On appeal from the Superior Court, Law Division, Ocean County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D.
[193 NJSuper Page 138] State Grand Jury Indictment 87-85-5(1)*fn1 charged Donald R. Conway, a member of the bar of this State, and Alan Grecco, with: conspiracy contrary to N.J.S.A. 2C:5-2 (Count One); tampering with a witness contrary to N.J.S.A. 2C:28-5a(1) and (2)
and 2C:2-6 (Count Two); tampering with public records contrary to N.J.S.A. 2C:28-7a(1) and 2C:2-6 (Count Three); tampering with physical evidence contrary to N.J.S.A. 2C:28-6(1) and 2C:2-6 (Count Four); promotion of official misconduct contrary to N.J.S.A. 2C:30-2 b and 2C:2-6 (Count Five); attempt to promote official misconduct contrary to N.J.S.A. 2C:30-2b, 2C:2-6 and 2C:5-1 (Count Six), and bribery contrary to N.J.S.A. 2C:27-2c and 2C:2-6 (Counts Seven and Eight).
Samuel Lazzara, Joseph Lazaro, a State Police sergeant, and Vincent Rigolosi, who is also a member of the bar of this State, were also charged in the same indictment. A separate State Grand Jury Indictment arising out of the same incident, Number 87-81-5, charged Joseph Barcellona in a similar manner. Barcellona was an unindicted coconspirator in Indictment 87-85-5(1). His trial was kept separate from the other defendants' trial and scheduled for a later date.
Lazaro entered a plea of guilty to Counts One, Two, Five and Seven on July 8, 1982, and testified at trial for the State. After the trial, Barcellona entered a plea of guilty to Count One.
Trial of the other defendants was held before Judge Huber and a jury from September 13 through November 4, 1982. The jury found Conway guilty of conspiracy (Count One) and tampering with a witness (Count Two). Grecco was found guilty of conspiracy (Count One) and bribery (Count Seven). Lazzara and Rigolosi were acquitted on all counts. On March 22, 1983 Judge Huber merged Count One with Count Two and sentenced Conway to a suspended four year term in State Prison, $2,500 fine and $25 penalty payable to the Violent Crimes Compensation Board. With respect to Grecco, the judge merged Count One with Count Seven and sentenced him to a seven year term in State Prison, $1,500 fine and $25 penalty payable to the Violent Crimes Compensation Board.
Conway and Grecco appealed separately and their appeals were consolidated by us. Conway's subsequent motion to sever his appeal was denied.
The case against defendants originated out of an altercation between Philip Lombardo, Jr. (Lombardo) and State Police Officer Denis McDowell outside a large seaside club in Ortley Beach, Dover Township, Ocean County, during the early morning hours of Sunday, July 19, 1981. The club was owned and operated by Barcellona. It contained seven separate bars, held in excess of 1,000 people and employed 28 full time "bouncers" to identify and control intoxicated patrons.
Prior to the McDowell-Lombardo altercation, Lombardo had been ousted from the club. Instead of leaving the area, Lombardo remained outside the club and acted suspiciously. McDowell frisked him and allegedly found one can of tear gas. Later that evening at closing, Lombardo banged on the door of the club, and when it was opened, threw a substance in McDowell's face. A chase and subsequent struggle ensued. Another can of tear gas was found in Lombardo's vehicle. McDowell consequently arrested Lombardo and charged him with simple assault, two counts of unlawful possession of a weapon (tear gas) and resisting arrest. During the arrest Lombardo boasted of his "family connections" that "ran New York and New Jersey" and would "take care" of McDowell.
Although McDowell testified that he previously worked at the club as a bouncer in violation of State Police regulations, it was disputed at trial whether he was working for the club on the morning of the Lombardo altercation. It was also disputed whether Lombardo returned to the club to telephone police that several patrons were damaging his car.
Shortly after the Lombardo arrest, McDowell, a member of the New Jersey State Electronic Surveillance Unit, reported to his State Police superiors that an attempt was being made to bribe him to dispose of Lombardo's case. An investigation, during which concealed recording devices were used, followed. Through that investigation it was learned that several individuals attempted different ways to dispose of the Lombardo case, including: bribery, an altered arrest report and a lineup ploy.
The State's case relied to a substantial degree on the tape recordings and the testimony of McDowell and Lazaro. That evidence disclosed the following.
On the morning of the altercation Conway was retained to represent Lombardo who was then jailed by the Dover Township police. Conway immediately dispatched an associate to represent Lombardo at the police station. Lombardo was released from jail and his impounded car was retrieved. Conway met and interviewed Lombardo the following day. He prepared to file a complaint against McDowell and the club. He also entered a formal appearance for Lombardo at the Ocean County Prosecutor's office and requested a probable cause hearing. Later that same day Conway telephoned Rigolosi, the attorney who represented Barcellona, the club's owner; they scheduled a meeting with Barcellona to see if the Lombardo matter might be disposed of amicably without litigation.
Conway met Barcellona for the first time in Rigolosi's law office on Wednesday, July 22, 1981. After discussing the altercation, Conway stated his client would not file counter complaints if McDowell would withdraw his charges. Barcellona replied that he "would be more than happy to resolve it by having the charges dropped." As a result, Conway never filed a cross-complaint. At a later date, however, Barcellona was recorded on tape stating that Conway "begged" him to do "anything that can be done . . . I mean anything," to drop the charges.
On Friday, July 24, 1981 McDowell equipped himself with a recording device and went to Barcellona's club. McDowell spoke to Lazaro privately. Lazaro stated that Lombardo's father and Grecco were members of the Vito Genovese organized crime family and that the trooper's family might be in danger because of young Lombardo's arrest.
Through Lazaro's testimony at trial and the tape recorded conversation, it was established that Barcellona asked Lazaro to approach McDowell and inform him that Grecco offered to pay
$10,000 to get rid of the charges against Lombardo. When approached by Lazaro, McDowell acted interested in the bribe and stated that he could easily retype and alter the arrest report since it was not yet officially filed. In an effort to determine the true source of the bribe, McDowell requested to meet with Lombardo or Grecco. At the close of the July 24 tape recorded meeting, Lazaro telephoned his uncle, Lazzara, to arrange a meeting with Grecco, McDowell and himself.
The following evening Lazaro met Grecco at Lazzara's home. Grecco would not permit McDowell to be present at the meeting. Lazaro testified that the men discussed altering the arrest report or, in the alternative, having McDowell fail to identify Lombardo in a lineup. Lazaro further testified that Grecco refused to allow McDowell to meet with Lombardo, stating "our attorneys would get the reports" and "would be able to handle that."
Shortly after the meeting, Lazaro returned to Lazzara's home and received $5,000 to give to McDowell. Lazaro was told the money was from Grecco and McDowell would receive $5,000 now and $5,000 "when it's done."
Late that same evening McDowell, equipped with a tape recorder, went to Barcellona's club to meet Lazaro. The two men discussed the meeting with Grecco; Lazaro gave McDowell $4,900 and kept $100 for himself. Lazaro informed McDowell he would be paid an additional $5,000 when the charges against Lombardo were dropped.
On July 29, 1981 McDowell met Barcellona and gave him the two-page original arrest report and the one-page altered report. During this tape recorded meeting Barcellona indicated that Grecco and "those guys" wanted to see both reports.
On August 16, 1981 McDowell brought Lazaro to New Jersey State Police superiors. When confronted with the taped conversations Lazaro admitted the bribery and agreed to assist in the further investigation of the incident. State Police superiors told Lazaro to locate the original and altered reports and to meet
with the attorneys in the case to ascertain their involvement in the scheme.
Conway telephoned the Ocean County Prosecutor's office on August 17, 1981, to learn the status of the Lombardo case. On August 19, 1981 Conway and Rigolosi met Barcellona for lunch at a restaurant owned by Barcellona in Clifton. At this meeting Barcellona indicated to the attorneys that McDowell suggested having a lineup. According to Conway, however, Barcellona stated: "He's not sure he's got the right guy and why don't you just have a lineup and get the whole thing done that way." Conway testified that he attempted to dissuade Barcellona from having a lineup.
At Rigolosi's request, Conway returned that evening to an office above Barcellona's restaurant to meet with Lazaro, Rigolosi and Barcellona. Lazaro recorded their conversation.
During this meeting Barcellona stated that Conway was informed earlier that day about the suggested lineup ploy. The recorded conversation revealed that Conway and Rigolosi were aware that McDowell considered purposely failing to identify Lombardo to dispose of the case. Conway stated that McDowell would "look bad" if he failed to identify an individual he arrested. Conway also questioned if any other witnesses were present at the time of the altercation and arrest.
Lazaro then asked Conway if he possessed a copy of the arrest report or had seen the "original" report. Conway replied, "never saw either one." He further stated: "Well, there's only one report that's filed I assume." Shortly thereafter Lazaro explained to Conway: "There's no case number on the [report], the [report] just lays around. And that's what gave [McDowell] the opportunity to withdraw the [report] and change it." Lazaro told the attorneys that McDowell "skipped out on everything" in the second or altered report.
After listening to the discussion, Conway stated he could claim Lombardo was innocent if there was a lineup. Conway requested to see the arrest report to ascertain if any facts would
create a problem. Lazaro testified that he then obtained the altered report from his car, returned to the meeting and handed it to Rigolosi. The attorneys were told that the original report was accurate and detailed, whereas the filed report was slightly more than a paragraph in length. Rigolosi read the altered report aloud, at the conclusion of which Conway stated to Rigolosi, "Alright, we're in good shape." Eliminated from the original report was the location of the tear gas cannisters, Lombardo's statements made at the time of his arrest concerning his organized crime connections, and statements concerning Lombardo's initial ejection from the club.
When Lazaro said that he wanted assurance that no copies of the original report which had been borrowed by Barcellona were made, Conway acknowledged that he had such assurance "because the guy who I have implicit trust in, who I met early this morning . . . [would not] let me see a copy of it" because he "had to give it back" to Barcellona. In response to Lazaro's inquiry, Barcellona identified the individual Conway referred to as Grecco. Before the meeting ended, Conway verified that he was to call the prosecutor and state that Lombardo was mistakenly arrested.
On August 28, 1981 Conway went to the Ocean County Prosecutor's office to discuss the Lombardo case. An assistant prosecutor reviewed the arrest report and proposed a plea bargain to simple assault. Conway, however, stated Lombardo's defense was mistaken identity. The assistant prosecutor then showed Conway two arrest reports, the one page altered report and a Dover Township police report prepared by Township Police officer Douglas D. Turchyn. After reading both reports, Conway informed the prosecutor that Lombardo would still claim that he was mistakenly identified.
On September 2, 1981 Lazaro telephoned Rigolosi at his law office and recorded the conversation. Conway was present in Rigolosi's law office at that time. Rigolosi stated that Conway would not be handling the matter in the way previously discussed.
He further stated that Conway was considering other avenues of approach such as the Pretrial Intervention Program, and that Conway would know more after a probable cause hearing. Lazaro was instructed to tell McDowell not to become concerned.
On October 15, 1981 Lazaro met Grecco at Lazzara's house and recorded the conversation. Lazaro informed Grecco that McDowell was confused about the way Conway intended to handle the case. Although Grecco acknowledged that Conway knew best, he stated ". . . to tell you the truth, I never spoke to [Conway]."
A probable cause hearing was scheduled for October 19, 1981. On that day an assistant Ocean County prosecutor informed Conway that the Lombardo case would be dismissed because the trooper could not positively identify Lombardo.*fn2 On October 21, 1981 Barcellona gave Lazaro an envelope containing $5,000 to be delivered to McDowell. Barcellona told Lazaro that Grecco gave him the money. As a result of the foregoing, Conway, Grecco, Rigolosi, Lazzara and Barcellona were arrested and subsequently charged as indicated above.
Grecco and Conway denied all charges. Conway presented the testimony of 24 individuals (including ranking law enforcement officers, prosecutors and prominent members of the New Jersey Bar) who disclosed that Conway was known for his excellent reputation in the community as being truthful, honest and law-abiding. Conway testified that he had no knowledge that bribery occurred. He further testified that he firmly believed he was innocent; he believed his actions were justified since he sought the best possible result for his client through an amicable resolution of cross complaints.
Based upon his contention that he had an ethical obligation to attend all meetings which might affect his client, Conway presents a twofold argument that the evidence against him
was insufficient and that he should have been granted a judgment of acquittal at the end of the State's case. See State v. Reyes, 50 N.J. 454, 458-459 (1967). First, he maintains that the trial judge erroneously permitted the jury to infer he was a coconspirator prior to the August 19, 1981 meeting. Second, that the record contains no evidence that he tampered with Trooper McDowell since it was his duty as a lawyer to ascertain all facts necessary to defend his client whether or not "those facts were corruptly gathered by others." He maintains that the Code of Professional Responsibility, EC7-10, and the American Bar Association (ABA) Criminal Justice Standards, § 4.4-1, support his position that the jury should not have been permitted to infer impropriety from evidence that established his attendance at the August 19, 1981 meeting.
He states that his attendance at that meeting was within legal bounds because he intended to resolve the matter amicably and investigate McDowell's reservation about identifying Lombardo. A distinction must be drawn between Conway's permissible attendance at this meeting and his impermissible conduct once there.
The pertinent sections of the ABA Criminal Justice Standards, the Defense Function, provide:
Standard 4-4.1. Duty to investigate
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.
Standard 4-4.2. Illegal investigation
It is unprofessional conduct for a lawyer knowingly to use illegal means to obtain evidence or information or to employ, instruct, or encourage others to do so.
Canon Seven of the Code of Professional Responsibility also contains guidelines for representing a client. EC7-10 of the Code provides: "the duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat
with consideration all persons involved in the legal process and to avoid the infliction of needless harm." The Disciplinary Rule controlling the section, DR7-102, states that a lawyer must always represent a client within the bounds of the law.
When determining the bounds of permissible conduct, our Supreme Court established a proper procedure for an attorney to follow when seeking to have a complaint against his client dismissed. In re Friedland, 59 N.J. 209, 220 (1971). There it was determined that it was no longer permissible for an attorney to resolve litigation without regard for the criminal process. 59 N.J. at 219. In a per curiam decision, the Court stated:
[T]he unethical quality of [the attorney's] conduct consists of thwarting the criminal process without regard to whether the party complained of is in fact guilty. It is not for [the attorney] to determine whether one charged with a crime is guilty; this must be left to those legally charged with that responsibility. Of course, where the party complained of is actually guilty, the wrong done the public is even greater, for the wrongdoer goes unpunished and undeterred from continuing his criminal conduct. [59 N.J. at 219]
The proper procedure, the Court stated, is that
he must first go before the prosecutor and a judge and make a full and open disclosure of the nature of the charges and the terms, if any, under which the dismissal is sought. The dismissal should not be consented to unless both the judge and the prosecutor are satisfied that the public interest as well as the private interests of the complainant will be protected. [59 N.J. at 220]
The record establishes that Conway, despite his intention to resolve the Lombardo case amicably, did not follow this procedure. The record reveals that Conway met Lazaro, Barcellona and Rigolosi on August 19, 1981. At this meeting Lazaro, a State Trooper not involved in the Lombardo arrest, discussed disposing of the case. Lazaro was wired and the conversation was recorded. The recorded conversation reveals that Trooper McDowell considered purposely failing to identify Lombardo to dispose of the case. Conway expressed concern that the trooper would "look bad" if he failed to identify an individual he had recently arrested in a lineup. He stated that McDowell's situation was different from that of a frightened citizen in a bank robbery who might fail to identify a robber. He also noted
problems he discussed with Rigolosi earlier in the day with regard to seeking a lineup.
The conversation then focused on the arrest report when Conway questioned whether any witnesses were present at the altercation. Lazaro asked Conway if he had a copy of the arrest report or had seen the "original" report. The following colloquy occurred:
DC Well, I'd like to see it.
JL Denis, his original report was pretty lengthy. But, um -- oh, did you see the original?
JL Okay, but ah, this one he just skipped out on everything.
DC Well there's only one report that's filed I assume.
Shortly thereafter Lazaro explained to Conway: "There's no case number on the [report], the [report] just lays around. And that's what gave [McDowell] the opportunity to withdraw the [report] and change it." Lazaro described the second altered report as one in which the trooper "skipped out on everything." After listening to the discussion, Conway stated he could claim Lombardo was innocent if a lineup was used.
As the meeting progressed, Lazaro told defendant Conway that he should have seen the original report because "the original [report] was very complete and concise and accurate and detailed." Barcellona mentioned that it was two pages long, while Lazaro added that the new one was "a little better than a paragraph." Lazaro, at Conway's request, then went out and brought back the altered report from his car and handed it to Rigolosi who read it aloud. Barcellona noted briefly that references to "the families" and being "connected" were deleted. After Rigolosi read the altered report ...