April 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK J. MASSIMI, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 06-03-377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 18, 2009
Before Judges Stern, Graves and Harris.
After a bench trial, defendant was found not guilty of conspiracy to commit aggravated assault and two counts of aggravated assault.*fn1 He was found guilty of conspiracy to commit terroristic threats as a lesser-included offense to conspiracy to commit aggravated assault in violation of N.J.S.A. 2C:5-2 and 2C:12-3. He was sentenced to probation for two years with 280 days to be served in the Bergen County Jail as a condition of probation.
Defendant now argues that "conspiracy to commit a terroristic threat is not a lesser included offense of second degree aggravated assault [and] therefore, the trial court erred by finding Mr. Massimi guilty of the lesser included offense," "the trial court erred by considering an alleged lesser included offense that was not specifically included or discussed during the charge conference pursuant to R. 1:8-7(b)," and "the sentence imposed was manifestly excessive."
The trial dealt with an attack on defendant's brother-in- law. For purposes of this opinion, we incorporate an abridged version of the statement of facts as contained in the State's brief:
In September 2005, Michael Middleton, a [forty] year old resident of Newborugh [sic], New York, with six prior felony convictions, met defendant Frederick Massimi at a restaurant in that town called Chianti's. The owner of Chianti's, John Frontier, introduced Mr. Middleton to defendant Massimi.
A short time later, defendant and Mr. Middleton left the restaurant and took a short walk. According to Mr. Middleton, at this time, defendant told Mr. Middleton that he wanted someone "beaten up," specifically, hit in the legs with a bat, and "something" broken. Defendant offered to pay $3000 for this beating.
Following his meeting with defendant, Mr. Middleton called Kevin Bennett, someone he met while incarcerated in New York. Mr. Bennett agreed to take the "job," and called defendant to tell him.
[At a meeting with Middleton and Bennett] [d]efendant told Middleton the intended victim, a medium built male, drove a black Denali and gave Middleton the vehicle's license plate number. Defendant also told Middleton and Bennett that the intended victim arrived at the gym [to which they drove in defendant's late model Mercedes] about 4:30 [a.m.] or 5:30 a.m., and that at this early hour no one else would be in the gym parking lot and surrounding area.
During this meeting, defendant and Middleton again discussed the subject of payment in the amount $3000. Defendant agreed to pay the "fee" after the job was accomplished the following week.
On the morning of September 29, 2005, [Kevin] Bennett set his alarm for 4:00 a.m. and drove to The Gym in Montvale, New Jersey....
Sometime between 5:00 [a.m.] and 5:30 a.m., a black SUV bearing the license plate number that defendant had supplied pulled into the gym's parking lot. The driver of the SUV, Donald Dinallo, got out of the car, retrieved a gym bag from the rear seat and closed the car door. At this point, Bennett ran toward the man and hit him in the right leg, between his knee and ankle, with the bat. The man did not fall down, so Bennett aimed a blow at Dinallo's leg. Dinallo tried to grab the bat from Bennett, so the second blow hit Dinallo's hand. A third swing of the bat resulted in another blow to Dinallo's leg and caused him to fall. Immediately thereafter, Dinallo got back up and ran into the gym.
Bennett ran back to his white Ford SUV and drove away. A short time later, the police stopped him. [He was not immediately arrested, but police obtained sufficient information to arrest him following the prosecutor's investigation.]
At the hospital, doctors administered four stitches to Mr. Dinallo's shin. They also diagnosed a broken bone in his left hand and told him to ice his swollen knee. Mr. Dinallo was released from the hospital at approximately 8:00 a.m.
Mr. Dinallo testified that after he was released from the hospital, his pain was at a "10" on a scale of 1 to 10. At trial, he explained that he got to work the morning of the attack "out of my own resolve." His leg bears a scar that is one to two inches wide.
[Dinallo was told] that the person they had stopped was from Newburgh, New York. Mr. Dinallo told Detective McMorrow that the only person he knew from Newburgh was his brother in law, defendant.
After meeting with Mr. Dinallo, Detective McMorrow signed a complaint against Kevin Bennett for aggravated assault and forwarded it to the New Windsor Police Department in New York. On September 30, 2005, between 3:30 [p.m.] and 4:00 p.m., the New Windsor Police Department arrested Kevin Bennett.
The police advised Bennett of his Miranda rights and thereafter he confessed to having committed an assault at The Gym in Montvale. Bennett told the police that the assault had been arranged by Michael Middleton. [Middleton ultimately gave the police defendant's cell phone number which he used to contact defendant and confirmed his meeting with defendant.]
After receiving the cell phone number from Middleton, Detective McMorrow obtained records pertaining to the phone. These records confirmed telephone contact between defendant and Middleton on September 20 and 29, 2005, and October 1, 2005. Detective McMorrow also learned that Frederick Massimi, Sr., had a house in Franklin Lakes. Detective McMorrow drove to the house and saw a car that matched [the] Mercedes described by Middleton and Bennett [in which they were driven to the gym].
Following [Middleton's] identification of defendant's driver's license photo, a warrant [was] issued for defendant's arrest. Defendant surrendered on October 13, 2005.
The police investigation also revealed that in late December or early 2005, defendant's wife of [twenty-five] years filed for divorce. Mrs. Massimi discussed the possibility of a divorce with her brother, Donald Dinallo[,] and Mr. Dinallo assisted his sister by helping her find an attorney and paying the attorney's fees.
In an order dated September 12, 2005, and filed September 15, 2005, a judge in Florida entered a court order granting defendant's wife's motion to sequester $300,000 in assets. By order of October 19, 2005, a judge in Florida found defendant in contempt for not depositing funds with the court as required by the September 12, 2005 order.
In November 2006, defendant approached Mr. Middleton at the Bergen County Courthouse and asked... Mr. Middleton to "switch it up," and make it seem like it was Kevin Bennett's idea to beat up Mr. Dinallo. Defendant also suggested that Middleton "could just say that defendant just told us to go talk to the guy." Finally, defendant told Middleton that he could get him a good lawyer "to beat this case," and asked Middleton where he lived.
Defendant testified at trial. He admitted that he was introduced to Michael Middleton by John [Frontier] at the Chianti Restaurant on September 14 or 15, 2005. Defendant admitted that, on the same day, shortly before this introduction took place, he had told John "this f------ brother of [my wife] is interfering in this f------divorce. He's interfering in my f------marriage... He's driving me f------. I don't understand what I did to this guy."
Shortly thereafter, defendant met with Middleton and Bennett at the rest area in Montvale and then took them to the gym his brother-in-law Donald Dinallo regularly attended. Defendant admitted that he described Dinallo and his car to Middleton and gave him the vehicle's license plate number.
Defendant denied that he told Middleton to hurt Dinallo. He instead claimed that he wanted Middleton and Bennett to tell Dinallo to stay out of Massimi's divorce and to leave his family alone. Defendant explained that, at the time, he was frustrated, "wanted to put some sense in [Dinallo's] head with this divorce," send Dinallo "a message," and scare Dinallo.
[Portions of the text, footnotes and transcript cites omitted.]
The judge did not find Middleton and Bennett to be credible and could not find, beyond a reasonable doubt, that defendant conspired to injure Dinallo with a bat. He stated that defendant would not hire "two guys of this nature who he doesn't even know [to] assault a guy with a baseball bat with the idea that if one or both get caught, he's jammed up."
According to the judge:
So what is it that Massimi and Middleton and Bennett decided? My opinion, I think -- I think that Mr. Middleton, Mr. Massimi, and Mr. Bennett all had a little conversation and I think what Mr. Massimi did was tell them to threaten Mr. Denalo [sic] and to threaten him in a way[,] in my opinion[,] with a crime of violence to terrorize him, as the statute says, put him in fear as the statute says.
In fact, I'll read you, the threat must be serious -- psychological result intended a risk be -- a person is guilty of a crime in the third-degree if he threatens to commit any crime of violence with the purpose to terrorize another, et cetera. Well, that's where it stops because the rest doesn't apply.
That's what I think he did. And I think it was a threat that he meant to shake Mr. Denalo [sic] up. And I think he thought by that that he would be able to accomplish his purpose. Okay.
Well, in this case I think what Mr. Massimi wanted to do was tell, you know, Dr. [sic] Middleton and Dr. [sic] Bennett to go down to see Mr. Denalo [sic] and to basically tell him certain things that would prevent him from interfering any further in his matrimonial circumstance.
As a result, the judge made the following findings:
So for that reason and because the standard is beyond a reasonable doubt, you know what that means, am I convinced beyond a reasonable doubt, I'm not, that he's guilty of a conspiracy to commit aggravated assault. So I find him not guilty of Count 1.
Am I convinced beyond a reasonable doubt that he attempted to commit an aggravated assault causing serious bodily injury or the lesser-included charge of causing significant bodily injury? Okay. But I do think he's guilty of 2C:12-3(a), of conspiracy to threaten to commit a crime of violence with the purpose to terrorize another.
So I find him not guilty of Count 1. I'll go back to Count 1 for the moment. But I find him guilty of what I believe is a lesser-included charge there of conspiracy to commit terroristic threats, I find him guilty of that.
I find him not guilty of the attempt to cause serious bodily injury or the lesser-included charge of third-degree and DP. And also I find him not guilty of attempting to cause or did or purposely cause bodily injury to Mr. Denalo [sic] which is Count 3.
In State v. Thomas, 187 N.J. 119 (2006), the Supreme Court developed the distinction between lesser-included offenses, as defined in N.J.S.A. 2C:1-8d, which must be charged if there is "a rational basis in the evidence to support a charge on that included offense," Thomas, supra, 187 N.J. at 131, and a "related offense," that is "offenses that share a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment." Id. at 132. Because of the constitutional right of indictment, a related offense can be charged only by "waiver by the defendant," flowing from his or her consent or request for the charge, ibid.; see also id. at 133, "and there is a rational basis in the evidence to sustain the related offense." Id. at 133.
As the decision to consider conspiracy to commit a terroristic threat was not considered at a charge conference, and defendant did not request or consent its consideration, it must be a true lesser-included offense in order to sustain the conviction.
N.J.S.A. 2C:1-8d, regarding lesser-included offenses, provides:
(d) Conviction of included offense permitted. A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
In the first count, defendant was charged with conspiracy "to commit the crime of aggravated assault." As we understand the findings, defendant was found guilty of a lesser-included offense under that count, not either aggravated assault count, despite the first point heading. Nevertheless, we agree with defendant that "[c]onspiracy to commit a terroristic threat is not a lesser included offense of conspiracy to commit aggravated assault because of the added element of the threat to commit a violent crime with the intent to terrorize." The relevant portion of N.J.S.A. 2C:12-3a requires such a threat to "commit [a] crime of violence with the purpose to terrorize another...." Certainly, a second degree aggravated assault is a crime of violence. It is found within Part 1, Subtitle 2 of the Code of Criminal Justice containing "offenses involving danger to the person." See also N.J.S.A. 2C:43-7.2d (the history of which reflects, by virtue of its pre-June 2001 provisions, application to second degree aggravated assaults).
But while an aggravated assault may terrorize a victim, it need not do so and need not be performed with that purpose.*fn2 Thus, while N.J.S.A. 2C:12-3 follows the provisions of Chapter 12 of the Code of Criminal Justice dealing with aggravated assaults, it is not a lesser-included offense within the meaning of N.J.S.A. 2C:1-8d.
In light of our disposition, we need not consider if the conviction must be reversed on other grounds because the trial judge did not indicate he would consider conspiracy to commit terroristic threats as a lesser offense, and in fact conducted no equivalent of a charge conference before summations.
Although our holding in this case does not adversely affect defendant, the trial judge's approach causes considerable concern because defendant had no opportunity to address the offense of conspiracy to commit a terroristic threat or to comment on it during summation.
Accordingly, the judgment of conviction must be reversed.