Decided. As Corrected February 7 1994.: January 18, 1994.
On appeal from Superior Court of New Jersey, Law Division, Union County.
Stern, Keefe and Newman. The opinion of the court was delivered by Stern, J.A.D.
We granted leave to appeal in order to decide whether the statutory entrapment defense embodied in N.J.S.A. 2C:2-12a applies to a conspiracy to commit a second degree aggravated assault. We conclude that it does, and remand for trial at which the defense may be presented.
Defendant was indicted for conspiring "with D.R., a police informant and unindicted co-conspirator known to the Grand Jury and known to the said Michael Soltys as 'Danny,' to commit the crime of aggravated assault, second degree, in violation of N.J.S.A. 2C:12-1(b)(1) by soliciting the said D.R. ('Danny') to purposely or knowingly cause serious bodily injury to Christy Frank, contrary to the provisions of N.J.S.A. 2C:5-2." The
second count alleges the same crime with respect to Jerome Goldberg.*fn1
For purposes of defendant's pretrial application for leave to present the entrapment defense*fn2 the parties agreed to the following facts, as stated in defendant's brief filed on this appeal:
On January 14, 1992 the defendant, Michael Soltys, was incarcerated in the Union County Jail for violation of a restraining order involving his former girlfriend Christy Frank. Soltys shared a cell with Fred McCabe while incarcerated. The two had been strangers until that time, but during the two days they were cellmates, Soltys discussed with McCabe his own prior relationship with Frank and his conviction that he had been harmed both emotionally and financially by her and her subsequent boyfriend, Jerry Goldberg.
On February 27, 1992, McCabe was released from jail and spoke to members of the Elizabeth Police Department that same day. As a result, on an unknown date, McCabe, now working as a police informant and wearing a concealed recording device, visited Soltys in the jail. He advised [Soltys] that he had located Jerry Goldberg, and that he had also located an individual who would be willing to kill Goldberg for money. During the course of the conversation Soltys indicated that he would like to see Goldberg and Frank hurt, though not killed, but that he had no money to pay for it to be arranged. Soltys ultimately agreed that he wanted the job done and would somehow come up with the money.
Subsequently, on March 25, 1992, undercover Essex County Police Officer Daniel Rinaldi visited Soltys at the jail, posing as a hit man who had been sent by McCabe. Soltys again replied that he had no money; Rinaldi replied that things could be worked out so that Soltys would pay him when he got out of jail, though no payment schedule was agreed upon. Rinaldi repeatedly offered to kill Goldberg, but Soltys insisted that he wanted Goldberg hurt, but not killed. Ultimately, a price of $2,500.00 was agreed upon.
On March 31, 1992, Soltys was taken to Union County Police Headquarters and interviewed. Soltys admitted that he had entered into an agreement with the man who had identified himself as "Danny" to have Christy Frank and Jerry Goldberg injured for a price of $2,500.00.
The State adds that a four paragraph stipulation was before the trial Judge. It provided:
Paragraph one, defendant never communicated any threats to either alleged victim concerning the incidents charged in this indictment. It is stipulated for purposes of this motion that defendant provided Fred McCabe with Christie Frank's father's phone number. Two, it is stipulated for purposes of this motion that threats made by Michael Soltys were ...