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State v. Fino

Decided: July 16, 1985.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.


The central question in this appeal is whether one of two indicted co-conspirators may, after a separate trial and conviction, raise a challenge to the indictment that the co-conspirator timely raised before his trial. We hold that the circumstances of this case do not demonstrate the good cause required by Rule 3:10-2 to mount such an untimely challenge, nor do they reveal any fundamental miscarriage of justice that would invoke our supervisory power to correct a perceived injustice.

The case is made complex by its convoluted procedural history. In November 1981, Robert Del Fino and Thomas Fricchione were indicted by a Hudson County grand jury, which charged both with conspiracy to commit theft by extortion, contrary to N.J.S.A. 2C:5-2 (Count One), and attempted theft by extortion, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5 d. (Count Two). The indictment charged that the two had agreed or would agree for a price to use their influence to gain favorable job preference for another in the Jersey City school system.

On March 29, 1982, at a pretrial hearing attended by the attorneys for both parties, the court severed the two cases because of Bruton problems concerning the use of Fricchione's statement in a common trial.*fn1 After disposing of the severance issue, the trial court asked, "are there any motions open?". Fricchione's attorney replied:

The only one I have is this order, which I'm going to serve the Clerk of the Grand Jury, and I don't know that it will develop anything, but if it will, it will be a limited motion.

The court replied that it would reserve on that aspect, and set trial dates for each defendant on May 3 and May 17, 1982, for Del Fino and Fricchione respectively.

Del Fino went to trial in May 1982 and was convicted of agreeing to conspire to commit theft by extortion but was acquitted of the offense of attempted theft by extortion. In June 1982, he received a three-year custodial sentence and a fine of $10,000.

Following conviction and filing of notice of appeal, Del Fino moved before the trial court to dismiss the indictment on the ground that the records of the grand jury did not disclose that twelve or more of the grand jurors who voted for the indictment were present at all sessions to hear the entire presentation of evidence. Because jurisdiction was with the Appellate Division, the trial court denied the motion pursuant to Rule 2:9-1. On September 22, 1982, the Appellate Division refused to allow a partial remand so that the trial court could review the grand jury proceedings.

Thereafter, on September 27, 1982, the Hudson County assignment judge entertained Fricchione's motion to dismiss the indictment against him. Following a hearing and a re-polling of certain grand jurors, only nine jurors stated that they voted to indict Fricchione on Count Two (attempted theft by extortion). Three stated that they could not recall. On the First Count, thirteen said that they voted to indict but fewer than twelve of these had attended all sessions of the grand jury. The court made no inquiry as to the voting in regard to Del Fino. The indictment against Fricchione was dismissed on November 22, 1982.*fn2 Thereafter, Del Fino twice renewed his motion before the trial court to dismiss the indictment. Both motions were denied on jurisdictional grounds. He appealed the final denial to the Appellate Division. That court heard the motion along with the substantive appeal. On November 4, 1983, the Appellate Division entered an order of partial remand to the trial court to entertain the motion to dismiss the indictment. The

remand required the trial court to hear and decide the motion by December 15, 1983. The time was extended to February 15, 1984.

On February 15, 1984, the trial court denied the motion to dismiss but indicated, however, that it would give defendant an evidentiary hearing at which time defendant would be afforded an opportunity to establish "good cause" for relief pursuant to Rule 3:10-2. The trial court further ruled that it would recall and question the grand jurors with respect to their votes concerning defendant. In a letter directed to the Appellate Division on the same date, the court requested a second extension (to April 16, 1984), to conduct the evidentiary hearing and re-polling of the jurors. The Appellate ...

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