The opinion of the court was delivered by: THOMPSON
This cause comes before the court upon a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Alan Grecco. The petitioner has raised four issues in his petition. He contends that the trial judge erred in refusing to instruct the jury on the issue of entrapment as requested by the petitioner and that the trial court's supplemental instruction denied the petitioner a fair trial. The petitioner additionally claims that by allowing the introduction of statements by a non-testifying co-conspirator the trial judge violated his Sixth Amendment right to confrontation and that the sentence imposed upon him by the judge was unconscionable.
The court has fully considered and disposed of each distinct and separate point raised by the petitioner. See Flowers v. Blackburn, 759 F.2d 1194 (5th Cir. 1985). After reviewing the entire record and pleadings in this case the court finds that the points raised by the petitioner are resolved against him or fail to state a claim under federal habeas corpus law.
An eight count indictment was returned on April 13, 1982, charging Donald Conway, Vincent Rigolosi, Samuel Lazzara, Joseph Lazaro and the petitioner with conspiracy and other substantive violations. Unindicted co-conspirator Joseph Barcelona was also named in the indictment.
After a seven week trial, in the New Jersey Superior Court, Law Division, the jury (i) acquitted Messrs. Rigolosi and Lazaro; (ii) found Mr. Conway guilty of conspiracy (N.J.S.A. 2C:5-2) and tampering with a witness (N.J.S.A. 2C:28-5(a)(1) and N.J.S.A. 2C:2-6); and (iii) found Grecco, the petitioner, guilty of conspiracy (N.J.S.A. 2C:5-2) and bribery (N.J.S.A. 2C:27-2(c) and N.J.S.A. 2C:2-6).
The court suspended Mr. Conway's sentence. With respect to the petitioner, the court merged the conspiracy and bribery counts and imposed a seven year term in State Prison. A $ 1500 fine and $ 25 Violent Crimes Compensation Board penalty were also imposed.
The petitioner appealed the conviction to the Appellate Division which consolidated the petitioner's appeal with Mr. Conway's appeal and affirmed the conviction. State v. Conway, 193 N.J. Super. 133, 472 A.2d 588 (App. Div. 1984). The Supreme Court of New Jersey denied a petition for certification. State v. Grecco, 97 N.J. 651, 483 A.2d 174 (1984).
Prior to outlining those portions of the record which are pertinent to this petition, the court shall refer to the more expansive record set out by the court in State v. Conway, 193 N.J. Super 133, 472 A.2d 588 (App. Div. 1984).
This case originated out of an altercation on July 19, 1981, between Philip Lombardo, Jr. and State Police Officer McDowell outside a club owned by Joseph Barcellona. Conway, 193 N.J. Super. at 140. On the day of the altercation, Donald Conway was retained to represent Lombardo. Id., at 141.
On July 24, McDowell, equipped with a recording device, went to Barcellona's club where he spoke to Joseph Lazaro, a sergeant in the New Jersey State Police and a cousin of Barcellona. Id. Lazaro told McDowell that Barcellona had attended a meeting with the attorneys in the case and Alan Grecco. Lazaro informed McDowell that Lombardo's father was high up in the Vito Genovese family and that Grecco had offered $ 10,000 for McDowell to get rid of the charges against Lombardo. McDowell, assuming the role of a corrupt officer, acted interested in the bribe and stated that his report could be altered.
Later that evening Lazaro received a call from Grecco who instructed Lazaro to meet him at Lazzara's home and not to bring McDowell. McDowell suggested that Lazaro advise Grecco that a report with loopholes could be written.
On July 25, Lazaro met with Grecco at Lazzara's home. They discussed alternatives which could be used to prevent Lombardo's conviction, such as altering the report or having McDowell fail to identify Lombardo in a line-up. Lazaro told Grecco that he had talked to Barcellona and asked what it was worth. Grecco replied it was worth $ 10,000. Lazaro told Grecco he would discuss the matter with McDowell. Grecco later returned to Lazzara's home and gave Lazzara money that he was to pass on to Lazaro. Lazaro then returned to Lazzara's home where he received $ 5,000 from Lazzara, who said that the money was from Grecco.
Later that same evening, McDowell met with Lazaro at Barcellona's club. Lazaro gave McDowell the $ 5,000 and related the details of the meeting with Grecco.
On July 29, Barcellona told Lazaro that he had met with Grecco at a restaurant and had discussed the payment of the $ 5,000, as well as Lazaro's assurance to Grecco that McDowell would alter the police report. That evening McDowell met Barcellona and have him the original report and the altered report he had made. Barcellona indicated that Grecco and others wanted to see both reports.
On August 16, Lazaro was confronted by superior officers of the New Jersey State Police with the taped conversations McDowell had made. At this point, Lazaro agreed to assist in the investigation. As a result, on August 19 a meeting was held between Lazaro, Conway, Barcellona and others, during which conversations were held concerning the details of the plan to prevent Lombardo's conviction.
During the August 19 meeting, Conway acknowledged to Lazaro that Lombardo's father had been shown the reports by Grecco.
On August 20 or 21, Barcellona advised Lazaro that there was another witness to McDowell's arrest of Lombardo. As a result, on August 24, Lazaro called Lazzara and arranged for Grecco to call. That same evening, Lazaro received and recorded a telephone call from Grecco. During the conversation, Lazaro asked Grecco the identity of the witness and where he had obtained the information. Lazaro advised Grecco that he could arrange for a line-up in which McDowell would not identify Lombardo.
On October 15, Lazaro, again wearing a recording device, met with Grecco at Lazzara's home. During the conversation, Lazaro advised Grecco that McDowell was a "little shakey," and Grecco stated that he understood the nervousness. Lazaro explained that McDowell was aware that Conway originally thought the identification was a good way to go but later said that "we'll go another way." Grecco responded that Conway knew best. Later in the conversation, after Lazaro mentioned that McDowell had not heard from anyone, Grecco said that if McDowell "has to go for a line-up, he knows what to do." The conversation ended with Grecco stating that he hoped it worked out all right.
On October 20, Lazaro advised Barcellona that the Lombardo case had been dismissed and requested arrangements for collecting the second half of the pay-off.
On October 21, Lazaro again spoke by telephone with Barcellona and recorded the conversation. During the conversation, Barcellona advised Lazaro that he had obtained the other $ 5,000.
On October 22, Lazaro met with Barcellona and recorded the conversation. He was given an envelope by Barcellona which contained the additional $ 5,000. Barcellona told Lazaro that he had met with Grecco, that he had told Grecco the case was dismissed and that Grecco replied that he knew. Barcellona informed Lazaro that when Grecco gave him the money, he stated that it was "ten now." Barcellona said that he had replied that it all went to McDowell.
As a result of the foregoing, Grecco, Conway, Lazzaro, Rigolosi, Barcellona were arrested and subsequently ...