On appeal from Superior Court, Law Division, Somerset County.
Lora, Antell and Pressler. The opinion of the court was delivered by Antell, J.A.D.
Defendant was convicted of conspiracy, N.J.S.A. 2A:98-1, together with Stanley Mleczko, and misconduct in office, N.J.S.A. 2A:85-1. Mleczko was also convicted under a third count in the indictment for misconduct in office. The charges arose from a series of transactions between certain vendors and the Borough of Manville in which defendants, who were Manville officials, were found to have demanded and received kickbacks amounting to 10% of the purchase prices. Also named in the indictment as coconspirators but not defendants were another official and the vendor companies' employees with whom the purchases were negotiated.
Defendant's principal argument on this appeal is that he was prejudiced during presentation of the State's case by the receipt of evidence of a crime other than that for which he was on trial. This involved a $700 kickback taken by defendant from the Burroughs Corporation in connection with the purchase of a Burroughs Accounting Machine. The scenario thereof followed the same general lines as the other transactions alleged in the indictment and included an understanding whereby the vendor inflated the purchase price on the voucher in an amount sufficient
to cover defendant's payment. The plot was launched in 1968 and the money paid in 1969. It is clear that prosecution therefor was barred by the statute of limitations when the indictment was returned on March 15, 1977.
The Burroughs transaction was described in the first six overt acts laid in the conspiracy indictment. The remaining 30 overt acts therein recited pertained to a corrupt agreement concerning (1) the purchase of a garbage truck in 1972 from Hall & Fuhs, (2) a high velocity sewer cleaner from Storr Tractor Equipment Supply Company in 1972 and (3) the purchase of materials and equipment from the W.E. Timmerman Company in 1973. Prior to trial defendant moved to sever the first six overt acts touching the Burroughs transaction of 1969 and preclude proof thereof. The motion rested on the contention that since this transaction involved no conspirators in common with the later ones it formed a separate criminal event therefrom which was completed prior to the bar of the statute of limitations. Defendant pointed out that the two Burroughs employees named as coconspirators in the first six overt acts played no part in any of the other transactions, and that although codefendant Mleczko was named as having committed one of the first six overt acts, the State would not prove that he did so with conspiratorial intent. Most significantly, the State's principal witness, Petrone, a convicted coconspirator who actively participated in all the later transactions, played no part whatever in the events involving the Burroughs Corporation. However, based on the prosecutor's representation that he would "tie it in" the trial judge denied defendant's motion.
At trial the prosecutor's representation failed and on defendant's motion the judge severed overt acts one through six upon his finding that the Burroughs transaction was separate and distinct from the conspiracy charge that occupied the balance of the indictment, a finding with which we are in accord. The prosecutor thereupon responded that proof of that transaction was nevertheless admissible under Evid.R. 55 "to show that the
defendant had a common mode of operation, ten percent way of doing business with vendors." The judges then ruled that this proof would be admitted "to show the existence of a plan on the part of defendant Peltack to obtain money from vendors."
After announcing his ruling the judge instructed the jury that although the charge relating to the Burroughs Corporation was no longer a subject of the trial, evidence thereof might nevertheless be considered by them as demonstrating "the existence of a plan to obtain payments from vendors dealing with the Borough of Manville", but not as
The trial continued and, as the State notes in its brief on appeal, it "proffered overwhelming evidence of defendant's involvement in the 1968 Burroughs Corporation kickback scheme." In his summation the prosecutor stressed the evidence so received and argued that one of the Burroughs Corporation employees who testified would not have insisted upon the grant of immunity which he received as a condition to testifying unless the crime had actually happened. In his charge to the jury the judge restated his ...