On certification to the Superior Court, Appellate Division, whose opinion is reported at 153 N.J. Super. 452 (1977).
For reversal and reinstatement -- Chief Justice Hughes, Justices Sullivan, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- Justice Pashman. The opinion of the court was delivered by Handler, J. Schreiber, J., concurring. Pashman, J., dissenting. Schreiber, J., concurring in the result.
Defendants Nicholas Stefanelli, Gerald Sperduto, Robert Bisaccia, Joseph Cicala, Nelson Tosi, Sam Corsaro and John Quartuccio were indicted and charged with conspiracy to break and enter and to commit larceny (N.J.S.A. 2A:98-1) as well as the substantive offenses of entering with intent to steal (N.J.S.A. 2A:94-1) and larceny of goods valued over $500 (N.J.S.A. 2A:119-2). There followed an extended trial on these charges. The cases against defendants Cicala, Tosi and Quartuccio were disposed of prior to the completion of the trial. The remaining defendants were eventually convicted by the jury and later sentenced. Appeals were taken by Bisaccia, Corsaro and Stefanelli. The Appellate Division, in a reported per curiam opinion, reversed these convictions and remanded the matter for a new trial. State v. Stefanelli, 153 N.J. Super. 452 (App. Div. 1977). This Court granted certification limited to the "issue of the use of the testimony of Cicala as to his plea of guilty and the prosecutor's comments thereon." 75 N.J. 4 (1977).
The indictment charged in three counts that between July 15, 1972 and September 1, 1972, defendants conspired with Gerald Festa, an unindicted co-conspirator, to break and enter the home of Dominick Bruno to steal money, goods and chattels and that on August 27, 1972, defendants actually broke into Bruno's home and stole money and jewelry valued in excess of $500. The indictment recited four overt acts committed in furtherance of the conspiracy. Of special importance here is the first overt act relating to defendant Joseph Cicala. This act, according to the indictment, consisted of a conversation between Cicala and Festa during which Cicala informed Festa that money and jewelry were
contained in the Bruno home and the home was frequently unoccupied on weekends. The indictment did not specify the date of this conversation and did not in any other way refer to Cicala.
On the day of trial, Cicala appeared before the trial judge and pled guilty to the conspiracy charge pursuant to a plea bargain. In exchange for the guilty plea the State agreed to recommend that the remaining counts of the indictment be dismissed and that Cicala receive "consideration" at the time of sentencing for his "cooperation" with the State. Cicala admitted that he conspired with Festa for the purposes of breaking and entering the Bruno home with intent to steal as set forth in the conspiracy charge and the first overt act; he denied any further involvement with Festa or any of the other defendants. He stated, however, that his conversations with Festa occurred in June 1971, not in 1972 as charged in the indictment. The trial judge, with the acquiescence of Cicala's attorney, stated that he was amending the conspiracy count of the indictment to reflect the conspiracy starting in June 1971. He then accepted Cicala's plea of guilty. No formal amendment order, however, was entered nor was any written notation made upon the official indictment to reflect the amendment authorized by the court. It appears that the other defendants and their attorneys were present in court during these proceedings.
The jury trial then commenced. Cicala was called as a State's witness. He revealed that he was employed as a hairdresser at an establishment within walking distance of the Bruno home and he had observed that one of his customers, Mrs. Dominick Bruno, invariably wore expensive jewelry. He also testified that he was aware that substantial amounts of cash were kept at the Bruno house and that the Brunos were in the habit of vacationing at the Jersey shore. Cicala knew that Festa was a burglar. He stated that he spoke to Festa and suggested that "it might be a good idea to rob the [Bruno] house", and that in the
past he had given such information or "scores" to Festa; Cicala hoped to receive a "cut" or a share of the proceeds of any burglary of the Bruno home. That evening, acting upon his conversation with Cicala, Festa visited the Bruno home to "case the joint" with Quartuccio, an expert in burglar alarms, who found a relatively sophisticated alarm system and told Festa to forget about any break-in of the Bruno home. Festa, in turn, told this to Cicala. Cicala had no further direct or active involvement in the criminal enterprise after this point.
In July, approximately one month after these events (but, in the year 1972, according to Festa's testimony), Stefanelli and Sperduto were approached by Festa as to the feasibility of breaking into the Bruno home. Apparently relying upon Cicala's information, Festa told them of the location of the cash and jewelry in the Bruno home as well as the fact that the home was frequently vacant on weekends. Festa then inspected the Bruno home with Stefanelli who indicated that the burglar alarm posed no problem since Tosi, his brother-in-law, could "jump it". About two weeks later, in late July or early August, according to Festa, Corsaro, Bisaccia and Sperduto visited Festa and made additional inquiries concerning the feasibility of a break-in of the Bruno home.
On August 20, 1972, Dominick Bruno and his family went to San Francisco for a two-week vacation. At 8:30 A.M. on August 27, 1972, the home was discovered to have been ransacked; the police were notified and arrived at the scene. Although there was no evidence of a forced entry, a knife was stuck in the wall holding up the wiring to the burglar alarm, presumably short-circuiting or "jumping" the wires and deactivating the alarm system enabling the perpetrators to enter the house. Dominick Bruno was contacted by phone that evening and apprised of the incident; he arrived the next day and inspected his home to determine what, if any, items were missing. He claimed a variety of his home furnishings as well as numerous recently acquired goods had been stolen, and subsequently filed an insurance claim of
$14,543.90 for stolen and damaged property. Ultimately he collected only $6,800.
The only testimony which directly linked defendants with the actual break-in of the Bruno home came from Festa, the State's principal witness. In addition to his testimony of his own initial conversations with Cicala and his following discussions with the various defendants and exploratory visits to the Bruno home, Festa stated that he did not learn of the actual break-in until approximately one week after its occurrence. He had received a telephone call from Stefanelli who, without mentioning the break-in, requested that Festa meet with him. Moments before Festa was about to leave his home to meet with Stefanelli, however, he was visited by a detective of the Bandit Squad of the Newark Police Department. When questioned by the detective, Festa denied any participation in the break-in and he was told that the thieves "got a couple of good pieces of jewelry but missed the money." Festa then met Stefanelli, in the presence of Bisaccia and Sperduto, and it was admitted to Festa that they had committed the crime or, in their argot, the Bruno "score". They mentioned that Tosi had disconnected the burglar alarm enabling them to enter the Bruno home, and once inside the house they searched unsuccessfully for cash and jewelry, generally tearing the house apart in the process, and they had telephoned Festa from the Bruno home but did not reach him.
The genesis of the issue on this appeal occurred during Cicala's testimony when he related the circumstances surrounding his guilty plea. Cicala, it is to be recalled, had given a detailed account of his early though limited involvement in the conspiracy. After Cicala had so testified, the prosecutor asked him whether he had been arrested in this matter. Defense counsel objected on general grounds, but the court overruled the objection and the witness answered in the affirmative. At this point the prosecutor began to inquire into Cicala's cooperation with the Essex County
Prosecutor's Office when defense counsel interrupted the questioning, and the following colloquy ensued:
Defense counsel: Is the purpose of the Prosecutor's question to bolster the credibility of his witness? I believe he has testified as to what he knows regarding this particular incident. He has testified as to what is relevant as far as this case is concerned.
Now, what the Prosecutor is attempting to do I think is bolster the credibility of his witness by the form of questions as to what might have happened subsequent to this event as to conversations he might have had.
Quite obviously, after whatever relationship he had with this particular incident terminated by his giving any statement to them --
Prosecutor: Not at all, your Honor, the purpose of these questions is to advise the jury and the Court --
Court: I am going to allow the question without hearing your purpose.
Cicala then stated that "recommendations would be made to the sentencing judge as to my cooperation in this case." He further testified that he had previously pled guilty to the first count of the indictment. Defense counsel thereupon objected to this testimony but solely on the ground that Cicala had pleaded guilty to the indictment as amended and not the original indictment. This objection was also overruled by the court for the reason that he had "amended the indictment".
Cicala's testimony concerning his guilty plea was subsequently commented upon by the prosecutor during summation. The prosecutor, in an apparent attempt to refute the innuendo of defense counsel that the crime was engineered by Bruno in order to defraud his insurance company, stated:
Bruno burglarized his own home, it never happened, and yet a young man named Joseph Cicala pleaded guilty to conspiring to break, enter and commit larceny inside the Bruno home. [Defendants] said it never happened, you see. Mr. Cicala pleaded guilty to something that didn't happen. Ladies and gentlemen, isn't your intelligence being insulted by an argument like this? I mean, aren't these defendants
talking down to you as if you were a bunch of five year old children?
Defense counsel objected to these comments, but was overruled by the court. Defense counsel argued vigorously, out of the presence of the jury, that the court had disallowed any comment to the jury on the disposition of the charges against Tosi (that being a directed judgment of acquittal) and that by permitting the prosecutor now to imply that "because Cicala pleaded guilty * * * this crime occurred and these defendants are guilty" was patently unfair. The court overruled defense counsel's objection and no cautionary instruction was given the jury. In the charge to the jury, the court, without referring specifically to Cicala's testimony concerning his guilty plea, merely stated in general terms that evidence of the convictions of Festa and Cicala had been introduced for the purpose of affecting their credibility. (Festa had numerous prior convictions as well as pending charges against him; Cicala had also testified to a federal conviction in addition to his guilty plea to the conspiracy under the indictment being tried.) The case was submitted to the jury which returned guilty verdicts against defendants on all counts.
Defendants contended before the Appellate Division that Cicala's factual testimony concerning his actual involvement in the conspiracy had been improperly admitted. The court observed that since Cicala's two conversations with Festa occurred during June 1971 and there were no conversations between Cicala and Festa nor any of the defendants thereafter, "the proofs adduced by the State [did] not tie Cicala to the three defendants in any way", 153 N.J. Super. at 456, and thus any error in the admission of this testimony was harmless. The court also expressed "grave doubt" as to the amendment of the indictment, which moved the commencement
of the conspiracy back to June 1971 from July 15, 1972 as originally charged. Id. The Appellate Division, however, did not actually rule upon either of these contentions.
There should be dispelled at the outset any outstanding doubt as to whether Cicala's testimony of his actual participation in a criminal conspiracy with Festa to burglarize the Bruno home was relevant to the issue of the guilt of the other indicted defendants. The testimony of Cicala, as well as Festa, disclosed that Cicala conceived the criminal scheme to burglarize the Bruno home; his conversations with Festa evidenced an unlawful agreement to accomplish this. It was obviously their understanding that Festa, a ...