On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-01-0001.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Rodríguez and Ashrafi.
Defendant was indicted for, and convicted at his second trial of, "racketeering conspiracy," N.J.S.A. 2C:41-2(d) and N.J.S.A. 2C:5-2, and murder, N.J.S.A. 2C:11-3(a)(1) and (2) and 2C:2-6. He was sentenced to consecutive terms of life imprisonment with thirty years to be served before parole eligibility for the murder and twenty years with ten years of parole ineligibility for the conspiracy. The aggregate sentence was life plus twenty years with forty years to be served before parole eligibility.
On his appeal defendant, through counsel, raises seven contentions he claims require reversal. They include the failure "to charge conspiracy to commit murder as a lesser-included offense to the murder"; that "[b]ecause the conspiracy clearly terminated prior to the five-year statute of limitations, a judgment of acquittal should have been entered on the conspiracy to commit racketeering count" and that the murder conviction must also be reversed because of the related prejudice; a judgment of acquittal should have been entered on the conspiracy charge because "the only alleged conspiratorial act that took place within the five year statute of limitations" was dismissed at the first trial; "the jury charge on the statute of limitations and termination of a conspiracy were legally incorrect" and shifted the burden of proof; the trial judge committed reversible error by allowing testimony about Salvatore Lombardino's refusal to testify at the defendant's first trial; the charge on conspiracy was incorrect because "it failed to require the jurors to reach a unanimous verdict on the alleged racketeering acts" and the sentence on the conspiracy conviction is "illegal because conspiracy to commit racketeering is a second degree crime." We affirm the convictions and sentence.
The proofs at trial reflect that defendant was a member of the Colombo organized crime family. We need not detail the proofs concerning organized crime, the Colombo family or its involvement in racketeering.
Defendant's brother Rocco was the principal witness for the State. Together with Jimmy Randazzo and others, defendant and Rocco participated in the murder of Jimmy Angellino at Rocco's home in Kenilworth, New Jersey in 1988. Thereafter, the brothers and Lombardino*fn1 were involved in the May 1993 execution of Randazzo in Tinton Falls, New Jersey.
Defendant, Rocco and others were indicted by a federal grand jury in the Eastern District of New York (EDNY) for various crimes related to the Angellino murder, and Lombardino was indicted in the District of New Jersey with respect to the Randazzo murder. Rocco entered into a cooperation and plea agreement with the United States Attorney. In May 1994, Rocco pled guilty to a one count information including a RICO conspiracy involving the murders of Angellino and Randazzo. Lombardino entered into a negotiated plea including conspiracy to murder Randazzo, but the Government could reinstate the entire indictment if he ultimately testified for defendant in connection with the Randazzo matter. That term of the agreement was subsequently deleted. Defendant also entered a guilty plea to a racketeering conspiracy in 1995 in the EDNY.
At defendant's state trial on the first indictment in 2002, Lombardino refused to testify, and invoked the Fifth Amendment outside the presence of the jury. That prosecution ended in a "hung jury." The State grand jury returned a superseding indictment. At the second trial, resulting in the judgment before us, the State introduced witnesses concerning Lombardino's gesturing and exchange with defendant at the first trial. Defendant's appeal is from the conviction at the second trial.
The first indictment was returned against defendant on February 24, 2000. It charged defendant, as "a made member or soldier of the Colombo Crime Family and New Jersey Colombo Crew," with first degree racketeering conspiracy in violation of N.J.S.A. 2C:41-2(d) and N.J.S.A. 2C:5-2 (count one), and with the May 17, 1993 murder of James V. Randazzo in violation of N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:2-6 (count two). The conspiracy count alleged the following overt acts: (1) "In or about November 1988, in Kenilworth, New Jersey, the defendant... with others whom he aided or agreed or attempted to aid in the planning and commission of the offense, shot and killed Vincent 'Jimmy' Angellino, a high ranking member of the Colombo Crime Family"; (2) "On May 17, 1993, in Tinton Falls, New Jersey, the defendant... with others, including co-conspirator Salvatore Lombardino, shot and killed James V. Randazzo, as he sat in his car, which was parked in a hotel parking lot"; (3) "On or about January 20, 1994, in Union, New Jersey, co-conspirator Lombardino had a conversation concerning the murder of Randazzo, during which Lombardino suggested that he, [Rocco and defendant] should get together and discuss their false alibis... to avoid prosecution for the murder of... Randazzo"; and 4. On or about May 1, 1998 and on or about October 8, 1998, co-conspirator Salvatore Lombardino, in violation of a federal court order compelling his testimony and in contempt of court, refused to answer questions concerning the involvement of another person in the murder of James V. Randazzo, in an attempt to conceal from law enforcement authorities the identity of defendant, RAY CAGNO, as a member of the Colombo Crime Family and as having been involved in the murder of James V. Randazzo.
As a result of a hung jury, defendant's first trial ended in a mistrial on June 28, 2002.
A two-count superseding indictment was returned on January 2, 2003. It again charged defendant with "racketeering conspiracy-first degree" and the murder of Randazzo. With respect to the racketeering conspiracy count, the superseding indictment charged the same first three overt acts as charged in the original indictment, deleted the original fourth overt act, and charged as overt acts four and five that on or about June 13, 2002 and June 18, 2002, respectively: co-conspirator Salvatore Lombardino, during a prior proceeding in the matter of the State of New Jersey v. Ray Cagno, in violation of a Superior Court of the State of New Jersey, Law Division-Criminal court order compelling his testimony and in contempt of the court, refused to answer questions concerning the murder of James V.
Randazzo and communicated with, and gestured to the said RAY CAGNO in an effort to effectuate and perpetuate certain rules of the Colombo Crime Family and the New Jersey Colombo Crew, to conceal from law enforcement authorities the identity of the said RAY CAGNO as a member of the Colombo Crime Family and as having been involved in the murder of James V. Randazzo, and to provide reassurance to the said RAY CAGNO of the ongoing nature of the racketeering conspiracy.
Defendant filed unsuccessful pretrial motions before both trials. Among them were the motion "to dismiss the RICO conspiracy count (Count One) based upon a failure to satisfy the statute of limitations because the charged overt acts are flawed" and "to amend the RICO conspiracy count (Count One) to a second degree offense rather than a first degree offense."
Through their loan-sharking and gambling activities, and extortion in the business of refuse disposal, the Colombo family had engaged in criminal activities that affected commerce within this State. For an associate to become a "made member" of the family, he is observed for a lengthy time period, has to show extreme loyalty to the family and has to be sponsored by a captain. At the "making" ceremony, the candidate must take the oath of "Omerta" or silence. He swears "allegiance to the family that if [he] betrayed [his] friends in the family, [he] should burn in hell." Betrayal, which occurs when a "rat" cooperates with law enforcement, is punishable by death. The killing of a "rat" must be sanctioned by the boss. An "unsanctioned" killing may itself result in the murder of the perpetrators.
Defendant and his brother, Rocco, had been associated with La Cosa Nostra (LCN) since the late 1960s or early 1970s. Rocco was involved with "[b]ookmaking, cigarette smuggling [and] murder." In 1977, Rocco and Randazzo committed a murder.
Randazzo, a loan shark, asked Rocco to assist in killing a man who owed him money. Randazzo brought the man to Rocco's bar which was closed for the day. Rocco "hit [the man] in the head with a club"; both Randazzo and Rocco then choked him. Randazzo put the body in the trunk of his car. Rocco did not know the victim's name or where Randazzo disposed of the body. Rocco was not questioned by the police about this murder and was unaware if Randazzo had been questioned.
In July 1987 Randazzo told Rocco that he and defendant were going to be "made." Randazzo, Rocco, defendant and Tony Scianna, an acting Colombo capo, drove to Queens, New York where the "making" ceremony took place. Randazzo was Rocco's sponsor. Their fingers were pricked with a needle and their blood was smeared on a cardboard image of a saint, which was ignited. Holding the burning saint, Rocco swore that if he broke the oath of silence (Omerta) he would "burn in hell as [the] saint... burn[ed] in [his] hand." He also promised that he would "do a piece of work" (kill someone) if requested.
Rocco further testified that he and defendant participated in the murder of Angellino in November 1988. Rocco's home was selected as the site because it could be accessed through the garage without anybody being seen from the driveway. It was decided that Carmine Sessa and Billy Cutolo would do the shooting from the top of the steps because they were capos and Angellino, the intended victim, was an acting consigliere. Defendant, who was armed, was instructed to hide and be ready as a back-up to the shooters.
Randazzo brought Angellino to Rocco's house. Rocco, who had stashed his gun in the basement, opened the garage door for them. The lights went out and Rocco heard shots. When the lights went on, "Angellino was in a corner on the bottom of the steps." Angellino's body was put into a body bag that Randazzo had brought, and was placed in the trunk of Randazzo's car.
In 1991 or 1992, Rocco had new steps installed in the area where Angellino was killed. Defendant relayed a message to Rocco from Carmine Sessa that Rocco should have this work done to thwart any search for blood. In view of a developing internal struggle within the family, there was a fear that someone would "turn" with regard to the Angellino murder.
Randazzo was an acting captain of Sal Profaci's crew, to which defendant and Rocco were assigned in 1992. Beginning in 1980 Rocco began borrowing money from Randazzo. Rocco told Randazzo that he lent out the borrowed money. Over a fourteen-to fifteen- year period, Rocco repaid close to $400,000 against loans totaling $40,000.
After Randazzo was incarcerated in 1992, Dominic Prosperi collected payments from Randazzo's debtors. Pursuant to a search warrant, in December 1992 the FBI recovered Randazzo's loanshark notebook from the residence of Joseph Prosperi, Dominic's father. Rocco was visiting Randazzo in jail when they learned that Randazzo's notebook had been seized by the FBI. Randazzo became upset and said he (Randazzo) was "dead."
As a result of Randazzo's reaction, Rocco became concerned that Randazzo would "turn" and implicate him in the two murders described above. Rocco spoke about his concerns with Lombardino and with defendant, who also could have been implicated in the Angellino murder. All three were in favor of killing Randazzo, and spoke with that purpose in mind "over the next couple of months." Rocco became more concerned when he learned that Randazzo was calling in his loans and selling his car, indicating that Randazzo "was getting ready to leave." Defendant and Lombardino shared Rocco's concerns.
Rocco became increasingly worried when Randazzo showed him an April 13, 1993 newspaper article that reported that Carmine Sessa was cooperating with the authorities. According to Rocco, Randazzo said he could understand why Sessa turned. Sal Profaci also expressed concerns about Randazzo.
As noted above, under LCN's rules, the killing of a "made" member must be sanctioned. However, Rocco, defendant, and Lombardino decided not to get approval for the Randazzo murder. At a meeting attended by Profaci, Rocco, defendant and Lombardino, Lombardino said "we ought to whack Jimmy Randazzo."
The plan to kill Randazzo took shape as Randazzo sought to meet with Profaci. Refusing, Profaci, said that Randazzo "had too much heat [law enforcement] on him and he [Profaci] didn't trust him anymore." Rocco told Randazzo that he would "have to wait awhile for the meeting."
After rejecting Bloomfield as a place for the murder, Rocco, defendant and Lombardino chose the shore area. At one time, defendant had operated a pizza restaurant and an equipment supply company in Long Branch, and he lived in Toms River.
A hotel parking lot in Tinton Falls was the planned site of Randazzo's murder. On Monday May 17, 1993, Rocco met defendant and Lombardino at the parking lot. Rocco had refused Randazzo's earlier request to ride with him to the lot on the pretense that Rocco had an earlier meeting with Profaci. Upon meeting Lombardino and defendant, Rocco got in the rear seat of Lombardino's car and Lombardino drove to a nearby Holiday Inn with defendant in the front passenger seat. Rocco gave Lombardino the gun to use in the killing.
The trio met Randazzo at the Holiday Inn; that location was rejected as the murder site because it was too crowded. Defendant, who was designated as the shooter, was to ride with Randazzo in his car from the Holiday Inn to the other hotel where the killing was to take place. Rocco and Lombardino were to follow as "back-up."
At the Holiday Inn, Lombardino parked his car behind Randazzo's. Rocco hid the gun as Randazzo approached. In response to Randazzo's question about what he was doing there, Rocco replied that Profaci was at the other hotel. Defendant told Randazzo that he would ride with him.
After Randazzo and defendant got in the driver and passenger seats of Randazzo's car, they engaged in a "struggle." Lombardino and Rocco got out of Lombardino's car. Before Lombardino got to the driver's side door of Randazzo's car, Rocco heard a shot. After trying to get a clean shot to avoid hitting defendant, Lombardino fired once into Randazzo's car through the driver's open door and fired a second shot in Rocco's direction. Rocco did not have his gun with him as it remained on the back floor of Lombardino's car. Aside from Lombardino's two shots, Rocco heard two or three others.
Rocco saw a man in the parking lot taking down a plate number, other men in an upstairs window of the hotel, and a woman crossing the lot who began to run when she heard the shots.
Lombardino reentered the driver's seat of his car and Rocco got in front. Staggering, defendant left Randazzo's car and leaned against a wall. Upon Lombardino's urging, defendant got in the back seat of Lombardino's car.
The license plate number of Lombardino's vehicle was observed by bystanders, and Lombardino was identified from a photo array. Other observers described the assailants.
After driving away from the parking lot, Rocco cleaned the guns of fingerprints and threw them out the car window onto a grassy area. Rocco did not remove his gun from the plastic bag before disposing of it.
As Rocco recalled it, in response to Rocco's comment that he hoped Randazzo was dead, defendant replied, "he is I put another one in his head." Defendant also told Rocco that he had hurt his shoulder. Because defendant had blood on his clothes, the trio attempted to find a K-Mart to buy new clothes but the store was closed. Rocco was dropped off at the parking lot where he parked his car and departed. After Rocco got home, he went to bed.
In 1993 both Rocco and defendant habitually smoked non-filtered Pall Mall cigarettes. On the night of the murder, Rocco brought a different brand of cigarettes, explaining, "Pall Mall they would know... I just brought a different brand to try to throw anything off the track." Defendant may have asked Rocco for a cigarette, but Rocco was not sure.
A search warrant and search inventory from the Prosperi search were found on the front passenger floor of Randazzo's car. A.38-caliber discharged bullet was discovered in the parking lot next to Randazzo's car and two bullet fragments were taken from the passenger's side front floor of the car.
FBI Special Agent Butler had been involved in the investigation of Randazzo's loansharking operation and became involved in the investigation of his murder. Becoming aware that a car registered to Lombardino was suspected to have been connected to the murder, Butler suggested that local authorities attempt to locate Lombardino, defendant and Peter Campisi. A search of Lombardino's home produced a box of.38-caliber ammunition and an empty holster.
Telephone records indicated that Rocco received telephone calls from defendant's residence at 3:04 a.m. and 5:41 a.m. on May 18, 1993. On both occasions the caller was Rita Cagno, defendant's wife. Normally, Rocco had not received phone calls from Rita at 3:00 a.m. on other occasions. Records also showed a 5:15 a.m. three-minute call from Lombardino's residence to defendant's, and a 5:56 a.m. one-minute call from Rocco's residence to defendant's, during which time Rocco again spoke to Rita.
Records reflected five telephone calls between 5:13 p.m. and 6:59 p.m. on May 18, 1993, from Rocco's residence to defendant's, which Rocco agreed was not commonplace.
A consent search of Randazzo's house recovered an April 13, 1993, Daily News article that reported the cooperation of Colombo LCN figure Carmine Sessa. Papers containing names of defendant, Rocco, and Lombardino along with their phone numbers were among the papers found at the Randazzo home.
Joseph Monahan of the State Police Intelligence Bureau, who had been advised of Randazzo's murder, responded to the Tinton Falls Police Department on the morning of May 18, 1993, to render assistance. Accompanied by Monmouth County investigator Peter Short, Monahan drove into Long Branch in an undercover car. Monahan chose Long Branch because defendant had been previously involved in the pizza parlor and restaurant supply business there.
May 18, 1993 was a "raw" and "overcast" day, and it was drizzling. As he was driving, Monahan saw defendant walking in the opposite direction. He stopped the car and asked defendant if he wanted to go for a ride. Monahan said that he was investigating a homicide. In response to Monahan's question why defendant "was walking on such a rotten day," defendant replied that he had "nothing to say." Defendant was dressed in a sweatshirt and jeans but was not wearing a raincoat or carrying an umbrella.
John Tesauro, who in 1993 was a captain with the detective division of the Monmouth County Prosecutor's Office, briefly chatted with defendant on the afternoon of May 18, 1993, while defendant was at the Tinton Falls Police Department. Tesauro noted that defendant's "hair was mussed" and "disheveled," that he was "unshaven," "[h]e had a shadow of a beard and his eyes were puffy and swollen as though he hadn't slept."
A federal search warrant had been obtained to search defendant's person for physical trauma. The warrant was executed at the Tinton Falls police station in the presence of FBI Special Agent David Kelly. Defendant removed his clothing. Although there was no indication of any injury, Kelly noticed that defendant "had some difficulty trying to get the sweatshirt over his head." Later that afternoon, Monahan drove defendant back to Toms River and dropped him off a block away from his house.
A search of defendant's house on the afternoon of May 18, 1993, resulted in the seizure of telephone records, a notebook, phone numbers, check ledgers, cassettes from the answering machine, a slip of paper bearing Randazzo's name and phone number and another piece of paper with a phone number, and the notation "Tutti... beeper."
Although defendant was not under arrest on May 20, 1993, the FBI obtained his fingerprints and photographs at that time. On that occasion, FBI Agent Butler spoke to defendant about the FBI's pre-May 17, 1993, investigation into Randazzo's loan-sharking operation. After telling defendant that many people were interviewed, defendant asked if the FBI had spoken to Randazzo. When Butler said that he had not, defendant's "eyes grew wide." According to Butler, "[i]t appeared to be disbelief... [defendant] was surprised."
Rocco's home was also searched by the FBI on May 20, 1993. Tiles were taken from the area where Angellino was murdered and bullets were seized from a robe hanging in a clothes closet. During the search, defendant called Rocco from Newark Airport and said that he was going to Las Vegas where he had in-laws. Rocco told defendant about the in-progress search and nothing else was discussed. Defendant called Rocco on seven occasions from Las Vegas between May 21 and May 29, 1993. Rocco did not recall having received that many phone calls from defendant when he had been in Las Vegas on prior occasions.
Three handguns and ammunition were recovered during the investigation. The first gun was recovered from a grassy area off Asbury Avenue in Ocean Township during the morning of May 20, 1993. This gun was an unloaded Smith & Wesson.38-caliber revolver with a two-inch barrel.
On the afternoon of May 20, 1993, a torn plastic Ziploc baggie containing a gun and four bullets was found along a fence on Asbury Avenue. Two other bullets were also located in the grassy area between the baggie and the roadway, and a plastic bag of bullets was found further down the road near a telephone pole. The gun was a fully loaded Smith & Wesson.38-caliber revolver with a four-inch barrel.
On the next day, a third gun was recovered from Hope Road in Tinton Falls. This weapon, a.38-caliber revolver with a two-inch barrel, "contained two discharged shell casings and three live rounds of ammunition." The two discharged casings meant that the gun had "been fired at least two times."
Also on May 21, 1993, Lombardino's abandoned car was found in an industrial area in Brooklyn, New York. Its bottom back seat and license plates were missing. The car was removed to the Tinton Falls Police Department for further investigation.
On June 9, 1993, defendant visited Lombardino, who was then being held at the Burlington County jail. Defendant, who indicated that he was a "friend" of Lombardino in the jail's visitor logbook, stayed for twenty-five minutes.
Line-ups were conducted on June 29, 1993. Defendant, Lombardino, Campisi and Gerry Giambanco were placed in the lineups which were observed by five witnesses. There was one identification of Lombardino but none of the others. An observer of the shooting, who was not present at the line-up, subsequently identified Lombardino from a photo array. Rocco was not included in the line-ups because the FBI did not then believe that he was at the murder scene.
Within four months of Randazzo's murder, Rocco decided to cooperate with law enforcement. On January 20, 1994, Rocco, fitted with a body wire, recorded his conversation with Lombardino at a diner. In response to Lombardino's question whether Rocco had spoken to defendant, Rocco replied that he would probably see defendant on Sunday at a graduation. Lombardino, telling Rocco that they and defendant would have to develop an alibi with respect to Randazzo's murder stated: "We'll sit down... the three of us, and see how we're gonna handle this." To explain the presence of Randazzo's blood in Lombardino's car, Lombardino said that he would make up a false story that when he and Randazzo went out to lunch, Randazzo developed a bloody nose.
A ballistics expert determined that a discharged bullet found outside the driver's door of Randazzo's car and another recovered by the Medical Examiner from Randazzo's chest, were fired from the first weapon retrieved by the police, to the exclusion of other guns. He also determined that the two empty cartridge cases found in the third gun retrieved were fired from the third gun.
Comparing blood stains on Randazzo's shirt to a swatch of material taken from the rear driver's side door of Lombardino's car, Linda Harrison of the FBI concluded that the DNA profiles of both stains "matched."
Special Agent Jennifer Lindsey Smith of the FBI performed DNA tests upon the ten cigarette butts found in the rear of Lombardino's car. The first six were Salems, the next three were Ducados and the last was an unfiltered cigarette with no brand name. Two Salem butts and the unfiltered cigarette butts bore DNA consistent with that of defendant's DNA. Ninety-one percent of the Caucasian population, including Rocco and Lombardino, "would be excluded as the source of the saliva on those cigarette butts."
On November 9, 1993, a federal grand jury in the Eastern District of New York charged defendant, Rocco, and two others, as "soldiers in the Colombo Family," with the November 15, 1988 murder of Angellino, conspiracy to murder Angellino "a member of the Colombo Family," and "using and carrying firearms." On February 1, 1994, Lombardino was indicted for his participation in the Randazzo murder by a federal grand jury in the District of New Jersey.
On March 18, 1994, Rocco entered into a "plea and cooperation agreement" with the United States Attorneys' Offices for the Eastern District of New York and for the District of New Jersey. The agreement reflected the acceptance by the government of a guilty plea from Rocco "to a one count criminal information charging him with conspiring to conduct the affairs of the Colombo Crime Family through a pattern of racketeering activity which included three acts of conspiracy to commit murder." The agreement further provided for Rocco's cooperation with the government "concerning possible violations of the criminal laws, including particularly (but not limited to) homicides and organized crime schemes to infiltrate legitimate business and subvert government."
Notwithstanding the foregoing, the agreement also recited that Rocco Cagno has expressed a strong unwillingness to testify against his brother, Aurelio "Ray" Cagno, even though he has identified Aurelio Cagno as having been a main participant in the Randazzo and Angellino murders. Recognizing this sensitivity, the Government agrees to make every reasonable effort to obviate the necessity of having to call Rocco Cagno as a witness against his brother, as a defendant.
This provision does not, however, create any right on behalf of Rocco Cagno. Therefore, it is understood that if a good faith effort to develop alternative legally sufficient evidence is unsuccessful and, therefore, it becomes necessary to call Rocco Cagno as a witness against his brother in order to prevent a failure of justice, Rocco Cagno will be required to provide truthful testimony about the involvement of Ray Cagno in the planning and commission of the Randazzo and Angellino murders with others, in accordance with the provisions of this agreement and as otherwise required by law.
On May 5, 1994, Rocco entered a guilty plea in the United States District Court for the District of New Jersey to a one-count information charging him with racketeering conspiracy. The racketeering acts included: (1) the murder in 1976 or 1977 of "an unknown white male identified as a 'loanshark customer' of Jimmy Randazzo"; (2) conspiracy to commit the November 1988 murder of Angellino; and (3) conspiracy to commit the 1993 murder of Randazzo.
Lombardino's federal trial in 1994 resulted in a mistrial. During a second trial, on October 4, 1994, Lombardino entered into a "plea agreement" whereby the government agreed to accept a guilty plea from him to a three-count criminal information charging: (1) "conspir[acy] to murder in aid of racketeering activity"; (2) "using and carrying a firearm during a crime of violence" and (3) "accessory after the fact... (destruction or removal of property to prevent seizure)." In return, the government promised that after Lombardino entered a guilty plea to the information and ...