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State v. Boratto

Decided: June 28, 1979.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
JOSEPH BORATTO, DEFENDANT-RESPONDENT, AND MARTIN SILVERMAN, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 154 N.J. Super. 386 (1977).

For reversal and acquittal as to Silverman and reversal and remandment as to Boratto -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For reversal and remandment as to both defendants -- Justice Sullivan. The opinion of the court was delivered by Handler, J. Sullivan, J. (concurring in part and dissenting in part).

Handler

[80 NJ Page 510] Defendants Joseph Boratto and Martin Silverman, attorneys practicing together as law partners, were indicted by a Bergen County Grand Jury for several crimes arising out of the probate of a will, the issuance of letters testamentary and the administration of the estate of a decedent, one Michael G. DePhillips. Boratto was charged in the first count of the indictment with uttering a document falsely purporting to be the last will and testament of the decedent contrary to N.J.S.A. 2A:109-1(b) and in the second count for obtaining money by false pretenses from the decedent's estate in violation of N.J.S.A. 2A:111-1. Silverman was charged in the third and fourth counts of the indictment with falsely swearing before a special deputy surrogate as to the attestation of the will contrary to N.J.S.A. 2A:131-1 and with obtaining money by false pretenses from the decedent's estate violating N.J.S.A. 2A:111-1. The defendants were found guilty by a jury of all charges and received State Prison terms and fines. The Appellate Division reversed the convictions in a reported decision, 154 N.J. Super. 386 (1977). Thereafter the State filed a petition for certification, which was opposed by Boratto, and

Silverman filed a cross-petition. Both petitions were granted. 77 N.J. 475 (1978).

The record discloses that on January 9, 1973 defendants filed for probate with the Bergen County Surrogate what was purported to be the last will and testament of DePhillips, who died on December 10, 1972. The will named Boratto, who was decedent's nephew, as executor and designated June DePhillips, decedent's wife and Boratto's aunt, as the sole beneficiary; it contained an attestation clause in usual form bearing the names of defendants as subscribing witnesses. Allegedly, Silverman swore before the special deputy surrogate that this will had been signed by the decedent in his presence and had been duly attested. Letters testamentary were issued appointing Boratto as executor; he then appointed himself as attorney for the estate.

The authenticity of decedent's will was initially questioned by Carmine Deer, decedent's brother-in-law and Boratto's uncle by marriage. Deer, upon first examining the will in February or March 1973, was disappointed that the entire estate was left to decedent's widow; he expected that decedent would provide for Deer's wife and daughter. His suspicion aroused, Deer visited the office of the Bergen County Prosecutor in early November 1973 and triggered the chain of events culminating in the indictment of defendants.

To substantiate the charges, the State offered at trial the following proofs: the testimony of the deputy surrogate as to the offering of the will for probate by defendants; the testimony of two handwriting experts that the signature on the will was a forgery; Deer's testimony describing his conversations with decedent about providing for Deer's wife and children in the event of Deer's premature death; Boratto's grand jury testimony which implicated Silverman; evidence that the backer on the will was delivered to defendants after October 8, 1972, the date of the will; expert testimony that the fees and commissions taken by defendants were excessive and the testimony of various witnesses concerning bank transactions of Boratto, defendants' law firm and the estate.

Neither Boratto nor Silverman testified at the trial. Defendants relied on the testimony of a handwriting expert; they called as witnesses decedent's brother, sister and widow, each of whom was familiar with decedent's handwriting and testified that the signature on the will was genuine. Defendants also introduced opinion testimony of an attorney as an expert that the fees and commissions received in connection with the estate were reasonable. In addition, Silverman called another handwriting expert who opined that decedent had signed the will.

The Appellate Division, in reversing the convictions, held that the counts of the indictment charging defendants with obtaining money by false pretenses were deficient, 154 N.J. Super. at 397-399, that evidence of reliance was insufficient, id. at 395-397, and that the trial judge failed to instruct the jury on this element, id. at 394-395. The court further held that while the State satisfied the so-called "two witness" rule concerning the perjury charge, the trial judge failed to explain to the jury the function of this rule, id. at 404-406. In addition, the court determined that certain evidence, namely Deer's testimony and that concerning mismanagement of the estate by Boratto and the excessiveness of his fees, was prejudicial and should not have been admitted. Id. at 393; 399. The court also ruled that the use of Boratto's grand jury testimony against Silverman was inadmissible hearsay and violated Silverman's right to confront witnesses, id. at 400-401, and that the State omitted to prove the identity of Silverman as the individual who undertook to swear to the attestation of the will before the special deputy surrogate or that Silverman had knowledge that it was not decedent who executed the will, id. at 401-404. Accordingly, the Appellate Division reversed the judgments of conviction of both defendants for obtaining money under false pretenses as charged by the second and fourth counts of the indictment and entered judgments of acquittal thereon; it reversed the judgments of conviction for the utterance of a false document against Boratto under the first count and perjury

against Silverman as charged in the third count and remanded these charges to the trial court for a new trial. Id. at 406-407. It is our determination that these judgments of the Appellate Division must be altered to the end that Silverman is acquitted of both charges against him and the convictions of Boratto on the charges against him are reversed and the matter remanded for a new trial.

I

We first address several issues relating to defendant Silverman. He was charged in the third count with perjury in that he swore falsely before the special deputy surrogate contrary to N.J.S.A. 2A:131-1 that he had witnessed decedent execute the will offered for probate. The fourth count charged him with obtaining money by false pretenses from the DePhillips estate in violation of N.J.S.A. 2A:111-1. The Appellate Division ruled that it was reversible error for the State to have introduced Boratto's grand jury testimony against Silverman. We agree. That evidence, in our judgment, fatally poisoned the State's entire case against Silverman on both counts and mandates a reversal of the convictions.

Boratto's testimony before the grand jury contains no less than five direct inculpatory references to Silverman: it identifies Silverman as a law partner of Boratto; it recites that Silverman shared profits and losses in the firm, including fees received from the DePhillips' estate; that Silverman's signature appeared as that of a subscribing witness on the will; and, that Silverman accompanied Boratto to the surrogate's office and executed the affidavit which formed the basis of the perjury count. Boratto's grand jury testimony was not only directly inculpatory of Silverman, it indirectly, but as clearly, incriminated Silverman by its repeated references to Boratto and his law partner, Silverman, in the plural form in discussing defendants' dealings with the decedent and estate.

This use of Boratto's grand jury testimony against his codefendant Silverman was, as properly found by the Appellate Division, an impermissible use of hearsay evidence and a violation of Silverman's constitutional right to confront witnesses against him. 154 N.J. Super. at 400. An extrajudicial confession is never admissible in a joint trial unless all aspects implicating a defendant other than the declarant can be effectively excised and withheld from the jury. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Gardner, 54 N.J. 37 (1969); State v. Barnett, 53 N.J. 559 (1969); State v. Young, 46 N.J. 152 (1965). There was simply no deletion of those portions of Boratto's grand jury testimony inculpating Silverman. Indeed, not only was there no attempt to purge Boratto's grand jury testimony of its incriminatory content as against Silverman, there was express reliance upon it by the State as prosecutor, the court, and the jury as fact-finder. The jury interrupted its deliberations to request that Boratto's grand jury testimony be reread; this request was accommodated by the court. Moreover, in denying Silverman's motion for a judgment of acquittal on the perjury count, the trial judge relied specifically on Boratto's inculpatory grand jury statement that "[h]e [decedent] signed [the will] and I signed it and my partner, [Silverman] signed it".

The error of the trial court in permitting the use of Boratto's grand jury testimony against Silverman was reversible. The introduction of the evidence was clearly capable of leading the jury to a result it otherwise might not have reached. See State v. Simon, 79 N.J. 191, 208 (1979); State v. Stefanelli, 78 N.J. 418, 435 (1979); State v. Melvin, 65 N.J. 1, 18-19 (1974); State v. Macon, 57 N.J. 325 (1971). Such error is, thus, not harmless beyond a reasonable doubt. Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. den. 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).

In addition to this ground for impugning Silverman's convictions on both counts, the State's proofs with respect to perjury were patently insufficient to sustain that charge. Since, according to the indictment and the State's theory of the prosecution, Silverman's alleged perjury was a factual basis for the charge of obtaining money by false pretenses, the latter charge falls with the former.

Perjury, under N.J.S.A. 2A:131-1, is the "willful and corrupt false swearing or affirming, under an oath lawfully administered in the course of a judicial or quasi -judicial proceeding, to some matter material to the issue." State v. Sullivan, 24 N.J. 18, 26 (1957); see also, State v. Mullen, 67 N.J. 134 (1975). To establish perjury the State must prove that defendant made an affirmation under oath "in the course of a proceeding," that the statement was false, and that defendant knew that his affirmation was false. Knowledge of falsity in a prosecution for perjury may be inferred from surrounding circumstances. Such an inference may be derived from several sources, the objective falsity itself, a motive to lie, or facts tending ...


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