State v. Bontempo

• Decision Date: 20 July 1979
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph BONTEMPO, Petitioner-Defendant.
• Court: New Jersey Superior Court

Page 220

170 N.J.Super. 220

406 A.2d 203

STATE of New Jersey, Plaintiff-Respondent, v. Joseph BONTEMPO, Petitioner-Defendant.

Superior Court of New Jersey, Law Division.

July 20, 1979.

Brian C. Matthews, Asst. Essex County Prosecutor, for plaintiff-respondent (Donald Coburn, Essex County Prosecutor, atty.).

Roger A. Lowenstein, Newark, for petitioner-defendant (Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Newark, attorneys).

BAIME, J. D. C.

This is a post-conviction relief proceeding instituted pursuant to R. 3:22-1. Following a protracted jury trial, defendant was convicted of conspiracy, first degree murder while armed, entry with intent to steal, armed robbery, possession of a weapon and escape. The Appellate Division affirmed defendant's convictions in a Per curiam opinion, and a petition for certification was subsequently denied by our Supreme Court.

At trial defendant, who did not testify, was permitted to make an unsworn statement to the jury following summations by his attorney and the prosecutor. In his statement defendant alluded to what he perceived to be weaknesses in the State's case. Thereafter the prosecutor was afforded the opportunity to respond. In so doing the prosecutor made repeated references to defendant's failure to specifically deny the charges set forth in the indictment. The prosecutor also noted that defendant's statement was not made under oath and was thus incredible.

In his petition for post-conviction relief defendant contends that the prosecutor's comments constituted a violation of his Fifth Amendment privilege against self-incrimination. He further argues that the "hybrid" procedure adopted by the trial judge deprived him of his right to counsel afforded by the Sixth Amendment. Defendant also contends that the conviction for conspiracy and first degree murder merge and that the trial judge erred when he imposed consecutive sentences with respect to these crimes. Finally, defendant argues that his conviction for escape must be set aside because it was not supported by sufficient evidence.

At issue is whether the prosecutor's allusion to defendant's failure to specifically deny his complicity in the crimes charged requires vacation of the judgments of conviction and a new trial. Other questions raised pertain to whether defendant's conviction for murder and conspiracy merge and whether sufficient evidence was presented to support the jury's finding of guilt with respect to the charge of escape.

The charges against defendant emanated out of the murder of a grocery store owner during the course of a robbery, followed by the apprehension of Bontempo and his codefendant, Joseph Zelinski, and their subsequent escape in a commandeered police vehicle. ¹ Defendant's case was severed for the purpose of trial. Following defendant's conviction the trial judge imposed sentences aggregating life imprisonment plus six years in State Prison. ²

The evidence presented by the State at trial was substantial. Sometime prior to 6 p. m. on April 7, 1974 Nicholas Sena was shot and killed in his grocery store during the course of an apparent robbery. Although there were no eye-witnesses to the homicide, two police officers observed defendant changing his clothes near the scene of the shooting. Upon noticing the presence of the two uniformed patrolmen who had approached in a marked police vehicle, defendant took flight. As the officers pursued defendant they observed him dropping money from his pants pockets. Additionally, a wallet belonging to decedent was subsequently discovered near the area in which defendant had initially been observed. Other clothing and a revolver, apparently not the murder weapon, were also recovered nearby.

Defendant attempted to elude the police officers, but was ultimately apprehended and placed in the patrol vehicle. One of the arresting officers observed defendant attempting to secrete money by removing it from his pocket and placing it beneath the rear seat. At about the same time Zelinski was captured while changing clothes in a nearby telephone booth. With both suspects in the patrol car, the officers attempted to return to the scene for possible identifications. This effort was thwarted by a dramatic escape. Unbeknownst to the police officers, Zelinski was in possession of a revolver in his pants pocket. Although handcuffed, Zelinski managed to secure the weapon. According to the officers, Zelinski pointed the revolver at them and instructed them where to drive. During the ride Zelinski ordered one of the officers to surrender his service revolver and handcuff keys to defendant. The officer partially complied by dropping his revolver to the floor of the automobile and giving the keys to defendant. The officers testified that defendant appeared frightened and at one point told Zelinski not to shoot them. As the automobile approached Bloomfield the two officers suddenly jumped from the vehicle and escaped. Zelinski and one of the policemen exchanged gunfire. Zelinski thereafter drove off, with defendant remaining in the rear seat.

Defendant and Zelinski were ultimately apprehended on April 12, 1974. Together they had fled to defendant's cousin's home in Farmingdale, New Jersey. The cousin, Jacqueline Labota, testified that defendant and Zelinski first appeared at her home on April 9, 1974 and virtually held the family hostage for three days. Defendant told Mrs. Labota and her husband that Zelinski was dangerous and "would hurt (him) if (he) did anything wrong." After defendant and Zelinski had ingested pills rendering both unconscious, Mrs. Labota and her husband escaped and notified the police.

Trooper John Dorrian responded immediately to the Labota home, where he found Zelinski and defendant, both unconscious. Zelinski was lying on the floor with a revolver by his head. Defendant was found in the kitchen with a revolver in his hand. Significantly, expert testimony at trial revealed that the revolver in defendant's possession was the murder weapon.

Perhaps the most damaging evidence against defendant consisted of certain admissions he made to his cousin. Specifically, defendant recounted the events leading up to the murder of decedent. According to defendant, he and Zelinski were in Sena's store on April 7, 1974. He explained that the two believed Sena was involved in an illegal gambling operation and they expected that the victim would thus be in possession of a large quantity of cash. Defendant related to his cousin that they expected to obtain $10,000 from the robbery. Finally, defendant admitted that he had struck the decedent over the head and that Zelinski had shot him during the course of the robbery. Thereafter, the two had escaped from the police.

The events forming the basis for this petition commenced following the State's presentation of its case. After the State had rested defendant moved for a judgment of acquittal out of the presence of the jury. The principal thrust of defendant's argument pertained to the State's alleged failure to prove that he aided or abetted Zelinski in escaping from the arresting officers. Defense counsel contended that defendant had not wilfully participated in the criminal venture. Defendant's argument was premised upon the claim that he had accepted the keys to the handcuffs and the officer's service revolver in accordance with Zelinski's order, and that he was a mere hostage. In short, defendant contended that the State's proof were totally devoid of any evidence which would support a finding by the jury of an intent on his part to escape from the police. In response, the prosecutor argued that defendant's presence in the police vehicle, coupled with his acceptance of the handcuff keys and revolver, revealed an intent to aid or abet Zelinski. While noting that the evidence pertaining to defendant's intent was somewhat equivocal, the prosecutor contended that only Bontempo could testify as to his state of mind.

In denying defense counsel's motion the trial judge held that the State's evidence was sufficient to support an inference of a concert of action between defendant and Zelinski. The judge went on to state that when the "only one who can rebut a fact is the defendant, then he ought to take the stand * * *." Following denial of defendant's motion the trial judge asked Bontempo whether he wished to testify. The judge then granted a brief continuance to afford defendant an opportunity to confer with his attorney. Defendant thereafter informed the judge that he did not wish to testify in his own behalf. Following the judge's inquiry defense counsel requested an instruction regarding defendant's privilege against self-incrimination.

These events occurred on a Friday. On the following Monday both counsel gave their summations. The judge then began instructing the jury when defendant suddenly interrupted and shouted, "I would like to say something." The judge stated that he would hear defendant, but asked the bailiff to remove the jury. Defendant interrupted, again shouting, "I wanted to say it in front of the jury. I feel I am denied a fair trial." The judge iterated that he would hear defendant, but ordered the jury removed. Defendant was not satisfied, however, and again shouted that he wished to be heard immediately. Before the jury could be removed defendant stated that numerous witnesses could establish his innocence, but that they were not available; that he was unable to testify; that he had been incarcerated for seven months but rarely was able to confer with his attorney, and that he was being denied a fair trial. All of these comments were made in the presence of the jury.

Following removal of the jury the trial judge granted a recess and directed defendant to confer with his attorney. Prior to the recess a colloquy ensued between the judge and defendant. The judge advised defendant that he did not wish to foreclose him from making a statement to the jury, but that Bontempo "owed...