On appeal from Superior Court, Law Division, Bergen County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D.
At the heart of these consolidated appeals is the propriety of a joint jury trial of a charge of conspiracy to obstruct justice (N.J.S.A. 2A:85-1 and N.J.S.A. 2A:98-1) with charges of perjury and false swearing (N.J.S.A. 2A:131-4 and N.J.S.A. 2A:131-1) arising out of testimony before the grand jury investigating the conspiracy compelled by a grant of use and fruits immunity. Also implicated herein are a multitude of issues concerning the sufficiency of the indictment, errors concerning the admissibility of evidence, an attorney's conflict of interest in representing two defendants charged with the same conspiracy, and the adequacy of the evidence to support the conviction. The jury convicted both defendants of conspiracy and of related charges of perjury and false swearing. They appeal.
The alleged conspiracy concerned an attempt to exert unlawful influence on a Superior Court judge to impose a more lenient sentence than would otherwise be warranted on two defendants scheduled to be tried before him on loan sharking charges. The alleged participants in this conspiracy were the two defendants who were to be sentenced, Frank Pintozzi and Louis Albanese, the latter being unindicted for his part in this conspiracy, and the two defendants whose appeals are here under consideration, Anthony Carminati and Salvatore Badelamenti. According to the State's theory of the conspiracy, Carminati and Badelamenti agreed that the latter would use his friendship with a Bergen County Freeholder, Gerald Calabrese, not alleged to be a conspirator,
to influence him to intercede with Superior Court Judge James Madden to go lightly in his sentencing of Pintozzi and Albanese. There is no question but that the indictment charged that such influence would be unlawfully exerted, that it was the corruption of the judge which was its object.
The agreement was evidenced by court-ordered electronically obtained transcriptions of intercepted phone calls and private conversations, together with testimonial evidence of physical surveillance of the alleged conspirators. For present purposes it is sufficient to note that the conversations relied upon provided an adequate basis for the jury's conclusion that Carminati and Badelamenti so agreed.
The State freely conceded that the conspiracy failed. Indeed, the grand jury which returned the indictment specifically found that to be true. Judge Madden was never reached and he sentenced Pintozzi and Albanese free of corrupting influences and without knowledge of any plan to influence him. Moreover, Calabrese, the one slated to make the corrupt overture to Judge Madden, denied, without testimonial contradiction, that Badelamenti ever asked him to approach Judge Madden. According to his testimony, he was unaware of any agreement between Carminati and Badelamenti in which he figured so prominently. Calabrese was never alleged to be part of the conspiracy.
Neither defendant testified. We derive their theories of defense from their respective summations, in turn derived by inference from the State's evidence and the testimony of Gerald Calabrese, the principal witness for the defense. Carminati's position was simply a denial that he participated in any conspiracy. Central to this defense was his denial that his was the voice on the tapes of the intercepted phone calls. Badelamenti's defense was quite different. Although in his grand jury testimony he denied that his was a voice on the taped phone calls, at trial he stipulated his part in the intercepted phone calls, contending, however, that his "agreement" with Carminati to persuade
Calabrese to intercede with Madden was never seriously intended. According to the argument made, he was merely "conning" Carminati to curry favor with him, never intending and never making any move to bring the "agreement" to fruition. Calabrese's denial that Badelamenti ever sought his aid in reaching Madden is referred to in support of this theory.
The foundation of the perjury and swearing charges made against defendants Carminati and Badelamenti was their sworn testimony before the grand jury investigating the possible irregularities and improprieties relevant to the disposition of the charges against Albanese and Pintozzi. Both defendants were summoned to testify at that investigation. Carminati, waiving his privilege against self-incrimination, denied participation in any attempt to influence Judge Madden, and denied under oath that his was a voice on the tapes of the intercepted phone calls, a position consistent with the one he maintained at his trial. Badelamenti, however, refused to waive his privilege and his ensuing testimony was compelled by a grant of use and fruits immunity. N.J.S.A. 2A:81-17.3. In it, he denied participation in the phone calls and denied that he discussed with Carminati the plan to influence the judge in the Pintozzi-Albanese matter, a denial that appeared to be in direct contradiction to the wiretap evidence then in the State's possession suggesting several conversations along those lines. During the testimony, a prior conviction of crime was disclosed in an attempt to persuade the grand jury that he was so upset over the prospect of the custodial sentence he was soon to commence serving that he could not have been interested in another's problems with the law. In any event, it was his testimony denying his conspiratorial discussions with Carminati which led to the perjury conviction charged in count 4 of the indictment. His denial of any attempt to persuade Calabrese to request the latter's intercession with Judge Madden ultimately led to his conviction of false swearing for that testimony.
Both Carminati and Badelamenti seek entry of a judgment of acquittal on the following grounds:
1. The first count of the indictment charging them with a conspiracy to obstruct justice does not charge, by its terms, that offense.
2. N.J.S.A. 2A:98-1(h) is unconstitutionally vague as applied to the facts and the conspiracy ...