On appeal from the Superior Court, Law Division, Ocean County.
Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.
[189 NJSuper Page 280] State Grand Jury Indictment 86-81-5 charged Peter J. Coruzzi, a judge of the Superior Court of this State, with: count I, conspiracy to commit official misconduct and bribery, in violation of N.J.S.A. 2C:30-2 and 2C:27-2; count II, official misconduct, in violation of N.J.S.A. 2C:30-2, and counts III, IV, V and VI, bribery, in violation of N.J.S.A. 2C:27-2. Trial was held before Judge Scalera and a jury from March 8 through 25, 1982, at the conclusion of which Coruzzi was found guilty as charged. On May 7, 1982 Judge Scalera imposed concurrent five-year terms on counts III, IV, V and VI, imposed a fine of $2,500 and ordered restitution of $3,000 to the State of New Jersey. Judge Scalera merged counts I and II with the bribery counts.
The statement of facts which follows is drawn largely from the statement of facts in defendant's brief on appeal since that statement was concurred in by the State and adopted in its brief. Our reading of the trial record satisfies us that defendant has set forth a fair and accurate account of the facts established by the proofs at trial.
The State's case relied to a substantial degree upon the cooperation and testimony of an attorney, Louis Caggiano, who was subsequently disbarred for his participation in the wrongdoings for which defendant was indicted. In return for Caggiano's cooperation during grand jury and trial proceedings, the State gave Caggiano complete immunity from any potential charges arising out of the events to which he testified. Caggiano's testimony combined with the testimony of various other State's witnesses linked defendant with three specific criminal matters, and were referred to as the Bocelli incident, the Morselli incident and the Gambell incident.
Caggiano had been an attorney for 33 years and had known defendant as an attorney and a judge for 25 years. Both Caggiano and defendant had centered their practices in the Camden County area.
Eugene Bocelli had been indicted in December 1979 for aggravated assault in Camden County. He was represented by Hersh Koslov, a member of the bar. A plea arrangement was eventually worked out among Bocelli, Koslov and Assistant Camden County Prosecutor Yaron Helmer. Defendant accepted Bocelli's guilty plea and sentenced him in early January 1981 to a five-year jail term. Koslov filed a motion for reconsideration immediately thereafter which was denied by defendant several weeks later. Although Helmer took no position at the sentencing,
he opposed the motion for reconsideration, arguing that the sentence had been lenient since a presumptive sentence of seven years existed.
Caggiano first heard of the Bocelli matter in mid-March 1981 in defendant's chambers when defendant asked him if he knew Bocelli, noting that Bocelli had worked at the Vesco Auto Body Shop. Defendant added he had sentenced Bocelli but that upon a reconsideration of sentence Bocelli could receive a suspended sentence and be released from jail "for a price." Defendant told Caggiano that if "you're not willing, let's just forget the entire conversation." Caggiano indicated he would get back to defendant.
Approximately a week later Caggiano told defendant in his chambers that he had not yet contacted Bocelli. Defendant, as he thumbed through what appeared to be a presentence report, indicated that Bocelli should be able to pay $20,000 since he had income-producing property and money in the bank. Caggiano said that he would see what he could do.
During March 1981 Caggiano called the Vesco Auto Body Shop and spoke with one of the Vescos with respect to helping Eugene Bocelli. Arrangements were made for Caggiano and Bocelli's brother Philip to meet in a nearby diner. At that meeting Caggiano told Philip Bocelli that a legal loophole existed which could be used to release his brother from jail, but that it would cost $20,000. Philip stated that he did not have that kind of money but would speak to his brother. Caggiano did not identify himself as an attorney at that time. The day following the meeting, Caggiano informed defendant in his chambers as to his discussion with Bocelli.
Caggiano subsequently contacted Philip Bocelli who informed him that his brother had not been receptive to the idea because the amount of money was too much. Caggiano consequently informed defendant, who noted that the Bocellis should have sufficient money and that Caggiano had to do something. Defendant added that he had received recent correspondence indicating
that Bocelli's family was suffering emotionally and physically as a result of his incarceration. Caggiano asked defendant if he should see what he could do, and defendant indicated he would. Defendant informed Caggiano that there had been one motion for reconsideration made and that they were running out of the 60-day time limitation for another motion. He said that if something was going to be done, it had to be done quickly, but that Caggiano should not mention his name and should leave him out of any discussions.
In the early part of May, Philip Bocelli received a phone call from Caggiano and the two met at a nearby diner. Caggiano indicated that something had come up which had to be moved on immediately, adding that he could get his brother out of jail for $10,000. The price appeared to be agreeable to Philip who indicated he would have to discuss the matter with his brother. Caggiano gave Philip his business card, indicating that if he trusted an attorney, he should go to that office to see that attorney. At that point Philip as yet did not know Caggiano's identity as a member of the bar.
Philip immediately drove to Caggiano's office in Maple Shade where he expressed surprise at seeing Caggiano since he had not known with whom he had been dealing. Caggiano repeated his earlier comments but would not tell Philip the manner in which the release from prison would be accomplished. He further emphasized the need for immediacy of any action. Philip agreed to meet with his brother who, when informed of the situation, agreed that he wanted to get out of jail.
Caggiano saw defendant in his chambers the next day and informed him of his meeting with Philip Bocelli. Defendant seemed agreeable to the proposal. Caggiano subsequently called Philip Bocelli to tell him that time was of the essence, and they agreed to meet at Caggiano's office on May 20, 1981. At that meeting Philip Bocelli gave Caggiano an envelope containing $10,000. Caggiano told Philip that either he or his brother
would be hearing from Koslov, and that Koslov should be permitted to take all the credit.*fn1
Caggiano immediately called defendant and told him of his meeting with Bocelli. They met later that day in a parking lot at a restaurant where Caggiano gave $7,000 to defendant. Caggiano had unilaterally made the determination as to how much to keep; there had been no prior discussions between defendant and him with respect to the division of monies.
During May 1981 Assistant Prosecutor Helmer had occasion to be in defendant's chambers on various occasions. In each instance defendant asked Helmer if he had made the right decision in the Bocelli case, suggesting that the sentence might possibly have been too harsh. He emphasized the correspondence he had received describing the hardship to the Bocelli family, and that he had contacted the head of the parole board, who informed him that Bocelli was a model prisoner. Defendant further compared this custodial sentence with a similar case in which a six-month period of incarceration had been recommended by the State. Helmer indicated that there had been distinguishing factors between the two cases but defendant nevertheless appeared bothered by the sentence.
In mid-May 1981 defendant called Helmer into chambers and asked him to do a favor since he felt badly about the Bocelli family. He believed Bocelli had suffered enough and asked Helmer not to oppose a motion for reconsideration. He further asked Helmer to call Koslov and request that he file such a motion. Helmer subsequently contacted Koslov and informed him that Coruzzi would look favorably upon a motion for reconsideration if it was filed. Because the incident was so unusual, Koslov prepared a memo summarizing this meeting. Koslov subsequently filed a motion for reconsideration returnable May 29, 1981. Helmer did not appear at the motion but the assistant
prosecutor who did was instructed by Helmer not to object. Upon the return date of the motion, defendant granted the relief sought and released Bocelli from incarceration.
William Keyser had been indicted for the theft of $33,500 which had been found in the trunk of his car upon his arrest and subsequently confiscated by the county. Keyser was represented by Robert Gambell who conducted various pretrial proceedings before reaching a plea arrangement with the prosecutor's office. Keyser, however, was unable to establish a factual basis for his plea. Gambell then advised Keyser to get another attorney who was experienced in criminal trials. Gambell was subsequently replaced by Koslov by a substitution of attorney being filed September 29, 1981.
During a conversation in defendant's chambers, defendant mentioned the names of Gambell and Keyser to Caggiano. He asked Caggiano if he knew Gambell, noting that Keyser, his client, when apprehended, had had $33,000 in cash in his car. Caggiano was requested by defendant to see what arrangements he could make regarding the matter, with the precaution that he was to leave defendant's name out of any discussions.
During the latter part of October 1981, after meeting with defendant, Caggiano attempted to contact Gambell. He eventually spoke to him by phone on October 30, 1981, and met with him later that same day. Caggiano told Gambell that his client could be helped but that it would be very expensive, around $50,000, which would include Gambell's fee. Gambell told Caggiano that he did not want anything in that regard, adding that he no longer represented Keyser and that Koslov was now the attorney of record. However, since he represented Keyser in an unrelated civil matter and would see him the following Monday, Gambell said he would relay the information to him and get back to Caggiano. Caggiano noted that if that was the case, the amount of money necessary to insure a noncustodial sentence
would only be $35,000. Caggiano arrived at this figure based upon defendant's statement to him that he wanted $25,000 for his part in the matter.
On Monday, November 2, 1981, Gambell spoke by telephone to Keyser and mentioned that someone guaranteed a noncustodial sentence for $50,000. Keyser agreed with Gambell that nothing should be thought of it. The same day, Caggiano told defendant in chambers that he had met with Gambell but that he no longer represented Keyser. He repeated Gambell's comment that he would speak to Keyser and get back to Caggiano. Caggiano said he would ask for $35,000 and defendant replied, "good."
On Thursday, November 5, 1981, Gambell returned a phone call from defendant, in which defendant noted that the Keyser matter was the oldest case on his trial calendar and he wanted to move it. He asked Gambell if he could get the case back. Gambell said that he did not know but noted he would be seeing Keyser and would see what he could do. Defendant ended the conversation by saying "naturally, this conversation is confidential."
Caggiano first heard about Sergio Morselli in July 1981 in defendant's chambers when defendant informed him that he had just concluded an interesting trial. Morselli and his wife had been indicted for arson and, although the wife had been acquitted, Morselli had been convicted by the jury. Morselli had been represented at trial by Robert Agre, an associate of Nathan Friedman's law firm. Agre subsequently became employed by the Division of Criminal Justice and Friedman thereafter handled the sentencing which was initially calendared for September 25, 1981. The assistant prosecutor in charge of the case asked for a postponement, however, and defendant assigned a new sentencing date of October 16, 1981. In chambers defendant informed Caggiano that it could be arranged for Morselli to receive a suspended sentence, and told him that whatever he did, to leave his name out of it.
Caggiano indicated he would attempt to contact Morselli but was unable to do so until the latter part of September 1981. In early September he saw defendant on several occasions, and each time defendant wanted to know if he had made any progress with Morselli. Caggiano replied that he had not been able to contact the Morselli family. During their discussions defendant mentioned the sum of $20,000.
Caggiano was subsequently able to contact Morselli through a real estate broker. He and Morselli then met on October 15, 1981 at the Maple Shade Restaurant. During that meeting Caggiano informed Morselli that for $20,000 he would not have to go to jail. Caggiano added that if Morselli was interested, he should let him know, otherwise he should forget their discussion. Morselli described his problem of getting $20,000 since his sentencing was only two days away. Caggiano advised Morselli to ask his attorney to request an adjournment.
Caggiano saw defendant in chambers on October 16 and advised him of his meeting with Morselli, noting that Morselli appeared to be receptive to his proposal but that it would take more time to get the money. He added that he had advised Morselli to ask his attorney to request an adjournment.
Caggiano saw Morselli in the courthouse on the day of sentencing and they discussed the request for an adjournment. Caggiano reminded Morselli that if he was receptive for the proposal and wanted to do something, that he should have his attorney get an adjournment. Morselli stated that he would do so. Caggiano then went into defendant's chambers and discussed the fact that Morselli needed more time and that the matter had to be adjourned. Defendant indicated that was satisfactory to him.
Prior to sentencing, the assistant prosecutor spoke with Friedman, who informed him that he anticipated making a motion to postpone the sentencing. The assistant prosecutor said that he intended to oppose the motion. Friedman, however, withdrew his application to adjourn once the sentencing hearing began.
After the assistant prosecutor Friedman and Morselli spoke at sentencing, defendant stated he wanted additional time to consider alternatives and adjourned the sentencing until October 23, 1981. The assistant prosecutor noted previous commitments for that day, and defendant fixed the following Monday, October 26, 1981.
On October 20, 1981 Sergio Morselli attended a meeting with Deputy Attorney General Robert Agre and other law enforcement personnel. Morselli gave them information concerning Caggiano's discussions and, as a result thereof, investigative activities began. In the interim, Caggiano arranged with Morselli to meet on October 22, 1981 at the same restaurant as before. Morselli was fitted by the State Police with electronic surveillance equipment so that the conversation at the meeting could be monitored and recorded. Prior to the meeting Morselli was given $5,500 in cash by the State Police which was to be used as a down-payment by him to Caggiano.
During the meeting Morselli mentioned defendant's name but Caggiano attempted to convince Morselli that he was not part of the agreement, believing himself bound by defendant's warning that his name should not be mentioned in any discussions. Morselli indicated that he had $5,500 with him and transferred the money to Caggiano, who immediately put it into his pocket. Morselli then informed Caggiano that he needed from 10 to 14 days to obtain the remaining balance.
The following morning Caggiano gave $3,000 to defendant in his chambers. Caggiano added that they needed up to two weeks before Morselli could obtain the balance. Since the sentencing was scheduled for that Monday, October 26, defendant made the necessary telephone calls and postponed the proceedings to November 6, 1981.
On November 3 Caggiano called Morselli to arrange for a meeting on November 5, 1981. Caggiano informed defendant in chambers on the 5th that he would meet Morselli that evening. Defendant told him that if all went well, Caggiano should call
him at his home and they would later meet at a prearranged location.
Prior to the meeting Morselli was briefed by the representatives of the Division of Criminal Justice and was wired again so that his conversations with Caggiano could be monitored and recorded. Caggiano met with Morselli, who wanted assurances that everything would go well. Morselli told Caggiano he would meet him the following day at 1 p.m. since the sentencing was scheduled for 1:30 p.m. Although Morselli was supposed to have had the balance of the money that evening, he did not have it. Since Caggiano demanded that the balance be produced that evening, Morselli left for about one hour, during which he was given the $14,500 by the State Police. The money had been marked and tied in a distinctive bundle by the State Police. When Morselli returned with the $14,500, it was turned over to Caggiano.
Caggiano was subsequently taken into custody after he left the meeting with Morselli because the police concluded that he knew he was being followed when he attempted to evade them. He was stopped by two unmarked police vehicles. As he stopped his vehicle he dropped the packet of money outside the car which was immediately confiscated by the State Police. When taken to police barracks he was played a portion of the taped conversation between Morselli and himself. After hearing the tape Caggiano agreed to cooperate upon receiving an agreement of complete immunity from possible criminal charges.
Caggiano consented to a monitored telephone call to defendant's residence at approximately 7 a.m., on November 6. Arrangements were made for him, during that call, to pick defendant up at a garage and bring him to the courthouse complex. Caggiano was wired with electronic equipment so that the conversation in the car could be monitored and recorded. $12,000 of the $14,500 was given to Caggiano for his meeting with defendant.
Caggiano drove to a nearby automobile dealership, knowing that he was being followed by unmarked police vehicles. As he pulled into the lot, defendant was standing with his jacket folded over his arm. During the ride to the courthouse Caggiano removed the $12,000 and placed it on the seat between himself and defendant. Defendant took the money and put it into the fold of his coat which was still folded on his lap. Caggiano indicated that he had given defendant $12,000, had previously given him $3,000 and that he had received a total of $20,000 from Morselli.*fn2 Just before defendant left the car in front of the courthouse, he placed the money inside the breast pocket of his jacket.
Several members of the State Police were detailed to the Camden County Courthouse complex that morning to effectuate the arrest of defendant if necessary. After defendant left Caggiano's vehicle, a prearranged signal was given by officers who had monitored the conversation inside the car. This signal prompted the plain-clothed troopers to arrest defendant. As the officers approached him they observed a large quantity of currency inside the right breast pocket of defendant's jacket. After identifying themselves the officers asked defendant to accompany them to an unmarked patrol car nearby. He was advised that he was under arrest and would be frisked for any
weapons. While the frisk was conducted defendant turned to an officer and asked that he be given a break and whether something could be done. During the pat-down search the trooper felt the packet of money inside the defendant's coat but did not remove it.
Once inside the vehicle defendant was advised of his rights and taken to headquarters. During the ride defendant made various spontaneous comments. Immediately upon departing the courthouse area defendant stated that a crazy man had picked him up at the DiSimone Cadillac Agency and offered him a ride into town; that he had accepted since he had no other way of getting into town. The crazy man had placed money inside the sport coat pocket, telling him that the money had been owed to defendant. Defendant had not known anything about the crazy man owing him money and did not know how he knew he would be at DiSimone Cadillac.
Shortly thereafter defendant asked rhetorically whether Caggiano was trying to set him up. He then asked why Caggiano had left the scene so quickly and why the police were not going after Caggiano. During the trip defendant removed the money from inside his sport coat pocket and handed it to the officer.
Defendant, through his own testimony and that of various supporting witnesses, categorically denied any involvement with Caggiano in the alleged wrongdoings. He testified that he had known Caggiano for the past 30 years as a fellow Camden County attorney. Caggiano had rarely appeared before him on any criminal matter during his nine years as a judge. During the 1980-1981 court term he handled the criminal list involving private defense attorneys. On January 6, 1981 he had sentenced Eugene Bocelli to a five-year term. He subsequently denied a motion for reconsideration of sentence brought by Hersh Koslov, Bocelli's attorney, since no new information was presented. By
the time a subsequent motion for reconsideration was made in May 1981, however, he had received substantial additional information on Bocelli's behalf. The original jail sentence had initially troubled him greatly. Further, he received correspondence describing the emotional and physical impact the sentence had had upon the Bocelli family. Defendant had learned from Christoper Dietz, the head of the State Parole Board, that Bocelli had been a model prisoner for five months.
According to defendant, on one occasion defendant was in chambers with his law clerk and Yaron Helmer who had prosecuted the Bocelli matter. Helmer told defendant he thought Bocelli had been in jail long enough and that his family had suffered a great deal. Helmer indicated he would contact Koslov to suggest that he make a motion for reconsideration. Defendant subsequently heard the motion and suspended the balance of Bocelli's sentence. He never requested any favors from Helmer nor had he ever discussed the matter with Caggiano. Defendant never received any monies from Caggiano regarding the motion for reconsideration of sentence. Rather, his decision had been solely influenced by the additional circumstances which had come to his attention on Bocelli's behalf.
William Keyser had been indicted and his case assigned to defendant's calendar. A plea arrangement was eventually worked out between the assistant prosecutor and Keyser's attorney, Robert Gambell. However, defendant could not accept the plea arrangement since Keyser could not provide an adequate factual basis for his plea. Eventually, Hersh Koslov was substituted as attorney for Keyser. Koslov had specifically requested the court's approval before taking over the case. Defendant informed Koslov that the Keyser matter was one of the oldest cases on his calendar and that he was anxious to dispose of the matter as quickly as possible in light of the county's speedy trial program.
Koslov was substituted as counsel on September 30, 1981, and on October 7, 1981 defendant adjourned the pending October 19
trial date. Koslov had requested the postponement because of prior commitments and because certain documents necessary for the trial had not yet been received. Defendant was concerned over the delay and established a firm trial date of November 2, 1981. When Koslov informed defendant that this date was also unacceptable because of previous commitments, defendant reluctantly adjourned the matter to November 9, 1981, at which time he indicated that the case would definitely be tried.
On November 4, 1981 Koslov called defendant and indicated he could not be ready to proceed on November 9. He had spoken to the assignment judge of Camden County who had given an indefinite postponement in the Keyser matter. Defendant contacted the assignment judge who confirmed this arrangement, indicating that Koslov should be given a continuance from Monday to Monday.
Defendant testified that on Thursday, November 5, 1981 Caggiano entered his chambers carrying some loose papers and asked him if he could stop at his home that evening to drop some papers off. Defendant did not know what Caggiano was referring to but indicated that he could as long as it was not too late. As he was leaving, Caggiano told defendant that he was going to be getting involved in the Keyser matter and that he had talked to Bob Gambell regarding it. Defendant was surprised at his comment and subsequently spoke to Gambell by telephone. Defendant indicated his desire to get rid of the Keyser matter because it was such an old case. Consequently, he asked if there was a chance that Gambell could get back into the case, but was told that he no longer represented Keyser in the criminal matter. However, he did represent Keyser on the civil matter and intended to meet with him the following Monday. He would advise defendant of the status at that time.
The following day, November 6, 1981, defendant spoke to Caggiano about the Keyser matter on their way to the courthouse in Camden in Caggiano's car. Defendant had received the impression that Gambell would try to dispose of the matter even
though Koslov had been substituted as the attorney of record. Defendant told Caggiano that he would probably be receiving a call from Gambell. At no time did he ever ask Caggiano to obtain money from Keyser for any action done in the criminal matter.
Defendant testified he had presided over a trial in which Sergio Morselli and his wife had been charged with arson. Morselli had been convicted while his wife had been exonerated in mid-July 1981. Sentencing had been initially set for September 25, 1981, the date having been set by his secretary upon receipt of the county presentence report. Since the assistant prosecutor involved was unavailable, defendant set a new sentencing date for October 16, 1981. Over the summer Morselli's attorney, Robert Agre, had joined the Attorney General's Office and Nathan Friedman took over the Morselli matter.
The night before the scheduled October 16 sentencing, Agre met Morselli, who was very depressed since he indicated that "they" wanted $18,000 to keep him out of jail. The following morning Agre spoke to defendant in his chambers regarding Morselli's sentence. Agre indicated his close attachment to Morselli which went beyond the lawyer-client relationship. In chambers Agre presented his view that Morselli was entitled to a probationary sentence upon the totality of the circumstances. Defendant acknowledged Agre's position but noted that the prosecutor's office was ...