On appeal from the Superior Court, Law Division, Union County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D. Gaulkin, J.A.D., concurring in part and dissenting in part.
The State appeals, pursuant to leave granted, from a judgment of the trial court which dismissed 44 counts of a 100-count indictment insofar as these counts pertained to three of the four indictees, defendants Earl H. Weigel, Atlas Inc., and Angelo Albanese. These counts charged defendants with uttering forged checks as part of a conspiracy illegally to transport and dispose of toxic wastes.
On July 14, 1981, the State Grand Jury returned Indictment No. SGJ-71-80-15(1). This 100-count indictment charged defendants Weigel, Atlas Inc., Albanese, and codefendant Andrew Albanese with: Count 1 -- conspiracy (N.J.S.A. 2A:98-1, 2 and
N.J.S.A. 2C:5-2); Count 2 -- creating a public nuisance (N.J.S.A. 2A:85-1) (Weigel and Atlas Inc., only); Counts 3, 16, 19, 20 -- recklessly risking widespread injury (N.J.S.A. 2C:17-2(c)); Counts 17, 18 -- recklessly risking widespread injury (N.J.S.A. 2C:17-2(c)) (Angelo and Andrew Albanese only); Counts 4 through 10 and 12 through 15 -- abandonment of hazardous waste (N.J.S.A. 2C:17-2(a)); Count 11 -- attempted abandonment of hazardous waste (N.J.S.A. 2C:17-2(a)) (Weigel and Atlas Inc., only); Counts 21 through 31 and 33 -- illegal transportation of hazardous waste (N.J.S.A. 13:1E-9(e)(2)); Counts 32, 34, 35 -- illegal transportation of hazardous waste (N.J.S.A. 13:1E-9(e)(2)) (Angelo and Andrew Albanese only); Counts 36 through 49 -- illegal disposal and storage of hazardous waste (N.J.S.A. 13:1E-9(e)(2)); Counts 50 and 51 -- illegal disposal and storage of hazardous waste (N.J.S.A. 13:1E-9(e)(2)) (Angelo and Andrew Albanese only); Count 52 -- falsification of a Department of Environmental manifest (N.J.S.A. 13:1E-9(e)(3)); Count 53 -- forgery (N.J.S.A. 2C:21-1(a)(2)); Counts 54, 55 and 56 -- uttering a forged instrument (N.J.S.A. 2A:109-1(b)); Counts 57 through 97 and 99 -- uttering a forged instrument (N.J.S.A. 2C:21-1(a)(3)); Count 98 -- uttering a forged instrument (N.J.S.A. 2C:21-1(a)(3)) (Angelo and Andrew Albanese only); Count 100 -- theft and receiving stolen property (N.J.S.A. 2C:20-7). The indictment alleged that these crimes were committed during a 19 month period from January 1, 1979 to July 14, 1981. Union County was designated as the county of venue.
On December 10, 1981, defendants Weigel and Atlas Inc. moved to dismiss Counts 55 through 97 and Counts 99 and 100 insofar as those counts pertained to them. At some later date defendant Angelo Albanese joined in this motion and asked that the same counts be dismissed insofar as they pertained to him. The State opposed the motion.
On January 14, 1982, the matter was argued before the Honorable V. William DiBuono, A.J.S.C. Although Judge DiBuono denied the motion pertaining to Count 100, he declared his inclination to grant the motion as to the remaining counts.
Nevertheless, the court reserved decision as to the remaining counts so that it could afford the State the opportunity to submit additional legal memoranda. On January 18, 1982 the State submitted a supplemental memorandum.
After briefing and argument the trial judge ordered that Counts 55 through 97 and Count 99 be dismissed. He denied the motion as to Count 100.
For the purposes of the argument on the motion to dismiss, the facts were uncontroverted. A common factual pattern was present in each of the dismissed counts.
Counts 55 and 56, which alleged conduct committed by defendants prior to the effective date of the penal code, charged uttering a forged instrument in violation of N.J.S.A. 2A:109-1(b). Counts 57 through 97 and Count 99, which alleged conduct committed by defendants after the effective date of the penal code, charged uttering a forged instrument in violation of N.J.S.A. 2C:21-1(a)(3). Both the pre-code and the post-code counts, however, involved the same factual pattern. Defendant Atlas Inc. maintained a checking account. Weigel was an officer and sole shareholder of that corporation and had the authority to draft checks in the corporation's name. Weigel drafted 44 checks, each payable to a fictitious payee. Weigel transferred each of the checks to Angelo Albanese. Albanese endorsed the checks in the name of the fictitious payee and then transferred the checks to the Mi-Way Check Cashing Service. Mi-Way gave Albanese consideration for the checks, and Mi-Way then deposited the checks. The checks cleared, and Mi-Way received consideration for the checks from the account of Atlas Inc. Each of the 44 checks gave rise to a separate count in the indictment.
The indictment contained no allegation that Weigel or his corporation intended to defraud Angelo Albanese, or that Angelo Albanese intended to defraud the Mi-Way Check Cashing Service. The indictment alleged that the parties employed fictitious names for the purpose of injuring or defrauding the
State of New Jersey, and as part of their conspiracy illegally to transport and dispose of toxic substances. Actually, these checks were payments to Angelo and Andrew Albanese for their transportation and illegal disposal of toxic wastes given to the Albaneses by Atlas Inc., a licensed toxic waste hauler. It was Angelo Albanese who requested that Weigel draft the checks in the names of fictitious payees.
The State claims that these proofs and other proofs pertinent to the conspiracy would permit the petit jurors to draw an inference that defendants were employing fictitious names as part of an effort to camouflage both their illegal activities and their true identities. The State argues that defendants hoped to avoid the regulations, restrictions, criminal and civil sanctions, and tax liabilities which the State has established for the hazardous waste disposal business.
Defendants contend that "[a]n act of forgery must carry with it some change in the rights, interests or obligations of the parties to it." They argue that since the State was not a party to the check transactions, intent to defraud the State in the manner suggested by it, would not suffice to sustain the charge. They also contend that forgery does not occur where "the use of the fictitious name was known to the maker and requested by the payee." Alternatively, defendants argue that the facts as alleged by the State, if proven at trial, would not suffice to establish that defendants intended to defraud the State of New Jersey; this was an independent reason to dismiss the forgery counts.
The trial judge reached his decision on a basis other than that advanced by defendants. He concluded that the crime of forgery does not encompass the situation in which the maker of a check drafts the check in the name of a fictitious payee. He further concluded that the crime does not encompass the situation in which an endorser endorses the check. In the judge's view, the use of the names of fictitious payees is simply a
common commercial practice which renders the check a ...