State v. Barone

• Decision Date: 04 March 1996
• Citation: 288 N.J.Super. 102,671 A.2d 1096
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard BARONE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 102

288 N.J.Super. 102

671 A.2d 1096

STATE of New Jersey, Plaintiff-Respondent, v. Richard BARONE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 25, 1995.

Decided March 4, 1996.

J. Michael Blake, Assistant Deputy Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney; Mr. Blake, of counsel and on the brief and reply brief).

Janet Flanagan, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General, attorney; Ms. Flanagan, of counsel and on the brief).

Before Judges STERN, WALLACE and NEWMAN.

The opinion of the court was delivered by

STERN, J.A.D.

The primary issue raised on this appeal is whether defendant can be prosecuted in New Jersey for state criminal violations revealed to a federal prosecutor in exchange for an agreement by that prosecutor that defendant would not be prosecuted by "the government" for the crimes he disclosed. We must also consider the impact of inconsistent federal and state court fact-finding concerning the crimes he revealed and whether the agreement was breached. We hold that the defendant's State indictment for theft offenses must be dismissed in these circumstances involving the absence of any formal state charges prior to his cooperation in the federal prosecution and a federal judge's findings that those offenses were revealed to the federal prosecutor and that federal law enforcement officers breached the agreement in a manner which contributed to his state indictment. Accordingly, we reverse defendant's convictions for theft but affirm his unrelated convictions for simple assault and false imprisonment.

I.

Defendant was convicted in the Law Division of conspiracy to commit theft, N.J.S.A. 2C:5-2 and 20-3, (count one), two counts of theft by unlawful taking, N.J.S.A. 2C:20-3, (counts two and twelve), two counts of simple assault as a lesser included offense of aggravated assault, N.J.S.A. 2C:12-1a (counts nine and seventeen), and false imprisonment, N.J.S.A. 2C:13-3, as a lesser included offense of criminal restraint (count nineteen). He was found not guilty of nine other charges, and the jury deadlocked on four additional counts. The charges on which defendant was acquitted involved allegations of wrongdoing (including theft by extortion, terroristic threats, kidnapping, criminal restraint and aggravated sexual assault) directed towards his former girlfriend, P.C., who was the victim of the disorderly persons offenses of which he was convicted. P.C. was a principal in the thefts of which defendant was convicted and cooperated with State prosecutors in the trial of the State case.

Defendant was sentenced to concurrent terms of four years each in the custody of the Commissioner of Corrections on the theft convictions. The conspiracy conviction was merged therein, and defendant received suspended sentences on the remaining convictions. Defendant was ordered to pay restitution in the amount of $47,313 for the thefts, and a $30 V.C.C.B. penalty for each conviction.

After the counts on which the jury could not reach a verdict were dismissed, defendant appealed from the convictions entered against him. On this appeal, he argues:

POINT I DUE PROCESS AND FUNDAMENTAL FAIRNESS REQUIRE THE DISMISSAL OF THE INDICTMENT BECAUSE THE DEFENDANT PLED GUILTY IN FEDERAL COURT PURSUANT TO A PLEA AGREEMENT WHICH REQUIRED HIM TO DISCLOSE ALL HIS KNOWLEDGE CONCERNING ANY CRIMES IN RETURN FOR WHICH HE WAS PROMISED THAT NO ADDITIONAL CHARGES WOULD BE BROUGHT AGAINST HIM FOR THE CRIMES HE DISCLOSED.

A. The New Jersey Court's Conclusion That Defendant Did Not Disclose His Involvement In The Casino Thefts To Federal Agents Prior To The Trial of Joseph Merlino Is Not Supported By Any Evidence And Is Clearly Mistaken And Plainly Unwarranted.

B. Due Process and Fundamental Fairness Mandate Recognition by Our State Courts That The Defendant Received Transactional Immunity By The Plea Agreement He Entered Into With The Federal Government.

C. If The Non-Prosecution Agreement Is Viewed As Granting Defendant Use And Derivative Use Immunity, The Indictment Must Be Dismissed Because The State Has Failed to Show Clearly And Convincingly That Its Prosecution Of Defendant Was Totally Independent Of Defendant's Compelled Admissions.

POINT II THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF EXTENSIVE EVIDENCE OF CRIMES NOT INCLUDED IN THE INDICTMENT, HEARSAY EVIDENCE AND BROAD EXPERT EVIDENCE REGARDING BATTERED WOMAN'S SYNDROME WITHOUT ADEQUATE OR SUFFICIENT LIMITING INSTRUCTIONS. ( U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 7; N.J. CONST. (1947), ART. I, PAR. 10).

A. Battered Woman's Syndrome

B. Other Crimes Evidence

POINT III THE COURT ERRED IN IMPOSING A FOUR YEAR SENTENCE AND IN IMPOSING RESTITUTION IN THE AMOUNT OF $47,313.00 WITHOUT HOLDING A HEARING AS TO THE DEFENDANT'S ABILITY TO PAY.

The first point is directed to the convictions on counts one, two and twelve related to the theft of money in 1985 and 1986 from a Trump casino and the Golden Nugget Casino in Atlantic City. The remaining convictions relate to defendant's relationship with P.C.

As noted at the outset, we find merit to defendant's claim that the theft charges (and the related conspiracy) should have been dismissed on his pretrial motion. Accordingly, we reverse the judgment as to those convictions. We find no basis for disturbing the other convictions or sentences imposed thereon. Our disposition which vacates the custodial sentences and restitution order moots the sentencing issues. It also dissipates any illegality attributable to the non-custodial sentence imposed on the remaining convictions in light of the custodial sentence simultaneously imposed on the theft convictions. See N.J.S.A. 2C:44-5f(1).

In light of our disposition, we need not detail the proofs at trial. There is not the slightest suggestion of evidentiary insufficiency to support each conviction. In essence, defendant was convicted of offenses related to the mistreatment, abuse and beating of his girlfriend, P.C., with whom he conspired to steal money from the cashier's cage of the casinos where she worked. When defendant's confederate went to the cage to obtain change, P.C. would place $100 bills "in a one dollar bill wrapper using single dollar bill[s] on each side to mask for the camera." Defendant was found to have stolen approximately $22,495 on November 17, 1985 from the Trump Plaza Casino and approximately $24,818 from the Golden Nugget Casino on June 15, 1986.

II.

We find no prejudicial error warranting reversal of the simple assault and criminal restraint convictions. While defendant challenges aspects of the battered woman syndrome testimony, the fact the jury convicted him of only lesser included non-indictable offenses--and acquitted him of offenses to which that testimony related--evidences, in our view, the lack of harmful error warranting reversal. Moreover, from his opening and in his testimony defendant admitted his role in the thefts and his testimony to that effect in federal court. Thus, assuming some error, the "other crimes" evidence, like the battered woman syndrome testimony, had no harmful impact resulting in the convictions. Even though the charges involving P.C. as a victim were developed when she sought to cooperate with the State after her financial records were subpoenaed in 1990, defendant does not contend that the simple assault and criminal restraint prosecutions were barred by his agreement with the federal prosecutor. We affirm those convictions.

III.

Defendant contends that he was given transactional immunity from prosecution for the conspiracy and thefts when he signed a plea agreement with federal prosecutors. The State claims that he merely entered into an agreement "involving a promise by the federal government not to prosecute" him in federal court.

Defendant and Joseph Merlino were indicted in the United States District Court for the Eastern District of Pennsylvania for conspiracy, 18 U.S.C. § 371, theft from an interstate shipment, 18 U.S.C. § 659, and aiding and abetting the receipt of money taken from an interstate shipment, 18 U.S.C. § 2. On November 3, 1989, defendant entered into a written negotiated "plea agreement" pursuant to Rule 11 of the Federal Rules of Criminal Procedure, and entered guilty pleas to the conspiracy and theft charges. The eleven page agreement signed by defendant, his attorney, the Chief of the Criminal Division of the United States Attorney's Office and the prosecuting attorney, provided that, in exchange for promises made by the government, defendant would testify against Merlino. Additionally, he would "cooperate fully and truthfully with the Government" and "be fully debriefed concerning his knowledge of, and participation in, the theft of currency from an armored truck on September 23, 1987 and other crimes about which he has knowledge."

The plea agreement also provided that if defendant cooperated with the government and cooperated in the preparation and presentation of the Merlino trial, the government would advise the sentencing judge of "the good faith cooperation provided by the defendant" and "provide the defendant with the opportunity to apply for admission to the federal witness protection program." The agreement further provided:

It is agreed that the government will bring no additional charges against the defendant for criminal conduct related to activity which he has disclosed during proffer sessions with federal agents prior to the entry of his guilty pleas.

In order for the government to evaluate whether the agreement was worth pursuing, a proffer session was held on November 2, 1989. At that time defendant and his federal attorney met with Robert Goldman, an Assistant United States Attorney, and FBI agents Donald Rochon and Robert Bazin. According to his federal attorney, defendant discussed the charges embodied in the federal indictment and all "other...