a murder. While there she met a woman named Billie, a prior acquaintance from New Jersey. In the course of renewing their acquaintance defendant represented to Billie that the major irritation in her life was a Lt. Halliday of the Middletown Tp. Police Dept. She indicated to Billie that Lt. Halliday was constantly harassing her and was the source of all her major problems. She also stated to Billie that she was looking for someone who could "get" Lt. Halliday. Billie, who was an informant for the Maryland State Police, told defendant that she might know such a person. Billie subsequently told the Maryland State Police of the conversation. When the Maryland State Police learned that the intended victim was a New Jersey police officer, they resolved to have one of their undercover agents, Lt. Mazzone, introduced by Billie to defendant as the "hit man" defendant was seeking.

A number of telephone conversations ensued, beginning December 19, 1975. These conversations were taped by Lt. Mazzone. The gist of the conversations was that Lt. Mazzone would be paid a sum of money plus expenses to severely beat Lt. Halliday.

Defendant was subsequently indicted and convicted on three counts of an indictment charging conspiracy with an "undercover agent with the Maryland State Police" [Lt. Mazzone]. Two counts charged conspiracy to commit atrocious assault and battery; one charged conspiracy to commit mayhem. Defendant and the undercover agent of the Maryland State Police were the only individuals named in the indictment.

Defendant asserts in support of her first argument that "the conversations which were alleged to be the overt acts

were part of one course of conduct and to divide that into separate counts would be to cause multiplicity of prosecution".

The test to be applied in deciding the issue of merger is whether a particular act involved in a single transaction is a distinct criminal affair or an integral part of the principal offense charged. State v. Hill , 44 N.J. Super. 110, 112 (App. Div. 1957). Where an accused has been convicted for contemporaneous separate offenses which are, in fact or by legislative intent, indistinguishable, then the resulting convictions must be merged. State v. Best , 70 N.J. 56, 61 (1976). If an accused has committed only one offense, he cannot be punished as if for two. Id. at 66; State v. Davis , 68 N.J. 69, 77 (1975).

It is a well established rule in this State that a single conspiracy may not be carved up into smaller conspiracies for the purpose of multiple prosecutions. State v. Louf , 126 N.J. Super. 321, 332 (1973), mod. 64 N.J. 172 (1973). If the alleged conspiracy is in fact 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).

Here the State's contention is that each count of the indictment specifies a conspiracy in and of itself -- that there was no single conspiracy.

A conspiracy is not the commission of the crime which it contemplates, and the conspiracy neither violates nor "arises under" the statute whose violation is its object. As the single continuing agreement, which is the conspiracy, embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. State v. Louf, supra , 126 N.J. Super. at 337-338.

Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements

and hence several conspiracies because it envisages the violation of several statutes rather than one. Id.

Thus, simply put, the question presented here is whether the three agreements specified in the three counts of the indictment are tied together as stages in the formation of one larger all inclusive combination directed to achieving a single unlawful result, or whether, on the contrary, each agreement had its own distinct illegal end -- each goal was an end in itself, separate and distinct from the others.

An examination of the facts here reveals that the agreement which was the essence of the conspiracy was that defendant pay Lt. Mazzone money in return for Lt. Mazzone's infliction of bodily harm on the intended victim, Lt. Halliday.

Here, in every practical sense, the facts of this case reveal a single conspiracy, entered into on December 19, 1975, of which the two later agreements were merely parts. All these agreements had as a single goal the infliction of bodily harm on Lt. Halliday. Cf. State v. La Fera , 35 N.J. 75, 80 (1961).

For the above reasons, the second and third counts of the indictment should be merged into the first count and the convictions on counts two and three vacated. State v. Gibson , 150 N.J. Super. 351 (App. Div. 1977).

Defendant also seeks relief by way of an order for a new trial pursuant to R. 3:20-1.

Among the grounds advanced are that the verdict was contrary to the weight of the evidence. Suffice to say that a manifest denial of justice does not "clearly and convincingly" appear here in view of the evidence presented and the content of the tapes. State v. Rodriguez , 141 N.J. Super. 7, 12 (App. Div. 1976).

The next ground alleged by defendant as a basis sufficient for a new trial is that the defense of entrapment applies as a matter of law.

It has been said that entrapment exists when the criminal design originates with police officials, and they implant in the mind of an innocent person the disposition to commit the offense and they induce its commission in order that they may prosecute. State v. Dolce , 41 N.J. 422, 430 (1964).

Judicial abhorrence of entrapment does not mean that police officials cannot afford opportunities or facilities for the commission of criminal offenses. "Artifice and stratagem, traps, decoys and deceptions may be used to obtain evidence of the commission of a crime or to catch those engaged in criminal enterprises." Such devices are necessary weapons in the ever present war on crime and criminals. Id.; State v. Talbot , 71 N.J. 160, 165 (1976).

The law will protect the innocent from being led to crime through the activities of law enforcement officers but it will not protect the guilty from the consequences of subjectively mistaking apparent for actual opportunity to commit crime safely. State v. Dolce, supra.

Defendant argues that although it is conceded that she disliked the intended victim, there is no showing that she had the predisposition to commit the offense. "Predisposition is evidenced by previous conviction of crime, reputation for criminal activities, ready compliance with minimal inducement , or easy yielding to the opportunity to commit the offense." State v. Talbot, supra at 167 (emphasis supplied).

The Supreme Court in State v. Stein , 70 N.J. 369, 391 (1976), held that where there was no indication that the incident in question was other than "a single aberrant episode in defendant's life" and where "it is a matter of pure speculation as to whether defendant had a predisposition" to commit the offense in question, * * * the jury could not find beyond a reasonable doubt that defendant had the necessary predisposition. However, here it is not a matter of pure speculation as to whether defendant had the predisposition to commit the offense in question. Here the jury

had available for its consideration the following conversations and statements by defendant:

Mazzone: Well, how much you got to pay for the present?

Lavary: Well, you see, that's not too much of a problem, cause what I want done, I waited many years for. I mean if it's a whole lot then I have to wait a little bit, but, I don't know, I need an idea about how much it would cost. I don't know if she explained it, I don't want a permanent Christmas present, did she explain that to you?

Mazzone: No, why don't you give me a rundown?

Lavary: Well, I just rather it be put out of commission but around to realize it, you know what I mean, cause to me that's so much more appropriate. The other way it's done, it's over with, and you know use it up and it's all gone. Once you use something, its forgotten, but I'd like this one to kind of linger on for years and years, and years, so he'll always remember who gave it to him.

Mazzone: That ain't bad. Understand the Dude's a cop or wears some kind of uniform.

Lavary: Yea.

Mazzone: That makes it extra special.

Lavary: Yes. They immediately start right here, but there's been so many other people that, they could bat their head against the wall for the next 20 years with just a list -- it's been a long time comin [sic]. I never had it done before because it was always right here, I mean they knew, I came into a lot of money once before, and that's when I planned to give him his last present, but I couldn't because they watched me like a hawk for almost a year, and it was just no good, now things have lightened up for over a year.

Lavary: I'll meet him on the turnpike, that's not far from my house any way. You don't know how much I appreciate this Billie cause, I'm been waiting a long time, biting my tongue, biding my time, all fall directly in my head, and I feel the time is quite ...

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