State v. Boone

• Decision Date: 21 November 1977
• Citation: 154 N.J.Super. 36,380 A.2d 1158
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Grafton BOONE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 36

154 N.J.Super. 36

380 A.2d 1158

STATE of New Jersey, Plaintiff-Respondent, v. Grafton BOONE, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 11, 1977.

Decided Nov. 21, 1977.

Kathryn A. Brock, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Peter N. Gilbreth, Asst. Prosecutor, for plaintiff-respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges CONFORD, MICHELS and PRESSLER.

The opinion of the court was delivered by

MICHELS, J. A. D.

Defendant appeals from his conviction for obtaining money by false pretenses, in violation of N.J.S.A. 2A:111-1. According to the State's proofs, defendant, who drove a fuel oil truck for Colonial Fuel Oil Company, doing business as "Atlas Fuel Oil Company" (Colonial), fraudulently misrepresented the quantity of fuel oil sold and delivered to a customer in Belleville, New Jersey. Agents from the Office of Weights and Measures in the Division of Consumer Affairs, New Jersey Department of Law and Public Safety, determined that defendant delivered 230 gallons of fuel oil rather than the 300 he claimed to have delivered.

Defendant seeks a reversal of his conviction, contending that he was denied the effective assistance of counsel guaranteed by the Federal Constitution because he was represented at trial by an attorney associated with the attorney who represented his employer, Anthony R. Franco, in a similar criminal matter. Franco owned Colonial and was charged in a separate indictment with making a short delivery of fuel oil to another customer. Franco's conviction for attempting to obtain money by false pretenses followed defendant's conviction. We affirmed Franco's conviction. State v. Franco, 153 N.J.Super. 428, 379 A.2d 1292 (App.Div.1977).

The record before us establishes that C. Robert Sarcone, Esq., represented Franco. He tried the case for Franco and following conviction filed a notice of appeal for Franco. Sarcone also was retained to represent defendant and was the attorney of record for him at the trial. However, Edward R. Schutzer, Esq., an associate of Sarcone, actually tried the case because Sarcone had another commitment at the time. Following defendant's conviction Sarcone filed the notice of appeal for him. The potential for conflict of interest in the dual representation of defendant and Franco by Sarcone and his associate, Schutzer, was not apparent at the time of trial. Consequently, the trial judge had no reason to apprise defendant of his constitutional right to separate counsel and to ascertain on the record that defendant knowingly and understandingly waived that right. Moreover, the record is devoid of any suggestion that defendant was advised by Sarcone or by Schutzer of the potential for conflict despite their absolute duty to make such a disclosure.

The conflict of interest between defendant and Franco is evident here. An examination of the trial record clearly demonstrates that Schutzer was hampered in representing defendant by the dual representation. Under the circumstances we are satisfied that the spirit and intent of the constitutional right to effective assistance of counsel was violated, mandating a new trial. See State v. Land, 73 N.J. 24, 31, 372 A.2d 297 (1977). See also Glasser v. United States, 315 U.S 60, 68-72, 62 S.Ct. 457, 86 L.Ed. 680 (1941); State v. Green, 129 N.J.Super. 157, 161-164, 322 A.2d 495 (App.Div.1974).

Since a remand for a new trial is warranted, it is appropriate to consider other issues raised by defendant which might arise in a new trial. Defendant contends that the trial judge erred in instructing the jury with respect to certain statutes and an administrative regulation governing the sale and delivery of liquid fuel. He argues that since he was not indicted for violating any of these provisions they were not relevant to the issue of guilt. As such, their claimed violation should not have been considered by the jury even on the limited issue of fraudulent intent, knowledge, motive or mistake. Additionally, he argues that the State's failure to offer the statutes or administrative regulation on its case in chief or use them on cross-examination precluded their admission as substantive evidence for the first time during the charge to the jury.

The specific statutory provisions referred to by the trial judge were N.J.S.A. 51:9-5, requiring that the sale and delivery of liquid fuel exceeding 50 gallons be measured by a positive displacement liquid flow meter (tested and sealed by the Office of Weights and Measures); N.J.S.A. 51:9-7 requiring the issuance of a delivery ticket printed by an automatic device attached to and coordinated with an approved measuring meter, and listing the matters to be contained on the ticket, and N.J.S.A. 51:9-9, prohibiting the delivery of any liquid fuel which has not been measured by an approved testing and measuring device. The administrative regulation referred to was Regulation UR. 2.2 of the National Bureau of Standards, adopted by the State Superintendent of Weights and Measures (N.J.A.C. 13:47B-1.20). The regulation prohibits the insertion of a delivery ticket into a meter equipped with a ticket printer until immediately before the delivery. These statutes and the regulation generally were designed to protect the public from...