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State v. Ball

Decided: August 6, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PATRICK BALL AND BIG APPLE LEASING CO., DEFENDANTS-APPELLANTS. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. GEORGE HURTUK, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. JOSEPH DULANIE, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. JOSEPH MOCCO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. MICHAEL HARVAN, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. RICHARD BASSI, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Hudson County.

King, Brody and Thomas. The opinion of the court was delivered by Thomas, J.A.D.

Thomas

On April 1, 1986, the State Grand Jury handed down a 116-count indictment charging numerous individuals and entities with various crimes, including conspiracy to commit racketeering, bribery, theft of services, falsifying and tampering with public records, forgery, and the unlawful engagement in the business of solid waste collection and disposal. The indictment alleged that the defendants conspired to illegally dump solid waste generated in New York in several New Jersey sites. They were tried by jury before Judge Humphreys from October 11, 1988 until April 17, 1989 and convicted of certain of the charges. It is from these convictions that defendants appeal. These appeals have been consolidated for the purpose of this opinion. After a careful review of the issues they raise, we affirm.

Specifically, defendants Richard Bassi and Michael Harvan (dirt brokers), Patrick Ball (a dumper) and Big Apple Leasing Co. (a truck company Ball owned), and three public officials from the Town of North Bergen (Joseph Mocco, Town Clerk, Joseph Dulanie, Deputy Chief of Police, and George Hurtuk, License Inspector), have appealed from their convictions. Many of the issues raised by these defendants, and the arguments posed with respect to them are identical. A statement of facts presented by the State at trial describing the general scenario relevant to the appeals of all seven defendants follows.

FACTS

During the time frames involved, Joseph Mocco was the Town Clerk of North Bergen, George Hurtuk was the License Inspector, and Joseph Dulanie was the Deputy Chief of Police. Mocco, Hurtuk and Dulanie shall hereinafter be jointly referred to as the

public official defendants. Richard Bassi and Michael Harvan were dirt brokers. A dirt broker brings together individuals who need their property filled and dumpers who provide that fill. Patrick Ball was the sole owner of Big Apple Leasing Co., a New York company that engaged in waste dumping or hauling.

Bassi and Harvan located illegal dump sites in North Bergen and other North Jersey locations, contacted New York waste haulers (such as Ball and Big apple Leasing) looking for less expensive ways to dispose of the solid waste they hauled, and arranged for those haulers to dump their solid waste at the illegal sites. The public official defendants accepted bribes to permit and facilitate this illegal dumping enterprise.

The evidence of this scheme introduced at trial is voluminous. It consists of trial testimony, surveillance videotapes, recorded telephone conversations and records created by the various codefendants. The events leading to the convictions of these defendants is essentially the same and, for the most part, not disputed.

Bassi and Harvan, by paying bribes to Mocco ($29,100); to Dulanie ($42,100); and Hurtuk ($27,500), obtained "permission" to dump debris at illegal dumping sites in North Bergen and at a waste disposal operation (baler) owned and operated by the Hackensack Meadowlands Development Commission (HMDC). This dumping began in North Bergen in January 1986 at a site adjacent to the intersection of 83rd Street and West Side Avenue (83rd Street) and at a site near the intersection of 69th Street and West Side Avenue (69th Street). After the dumping was stopped at the 83rd Street location, a new area was opened at the Walsh Trucking property on 16th Street (Walsh).

The dumping at Walsh eventually encroached upon a nearby Public Service Electric and Gas (PSE & G) right-of-way, underneath the company's high tension power lines. At 7:55 p.m., May 13, 1986, a truck carting debris from New York, while in the process of raising its back to dump a load of debris, struck a line carrying 138,000 volts, causing an explosion. When representatives of PSE & G arrived on the scene, they observed the truck, in

the "up" position, entangled in the wires. The high voltage had grounded through the body of the truck, causing its tires to be blown out and burnt. They also noted that previously dumped debris had raised the level of the ground underneath the wires about fifteen feet. The driver of the dump truck told a PSE & G engineer that they were filling in a road off Tonnele Avenue to make the area accessible.

The baler was a landfill operated by the HMDC which compacted waste into bales. These were then stacked and covered with earthen material. Haulers dumping at the baler were required to complete origin and destination (O & D) forms promulgated by the Department of Environmental Protection (DEP), to prove that the trucks came from areas approved to send waste to the baler. Trucks dumping at the baler were required to present an HMDC decal and a rate-averaging ticket, which would be used for filling purposes, based on the weight of the loaded trucks. The haulers, including Ball's company, Big Apple Leasing, as well as other companies, would falsely indicate on the O & D forms that the waste originated in a place from which the baler was permitted to take waste, usually Clifton, in Passaic County, when in reality the waste originated in New York.

Not only the baler, but all North Bergen dumping sites were within an area over which the HMDC had jurisdiction for purposes of controlling dumping. Therefore, its approval, plus North Bergen's, as well as approval by the DEP, were all required before legal dumping could proceed. No such approvals were ever received. Once a dumping site was "acquired", Bassi and Harvan would "contract" with New York haulers to dump their waste material.

In order to protect and control their program, checkers were hired to monitor the dumping activity; men were placed at crossing locations to warn off truckers if the time for dumping was not right; much of the dumping activity was done at night; and fictitious placards were used to cover each truck's true identity. "Big M" and "Harbas" were two of the more frequently used

cover logos. Additionally, in order to provide money for their program, a fictitious check-cashing scheme was established. Fraudulent dumping permits were also reproduced.

North Bergen dumping licenses were issued for the dumping sites to a fictitious M. Black. Initial casual inquiry or complaints about the dumping were met with these licenses. HMDC undercover investigators were assured that HMDC had also granted approval (no such approvals had ever been obtained). Dumping was also attributed to the town's desire to fill paper streets and to create a pistol range for the police department near the Walsh site.

Dumping began in January 1986 and continued into June. Ultimately, the operation came under the joint scrutiny of investigators from the DEP, the HMDC and the New Jersey Department of Criminal Justice (DCJ). During the investigation, permission was granted to obtain telephone records and to install telephone wire taps. In addition, some conversations with various defendants were recorded by using personal concealed recording devices. All of this material was produced as State's evidence at trial.

Despite the ongoing investigations which resulted in the closure of various sites, the enterprise continued its efforts to provide dumping sites in and out of North Bergen. On July 10, 1986, Dulanie was overheard telling Harvan that he was "trying to work on that thing for you" and that he had called a political figure from Jersey City to help. Harvan claimed to Dulanie that Hurtuk and Mocco had gone "around his back" and "opened up a place" on their own. Harvan complained, "I paid a lot of rent and got fucked . . . what they're doing now is not right." Harvan wanted to find a couple of acres in Jersey City, just "[t]o bring dirt [in] and bring the dirt out[.] I'm not looking to fill nothing in." Dulanie agreed to see what he could find out.

Meanwhile, Harvan and Bassi were conducting a dumping operation near Routes 1 and 9 in Newark, as well as continuing to dump at the baler. On July 16, Bassi's vehicle was spotted at the

Routes 1 and 9 site. On July 20, Bassi and Harvan discussed other possible sites for dumping in that area. They also discussed who was going to dump, and the amount to charge for each load. Bassi said he thought $300 per load was the "magic number" because they would still be "below everybody." Harvan also mentioned that if "they do start up in North Bergen, that's gonna solve all our . . . heat . . . with the law." A few days later, Bassi and Harvan again discussed the prices. Bassi said that Morabito (a New York dumper) could not afford the $300, but that Paul Serra (another dumper) could. Bassi suggested that they not use Harbas signs in the baler, because Hurtuk or Baglino might see one and drop "dimes and quarters." Harvan said they would use DAV-MIK Trucking signs.

Search warrants were executed at a number of sites on August 6 and 7, 1986. At Harvan's residence, investigators found the illegal licenses issued by the North Bergen defendants for 69th and 83rd Streets and for the Walsh site. Also seized were a number of records of the enterprise, including fill tickets, load count recap sheets, and expense records. In addition, investigators discovered twenty envelopes containing $23,000 in cash, and a number of checks and money orders made out to Edward Harvan (Michael Harvan's father). Harvan also possessed a June 16 memorandum from the HMDC, as well as records of the telephone numbers of Hurtuk, Dulanie, and Ball; a complaint against Harvan from April 26;*fn1 and a copy of a receipt for a permit issued June 4.

At Bassi's residence, investigators found more enterprise records, including a license issued June 4; receipts for the three licenses; and numerous fill tickets, load counts, expense figures, and canceled CMB Enterprise checks made out to fictitious payees.*fn2

Also in Bassi's possession was a May 21 letter from PSE & G, a June 3 letter from Ogden Realty, both demanding that the dumping at the PSE & G right-of-way and at the Walsh site cease. In a search at Big Apple Leasing in Medford, New York, investigators found a number of corporate checks payable to Bassi, as well as evidence of wire transfers from Big Apple's account to First Fidelity Bank (which held the CMB Enterprises account). Also found were a number of fill tickets labelled Harbass Trucking with various dates and the job described as N.B. or N. Berg.

In a search of safety deposit boxes leased to Edward Harvan in various Florida banks, and of Edward Harvan's house, investigators seized approximately $122,800 in cash, as well as a number of stock certificates, savings bonds, and gold coins. These represented part of the proceeds from the operation realized by Michael Harvan and sent to his father for safekeeping.

Analysis of the financial records seized revealed that the billings of Harvan and Bassi for dumping from about February 13, 1986 to June 25, 1986, totalled $888,220. The records also showed that among the expenses of Harvan and Bassi were payments totaling $29,100 to the "boss" or "big guy", (Mocco); $42,100 to the "chief," (Dulanie); and $27,500 to the "fat man," (Hurtuk).

Based on this review of the financial records, Harvan and Bassi each netted approximately $300,000 to $350,000 from their participation in the dumping enterprise. To pay their expenses, Bassi and Harvan used Nicholas Zimbardi (a codefendant severed from this trial) to cash checks at Valley National Bank from a CMB Enterprises (a corporation controlled by Bassi) bank account. The checks were made out to fictitious payees and were presented for cash by Zimbardi who co-signed as a second payee. The basic pattern discerned from the records was that Bassi and Harvan would list the expenses for the day on a sheet of paper, put a

check number next to it, and write a check payable to a fictitious person for the amount of the expenses. The pattern generally involved three checks of less than $10,000, cashed at Valley National Bank. If more than $10,000 was needed, a fourth check would be cashed at First Fidelity Bank. Zimbardi cashed seventy-six checks for a total of approximately $245,000.

THE DEFENDANTS AND THE ISSUES THEY RAISE RICHARD BASSI

On April 17, 1989, the jury found Richard Bassi guilty of conspiracy to commit racketeering, a second degree crime, contrary to N.J.S.A. 2C:41-2(d) (count one); racketeering, a second degree crime, contrary to N.J.S.A. 2C:41-2(c) (count two); bribery in the second degree, contrary to N.J.S.A. 2C:27-2(c) and (c) and N.J.S.A. 2C:2-6 (counts three, four, and ten); uttering forged instruments in the fourth degree, contrary to N.J.S.A. 2C:21-1 and N.J.S.A. 2C:2-6 (counts fourteen through twenty-eight); third degree criminal mischief, contrary to N.J.S.A. 2C:17-3a(1) and N.J.S.A. 2C:2-6 (counts thirty-two and thirty-three); and engaging in solid waste collection or disposal without a certificate of public convenience, a fourth degree offense, contrary to N.J.S.A. 48:13A-6 and N.J.S.A. 48:13A-12 (count thirty-four).

Counts one and two (racketeering) arose from the activity of unlawfully disposing of solid waste. Counts three, four, and ten (bribery) were based upon the payment of money bribes to each of the public employee defendants in return for permitting the unlawful dumping. Counts fourteen through twenty-eight (uttering a forged instrument) involved the drawing of fifteen checks on various dates from March 25, 1986 to June 3, 1986 to fictitious individuals which, when cashed, were used to fund the bribes paid to the three public officials. Counts thirty-two and thirty-three (criminal mischief) pertain to the dumping of waste material on the PSE & G right-of-way (count thirty-two), and damaging the

PSE & G high voltage transmission lines (count thirty-three). Count thirty-four charged Bassi with engaging in the business of solid waste collection or disposal without a "certificate of public convenience."

On July 17, 1989, Bassi appeared before Judge Humphreys for sentencing. The court merged count thirty-four into count one, merged count one into count two, and sentenced defendant to nine years imprisonment on count two. Defendant was then sentenced to concurrent prison terms of eight years on counts four, eight, and ten which were, however, to be served consecutive to the sentence on count two. Finally, the court sentenced Bassi to concurrent one year terms for each of the counts fourteen through twenty-eight and after merging count thirty-two into count thirty-three to three years concurrent on count thirty-three. The court fined defendant a total of $150,000, and imposed an aggregate Violent Crimes Compensation Board penalty of $450.*fn3 Defendant's aggregate prison term was seventeen years.

Defendant Bassi raises these issues on appeal:

POINT I

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN RICHARD BASSI'S CONVICTIONS FOR CONSPIRACY TO COMMIT RACKETEERING AND RACKETEERING.

POINT II

THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE FROM ILLEGALLY OBTAINED TELEPHONE RECORDS AND CONVERSATIONS A REVERSAL OF DEFENDANT'S CONVICTIONS IS FULLY WARRANTED.

POINT III

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN DENYING ALL DEFENSE MOTIONS TO CONDUCT A FULL INTERVIEW OF JURORS MICHAEL BIONDO AND RAYMOND GREAVES.

POINT IV

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THE FIFTEEN COUNTS OF UTTERING A FORGED INSTRUMENT.

POINT V

THE JUDGE ERRED IN ADMITTING THE HEARSAY STATEMENT OF JOSEPH LOMUSCIO.

POINT VI

THE DEFENDANT'S SENTENCE WAS EXCESSIVE.

MICHAEL HARVAN

On April 17, 1989, the jury also found Michael Harvan guilty of conspiracy to commit racketeering, a second degree crime, contrary to N.J.S.A. 2C:41-2(d) (count one); racketeering, a second degree crime, contrary to N.J.S.A. 2C:41-2(c) (count two); bribery in the second degree, contrary to N.J.S.A. 2C:27-2(c) and (d) and N.J.S.A. 2C:2-6 (counts three, four, and ten); uttering a forged instrument in the fourth degree, contrary to N.J.S.A. 2C:21-1 and N.J.S.A. 2C:2-6 (counts fourteen through twenty-eight); third degree criminal mischief, contrary to N.J.S.A. 2C:17-3a(1) and N.J.S.A. 2C:2-6 (counts thirty-two and thirty-three); and engaging in solid waste collection or disposal with a certificate of public convenience, a fourth degree offense, contrary to N.J.S.A. 48:13A-6 and N.J.S.A. 48:13A-12 (count thirty-four).

On July 17, 1989, Harvan appeared before Judge Humphreys for sentencing. The court merged count thirty-four into count one, count one into count two, and sentenced defendant to nine years imprisonment on count two. The sentence on count two was made consecutive to counts four, eight and ten. Defendant was then sentenced to concurrent prison terms of eight years on counts four, eight, and ten; concurrent one year terms for each of the counts fourteen through twenty-eight and three years concurrent on count thirty-three. Count thirty-two was merged into count thirty-three. The court fined defendant a total of $150,000, and imposed an aggregate Violent Crimes Compensation Board

penalty of $450.*fn4 Defendant was thus sentenced to an aggregate prison term of seventeen years.

Defendant Harvan raises these issues on appeal:

POINT I

THE DEFENDANT'S RIGHT OF DUE PROCESS OF LAW WAS VIOLATED: THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON THE LAW OF RACKETEERING INFLUENCE AND CORRUPTION ORGANIZATION.

POINT II

THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED:

A. THE AFFIDAVIT SUPPORTING THE WARRANT APPLICATION FAILED TO ESTABLISH PROBABLE CAUSE.

B. A SEIZURE OF TELEPHONE BILLING RECORDS TRIGGERS THE NEW JERSEY ELECTRONIC SURVEILLANCE ACT.

POINT III

THE JURY SELECTION PROCESS VIOLATED DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS.

POINT IV

THE RICO STATUTE VIOLATES THE FEDERAL AND STATE CONSTITUTIONS: THE VAGUE "PATTERN OF RACKETEERING" LANGUAGE IN THE RICO STATUTE VIOLATES DUE PROCESS OF LAW.

POINT V

THE FAILURE OF THE TRIAL COURT TO MERGE THE PREDICATE CRIMES INTO THE SUBSTANTIVE RACKETEERING OFFENSE VIOLATES THE FOLLOWING: FEDERAL AND STATE CONSTITUTIONAL BARS AGAINST DOUBLE JEOPARDY, DUE PROCESS OF LAW, AND NEW JERSEY MERGER LAW.

POINT VI

THE RACKETEERING CONVICTION SHOULD RUN CONCURRENT WITH, NOT CONSECUTIVE TO, THE REMAINING COUNTS.

POINT VII

DEFENDANT JOINS AND ADOPTS CODEFENDANTS' ARGUMENTS.

PATRICK BALL AND BIG APPLE LEASING CO.

Defendants Ball and Big Apple were found guilty of second degree conspiracy to commit racketeering, contrary to N.J.S.A. 2C:41-2(d) (count one). Ball was sentenced to a term of nine years imprisonment and was fined $100,000. A Violent Crimes Compensation Board penalty of $30 was also imposed. Big Apple was fined $150,000.

Defendants Ball*fn5 and Big Apple appeal urging:

POINT I

THE VARIOUS COUNTS OF THE INDICTMENT ON WHICH BALL WAS TRIED WERE DEFECTIVE AS A RESULT OF THEIR FAILURE TO ALLEGE CRIMINAL INTENT, AN ESSENTIAL ELEMENT OF THE OFFENSES CHARGED.

POINT II

BY FAILING TO INSTRUCT THE GRAND JURY WITH RESPECT TO THE MEANING OF THE CONCEPT OF ENTERPRISE -- A CRITICAL ELEMENT OF THE RACKETEERING OFFENSE -- THE GRAND JURY WAS PREVENTED FROM FULFILLING ITS CONSTITUTIONAL ROLE.

POINT III

THE VARIOUS WIRETAP ORDERS WERE IMPROPERLY ISSUED AND THE RESULTING EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

A. THE SEVERAL TOLL BILLING APPLICATIONS WERE FACTUALLY AND LEGALLY INSUFFICIENT.

1. THE FACTS.

2. THERE WAS NO BASIS UPON WHICH TO JUSTIFY THE ISSUANCE OF A WARRANT FOR THE TOLL RECORDS OF THE Dunkin['] DONUTS PUBLIC PHONE.

3. THE APPLICATION FOR TOLL RECORDS OF THE PLAZA DINER TELEPHONE WAS LIKEWISE DEFECTIVE SINCE IT DID NOT DEMONSTRATE PROBABLE CAUSE NOR DID IT COMPLY WITH THE NEW JERSEY WIRETAP ACT.

B. THE INITIAL WIRETAP ORDER WAS INVALID.

POINT IV

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN BALL'S CONVICTION OF RACKETEERING CONSPIRACY.

A. The Evidence Failed to Establish The Existence of The Enterprise Charged During The Time Period Set Forth in the Indictment.

B. The Proofs Failed to Establish That Ball Agreed To Participate In The Affairs Of An Enterprise Through A Pattern of Racketeering Activity.

C. CONCLUSION

POINT V

THE BRIBERY COUNTS AGAINST BALL SHOULD HAVE BEEN DISMISSED FOR INSUFFICIENT EVIDENCE; ACCORDINGLY, THEIR SUBMISSION TO THE JURY PREJUDICED BALL NOTWITHSTANDING HIS ACQUITTAL ON THOSE CHARGES.

POINT VI

THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS OF DEFENDANT BALL TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BY INCIDENTS OF JURY TAMPERING AND BY THE TRIAL COURT'S REFUSAL TO CONDUCT AN INTERVIEW OF THE APPROACHED JUROR AFTER FINDING OUT THAT THE JUROR HAD LIED ABOUT CERTAIN FACTS AND HAD NOT DISCLOSED CERTAIN OTHER FACTS THAT SHOULD HAVE BEEN DISCLOSED.

A. FACTUAL BACKGROUND.

B. THE VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL.

THE PUBLIC OFFICIAL DEFENDANTS

JOSEPH MOCCO -- (TOWN CLERK)

Defendant Mocco was found guilty of second degree conspiracy to commit racketeering, contrary to N.J.S.A. 2C:41-1d (count one); second degree bribery, contrary to N.J.S.A. 2C:27-2(c) and (d) (counts three and nine) and second degree official misconduct, contrary to N.J.S.A. 2C:30-2(a) (count twenty-nine).

Mocco was sentenced on count one to ten years imprisonment, to run consecutive to concurrent ten year terms for counts three and nine. Count twenty-nine was merged into count three. Mocco was also fined $200,000, ordered to make restitution in the sum of $56,300 and assessed a total Violent Crimes Compensation Board penalty of $90. Thus, his aggregate prison term is twenty years.

GEORGE HURTUK -- (DEPUTY POLICE CHIEF)

Defendant Hurtuk was found guilty of second degree conspiracy to commit racketeering, contrary to N.J.S.A. 2C:41-1d (count one); second degree bribery, contrary to N.J.S.A. 2C:27-2(c) and (d) (count nine); second degree official misconduct, contrary to N.J.S.A. 2C:30-2(a) and (b) (count thirty-one) and third degree criminal mischief, contrary to N.J.S.A. 2C:17-3a(1) and N.J.S.A. 2C:2-6 (counts thirty-two and thirty-three).

He was sentenced on count one to seven years imprisonment to run consecutive to concurrent terms of eight years imprisonment on count nine and three years imprisonment on count thirty-three. Count thirty-one was merged into count nine and count thirty-two was merged into count thirty-three. He was also fined $75,000, ordered to make restitution in the sum of $27,000 and a Violent Crimes Compensation Board penalty of $90 was imposed. His aggregate prison term is fifteen years.

JOSEPH DULANIE -- (LICENSE INSPECTOR)

Defendant Dulanie was found guilty of second degree conspiracy to commit racketeering, contrary to N.J.S.A. 2C:41-1d (count one); second degree bribery, contrary to N.J.S.A. 2C:27-2(c) (count seven) and second degree official misconduct, contrary to N.J.S.A. 2C:30-2(a) and (b) (count thirty).

He was sentenced on count one to seven years imprisonment to run consecutive to a term of eight years on count seven. Count thirty was merged into count seven. He was also fined $75,000, ordered to make restitution in the sum of $41,600 and a Violent Crimes Compensation Board penalty of $60 was imposed. His aggregate prison term is fifteen years.

These public official defendants jointly raise the following issues on appeal:

POINT I

THE CONVICTIONS FOR COUNT ONE IN THE INDICTMENT MUST BE REVERSED AS THE PROOF FAILED AS TO THE EXISTENCE OF A RICO ENTERPRISE. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY

AS TO THE ELEMENTS OF RACKETEERING IN THE FACE OF INSUFFICIENT PROOF. THAT ERROR WAS PLAIN AND HARMFUL ERROR, REQUIRING REVERSAL.

POINT II

THE APPELLANTS' CONVICTION SHOULD BE REVERSED AS THE COURT ERRED IN DENYING DEFENDANTS' MOTION TO SUPPRESS ILLEGALLY OBTAINED WIRETAPS.

POINT III

TRIAL COURT ERRED IN PERMITTING THE ADMISSION OF THE HEARSAY STATEMENT MADE BY JOSEPH LOMUSCIO.

POINT IV

THE JURY IN THE TRIAL HEREIN WAS TAINTED, TRIAL COURT'S DENIAL OF DEFENDANTS' MOTION INTERVIEWING JURORS MICHAEL BIONDO AND RAYMOND GRAVES REPRESENTS REVERSIBLE ERROR.

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION TO DISQUALIFY THE HONORABLE BURRELL IVES HUMPHREYS, A.J.S.C., FROM SITTING IN THIS MATTER.

POINT VI

THE ORIGINAL ORDER TO INTERCEPT THE TOLL-BILLING RECORDS WAS IMPROPER.

POINT VII

THE GOVERNMENT'S LOSS AND/OR DESTRUCTION OF THE EVIDENCE REQUIRES REVERSAL OF THE CONVICTIONS HEREIN.

I

RICO ISSUES

INDEX OF RICO ISSUES

RICHARD BASSI P. 96

A. WHAT QUALIFIES AS A RICO ENTERPRISE P. 97

B. MULTIPLE CONSPIRACIES AS SINGLE EN-

TERPRISE P. 108

MICHAEL HARVAN P. 111

A. ENTERPRISE -- COMMON PURPOSE P. 111

B. PATTERN OF RACKETEERING -- NEW JERSEY

RICO NOT UNCONSTITUTIONALLY VAGUE P. 114

PATRICK BALL P. 118

A. THE ENTERPRISE ELEMENT AND ALLEGED

FAILURE TO ADEQUATELY CHARGE THE

GRAND JURY P. 118

B. ENTERPRISE -- FAILURE OF PROOF P. 120

C. NO NEED TO PERSONALLY COMMIT ACTS P. 122

D. FAILURE TO SPECIFY INTENT IN INDICT-

MENT P. 126

E. PATTERN OF RACKETEERING ACTIVITY --

RELATEDNESS AND CONTINUITY P. 130

PUBLIC EMPLOYEES P. 132

A. RICO-CONSPIRACY -- EXTENT OF AWARE-

NESS AND PARTICIPATION REQUIRED ...


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