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State v. Boratto

Decided: November 30, 1977.


Matthews, Crane and Antell. The opinion of the court was delivered by Antell, J.A.D.


These are unconsolidated appeals from judgments of conviction following a trial by jury. Defendants were tried together under the same indictment, and the appeals involve many common questions. Therefore they have been jointly considered and both will be decided in this opinion.

Defendants are attorneys who practice together as partners. They were convicted under a multiple-count indictment charging Boratto in the first count with the crime of uttering a document falsely purporting to be the last will and testament of Michael G. DePhillips, N.J.S.A. 2A:109-1(b), and in the second count with obtaining money by false pretenses from the estate of Michael G. DePhillips, N.J.S.A. 2A:111-1. The second count rests upon the representation that the will referred to in the first count was genuine. Silverman was charged in the third count with perjury, N.J.S.A. 2A:131-1, in that he falsely swore before a special deputy surrogate that he witnessed decedent execute his will, and in the fourth count with obtaining money by false pretenses from decedent's estate by falsely pretending that the will was genuine, N.J.S.A. 2A:111-1.

The theory of the prosecution was that Boratto and Silverman filed for probate with the Bergen County Surrogate on January 9, 1973 a will dated October 8, 1972 which Silverman, a subscribing witness, swore was signed in his presence by DePhillips. DePhillips had died December 10, 1972 and the will named Boratto, decedent's nephew and for some years his attorney, as executor.

Following the issuance of letters testamentary Boratto appointed himself attorney to the estate. The monies which the indictment charges the two defendants received by false pretenses were more than $50,000 in attorneys' fees and fiduciary commissions received between May 1973 and March 1975.

The investigation culminating in the indictment was prompted by Carmine Deer, who was married to decedent's sister and who expected his wife and daughter to be provided for by decedent. He first examined the will in February or March 1973 and was disappointed that the entire estate was left to decedent's widow.

Deer visited the office of the Bergen County Prosecutor in early November 1973, and the prosecutor forwarded to the New Jersey State Police for examination and report a copy of the signature appearing on the questioned will together with specimens of the decedent's authentic signature. On January 25, 1974 the State Police handwriting examiner reported that the specimens studied indicated that the questioned signature was genuine. The prosecutor called for further examinations on February 5, 1974 and April 18, 1975 and supplied additional specimens of decedent's verified signature. The examiner's opinion remained unchanged. However, in response to the prosecutor's fourth request on May 20, 1975 he replied that the questioned signature was a forgery. By then he had received approximately 235 specimens of decedent's verified writing.

Boratto testified before the Bergen County grand jury on August 12, 1975 and defendants were indicted August 19, 1975. To prove the charges at trial the State introduced two

expert opinions identifying the signature on the will as a forgery, Deer's testimony describing his conversations and relationship with decedent, Boratto's grand jury testimony, and evidence that the backer on the will was delivered to defendants after October 8, 1972, the will's purported date of execution. Prolonged testimony was also heard that the fees and commissions taken by defendants were greater than should reasonably have been allowed for services ordinarily required to administer such an estate.

Defendants did not testify; they relied on the opinion evidence of two handwriting experts and testimony from decedent's sister, brother and widow, who knew decedent's handwriting well, to the effect that the signature was genuine. They also introduced opinion testimony that the fees and commissions received for the particular services rendered this estate were within reason.

On this appeal defendants seek reversal of their convictions based on numerous claims of error in the proceedings below. We deal first with their complaint that the Deer testimony should not have been received. This witness testified about his long and warm association with decedent, the "loving relationship" between his children and the decedent and his disappointment in learning that neither his wife, who was decedent's twin sister, nor his children had been remembered in the will. He explained his original suspicions about the will (which were highly conjectural) and what he did to ascertain which courses of action were open to him. In the course thereof he recounted opinions which he expressed at different times that the signature was forged.*fn1

Deer's testimony was prejudicial hearsay and should not have been allowed. The rationale by which the jury was allowed to weigh this testimony was the "state of mind" exception,

Evid. R. 63(12), and was based on the supposition that a purported will which overlooked Deer's family was inferably forged. The premise of this logic is that decedent said something in these conversations which was inconsistent with the provisions of the will. But Deer's testimony nowhere even suggests that he and decedent ever even mentioned the latter's will or the disposition of his estate. All that appears is that Deer, apprehensive about a history of early cardiac failures in his own family, confided his anxiety about this to decedent. The only assurance given by the decedent was that if Deer should die he would look after his wife and children.

The most recent of these talks occurred about three months before the date of the will's execution. Nothing was said about decedent's testamentary plans. Thus, decedent's state of mind, so far as it was revealed by the conversations was neither "in issue" nor "relevant to prove or explain acts or conduct of the declarant" under Evid. R. 63(12)(a). Nor do the conversations meet these qualifications to the extent that they serve to explain Deer's early suspicions. Those reasons had no bearing on any of the issues in the case.

Defendants complain that the trial judge failed to instruct the jury on "reliance" as an element of the crime of obtaining money by false pretense. Reliance is an essential element of this offense and their contention is sound. State v. Butler , 27 N.J. 560, 595 (1958); State v. Lemken , 136 N.J. Super. 310, 318 (App. Div. 1974), aff'd 68 N.J. 348 (1975); State v. Zwillman , 112 N.J. Super. 6, 12 (App. Div. 1970), certif. den. 57 N.J. 603 (1971). The only allusions to the false pretense counts in the charge are the following:

Now, if you find that the Will was forged and both had knowledge of it, you find the defendants guilty of the first count as to Mr. Boratto and the third court as to Mr. Silverman, there was an intent to defraud, an intent to mislead in both cases, then you have in fact found as to the second and fourth courts that they obtained money by virtue of a false pretense, and you need not even go further, if in fact you find that they obtained money which, of course, is the next question, you have to find that money was obtained.

Now, obtaining money under false pretenses. False pretenses requires that there's a misrepresentation. Well, you could understand the misrepresentation flowing from the uttering a Will that's misrepresented to be the signature of the decedent, and the misrepresentation by Silverman, if you find these beyond a reasonable doubt, flowing from the fact that he saw De Phillips sign the document in his presence and that he wasn't De Phillips.

All right, let's talk a little bit more about obtaining money under false pretenses. You haven't heard much testimony as has been alluded to the defendant Silverman about him. Now you have to determine, and again it all flows from the fact of whether the will was false or not, when fees -- and that's another reason why you have to talk about fees -- were put into the account, you have to determine if Mr. Silverman knew that. Because normally a partner in a law firm or in any business, if one partner is out somewhere else and he's earning a fee or earning some money and he comes in with the checks, he puts it in the account and his partner doesn't know what that's all about, he can't be charged with knowledge of taking money unless he was a party to the ...

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