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State v. D''Arco

Decided: October 24, 1977.


Bischoff, Kole and Gaulkin. The opinion of the court was delivered by Kole, J.A.D.


Defendant was indicted in four counts charging him with conspiracy (N.J.S.A. 2A:98-1 and 2A:98-2) (count 1); misconduct in office (N.J.S.A. 2A: 85-1 and 2A:85-14) (count 2); solicitation of misconduct in office of Charles Dorman (N.J.S.A. 2A:85-1) (count 3), and bribery of Dorman in violation of N.J.S.A. 2A:85-1 (count 4). After a jury trial he was found guilty on all counts with the exception of the conspiracy charge (count 1). He was sentenced to an aggregate term of 364 days in the county jail, all but four months of which was suspended. A total fine of $1,000 was also imposed, and he was placed on probation.*fn1

Defendant appeals on the following grounds: (1) "the statements made by * * * Farinella to * * * Greydanus and testified to by Greydanus as an exception to the hearsay rule under [ Evid. R. 63(9)] should not have been admitted in evidence since they violated the defendant's right to confront witnesses as provided by the Sixth Amendment of the U.S. Constitution"; (2) "the testimony of * * * Greydanus as to payment by him to the defendant of $500 should have been excluded by the trial court under [ Evid. R. 4] since the testimony clearly revealed that said payment was a gift"; (3) "the taped conversation between * * * Scaletti

and * * * Gola on January 16, 1975, an alleged co-conspirator, should not have been admitted in evidence against the defendant since the declarations of Gola were not in furtherance of the conspiracy"; (4) "the trial judge should have granted the defendant's motion for judgment of acquittal pursuant to R. 3:18-2 on count two [misconduct in office] because the defendant was found not guilty of count one -- conspiracy"; and (5) "justice mandates a new trial as to counts two, three and four [misconduct in office, solicitation of misconduct in office and bribery] since a multitude of evidence was admitted in evidence under the co-conspirator exception to the hearsay rule and the defendant was found not guilty of conspiracy".

We have reviewed the record in the light of applicable law and find that there is plainly no merit to any of these contentions.

It is established that evidence of hearsay statements made by co-conspirators pursuant to Evid. R. 63(9) does not offend the Sixth Amendment's guarantee of the right to confront witnesses. State v. Sherwin , 127 N.J. Super. 370, 382-383 (App. Div.), certif. den. 65 N.J. 569, cert. dism. sub nom. Loughran v. New Jersey , 419 U.S. 801, 95 S. Ct. 9, 42 L. Ed. 2d 32 (1974); State v. Seaman , 114 N.J. Super. 19, 27-28 (App. Div.), certif. den. 58 N.J. 594 (1971), cert. den. 404 U.S. 1015, 92 S. Ct. 674, 30 L. Ed. 2 d 662 (1972); State v. Boiardo , 111 N.J. Super. 219, 229-230 (App. Div. 1970), certif. den. 57 N.J. 130 (1970), cert. den. 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2 d 231 (1971). Such evidence is clearly admissible as long as there is independent proof of the conspiracy and defendant's participation therein. State v. Boiardo, supra , 111 N.J. Super. at 231.

Such independent proof was provided by the testimony of defendant's fellow freeholder Dorman, who stated that defendant solicited his help in creating a voting bloc for the purposes of extorting money from those individuals and businesses seeking to do work for the county. Dorman

testified to receiving money from defendant to solidify this pact, which he later returned to defendant. This showing of the likelihood of an illicit association was sufficient independent proof to permit the admission of hearsay statements of the other alleged co-conspirators against the defendant under Evid. R. 63 (9). State v. Sherwin, supra , 127 N.J. Super. at 383.

The testimony of Greydanus, a victim of the extortion scheme, with respect to a payment by him to defendant of $500 was properly before the jury. Contrary to defendant's claim, the testimony that this was a gift was not uncontradicted. Greydanus' testimony regarding a statement made to him by Farinella, an alleged co-conspirator, clearly raised an inference that the $500 may not have been a gift at all. A fact issue was thus created for the jury's determination. The evidence was properly placed before it in that context.

We are satisfied that the taped conversation between Gola, one of the alleged co-conspirators, and another victim of the extortion scheme, Scaletti, was properly admitted under Evid. R. 63(9) as in furtherance of the conspiracy. It reasonably may be inferred therefrom that the conspiracy was to continue beyond the date of that conversation. See State v. Farinella , 150 N.J. Super. 61, 67 (App. Div. 1977). In any event, there was ample other evidence of the conspiracy which would justify the admission of this conversation as being in furtherance thereof. Moreover, both the victim and the alleged co-conspirator were available to defendant for cross-examination as to that conversation, since both of them testified at the trial. Cf. United States v. Rodriguez , 509 F.2d 1342 (5 Cir. 1975); Clemons v. United States , 133 U.S. App. D.C. 27, 39-40, 408 F.2d 1230, 1242-1243 (D.C. Cir. 1968), cert. den. 394 U.S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969). Defendant was in no wise prejudiced by reason of the admission thereof.

Defendant claims that a post-trial judgment of acquittal should have been granted on the ...

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