State v. Ball
| Decision Date | 20 July 1995 |
| Citation | 141 N.J. 142,661 A.2d 251 |
| Parties | , RICO Bus.Disp.Guide 8881 STATE of New Jersey, Plaintiff, v. Patrick BALL and Big Apple Leasing Co., Defendants. STATE of New Jersey, Plaintiff-Respondent, v. George HURTUK, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Joseph DULANIE, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Joseph MOCCO, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Michael HARVAN, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Richard BASSI, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Harold J. Ruvoldt, Jr., Jersey City, for appellants George Hurtuk, Joseph Dulanie, and Joseph Mocco (Ruvoldt & Ruvoldt, attorneys; Mr. Ruvoldt and Kimberly A. Hintze-Wilce, Jersey City, on the briefs).
Philip A. Ross, Designated Counsel, for appellant Richard Bassi (Susan L. Reisner, Public Defender, attorney).
Donald T. Thelander, Asst. Deputy Public Defender, for appellant Michael Harvan (Susan L. Reisner, Public Defender, attorney; William P. Welaj, Designated Counsel, on the letter brief).
Robert E. Bonpietro, Deputy Atty. Gen., for respondent (Deborah T. Poritz, Atty. Gen. of New Jersey, attorney).
Harvey Weissbard, West Orange, for amicus curiae Ass'n of Crim. Defense Lawyers of N.J. (Weissbard & Wiewiorka, attorneys and Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. Weissbard, Jersey City, and Lawrence S. Lustberg, Newark, on the briefs).
The opinion of the Court was delivered by
This criminal appeal arises from defendants' participation in an unlawful scheme to dump solid waste generated in New York at several unauthorized New Jersey sites. Defendants were prosecuted and convicted under the New Jersey Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act. In appealing their convictions, defendants raised several RICO issues, as well as many non-RICO issues. The Appellate Division affirmed the convictions. 268 N.J.Super. 72, 632 A.2d 1222 (1993). This Court granted defendants' petitions for certification, "limited solely to the issues raised regarding construction of the New Jersey Racketeer Influenced and Corrupt Organizations Act." 135 N.J. 304, 305, 639 A.2d 304 (1994).
The RICO Act, generally, makes it a crime for a person to be employed by or associated with "an enterprise" and to engage or participate or become involved in the business of the enterprise "through a pattern of racketeering activity." N.J.S.A. 2C:41-2b and 2c. The Act also makes it a crime for a person to conspire to engage in such conduct. N.J.S.A. 2C:41-2d. Defendants were prosecuted and convicted under those provisions of the RICO Act.
The meaning and application of those provisions constitute the central inquiry in this appeal. Ultimately, in light of our interpretation of the RICO Act, the appeal presents the questions of whether the trial court adequately instructed the jury with respect to the proper understanding and application of the critical RICO provisions, and whether the evidence was sufficient to support the RICO convictions under those provisions.
The Legislature adopted the New Jersey Racketeer Influenced and Corrupt Organizations Act, N.J.S.A. 2C:41-1 to -6.2, in 1981. Convictions in this case were based on violations of N.J.S.A. 2C:41-2c and 2d. The extensive evidence introduced at trial is recited in detail in the opinion of the Appellate Division. 268 N.J.Super. at 82-88, 632 A.2d 1222. That evidence, for the most part not disputed, consisted of testimony of witnesses to the dumpings, surveillance videotapes, recorded telephone conversations, and records created and maintained by the various defendants.
Defendants Michael Harvan and Richard Bassi were the "dirt brokers" who arranged for and operated the illegal dump sites in North Bergen, Newark, and at the Hackensack Meadowlands Development Commission (HMDC) baling facility. They located property to be filled and recruited haulers looking for inexpensive places to dump. Defendants George Hurtuk, Joseph Dulanie, and Joseph Mocco were North Bergen public officials who accepted cash bribes to protect and promote the illicit landfills in that town. At the time of the scheme, Hurtuk was the license inspector, Dulanie was the deputy chief of police, and Mocco was the town clerk. Also necessary to the operation were haulers such as defendant Patrick Ball, since deceased, who carted the waste from New York and disposed of it at the sites arranged by Bassi and Harvan at a lower cost than they would have had to pay to dump in New York. Other participants in the dumping scheme included the lookouts at the dump sites, a money launderer, and a "fixer," who handled any problems that arose during the operation.
The HMDC is a state agency controlling zoning and planning in all or part of fourteen towns comprising the Hackensack Meadowlands. The portions of North Bergen in which the dumping occurred are within that area. Any landfill within the area needed permits from the HMDC and from the Department of Environmental Protection (DEP). To avoid obtaining the agency permits, Bassi and Harvan bribed the North Bergen public-official defendants to gain their permission to dump debris at both the sites in North Bergen and the HMDC baler, and to obtain their assurance that they would intercept and handle any permit problems.
The evidence indicates that the dumping in North Bergen began in January 1986 at 83rd Street and West Side Avenue. That month, a North Bergen police officer encountered the dumping activity while Harvan was present. Harvan told him that he was in charge of the trucks at the site and that Hurtuk, the town license inspector, had given him permission to use the property for dumping.
In February, the dumping moved to a site near 69th Street and West Side Avenue. For that site, Harvan hired a night checker for $150 a day to copy the license-plate numbers of the trucks dumping there and to record the number of loads dumped each night. The night checker testified that Harvan was present at the site every night it operated and that both Bassi and Hurtuk were present on the first night the site was used. Harvan instructed the checker to call Hurtuk if he had any trouble at the site. The police investigated the dumping several times, and eventually an order from Hurtuk was posted at police headquarters stating that dumping was permitted at the 69th Street location.
In March, the dumping moved to another area near 83rd Street. Later that month, both the Division of Criminal Justice (DCJ) and the HMDC began investigating the landfill operation. When DCJ personnel inquired about the dumping, the town clerk, Mocco, assured the investigators that HMDC had granted permission for the dumping, although it had not, and produced a license issued to a fictitious M. Black.
Days later, the dumping ceased at 83rd Street and a new dump opened at the Walsh Trucking property. The DCJ surveillance continued, and the dumping proceeded at the Walsh site into the second week of May. The investigators saw Bassi, Harvan, Hurtuk, and Dulanie at the site during that period.
On May 15, pursuant to court orders, DCJ installed wiretaps on Bassi's home telephone. Shortly after one truck had become entangled in a utility wire and caused an explosion, in a recorded conversation, Harvan told Bassi that Mocco had told him " 'don't worry about [the wire] ... Keep rolling.' " The dumping continued at both the 83rd Street and Walsh sites and the enterprise also used the HMDC baling facility. The haulers who had contracted with Bassi and Harvan indicated on HMDC forms that the waste originated in a place approved for dumping at that baler, such as Clifton, when in fact the waste came from New York. In addition, the trucks had magnetic signs reading "Big M" or "Harbas Trucking" placed over the name painted on the side of the trucks.
By early June, the investigation had made dumping so risky that Bassi and Harvan told the haulers to take loaded trucks back to New York. Recorded conversations between Bassi and Harvan reveal that they were annoyed by their problems in North Bergen because they had paid their "rent" to the town officials. They continued to work with the town officials, however, to try to resume dumping in North Bergen.
The enterprise was financially rewarding to all its participants. Seized financial records covering the period from February to June 1986 revealed that the billings of Harvan and Bassi for dumping totalled $888,220 and that they each netted approximately $300,000 to $350,000 from the operation. Written records of the expenses of the scheme covering a three-month period show payments ranging from $100 to $1,000 to the "boss" or "big guy," referring to Mocco, totalling $29,100; to the "chief," referring to Dulanie, totalling $42,100; and to the "fat man," referring to Hurtuk, totalling $27,500. The haulers benefitted from the operation because Bassi and Harvan charged approximately half of the estimated $575 that haulers would have had to pay to dump legally in New York.
On April 1, 1987, the grand jury handed down a 116-count indictment charging Bassi, Harvan, Hurtuk, Mocco, and Dulanie, among others, with various crimes including racketeering, conspiracy to commit racketeering, bribery, theft of services, falsifying and tampering with public records, forgery, and the unlawful engagement in the business of solid waste collection and disposal. Defendants' trial began on October 11, 1988, and lasted until April 17, 1989, and all were convicted of certain of the charges.
The jury found Bassi and Harvan guilty of conspiracy to commit racketeering, contrary to N.J.S.A. 2C:41-2d, and of racketeering, contrary to N.J.S.A. 2C:41-2c. It also found them both guilty of bribery, in violation of N.J.S.A. 2C:27-2c and -2d and N.J.S.A. 2C:2-6; uttering a forged instrument, in...
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