The State of New Jersey has charged 27 persons in this indictment with a racketeering conspiracy and other crimes under the New Jersey Racketeering Statute N.J.S.A. 2C:41-1 et seq. The alleged conspiracy was to provide illegal dumping sites in New Jersey for out of state waste haulers. The State charges that the conspiracy involved bribing of New Jersey municipal officials, extortion and other crimes. The trial is estimated to take six months or longer.
The defendants have filed numerous pretrial motions. Some were assigned to another judge. The remaining motions have been retained by this court. The motions before this court were briefed and argued at great length. This opinion resolves the motions for severance and for a continuance.
Defendants have moved for a severance on a number of grounds. The State opposes severance. The position of the State is that under the New Jersey Racketeering Statute all the defendants may and ordinarily should be tried in one trial. The State's position may be sound. However, such a trial must still meet constitutional standards of fairness. The court is satisfied that a joint trial of all the defendants would be of such an inordinate length and complexity that it would violate those constitutional standards. The court therefore grants severance as follows. The defendants Mocco, Dulanie, Bassi, M. Harvan, Ball, Hurtuk and Dancy will be tried first. After that trial the court will determine the number and order of the remaining trial or trials.
The motion for a continuance is denied. The case will begin as scheduled on February 29, 1988.
For the purpose of this decision, the court accepts the State's position that all members of a racketeering enterprise may be joined in one indictment and tried together. See United States v. Vastola, 670 F. Supp. 1244 (D.N.J.1987); United States v. Gallo, 668 F. Supp. 736 (E.D.N.Y.1987); see also United States v. Kotteakos, 328 U.S. 750, 773, 66 S. Ct. 1239, 1252, 90 L. Ed. 1557 (1946); United States v. Russo, 796 F.2d 1443 (11th Cir.1986). Nonetheless a court in order to achieve a fair trial may order "an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2 b.
The criteria for a severance are set forth in State v. Scioscia, 200 N.J. Super. 28, 42-43 (App.Div.1985), as follows:
". . . The potential for prejudice inherent in the mere face of joinder does not of itself encompass a sufficient threat to compel a separate trial. A severance should not be granted 'merely because it would offer defendant a better chance of acquittal' . . . Rather it is incumbent upon the trial judge to weigh the interests of judicial economy and efficiency against the right of every accused to have the merits of his case fairly decided. . . 'The issue is not the respective weights of the evidence but the fairness of the trial as to each defendant.'" [Emphasis supplied]. State v. Coruzzi, 189 N.J. Super. 273, 298 (App. Div.1983) certif. den. 94 N.J. 531 (1983); See also State v. Coleman, 46 N.J. 16, 24 (1965).
A review of the facts in this case demonstrates that one "mega" trial would not be fair to the defendants or to the State. The indictment is 140 pages and contains 116 counts. The State at oral argument estimated that it will call some 60 witnesses, both fact witnesses and experts. The State will also offer some 175 recorded telephone conversations, a number of video tape surveillances and voluminous documentary evidence. Defendants indicated that they will challenge the admissibility of much of the State's evidence and seek to have numerous other recorded telephone conversations introduced on the State's case. Defendants also stated that they will have extensive cross-examination. Under those circumstances the court estimates that the State will require four months or more to present its case.
The defendants indicated that they will present a lengthy defense. Moreover, defendants pointed out that the length of the trial and the large number of jury challenges will make jury selection a difficult and lengthy process. The trial itself will be punctuated with numerous delays. An adjournment may be required if only one of the 27 defendants, their counsel or a juror becomes sick. A similar jury trial in federal court in Newark has resulted in only a day or so of evidence a ...