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State v. Taccetta

May 23, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARTIN TACCETTA, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,V. MICHAEL TACCETTA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

Approved for Publication May 23, 1997.

Before Judges Michels, Muir, Jr., and Kleiner. The opinion of the court was delivered by Muir, Jr., J.A.D.

The opinion of the court was delivered by: Muir

The opinion of the court was delivered by

MUIR, JR., J.A.D.

A State Grand Jury indictment is the legal genesis for these appeals by defendants Martin and Michael Taccetta which we have consolidated for opinion purposes. The factual genesis is the Taccetta brothers' participation in an organized criminal enterprise known as La Cosa Nostra (LCN), literally "Our Thing."

A State Grand Jury indicted the Taccetta brothers, Anthony Accetturo, Thomas Ricciardi, Michael Ryan, and Joseph Sodano in a seven-count indictment. The indictment charged: Accetturo, the Taccettas, Ricciardi, Ryan, and Sodano with second-degree racketeering conspiracy (count one, N.J.S.A. 2C:41-2b, c); Accetturo, Ricciardi, and Martin Taccetta with first-degree racketeering (count two, N.J.S.A. 2C:41-2c; 2C:2-6); Accetturo with second-degree leader of organized crime (count three, N.J.S.A. 2C:41-1; 2C:5-2g); Ricciardi, Martin Taccetta, and Ryan with first-degree murder (count four, N.J.S.A. 2C:11-3a(1), (2); 2C:2-6); Accetturo, Michael Taccetta, Martin Taccetta, and Ricciardi with two counts of second-degree theft by extortion (counts five and six, N.J.S.A. 2C:20-5; 2C:2-6); and Accetturo and Ricciardi with second-degree theft by extortion (count seven, N.J.S.A. 2C:20-5; 2C:2-6).

All defendants except Sodano were tried together before a jury. On August 13, 1993, the jury found Martin Taccetta guilty of counts one, two, five, and six, consisting of the racketeering conspiracy supported by two predicate acts, as well as the substantive offenses of racketeering and extortions of Pasquale and Vincent Storino, but acquitted Martin of the murder of Vincent Craporatta. The jury also found Michael Taccetta guilty of counts one, five, and six. Although not relevant to these appeals, the jury found Accetturo and Ricciardi guilty on all counts but acquitted Ryan on all counts.

The trial court found Martin Taccetta eligible for an extended term sentence both as a persistent offender and as a professional criminal. See N.J.S.A. 2C:44-3a, b. The court, after merging count one into count two, sentenced Martin as follows: life with 25 years parole ineligibility on count two; 10 years with 5 years parole ineligibility on count five consecutive to the term on count two; and 10 years with 5 years parole ineligibility on count six concurrent with count five but consecutive to count two. The court also imposed required Violent Crimes Compensation Board (VCCB) penalties.

The court similarly found Michael Taccetta eligible for an extended term and sentenced him to 20 years with 10 years parole ineligibility on count one, 10 years with 5 years parole ineligibility on count five consecutive to the sentence on count one; and 10 years with 5 years parole ineligibility on count six to run consecutive to the sentence on count five. The court also imposed required VCCB penalties.

Both Taccettas appeal. Martin contends:

POINT I

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MARTIN TACCETTA'S CONVICTION FOR EXTORTION.

POINT II

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MARTIN TACCETTA'S CONVICTION FOR RACKETEERING.

A.

The Statute.

B.

There was Insufficient Evidence Of Two Incidents Of Racketeering Conduct.

C.

The State Failed To Show The Required Continuity to Establish A Pattern Of Racketeering Activity.

1. The Requirement of Continuity Under New Jersey Law.

2. The Failure to Prove Continuity.

POINT III

THE TRIAL COURT ERRED IN ADMITTING A CRITICAL TAPE RECORDING OF A CONVERSATION BETWEEN JOHN JANUSKA AND JOSEPH SODANO, WHICH CONVERSATION WAS HEARSAY NOT IN FURTHERANCE OF A CONSPIRACY.

POINT IV

THE PROSECUTOR'S SUMMATION, DURING WHICH HE REPEATEDLY DENIGRATED DEFENSE COUNSEL, INFORMED THE JURY THIS WAS A CASE OF "US" AGAINST "THEM" IN WHICH IT WAS "UP TO YOU," EXCEEDED ALL BOUNDS OF RESPONSIBLE ADVOCACY AND DENIED APPELLANT THE FAIR TRIAL GUARANTEES OF THE STATE AND FEDERAL CONSTITUTIONS.

POINT V

APPELLANT TACCETTA SHOULD HAVE BEEN SENTENCED AS A SECOND DEGREE OFFENDER ON COUNT TWO, AS HIS OFFENSE DID NOT INVOLVE VIOLENCE OR THE USE OF FIREARMS.

Michael contends:

POINT ONE :

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MICHAEL TACCETTA'S CONVICTIONS ON COUNTS FIVE AND SIX FOR EXTORTION.

POINT TWO :

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MICHAEL TACCETTA'S CONVICTION FOR CONSPIRACY TO COMMIT RACKETEERING.

POINT THREE :

THE TRIAL COURT ERRED IN ADMITTING A CRITICAL TAPE RECORDING OF A CONVERSATION BETWEEN JOHN JANUSKA AND JOSEPH SODANO, WHICH CONVERSATION WAS HEARSAY AND NOT IN FURTHERANCE OF A CONSPIRACY.

POINT FOUR :

THE PROSECUTOR'S SUMMATION, DURING WHICH HE REPEATEDLY DENIGRATED DEFENSE COUNSEL, INFORMED THE JURY THIS WAS A CASE OF "US" AGAINST "THEM" IN WHICH IT WAS "UP TO YOU," EXCEEDED ALL BOUNDS OF RESPONSIBLE ADVOCACY AND DENIED APPELLANT THE FAIR TRIAL GUARANTEES OF BOTH THE STATE AND FEDERAL CONSTITUTIONS.

POINT FIVE :

FOR PURPOSES OF SENTENCING, THE TRIAL COURT SHOULD HAVE MERGED THE RACKETEERING CONSPIRACY AND THE SUBSTANTIVE OFFENSES OF EXTORTION.

A.

The lack of evidence that the promotion of gambling was an object of the conspiracy.

B.

Even assuming the gambling predicate was properly found, the extortions should have been merged, for sentencing pur-poses, with the conspiracy.

POINT SIX :

FOR SENTENCING PURPOSES, THE TRIAL COURT SHOULD NOT HAVE TREATED THE STORINO EXTORTION AS SEPARATE OFFENSES AND SHOULD NOT HAVE IMPOSED CONSECUTIVE SENTENCES.

Michael, on points one through four, adopts by reference the arguments set forth in Martin's brief.

We reject all the contentions. Accordingly, we affirm both judgments of conviction. All contentions raised but not specifically addressed in this opinion are considered to be without merit. R. 2:11-3(e)(2).

I.

The State presented a plethora of evidence. Nonetheless, we limit our review to those facts relevant to resolution of the appeals and certain background facts essential to an understanding of the scope of the complex criminal enterprises involved.

The State produced the testimony of two members of LCN, Phillip Leonetti, a member of the Bruno-Scarfo family, and Alphonse D'Arco, a member of the Lucchese family, to explain LCN's hierarchical structure, its purposes, the scope of its business, its methodology, and the terminology used by its members.

Nationally, the LCN is governed by a commission. The commission supervises the overall operation of the several families. There are five families in the Greater New York area, a Philadelphia family, and a Chicago family. In this instance, we are concerned only with the New York-based Lucchese family and the Philadelphia-based Bruno-Scarfo family and their continuing efforts to control criminal ventures in New Jersey, New York, and Pennsylvania.

Each LCN family has the same structure. In order of apparent rank, there is the family boss, the underboss, and the consigliere or counselor. Beneath that triumvirate are captains or capos, who manage crews made up of soldiers. The families also have large numbers of associates who are subject to family direction and control. The chain of ...


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