State v. Boscia

• Decision Date: 07 February 1967
• Docket Number: No. A--520,A--520
• Citation: 226 A.2d 643,93 N.J.Super. 586
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Jacob BOSCIA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 586

93 N.J.Super. 586

226 A.2d 643

The STATE of New Jersey, Plaintiff-Respondent, v. Jacob BOSCIA, Defendant-Appellant.

No. A--520.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 3, 1966.

Decided Feb. 7, 1967.

Jerome A. Vogel, Paterson, for appellant (Jeffer, Walter & Tierney, Paterson, attorneys).

Archibald Kreiger, Asst. Prosecutor, for respondent (John G. Thevos, Passaic County Prosecutor, attorney).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Defendant was indicted for the crime of (1) false swearing (N.J.S. 2A:131--4, N.J.S.A.) and (2) bribery (N.J.S. 2A:85--1, N.J.S.A.). The jury found him guilty of false swearing but could not agree upon a verdict on the bribery charge. Defendant appeals.

The false swearing indictment charged that on June 12, 1964 defendant swore falsely in an affidavit given to police officers in the course of an investigation of charges of alleged corruption in the City of Clifton. The material evidence adduced concerning this indictment was as follows:

In March 1963 there was pending before the Clifton planning board an application made by Harvey Cosden, on behalf of Cliffwood Terrace Gardens Apartments (Cliffwood Terrace), to change the zoning of certain property to permit the construction of an appartment house thereon.

Arthur Sullivan, a lawyer, who was a member of the planning board, testified that on March 8, 1963 defendant came to his office and sought to persuade him to vote in favor of the zoning change. He said defendant told him that for his favorable vote as a member of the planning board there would be a gift or present 'available' in the amount of $1,000. Sullivan said he promptly terminated the interview and that prior to the planning board meeting that evening, he reported the incident to William Holster, the Clifton city manager. He said that about a month later he met Cosden and told him of the bribe offer and that Cosden denied any knowledge of or connection with it. Sullivan testified he also spoke to Allen Smith, a newspaper editor, about the incident, but admitted that other than Holster, Cosden and Smith he told no one about the bribe offer for a period of over 15 months.

Sergeant John De Groot, of the Clifton police department, testified that he had been assigned to investigate alleged corrupt practices in the city government, which were the subject matter of a grand jury investigation. He said he was directed by his superior, Detective Captain Tencza, to question Boscia about his alleged attempt to bribe Sullivan.

On June 12, 1964 defendant met with De Groot at the Clifton detective bureau. De Groot told defendant he was investigating a matter in which Boscia was accused of crime--that he was being accused by Sullivan of having attempted to bribe the city official. He requested Boscia to give him a statement. Defendant asked if he needed a lawyer, and De Groot replied that he didn't think so because the statement would be taken from him only as a witness--that he was not being charged with any crime and was not under arrest.

Defendant thereupon gave a sworn written statement in which he denied the accusation. He denied that he had gone to Sullivan's office in 1963, that he had ever gone there alone, or had talked to Sullivan about the Cliffwood Terrace zoning application. He further denied offering Sullivan $1,000, or any amount of money, if he would change his vote to favor the apartment house project.

On September 23, 1964 Sullivan appeared before the grand jury and testified concerning Boscia's attempted bribe. He specifically denied the material allegations contained in the sworn statement given by Boscia to the police. The false swearing indictment followed.

Defendant did not testify in his own defense at the trial. (He did testify, in the absence of the jury, at a hearing conducted by the trial judge relating to the admissibility of his written statement.) Cosden was called as a defense witness. He testified he had had no business relations with defendant since 1959, and denied having sent Boscia as his emissary to meet with Sullivan. Other than Cosden's testimony, the defense consisted primarily of an attack on Sullivan's credibility by showing his failure to report the bribe offer to law enforcement officials, or to tell other members of the planning board or city officials about it, until many months later.

I

Defendant first contends that the sworn statement he gave the police, on which the false swearing charge was based, was improperly admitted in evidence. He concedes that the statement was voluntarily made. However, he alleges it was inadmissible because it was made at an accusatory stage without benefit of a warning by the police of his right to remain silent and his right to the assistance of counsel during the interrogation.

Defendant relies on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), which held inadmissible an incriminatory statement by the accused where, after having been taken Into custody, the police denied his request for counsel and did not advise him of his right to remain silent during an interrogation designed to obtain a confession.

In Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court clarified its ruling in Escobedo, holding that the procedural safeguards to secure the privilege against self-incrimination are required only where the accused has been taken into custody or otherwise deprived of his freedom of action in any significant way.

The Escobedo rule does not apply in the instant case. It is clear from the record that at the time the statement was requested and given, defendant was not under arrest or in custody. He was told of Sullivan's accusation, that the police were investigating the matter, and asked if he would give a statement. In fact, he was not denied the right to counsel, and it is not disputed that he could have refused to give a statement and would not have been restrained had he left the detective bureau.

Defendant gave the sworn statement voluntarily. It was, of course, a complete denial of Sullivan's version of the attempted bribery. If he voluntarily chose to lie, he could not hide behind the Escobedo doctrine, which applies in an entirely different factual setting.

Moreover, it should be noted that before the prosecutor offered the statement in evidence, defense counsel, in his cross-examination of Sullivan, read aloud Boscia's statement in full, as it appeared in the transcript of the grand jury proceedings. Defendant sustained no prejudice by its subsequent admission in evidence.

II

Defendant next alleges that the court erred in denying a mistrial motion based on a comment in the prosecutor's summation that 'the testimony of Mr. Sullivan stands uncontradicted, save and except the false statement of this defendant.' He argues that it violated the rule laid down in Griffin v State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and State v. Lanzo, 44 N.J. 560, 210 A.2d 613 (1965), holding that no comment can be made to the jury concerning defendant's failure to take the stand.

The defense offered no testimony to directly contradict that of Sullivan except defendant's sworn statement. Rather, it chose to attack Sullivan's credibility as a witness, primarily because of his delay in reporting the bribe offer to law enforcement officers and others. In our view, what the prosecutor said was fair comment on the evidence. The prosecutor's statement related to Sullivan's testimony and not to Boscia's failure to take the stand.

Defendant also claims it was improper for the court to charge the jury that 'he (defendant) does not even have to testify if he does not want to.' No objection to this statement in the court's charge was made by defendant. R.R. 3:7--7(b). In the absence of requests to charge and specific objection to the charge as given, defendant may not be heard to complain. State v. Kaufman, 18 N.J. 75, 80, 112 A.2d 721 (1955); R.R. 1:5--1(a). Moreover, the trial court clearly charged that the State had the burden to prove defendant's guilt beyond a reasonable doubt. We observe no prejudicial error.

III

We consider next defendant's contention that the trial court erred (1) by permitting the prosecutor, on cross-examination of defense witness Harvey Cosden, to reveal that Cosden had refused to sign a waiver of immunity of self-incrimination when called before the grand jury, and (2) in denying a mistrial motion following the prosecutor's summation in which reference was made thereto.

Cosden, the applicant for the zoning change sought for the Cliffwood Terrace project, testified he had purchased cabinets from Boscia during the period of 1957 to 1959 but had no business dealings with him thereafter. He denied contracting with Boscia for supplies for the Cliffwood Terrace project and said no subcontractor would have been able to bid thereon because complete plans and specifications were never drawn. He said Sullivan had mentioned to him the alleged bribe offer in the summer of 1963, but had refused to say who was involved. He denied he had ever sent Boscia as an emissary to meet with Sullivan.

On cross-examination the prosecutor was allowed, over objection, to bring out that Cosden had refused, on advice of counsel, to sign a waiver of immunity of his constitutional right against self-incrimination when summoned before the grand jury, and as a result did not testify. ¹

In his summation to the jury the prosecutor said it could infer from the facts that Boscia was Cosden's emissary--that while Cosden protested his innocence, when he was called before the grand jury he 'sheltered himself with the immunity of the Constitution and refused to testify.' ²

Defendant argues that Cosden's exercise of his constitutional right against self-incrimination when subpoenaed before...