On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-02-0028 and 05-08-00134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2009 -- Remanded September 3, 2009
Reargued March 14, 2011 -- Decided October 7, 2011
Before Judges A. A. Rodriguez, C. L. Miniman and LeWinn.
This is our decision following a temporary remand to the trial court.*fn1 Following a lengthy jury trial, at which more than eighty witnesses testified, defendant Samuel Siligato was convicted of: second-degree criminal attempt to commit theft by deception in excess of $75,000 from an insurance company, by creating or reinforcing a false impression that a fire at his building in Winslow Township caused him $206,900 in damages, N.J.S.A. 2C:5-1; second-degree conspiracy, N.J.S.A. 2C:5-2; and third-degree tampering with witnesses Gary Dixon, Sr. (Gary, Sr.) and William Dixon, N.J.S.A. 2C:28-5(a).
Judge Albert J. Garofolo denied defendant's motion for a new trial and imposed concurrent five-year terms on the conspiracy and criminal attempt convictions, and consecutive three-year terms on the two tampering convictions. Thus, the aggregate custodial term is eleven years.
The facts surrounding defendant's conviction are fully set forth in our first opinion. We provide the following summary to give this decision context. Defendant's charges stemmed from his attempt to collect insurance proceeds on a commercial building that he had owned for several years. The building burned down in 1998 and defendant submitted claims for damages pursuant to two policies. The fire was deemed suspicious. An investigation by the fire marshal revealed that a liquid accelerant had been used, and eliminated "[a]ll accidental and natural causes" for the fire. An investigation by the insurers led to the conclusion that some of defendant's claimed damages were false. A State Grand Jury returned an indictment charging defendant with offenses related to the false claims (the theft charges).
Trial on the theft charges began in May 2009, but the judge declared a mistrial prior to the opening statements, when the State announced its intent to seek a second indictment against defendant for witness tampering. A State Grand Jury indicted defendant for second-degree witness tampering for attempting to induce Gary, Sr. to testify falsely about the theft charges, N.J.S.A. 2C:28-5(a) and -6; third-degree witness tampering for inducing William Dixon (Willy), Francisco Diaz, James Cooper, and Calvin Blackshear to testify falsely at a pre-trial hearing, N.J.S.A. 2C:28-5(a) and -6; and third-degree witness tampering for attempting to induce Willy to testify falsely, withhold testimony, or absent himself from a grand jury proceeding to which he had been summoned (the tampering charges).
Following his convictions and sentencing, defendant appealed, raising four contentions including the following:
THE TRIAL JUDGE FAILED TO INQUIRE INTO SEVERAL POTENTIALLY DISQUALIFYING CONFLICTS WHEN THE RECORD REVEALED THAT APPELLANT'S ATTORNEY AND/OR HIS FIRM REPRESENTED THREE IMPORTANT ADVERSE TRIAL WITNESSES.
We remanded this issue to the trial judge with instructions to hold an evidentiary hearing and make findings. The remaining contentions were not addressed pending a conclusion of the remand. We retained jurisdiction. State v. Siligato, No. A-0603-06T1 (App. Div. September 3, 2009) (slip op. at 39).
The purpose of the remand was to determine whether Louis M. Barbone, defendant's trial counsel, had prejudiced his client's rights because the attorney had previously represented certain witnesses who testified against defendant at trial. At the time the witness tampering episodes took place, Barbone's office represented Gary, Sr., his fiancee, Angela Franks, Gary Dixon, Jr., and Willy. Barbone's office continued to represent Gary, Sr., Willy, and Franks at a time when they were all cooperating with the State by providing information about defendant. Moreover, Barbone's office was representing Willy when, on August 25, 2005, he secretly tape recorded a conversation with defendant that was later admitted at trial.
Direct references to Barbone's representation of Willy were redacted from the tape of that conversation when it was played to the jury. It was defendant who, during that taped conversation, said that "Lou" would get an attorney to represent him at his scheduled Grand Jury hearing. Thereafter, evidence was adduced that defendant alone drove Willy to an attorney and no further information was provided that it had been arranged by Barbone. By the time Franks and Gary, Sr. testified at trial, they were no longer current clients of Barbone.
On remand, Judge Garofolo thoroughly reviewed the issue and heard testimony from Lewis Korngut, the Deputy Attorney General who represented the State at trial, Erika Appenzeller, Esq., an associate in Barbone's law office, and Barbone. Following the hearing, the judge found:
The conclusion is compelling that the defendant, well appraised [sic] of every facet of his attorney's representation of others and of the negative inferences that were possible, consciously chose to go forward. If it is assumed from a "silent record" that he never received appropriate advice from counsel, then it must be considered whether ". . . counsel should be permitted to build a basis for reversal by his own conduct." Under State v. Jimenez, [175 N.J. 475 (2003)], a pretrial consideration of whether counsel should be disqualified because of the perception of conflict is whether the "ordinary knowledgeable citizen acquainted with the facts" would conclude that the public's interest would be disserved by the continued representation of counsel. In this [c]court's view, if a new trial were ordered on this record, a healthy public disrespect of the criminal justice system would follow.
This [c]court concludes that defendant was neither denied the effective assistance of counsel or that the jury's verdict was the product of prejudice resulting from counsel's conduct.
On this appeal after remand, defendant contends that:
ESTABLISHED LAW, WHEN APPLIED TO THE UNDISPUTED FACTS AND CIRCUMSTANCES OF THIS CASE, REQUIRES A NEW TRIAL ON ALL COUNTS.
We concur substantially with Judge Garafolo's written remand decision. It is apparent that defendant was aware of Barbone's multiple representations and tacitly acceded to counsel's strategy. Defendant's contentions do not ...