State v. Boiardo
| Decision Date | 30 July 1970 |
| Citation | 111 N.J.Super. 219,268 A.2d 55 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Ruggerio BOIARDO, Angelo Sica, Andrew Gerardo, Louis Di Benedetto, Cesar Cerato, Joseph Cipriano, Toby Boyd, Julia Orsi, Benjamin Thomas, Nino Maccioli, Carmine Liquori, Nunzio Sica, John Malanga, Thomas Sperduto, Michael Del Guercio, Michael Russomano, Geraldino Custodi, Michael Maironino, and Joseph Sarrecchia, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
Samuel D. Bozza, Newark, for defendants-appellants Andrew Gerardo, Toby Boyd, Louis Di Benedetto, Joseph Cipriano, Joseph Sarrecchia and Angelo Sica.
Anthony Ditri, Montclair, for defendants-appellants Thomas Sperduto, John Malanga, Julia Orsi, Michael Maironino, Carmine Liquori, Michael Del Guercio, Michael Russomano, Geraldino Custodi, Nina Maccioli and Nunzio Sica.
Michael Salandra, Newark, for defendant-appellant Cesar Cerato.
Myron P. Maurer, Newark, for defendant-appellant Benjamin Thomas.
Robert L. Podvey, Asst. Prosecutor, for plaintiff-respondent (Richard M. Altman, David S. Baime, Seymour Wishman, Asst. Prosecutors, on the brief, Joseph P. Lordi, County Prosecutor, attorney).
Before Judges CONFORD, COLLESTER and KOLOVSKIY.
The opinion of the court was delivered by
COLLESTER, J.A.D.
This is an appeal by defendants from their convictions, following a jury trial, of violating the lottery laws of this State and for conspiracy. All 19 defendants were convicted under an indictment charging them with conspiracy to operate a lottery and violate the laws pertaining to the business of lottery between August 5, 1966 and February 3, 1967 in Newark, Bloomfield, Belleville, East Orange and North Arlington, contrary to the provisions of N.J.S.A. 2A:98--1. In addition thereto, 12 of the 19 were convicted on one or more indictments charging them with violations of either N.J.S.A. 2A:112--3 () or N.J.S.A. 2A:121--3 (), or both. All of the indictments were consolidated for the purpose of trial.
The evidence presented by the State clearly established that during the period referred to in the conspiracy indictment defendants were engaged in a massive lottery business. The operation terminated on February 2 and 3, 1967 when special agents of the Intelligence Division of the Internal Revenue Service conducted a series of raids at places used as lottery 'offices' or meeting places of the conspirators.
At the trial federal agents testified to the activities of defendants during the many weeks they were under surveillance. The testimony revealed that some of the defendants would pick up paper bags (allegedly containing lottery slips and money received from bettors) daily, at various locations or 'drops,' and take them to one of several lottery offices used in the operation. The bags often were transferred from one car to another, and the cars would be driven over circuitous The agents also testified of their surveillance of some of the defendants in the vicinity of the Ben Thomas Luncheonette and the Altruist Club, both located in Newark, which served as bases of operation and meeting places for the conspirators. The State presented testimony of the details of the raids conducted by the federal officers and introduced in evidence the lottery paraphernalia seized, including lottery slips, numerous adding machines, pads, envelopes, coin wrappers, 'cut cards,' and cash.
routes to avoid detection before the betting records and money were delivered to the lottery office.
Federal agent Dominic Germano served as an undercover agent during the six-month period before the raids and arrests ended the lottery operation. Pretending to be a waiter employed at a Catskill Mountain resort, he became an habitue of the Ben Thomas Luncheonette, a favorite meeting place for several of the conspirators, which was operated by the defendant Thomas. He testified that he visited the luncheonette on 68 days, often placed bets with defendant Cipriano, and gradually worked his way into the confidence of both Cipriano and Thomas. During his visits he overheard conversations between several of the defendants that referred to the lottery operation. On 42 days he saw defendant Ruggerio Boiardo meet with defendants Andrew Gerardo, Toby Boyd, Angelo Sica, Louis DiBenedetto and others unknown to him, singly or in groups, inside the luncheonette or in the immediate vicinity thereof. On various occasions he witnessed wrapped packages, inferentially containing money, being passed directly to Boiardo or being placed in Boiardo's car by one of the defendants. Agent Germano often drove Cipriano to a service station in Newark which Cipriano used as a base of operation for his lottery book. He said that after he became well known to Thomas and Cipriano they disclosed details of the organized lottery business which was being conducted.
Thomas told Germano that 'Boiardo was the boss of the eastern seaboard and that nobody makes a move without his None of the defendants testified at the trial or called witnesses in their defense. All defendants except Nunzio Sica and Cesar Cerato concede on this appeal that the evidence presented by the State was sufficient, if believed, to establish the fact that during the period covered by the indictment a conspiracy to operate a lottery and to violate N.J.S.A. 2A:121--3 and N.J.S.A. 2A:112--3 existed. Moreover, all of the defendants with the exception of Nunzio Sica, Joseph Sarrecchia and Benjamin Thomas, who were convicted of one or more of the indictments charging them with violations of the substantive crimes, Viz., N.J.S.A. 2A:112--3 and N.J.S.A. 2A:121--3, concede on this appeal that there was sufficient evidence as a result of the searches and seizures which followed the raids and arrests on February 2, 1967 to establish their guilt of the crimes charged.
approval,' and that Gerardo, DiBenedetto, Angelo Sica and a man named Farina were his lieutenants. Cipriano was more talkative. He too said Boiardo was the 'chief' or 'boss,' and was 'the biggest man in the rackets in New Jersey and controls all New Jersey (and) part of New York.' He described the organization as being made up of 'soldiers, lieutenants and captains' headed by Boiardo; that it had over 400 runners plus pickup men and controllers. He said [268 A.2d 59] the 'chain of command' was Boiardo, Farina, Gerardo and Boyd, in that order; that Gerardo controlled all the lottery offices and prepared the envelopes for money to be paid out for 'hits' (successful plays); that Boyd ran one of the lottery offices; and that DiBenedetto was active in the organization. Cipriano further told Germano that Angelo Sica operated his own book and had over 20 men working for him, was more or less independent but needed Boiardo's permission to operate, and probably paid for the privilege. He also said the 'chief' had the power to 'get all books together on odds and cut numbers' and insisted that all 'hits' be paid off promptly.
Although Boiardo concedes the State's proofs established that a conspiracy existed he asserts the evidence did not show that he was a part of it. He raises seven points in his brief as grounds for a reversal of his conviction.
Boiardo first contends that the trial court erred in permitting Germano to testify as to statements made to him by Thomas and Cipriano concerning Boiardo's connection with the conspiracy. The statements were admitted by the court under the traditional hearsay exception for statements made in furtherance of the conspiracy. Evidence Rule 63(9)(b). The rule provides:
A statement which would be admissible if made by the declarant at the hearing is admissible against a party if * * * (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.
Boiardo asserts that the admission of such testimony constituted reversible error because (A) it violated his Sixth Amendment right to be confronted with witnesses against him, (B) there was no independent proof that he was a member of the conspiracy, and (C) the statements were not made in furtherance of the conspiracy.
Defendant argues that his constitutional right of confrontation was violated because Thomas and Cipriano elected not to take the stand and testify in their own defense and he therefore was unable to cross-examine them as to the truth of such statements. He relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 Boiardo would have us equate the right of confrontation with the opportunity for cross-examination. To adopt such a rigid formula would altogether eliminate the use of much hearsay evidence permitted in criminal trials at a time when the judicial trend has been toward a salutary liberalization of hearsay exceptions.
(1968), and Evans v. Dutton, 400 F.2d 826 (5 Cir. 1968), probable jurisdiction noted, 393 U.S. 1079, 89 S.Ct. 862, 21 L.Ed.2d 770 (1969), appeal pending 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed. 682 (1970). Bruton does not support Boiardo's position. The court there stated that no recognized exception to the hearsay rule was involved in that case and said, 'We intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.' 391 U.S. 128, 88 S.Ct. 1623, n. 3. Evans v. Dutton is inapposite on its facts because it involved the admission of a hearsay declaration of a co-conspirator made [268 A.2d 60] more than a year after the crime was committed. 400 F.2d at 831.
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