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State of New Jersey v. Aurelio Ray Cagno

August 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AURELIO RAY CAGNO, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 409 N.J. Super. 552 (2009).

The opinion of the court was delivered by: Judge Wefing

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized).

State v. Aurelio Ray Cagno (A-60-09)(064834)

Argued September 27, 2010 -- Reargued October 24, 2011 -- Decided August 8, 2012

WEFING, P.J.A.D. (temporarily assigned), writing for a majority of the Court.

In this appeal, the Court considers whether defendant's conviction for racketeering conspiracy was time-barred under the general five-year statute of limitations governing criminal prosecutions. The Court also considers whether the manner in which the trial court permitted the prosecution to establish the continuation of the conspiracy violated defendant's right to confrontation.

The State's case against defendant revolves around his membership in the Colombo family of La Cosa Nostra. La Cosa Nostra is a nation-wide network of enterprises, referred to as "families," devoted to generating profits for its members through criminal activities. Defendant's brother Rocco Cagno ("Rocco") also was a member of the Colombo family. To become a member, one must swear an oath of allegiance to the family and an oath of silence. Membership is for life and withdrawal is not an option.

Despite the oath of silence that Rocco and defendant had taken upon becoming members of the Colombo family, Rocco was the State's principal witness against defendant. Rocco testified that he and defendant had been associated with La Cosa Nostra from at least the early 1970s, but that they did not become "made" members until 1987. During that early period, Rocco engaged in various criminal enterprises affiliated with La Cosa Nostra and worked with James Randazzo. Rocco testified that in 1988, he, his brother, Randazzo and others participated in the murder of Jimmy Angellino at Rocco's house. Rocco admitted that this was not the first or the last homicide with which he was involved.

In 1992, Randazzo was incarcerated on unrelated charges. Rocco, defendant, and another family member, Salvatore Lombardino, became concerned that Randazzo might implicate them in the Angellino murder, and the three agreed that Randazzo had to be killed. They designated defendant as the shooter. On May 17, 1993, the three traveled in Lombardino's car and met Randazzo in a motel parking lot in Tinton Falls. Defendant got into Randazzo's car, shots were fired, and Randazzo was killed. Rocco said that defendant told him he was sure Randazzo was dead because he had fired a bullet into Randazzo's head.

Several people were in the vicinity of the shooting, and one witness gave police the license number of Lombardino's car. Lombardino's car was found abandoned in Brooklyn. DNA testing found a match between Randazzo's blood and a stain on the rear driver's-side door of the car. A number of cigarette butts were recovered from the rear of the vehicle, and DNA testing linked some to defendant. In a search of defendant's house, additional evidence was discovered linking defendant to Lombardino and Randazzo.

As the investigation continued, Rocco began to consider cooperating with law enforcement. In 1994, Rocco, wearing a recording device, met with Lombardino. During that meeting, Lombardino suggested a meeting with defendant to develop their alibi with respect to the Randazzo slaying. In March 1994, Rocco entered a plea and cooperation agreement with federal authorities where he would plea to one count of conspiracy to engage in a pattern of racketeering and three counts of conspiracy to commit murder. He agreed to cooperate with the government's investigation into organized crime. In October 1994, Lombardino pled guilty to conspiracy to commit murder in aid of racketeering and other offenses. Approximately one year later, in November 1995, defendant pled guilty in the Eastern District of New York to racketeering conspiracy, also admitting to participating in a conspiracy to murder Angellino.

A State grand jury returned a two-count indictment against defendant in February 2000. The first alleged racketeering conspiracy, a crime of the first degree, in violation of N.J.S.A. 2C:41-2(c), naming Lombardino as an unidentified co-conspirator. The second count of the indictment charged defendant with the murder of Randazzo.

The trial against defendant began in May 2002. Lombardino was called twice to appear as a witness in this trial, and, out of the presence of the jury, invoked his Fifth Amendment right not to incriminate himself. While leaving the courtroom on both occasions, Lombardino smiled at defendant, spoke words of encouragement to him, and gave him a thumb's up sign. Rocco appeared and testified against defendant. The jury was unable to reach a verdict and a mistrial was declared in June 2002.

The government elected to try defendant a second time, but first obtained a superseding indictment on January 2, 2003 containing the same two counts - first-degree racketeering conspiracy and murder. The indictment included among the overt acts in furtherance of the conspiracy Lombardino's refusals in 2002 to testify at defendant's first trial.

Defendant's trial under the superseding indictment commenced in January 2004. Again, Rocco appeared and testified against his brother. The government called Lombardino as a witness, but he again invoked his Fifth Amendment right not to testify. The State called two witnesses who were present during the first trial and who testified to the interaction between defendant and Lombardino -- that Lombardino smiled and winked at him, uttered words of support, and gave defendant a thumbs up sign. The jury returned a verdict against defendant of guilty on both counts. Defendant was sentenced to an aggregate term of life plus twenty years with forty years of parole ineligibility.

Defendant appealed his convictions and sentence, and the Appellate Division affirmed. Defendant filed a petition for certification, which this Court granted. 200 N.J. 550 (2009).

HELD: The totality of the evidence permitted the jury to find that the charged conspiracy continued into the limitations period; the manner in which the prosecution was permitted to establish the continuation of the conspiracy did not violate defendant's right to confrontation; and the jury instructions, as a whole, presented a fair, clear, and accurate statement of the law.

1. The State was not obligated to present direct evidence of an overt act that took place at a date later than the 1994 conversation between Lombardino and Rocco. There was other evidence presented during the trial that would permit the jury to infer that the enterprise continued past that date. The enterprise for purposes of the RICO statute was the New Jersey crew of the Colombo crime family, and it encompassed far more than the two Cagno brothers, Lombardino, and Randazzo. Testimony was replete throughout the trial of the continuing and long-standing nature of that enterprise. Also, in light of the ongoing nature of the RICO conspiracy, defendant's November 1995 guilty plea does not constitute a termination of the conspiracy by abandonment. (pp. 23-33)

2. Defendant argues that the trial court erred while instructing the jury by making mention of the State's assertion that Lombardino's refusal to testify in 2002 was an act committed in furtherance of the conspiracy. The Court views this argument as yet another challenge to the timeliness of defendant's prosecution. The Court is satisfied that the prosecution was timely in all respects and that the jury instructions accurately set forth the law. A conspirator, moreover, is liable for the acts of his co-conspirators, even if he is not aware of them. (pp. 33-35)

3. Defendant also complains that the trial court erred in its instructions because it did not require the jury to determine unanimously that defendant agreed to the commission of two or more specific acts of racketeering. As the Court has emphasized, defendant was charged with RICO conspiracy. The jury did not have to find a specific agreement on his part to commit specific criminal acts. It need only have found that he agreed to join a RICO enterprise. Because the jury instructions, as a whole, presented a fair, clear, and accurate statement of the law, defendant's argument provides no basis to reverse his conviction. (pp. 35-39)

4. Defendant also asserts that the manner in which the trial court permitted the prosecution to establish during his 2004 trial that Lombardino had refused to testify during his 2002 trial violated his right to confrontation. The testimony did not relate to an out-of-court statement by a declarant who was not available for cross-examination, and therefore is not "testimonial" for purposes of the Sixth Amendment. To the extent that Lombardino's conduct and gestures were testimonial, statements of a co-conspirator in furtherance of the conspiracy are an exception to hearsay, and their admission does not violate the Confrontation Clause. (pp. 39-43)

5. Defendant's other arguments, including his challenge to his sentence, are rejected. The plain language of the penalty provision of the RICO statute is clear, and defendant was sentenced in accordance with that language. (pp. 43-49)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, expresses the view that the State's use of evidence of Lombardino's silence and gestures to prove that he and defendant were involved in a conspiracy to cover up their prior misdeeds is a violation of several principles of law, including defendant's right of confrontation. He also believes that Lombardino's silence and his friendly gestures did not constitute a co-conspirator's statement that falls within an exception to the hearsay rule, and that the silence and gestures demonstrated only Lombardino's state of mind, which cannot be imputed to defendant.

JUSTICES LaVECCHIA, HOENS, and PATTERSON join in JUDGE WEFING's opinion. JUSTICE ALBIN filed a separate, dissenting opinion. CHIEF JUSTICE RABNER did not participate.

Argued September 27, 2010

Reargued October 24, 2011

JUDGE WEFING (temporarily assigned) delivered the opinion of the Court.

In 1981, the New Jersey Legislature, convinced that "the existence of organized crime and organized crime type activities presents a serious threat to the political, social and economic institutions of this State," N.J.S.A. 2C:41-1.1, adopted N.J.S.A. 2C:41-1 to -6.2, New Jersey's counterpart to the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. In this appeal, we are called upon to consider whether defendant Aurelio Ray Cagno's 2004 conviction for racketeering conspiracy was time-barred under the general five-year statute of limitations governing criminal prosecutions, N.J.S.A. 2C:1-6. We consider whether certain evidence was improperly introduced during defendant's 2004 trial to establish the continuation of the criminal conspiracy and whether that evidence was so prejudicial that defendant's murder conviction, achieved at the same trial that resulted in his RICO conviction, is irremediably tainted and should be reversed. Defendant also challenges certain of the trial court's instructions that were provided to the jury that found defendant guilty of all the charges he faced. Finally, defendant raises an issue related to his sentence. We have considered the arguments and studied the extensive record on which they are based. We are satisfied that defendant has presented no basis upon which his convictions or sentence should be reversed. Accordingly, we affirm.

I.

These questions come to us from the following factual and procedural background. Although a RICO enterprise need not have a defined organization, structure, or leadership, United States v. Bergrin, 650 F.3d 257, 274 (3d Cir. 2011), the RICO enterprise at issue in this appeal does have such a defined structure and organization the nature of which bears upon several of the issues. We therefore set it forth in some detail.

Organized crime can develop and exist in many different formulations; the one pertinent to this appeal is "La Cosa Nostra," a nation-wide network of enterprises, referred to as "families," devoted to generating profits for its members through criminal activities. This matter is focused on the New Jersey "crew" of the Colombo family, one of seven primary La Cosa Nostra families that are active in the New York/New Jersey/Philadelphia area. At defendant's trial, the State presented evidence with respect to the structure and operation of La Cosa Nostra families. That structure and organization has also been described in federal cases involving prosecution of other defendants affiliated with La Cosa Nostra. See, e.g., United States v. Pizzonia, 577 F.3d 455 (2d Cir. 2009); United States v. Persico, 832 F.2d 705 (2d Cir. 1987).

La Cosa Nostra families are organized on a hierarchical basis. At the bottom of this hierarchy are "soldiers" who have taken an oath of loyalty to the family and are organized into functional units called "crews," which are headed by "captains" or "capos." The family is headed by a "boss" who is assisted by an "underboss" and a "consiglieri" or "counselor."

One becomes a member of the family by demonstrating loyalty to the family over an extended period of time. One does not simply announce a desire to be a family member; one must be sponsored by a captain and take an oath. The oath is administered at a ceremony at which the prospective member is introduced to the family's existing membership and is offered the opportunity to decline full membership. If the candidate elects to proceed, he swears allegiance to the family above all. The oath is critical: an inductee swears that if he betrays the family in any manner, but particularly by cooperating with law enforcement, he will burn in Hell for eternity. If a member later violates that oath of silence, the head of the family will order his execution. An individual who has taken the oath of silence is referred to as a "made" member. Membership is for life, and neither withdrawal nor retirement is an option for an individual who has taken the oath.

II.

The State's case against defendant revolves around his membership in the New Jersey crew of the Colombo family of La Cosa Nostra. Defendant's brother Rocco Cagno was also a member of the Colombo family. For ease of understanding for the balance of this opinion we shall refer to defendant, Aurelio Ray Cagno, as defendant and his brother as Rocco. Despite the oath of silence each had taken, the State's principal witness against defendant was his brother Rocco.

Rocco testified that he and defendant had been associated with La Cosa Nostra from at least the early 1970s but that they did not become "made" members until 1987. During that early period, Rocco engaged in various criminal enterprises affiliated with La Cosa Nostra and worked with James Randazzo. In its opinion, the Appellate Division summarized Rocco's testimony about the ceremony at which he and defendant were "made."

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. [State v. Cagno, 409 N.J. Super. 552, 563 (App. Div. 2009).]

Rocco testified that in 1988 he and defendant were instructed to assist with the killing of Jimmy Angellino, an acting consigliere of the family. He stated that Randazzo selected Rocco's home for the execution because its layout permitted people to enter without being seen. Rocco, defendant, and others were waiting at the house; when Angellino entered, the lights went out and guns fired. When the light returned, Angellino's body was crumpled on the steps. Randazzo put the body in a body bag that he had brought with him and drove off. Rocco and defendant cleaned the scene and then disposed of the bloodied cleaning supplies in a dumpster.

Rocco testified that in 1991 or 1992 an internal struggle developed within the Colombo family. There was concern that individuals might betray the oath of silence and, in doing so, reveal the Angellino murder. Rocco said that defendant relayed to him instructions from a Colombo superior, Carmine Sessa, that he should replace the steps onto which Angellino had collapsed in order to remove any possibility that testing could reveal hidden blood stains.

Rocco admitted that this was not the first nor the last homicide with which he was involved. He testified that prior to becoming a "made" member, he assisted Randazzo in killing a man who owed money to Randazzo in connection with the loan shark operation that Randazzo conducted.

In 1992, Randazzo was incarcerated on unrelated charges, and another family member, Dominic Prosperi, took over responsibility for collecting payments from individuals who owed money to Randazzo. In December 1992, the FBI, executing a search warrant it had obtained for the home of Dominic's father, Joseph Prosperi, recovered the notebook in which Randazzo kept track of his loan-shark business. Rocco testified that while he was visiting Randazzo in jail, he told Randazzo that his loan-sharking notebook had been seized by the FBI during the search. Rocco testified that Randazzo was upset at hearing that information and feared that he might be executed for permitting a record of the organization's criminal activities to fall into the hands of law enforcement. According to Rocco, Randazzo said he was "dead."

Randazzo's reaction caused Rocco to become concerned that Randazzo might violate the oath of silence and, as part of negotiating a deal for himself, implicate Rocco in the two murders. Rocco discussed his concern with defendant, who had also been involved in the Angellino murder, and with another family member, Salvatore Lombardino (nicknamed "Tutti"). The three men, over several months, discussed the possibility of murdering Randazzo to prevent him from "turning." Their concerns increased when they learned that Randazzo, who had been released from custody, was selling his car and calling in the loans due to him; the three viewed those actions as steps toward relocating from the area.

Rocco acknowledged that protocol within La Cosa Nostra called for the three to obtain the approval of a superior in the organization before killing another member. He testified that they did not seek such approval for fear that in doing so they might endanger themselves. The three agreed that Randazzo had to be killed, and Rocco said that defendant was designated as the shooter. They knew that Randazzo was seeking a meeting with Sal Profaci, a leader in the Colombo family, and used that as a ruse to lure Randazzo to a meeting.

On May 17, 1993, Rocco, defendant, and Lombardino traveled in Lombardino's car and met Randazzo in a motel parking lot in Tinton Falls, New Jersey, from where the four were to travel to another site, purportedly to meet Profaci. Defendant got in Randazzo's car. Defendant and Randazzo got into a struggle, and a shot was fired; Rocco and Lombardino ran up to help defendant, and several more shots were fired into Randazzo's car. The three returned to Lombardino's car and sped off. Rocco said that defendant told him that he was sure Randazzo was dead because he had fired a bullet into Randazzo's head. Rocco took the several guns the three had with them, wiped them clean of prints, and tossed them out the window as they drove away.

A subsequent search of Randazzo's car by law enforcement turned up the search warrant and inventory from the Prosperi search that had caused Randazzo such concern. A .38 caliber discharged bullet and several bullet fragments were also recovered.

Several people were in the vicinity of the shooting, and at least one person wrote down the license plate number of Lombardino's car and gave it to the police at the scene. Learning that a car registered to Lombardino had been at the scene, police searched his home and retrieved a box of .38 caliber ammunition. The police were also able to obtain records showing that an unusual number of telephone calls were exchanged between Rocco's residence and defendant's residence in the early morning hours of May 18. Defendant's house was searched on May 18, and among the items recovered were two slips of paper; the first had Randazzo's name and telephone number, and the second said "Tutti . . . beeper."

During their investigation, the police recovered three .38 caliber handguns and ammunition that had been discarded along roadways. One handgun contained two discharged shell casings. Testing linked the weapons to Randazzo's murder.

In addition, several days after the murder, Lombardino's car was found abandoned in an industrial section of Brooklyn. Its back seat and license plates had been removed. DNA testing found a match between Randazzo's blood and a stain on the rear driver's-side door of the car. A number of cigarette butts were recovered from the rear of the vehicle, and DNA testing was performed on them. Three cigarette butts bore DNA consistent with defendant and from which ninety-one percent of the Caucasian population, including Rocco and Lombardino, were excluded.

As part of the investigation, both defendant and Lombardino were placed in line-ups. Although Lombardino was identified in the line-up by people who had been at the scene, defendant was not identified.

As the investigation into the Randazzo murder continued, Rocco began to think that it would be to his advantage to cooperate with law enforcement. In November 1993, Rocco, defendant, and two others were indicted in the Eastern District of New York for the November 1988 murder of Angellino, conspiracy to murder Angellino, and weapons offenses. In February 1994, a federal indictment was returned against Lombardino in the District of New Jersey for the murder of Randazzo.

Shortly before the 1994 indictment, on January 20, 1994, Rocco met with Lombardino, who was unaware of Rocco's change of heart. Rocco wore a recording device to the meeting. Lombardino asked whether Rocco had spoken to defendant and Rocco responded that he was to see defendant in a few days. Lombardino said that they had to meet to develop their alibi with respect to the Randazzo slaying. He told Rocco, "We'll sit down, . . . the three of us, and see how we're gonna handle this." Lombardino said that he would explain the presence of Randazzo's blood in his car by telling the police that Randazzo had been a passenger in the car and had developed a bloody nose.

In March 1994, Rocco entered a plea and cooperation agreement with the Offices of the United States Attorneys for the Eastern District of New York and the District of New Jersey. It was agreed that he would enter a guilty plea to one count of conspiracy to engage in a pattern of racketeering activity, including three conspiracies to commit murder, and would cooperate with the government's investigation into organized crime. The agreement contained the following limitation:

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.

The government proceeded to try Lombardino on the charges relating to the 1993 Randazzo killing. Lombardino's first trial resulted in a mistrial, but in October 1994, while the second trial was in progress, Lombardino pled guilty to conspiracy to commit murder in aid of racketeering, a weapons offense, and being an accessory after the fact. Lombardino faced a maximum sentence for those offenses of seventeen years. Lombardino's plea agreement specifically provided that in the event Lombardino testified on behalf of defendant with respect to the murder of Randazzo, the government could reinstate against Lombardino a charge of murdering Randazzo, 18 U.S.C. § 1959(a)(1), which carried a life sentence. At sentencing, Lombardino received a term of seventeen years.

Approximately a year later, in November 1995, defendant pled guilty in the Eastern District of New York to racketeering conspiracy. Although he admitted participating in a conspiracy to murder Angellino, he specifically refused to name any other participants in that conspiracy. During his plea colloquy he said that he was "not privy to whatever activities some people may or may not have been involved in" and was "not naming the people in the indictment" and "not allocating [sic] to anyone else's involvement." Based upon his plea, defendant was sentenced to five years in prison.

The government continued its investigation into the Randazzo murder, and in May 1998, Lombardino was summoned before a federal grand jury. Prior to being questioned, he was informed that he had been granted immunity and had to answer truthfully the questions posed to him. Lombardino answered questions with respect to his involvement and that of Rocco who, in connection with his own negotiated guilty plea, had admitted his involvement in the murder of Randazzo. Lombardino refused, however, to answer any questions having to do with defendant and the Randazzo murder. Lombardino's refusal resulted in his being found in contempt of court.

The Government then summoned Rocco to appear before the grand jury in December 1998. Rocco had testified against Lombardino in 1994, and he acknowledged before the grand jury that he had testified with respect to his involvement and that of Lombardino with La Cosa Nostra and the murder of Randazzo. This time Rocco went further, however, and indicated that he was now willing to testify against defendant, his brother.

Based upon Rocco's change of heart, a state grand jury returned a two-count indictment against defendant in February 2000. The first count alleged racketeering conspiracy, a crime of the first degree, in violation of N.J.S.A. 2C:41-2(c), and named Lombardino as an unindicted co-conspirator. It alleged that defendant was a member of the New Jersey crew of the Colombo crime family of La Cosa Nostra, set forth the organizational structure of the family, and stated the purposes of the conspiracy: (1) to obtain money for the members through various criminal activities; (2) to conceal the existence and activities of the family; (3) to continue the activities of the family through an organized structured chain of command; and (4) to keep outsiders in fear of the enterprise through threats and acts of violence. The indictment charged that defendant had engaged in a pattern of racketeering activity including conspiracy to commit murder, loan sharking, bookmaking, possession and distribution of gambling equipment, and extortion. The indictment alleged four overt acts in furtherance of the conspiracy: (1) participating in the planning and commission of the November 1988 murder of Angellino; (2) the May 1993 killing of Randazzo; (3) the January 1994 conversation between Lombardini and Rocco with respect to meeting with defendant to develop an alibi for the Randazzo murder; and (4) Lombardino's refusals in May and October 1998 to answer any questions concerning the involvement of other people in Randazzo's murder despite having been granted full immunity. The second count of the indictment charged defendant with the murder of Randazzo, in violation of N.J.S.A. 2C:11-3(a)(1) and (2).

The trial for the charges in the 2000 indictment began in May 2002. Lombardino was called to appear as a witness in this trial on June 13, 2002 and was placed on the stand out of the presence of the jury. Lombardino invoked his Fifth Amendment right not to incriminate himself and refused to answer any questions. The trial court, in response to the prosecutor's request, granted Lombardino immunity and based upon his continued refusal to answer questions, held him in contempt. Lombardino was called to the stand a second time on June 18, 2002, and again, out of the presence of the jury, refused to answer any questions. Rocco appeared at this trial and testified against his brother. The matter was tried to conclusion, but the jury was unable to reach a verdict on either count, and a mistrial was declared on June 28, 2002.

The government elected to try defendant a second time but first obtained a superseding indictment on January 2, 2003. This superseding indictment also contained two counts: one charging defendant with first-degree racketeering conspiracy and one charging him with the murder of Randazzo. It again named Lombardino as an unindicted co-conspirator and repeated the allegations in the earlier indictment with respect to defendant's involvement with the New Jersey crew of the Colombo crime family and its structure, purposes, and methods of operation. The superseding indictment named five overt acts in furtherance of the conspiracy: (1) the Angellino murder in November 1988; (2) the May 1993 killing of Randazzo; (3) the January 1994 conversation between Lombardino and Rocco with respect to meeting with defendant to develop an alibi for the Randazzo murder; (4) Lombardino's refusal on June 13, 2002, to testify in defendant's first trial; and (5) Lombardino's further refusal to testify on June 18, 2002. It omitted the reference to Lombardino's refusals in May and October 1998 to answer any questions with respect to the matters that had been included in the original indictment as overt acts in furtherance of the conspiracy.

Defendant's trial under the superseding indictment commenced in January 2004. Again, Rocco appeared and testified against his brother. And again, the government called Lombardino as a witness. Out of the presence of the jury, he again invoked his Fifth Amendment right not to testify. He was again granted immunity but persisted in refusing to answer questions, and he was held in contempt. During defendant's second trial, the State presented two witnesses who had been present in the courtroom on June 13 and June 18, 2002, when Lombardino had refused to testify in defendant's first trial. Those two witnesses recounted for the jury in the second trial what they observed in the first trial, which we shall set forth in some detail later in this opinion. The jury returned a verdict of guilty on both counts on March 5, 2004. On June 4, 2004, the trial court sentenced defendant to life in prison for murder, with a thirty-year period of parole ineligibility, and to a consecutive twenty years in prison, with a ten-year period of parole ineligibility, for racketeering conspiracy. Defendant's aggregate sentence was life plus twenty years with forty years of parole ineligibility.

Defendant appealed his convictions and sentence, both of which were affirmed by the Appellate Division. Cagno, supra, 409 N.J. Super. at 604. Defendant filed a petition for certification, both through counsel and pro se. We granted defendant's petition, limited to the issues raised in the petition filed by counsel; we denied certification with respect ...


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