State v. Carminati

• Decision Date: 26 July 1979
• Citation: 405 A.2d 456,170 N.J.Super. 1
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anthony CARMINATI, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Salvatore "Sam" BADELAMENTI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

170 N.J.Super. 1

405 A.2d 456

STATE of New Jersey, Plaintiff-Respondent, v. Anthony CARMINATI, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Salvatore "Sam" BADELAMENTI, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued May 14, 1979.

Decided July 26, 1979.

Paul J. Giblin, Hackensack, for defendant-appellant Carminati.

Frederick Klaessig, Jersey City, for defendant-appellant Badelamenti.

Blair R. Zwillman, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

Before Judges FRITZ, BISCHOFF and MORGAN.

The opinion of the court was delivered by

MORGAN, J. A. D.

At the heart of these consolidated appeals is the propriety of a joint jury trial of a charge of conspiracy to obstruct justice (N.J.S.A. 2A:85-1 and N.J.S.A. 2A:98-1) with charges of perjury and false swearing (N.J.S.A. 2A:131-4 and N.J.S.A. 2A:131-1) arising out of testimony before the grand jury investigating the conspiracy compelled by a grant of use and fruits immunity. Also implicated herein are a multitude of issues concerning the sufficiency of the indictment, errors concerning the admissibility of evidence, an attorney's conflict of interest in representing two defendants charged with the same conspiracy, and the adequacy of the evidence to support the conviction. The jury convicted both defendants of conspiracy and of related charges of perjury and false swearing. They appeal.

The alleged conspiracy concerned an attempt to exert unlawful influence on a Superior Court judge to impose a more lenient sentence than would otherwise be warranted on two defendants scheduled to be tried before him on loan sharking charges. The alleged participants in this conspiracy were the two defendants who were to be sentenced, Frank Pintozzi and Louis Albanese, the latter being unindicted for his part in this conspiracy, and the two defendants whose appeals are here under consideration, Anthony Carminati and Salvatore Badelamenti. According to the State's theory of the conspiracy, Carminati and Badelamenti agreed that the latter would use his friendship with a Bergen County Freeholder, Gerald Calabrese, not alleged to be a conspirator to influence him to intercede with Superior Court Judge James Madden to go lightly in his sentencing of Pintozzi and Albanese. There is no question but that the indictment charged that such influence would be unlawfully exerted, that it was the corruption of the judge which was its object.

The agreement was evidenced by court-ordered electronically obtained transcriptions of intercepted phone calls and private conversations, together with testimonial evidence of physical surveillance of the alleged conspirators. For present purposes it is sufficient to note that the conversations relied upon provided an adequate basis for the jury's conclusion that Carminati and Badelamenti so agreed.

The State freely conceded that the conspiracy failed. Indeed, the grand jury which returned the indictment specifically found that to be true. Judge Madden was never reached and he sentenced Pintozzi and Albanese free of corrupting influences and without knowledge of any plan to influence him. Moreover, Calabrese, the one slated to make the corrupt overture to Judge Madden, denied, without testimonial contradiction, that Badelamenti ever asked him to approach Judge Madden. According to his testimony, he was unaware of any agreement between Carminati and Badelamenti in which he figured so prominently. Calabrese was never alleged to be part of the conspiracy.

Neither defendant testified. We derive their theories of defense from their respective summations, in turn derived by inference from the State's evidence and the testimony of Gerald Calabrese, the principal witness for the defense. Carminati's position was simply a denial that he participated in any conspiracy. Central to this defense was his denial that his was the voice on the tapes of the intercepted phone calls. Badelamenti's defense was quite different. Although in his grand jury testimony he denied that his was a voice on the taped phone calls, at trial he stipulated his part in the intercepted phone calls, contending, however, that his "agreement" with Carminati to persuade Calabrese to intercede with Madden was never seriously intended. According to the argument made, he was merely "conning" Carminati to curry favor with him, never intending and never making any move to bring the "agreement" to fruition. Calabrese's denial that Badelamenti ever sought his aid in reaching Madden is referred to in support of this theory.

The foundation of the perjury and swearing charges made against defendants Carminati and Badelamenti was their sworn testimony before the grand jury investigating the possible irregularities and improprieties relevant to the disposition of the charges against Albanese and Pintozzi. Both defendants were summoned to testify at that investigation. Carminati, waiving his privilege against self-incrimination, denied participation in any attempt to influence Judge Madden, and denied under oath that his was a voice on the tapes of the intercepted phone calls, a position consistent with the one he maintained at his trial. Badelamenti, however, refused to waive his privilege and his ensuing testimony was compelled by a grant of use and fruits immunity. N.J.S.A. 2A:81-17.3. In it, he denied participation in the phone calls and denied that he discussed with Carminati the plan to influence the judge in the Pintozzi-Albanese matter, a denial that appeared to be in direct contradiction to the wiretap evidence then in the State's possession suggesting several conversations along those lines. During the testimony, a prior conviction of crime was disclosed in an attempt to persuade the grand jury that he was so upset over the prospect of the custodial sentence he was soon to commence serving that he could not have been interested in another's problems with the law. In any event, it was his testimony denying his conspiratorial discussions with Carminati which led to the perjury conviction charged in count 4 of the indictment. His denial of any attempt to persuade Calabrese to request the latter's intercession with Judge Madden ultimately led to his conviction of false swearing for that testimony.

Conspiracy

Both Carminati and Badelamenti seek entry of a judgment of acquittal on the following grounds:

1. The first count of the indictment charging them with a conspiracy to obstruct justice does not charge, by its terms, that offense.

2. N.J.S.A. 2A:98-1(h) is unconstitutionally vague as applied to the facts and the conspiracy count of this indictment.

3. The conspiracy alleged in count one of the indictment is evidenced by speech alone, speech intercepted by electronic devices, and being therefore within the protection afforded speech by the First Amendment of the federal constitution, the evidence is insufficient to ground a conviction.

These three contentions clearly lack merit and we therefore reject them without extended comment. R. 2:11-3(e)(2). The gravamen of the conspiracy charge clearly was an agreement to exert an unlawful influence on a sentencing judge. The indictment so charges and the evidence adduced clearly created a jury question concerning the unlawfulness of the means agreed upon to influence Judge Madden in connection with the Pintozzi-Albanese sentences. We recognize, as defendants point out, that an agreement to inform a sentencing judge of matters relevant to a defendant being sentenced, such as his character, contrition, prior good conduct and the like, are not regarded as unlawful. Sentencing judges are free to use such information, in their discretion, to determine the appropriateness of the sentence to be imposed in a given case; those who communicate such information, even for the purpose of influencing the judge to be lenient, cannot be regarded as acting to obstruct justice, as indeed they are not.

Such, however, was not the conduct charged in the indictment and condemned by the jury in this case. The evidence, in our view, was entirely sufficient to justify the jury's conclusion that the agreement between Badelamenti and Carminati was not of a benign, but of a corrupt, nature. The jury could have concluded, as apparently it did, that the purpose of the desired Calabrese intercession was not to advise Madden about some overlooked facet of the Pintozzi-Albanese matter which might persuade him to be lenient, but rather to persuade the judge on matters extraneous to the merits of the sentencing problem he would be confronting, to be more lenient with those two defendants than their cases would otherwise warrant. The jury could have found that corruption of the sentencing judge was the gist of the agreement. We have no doubt on the record of this case that a jury question concerning the corrupt nature of the agreement was created and, in the absence of the error which we have concluded tainted their conviction and requires its reversal, the jury's verdict was sufficiently supported by evidence to withstand challenge.

The error to which we refer concerns the trial judge's denial of Badelamenti's pretrial motion to sever trial of the conspiracy count from trial of the perjury and false swearing counts. At the motion, Badelamenti took the essential position that he would be prejudiced by a joint trial of the conspiracy and false testimony charges because the jury would be advised by the very presence of the perjury and false swearing charges in the conspiracy trial that the grand jury believed that defendant was lying with respect to several acts relevant to the conspiracy charge. In his view, the proposed curative jury instructions not to consider such a factor as a means of avoiding the prejudice attendant on a joint trial would be unavailing. Although the trial judge was advised that Badelamenti's immune grand jury testimony was the basis of the perjury and...