On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. S-15-02-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges A. A. Rodríguez, Payne and Lyons.
The State of New Jersey appeals from an order, dated January 2, 2008, dismissing a 2007 indictment against defendant, Samuel Siligato, charging aggravated arson, conspiracy and obstruction of the administration of law, on the ground that the State had failed to comply with the mandatory joinder requirements of Rule 3:15-1(b) and N.J.S.A. 2C:1-8b.
The unusual facts that underlie this appeal follow. On September 29, 1998, a fire that was determined to be arson occurred at business premises located at 801 South White Horse Pike, Winslow Township, Camden County. Following a lengthy investigation, it was determined that the fire had been set by Siligato in order to obtain insurance proceeds in an amount that exceeded $200,000. Because the statute of limitations on charges of arson had expired, on February 24, 2004, Siligato was not charged with that crime, but he was charged in an indictment with the second-degree crimes of theft by deception, attempted theft by deception and conspiracy to commit theft by deception. The matter was scheduled for trial on May 17, 2005. After the jury had been selected, but before it was sworn in, the trial judge conducted a N.J.R.E. 104 hearing on the admissibility of defendant's evidence in support of a defense of third-party guilt. Although witnesses at that hearing identified other persons and groups as the potential arsonists, evidence suggested that the testimony was perjured,*fn1 and as a consequence, two defense witnesses, Gary Dixon, Sr. and Francisco Diaz, were arrested. Upon arrest, Dixon confessed to perjury, alleging that defendant had threatened him by passing to him dollar bills, smeared with blood. This information was brought to the attention of the trial judge by the prosecutor, who successfully sought a postponement of trial to permit further investigation and presentation of witness tampering charges against Siligato to a State Grand Jury.
Following its investigation, on August 29, 2005, defendant was charged in a five-count indictment with one count of second-degree tampering with witness Gary Dixon, Sr. and four counts of third-degree tampering with witnesses Francisco Diaz, James Cooper, Calvin Blackshear, and William Dixon, Jr., occurring at various times in the period between May 10, 2005 and August 29, 2005.*fn2 Thereafter, the State's motion for permissive joinder of the two indictments was granted, and trial occurred in the period between May 9 and July 24, 2006. Approximately eighty-five witnesses were called during the course of trial. At its conclusion, defendant was convicted of second-degree attempted theft by deception and conspiracy, and of tampering with witnesses William Dixon Sr. and Jr., both crimes of the third-degree. On September 7, 2006, defendant was sentenced to an aggregate term of eleven years in prison.
Approximately one month prior to the initial N.J.R.E. 104 hearing, on April 8, 2005, another fire occurred at vacant residential premises, owned by Neil Pastore and his business, Pastore Farms, and located at 750 South White Horse Pike, approximately one-quarter mile from the initial fire.*fn3 In an undated report, the Camden County Deputy Fire Marshal determined the 750 fire also to have been caused by arson and to have originated in a living room sofa. On June 21, 2005, shortly after the third-party guilt hearing had taken place and while the investigation into witness tampering was occurring, a known informant named Dino Rae, a business associate of defendant, involved in trucking and construction, who had conducted demolition work at 801 South White Horse Pike after the fire at that location, stated in the course of a tape-recorded telephone conversation with State Special Investigator Bill Robertson that defendant was tampering with other proposed trial witnesses. When asked whether defendant had admitted to Rae that he had set the fire at 801 South White Horse Pike, Rae said "no," but stated that defendant had admitted to him that he had recently set a fire near that address. The transcript of the call reflects the following conversation:
Robertson: . . . Let me just ask you one last thing. Remember that place you went and did the demolition work on?
Robertson: Did he [defendant] ever tell you or the guy across the street about who really set that place on fire?
Rae: No, but I'll tell you this. He whispered in my ear one time we're in a truck together, maybe a month ago. He whispered in my ear, he leaned over, because he swears his truck's tapped . . . his trucks got a wire in, o[f] some nature. But he did burn another place down across the street, and he used a couch or something, that a foam or something in the couch is what he used to light it.
Robertson: The place across the street?
Rae: Yea, sit, on the other side of the Pike, down, upper back a little better [sic]. Had it burned down about a month or two ago.
Robertson: Okay. Alright, I'm not familiar with that. I'll take a look at that and we didn't talk ...