On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Pressler, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted together with two others for second degree conspiracy to commit the crimes of escape and murder, in violation of N.J.S.A. 2C:29-5, N.J.S.A. 2C:11-1 et seq. and N.J.S.A. 2C:5-2 (count I), second degree attempted murder, in violation of N.J.S.A. 2C:11-3, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:5-1 (count II), and second degree attempted escape, in violation of N.J.S.A. 2C:29-5, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:5-1.
The charges arose out of a plan for the forcible escape from Rahway State Prison of codefendant Carmen Michael La Bruno. La Bruno and another inmate, Joseph Satkin, were both transported out of the prison on a regular basis for medical treatment. The plan called for defendant, James Fornino, to kill the guards who accompanied the inmates on one of these trips and to free La Bruno and Satkin. La Bruno's father, codefendant Carmen La Bruno, Sr., also was involved in making arrangements for the escape.*fn1
La Bruno discussed these escape plans with Satkin in November and December of 1982 and solicited his participation. La Bruno asked Satkin to arrange for the payment of $10,000 to defendant. However, Satkin informed prison officials of the plans and thereafter cooperated in gathering the evidence on which criminal charges ultimately would be based.
The State Police had Satkin tell La Bruno that a friend of his called "Louie K," (actually an undercover trooper) would deliver the money Satkin had been asked to pay defendant. On the
night before the escape was to be committed, the trooper posing as "Louie K" met with defendant and La Bruno, Sr. at a diner in Hoboken. As the three men were leaving the diner, the trooper made the agreed payment to defendant. Shortly thereafter, defendant was arrested.
Before the jury which was to try the three defendants was sworn, the prosecutor disclosed that several telephone calls made by La Bruno from Rahway State Prison regarding the planned escape had been monitored by prison officials without a warrant. Defense counsel argued that this telephone monitoring was illegal and might require dismissal of the charges. Anticipating that resolution of the issues raised by the telephone monitoring might consume a substantial amount of time, the trial court declared a mistrial.
Several months later, an evidentiary hearing was held on motions by defendant and his codefendants to suppress the evidence obtained through the telephone calls intercepted without a warrant. At the conclusion of the hearing, the trial court denied the motions.
During the hearing on the motion to suppress, La Bruno and La Bruno, Sr. pled guilty to count I of the indictment (conspiracy to commit the crimes of escape and murder).*fn2 Consequently, the charges against the La Brunos were severed and only defendant was tried.
A jury found defendant guilty on all charges. The trial court merged the conspiracy convictions into the convictions for attempted escape and attempted murder. On the conviction for attempted murder, defendant was sentenced to an extended term of 20 years, with 9 years of parole ineligibility. On the
conviction for attempted escape, defendant was sentenced to a concurrent term of 10 years, with 5 years of parole ineligibility.
On appeal defendant makes the following arguments:*fn*
POINT I: NO RATIONAL TRIER OF FACT COULD HAVE FOUND THE DEFENDANT GUILTY OF ATTEMPTED MURDER OR ATTEMPTED ESCAPE BEYOND A REASONABLE DOUBT ON THE EVIDENCE PRESENTED BY THE STATE.
POINT II: NO RATIONAL TRIER OF FACT COULD HAVE FOUND THE DEFENDANT GUILTY OF CONSPIRACY BEYOND A REASONABLE DOUBT ON THE EVIDENCE PRESENTED BY THE STATE .
POINT VIII: THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
POINT X: 'THE INSTRUCTIONS TO THE JURY WERE ERRONEOUS (PARTIALLY RAISED BELOW).
B. THE CHARGE FAILED TO CLARIFY THAT PREPARATION IS INSUFFICIENT TO SUSTAIN A CONVICTION FOR AN ATTEMPT .
POINT XII: DEFENDANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL .
We reject all the arguments made by defendant and affirm the judgment of conviction. The only arguments which require discussion are contained in points I, II, VIII, X(B) and XII of defendant's brief. Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2).
Defendant's first point is that the evidence was insufficient to support a finding of guilt of attempted murder or attempted escape. His second point is that the evidence was insufficient to support a finding of guilt of conspiracy to commit murder. Since defendant entered into a conspiracy with the La Brunos before taking any steps to carry out that conspiracy, it is appropriate to consider defendant's first two points in reverse order.
There is ample evidence from which the jury could conclude that the conspiracy into which defendant entered involved a plan not only for the escape of La Bruno and Satkin but also for the murder of the correction officers guarding them. Satkin testified that La Bruno told him that the plan was for defendant to overpower the guards and kill them. Handguns equipped with silencers were to be used for this purpose. Satkin further testified that La Bruno had told him that La Bruno, Sr. and defendant had surveyed the woods behind the doctor's office where the escape was to occur in order to find a place to dispose of the guards' bodies. Some corroboration of Satkin's testimony was ...