State v. Conway
| Decision Date | 14 February 1984 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Donald R. CONWAY, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Alan GRECCO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Justin P. Walder, Roseland, for defendant-appellant Conway (Walder, Sondak, Berkeley & Brogan, Roseland, attorneys; Justin P. Walder, Roseland, and Gerald L. Shargel, New York City, of the New York Bar, on the brief).
Salvatore T. Alfano, Newark, for defendant-appellant Grecco (Clapp & Eisenberg, Newark, attorneys; Joseph T. Afflitto, Wayne, of counsel).
Richard T. Carley, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney).
Before Judges MATTHEWS, J.H. COLEMAN and GAULKIN.
The opinion of the court was delivered by
MATTHEWS, P.J.A.D.
State Grand Jury Indictment 87-85-5(1) 1 charged Donald R. Conway, a member of the bar of this State, and Alan Grecco, with: conspiracy contrary to N.J.S.A. 2C:5-2 (Count One); tampering with a witness contrary to N.J.S.A. 2C:28-5a(1) and (2) and 2C:2-6 (Count Two); tampering with public records contrary to N.J.S.A. 2C:28-7a(1) and 2C:2-6 (Count Three); tampering with physical evidence contrary to N.J.S.A. 2C:28-6(1) and 2C:2-6 (Count Four); promotion of official misconduct contrary to N.J.S.A. 2C:30-2 b and 2C:2-6 (Count Five); attempt to promote official misconduct contrary to N.J.S.A. 2C:30-2b, 2C:2-6 and 2C:5-1 (Count Six), and bribery contrary to N.J.S.A. 2C:27-2c and 2C:2-6 (Counts Seven and Eight).
Samuel Lazzara, Joseph Lazaro, a State Police sergeant, and Vincent Rigolosi, who is also a member of the bar of this State, were also charged in the same indictment. A separate State Grand Jury Indictment arising out of the same incident, Number 87-81-5, charged Joseph Barcellona in a similar manner. Barcellona was an unindicted coconspirator in Indictment 87-85-5(1). His trial was kept separate from the other defendants' trial and scheduled for a later date.
Lazaro entered a plea of guilty to Counts One, Two, Five and Seven on July 8, 1982, and testified at trial for the State. After the trial, Barcellona entered a plea of guilty to Count One.
Trial of the other defendants was held before Judge Huber and a jury from September 13 through November 4, 1982. The jury found Conway guilty of conspiracy (Count One) and tampering with a witness (Count Two). Grecco was found guilty of conspiracy (Count One) and bribery (Count Seven). Lazzara and Rigolosi were acquitted on all counts. On March 22, 1983 Judge Huber merged Count One with Count Two and sentenced Conway to a suspended four year term in State Prison, $2,500 fine and $25 penalty payable to the Violent Crimes Compensation Board. With respect to Grecco, the judge merged Count One with Count Seven and sentenced him to a seven year term in State Prison, $1,500 fine and $25 penalty payable to the Violent Crimes Compensation Board.
Conway and Grecco appealed separately and their appeals were consolidated by us. Conway's subsequent motion to sever his appeal was denied.
The case against defendants originated out of an altercation between Philip Lombardo, Jr. (Lombardo) and State Police Officer Denis McDowell outside a large seaside club in Ortley Beach, Dover Township, Ocean County, during the early morning hours of Sunday, July 19, 1981. The club was owned and operated by Barcellona. It contained seven separate bars, held in excess of 1,000 people and employed 28 full time "bouncers" to identify and control intoxicated patrons.
Prior to the McDowell-Lombardo altercation, Lombardo had been ousted from the club. Instead of leaving the area, Lombardo remained outside the club and acted suspiciously. McDowell frisked him and allegedly found one can of tear gas. Later that evening at closing, Lombardo banged on the door of the club, and when it was opened, threw a substance in McDowell's face. A chase and subsequent struggle ensued. Another can of tear gas was found in Lombardo's vehicle. McDowell consequently arrested Lombardo and charged him with simple assault, two counts of unlawful possession of a weapon (tear gas) and resisting arrest. During the arrest Lombardo boasted of his "family connections" that "ran New York and New Jersey" and would "take care" of McDowell.
Although McDowell testified that he previously worked at the club as a bouncer in violation of State Police regulations, it was disputed at trial whether he was working for the club on the morning of the Lombardo altercation. It was also disputed whether Lombardo returned to the club to telephone police that several patrons were damaging his car.
Shortly after the Lombardo arrest, McDowell, a member of the New Jersey State Electronic Surveillance Unit, reported to his State Police superiors that an attempt was being made to bribe him to dispose of Lombardo's case. An investigation, during which concealed recording devices were used, followed. Through that investigation it was learned that several individuals attempted different ways to dispose of the Lombardo case, including: bribery, an altered arrest report and a lineup ploy. The State's case relied to a substantial degree on the tape recordings and the testimony of McDowell and Lazaro. That evidence disclosed the following.
On the morning of the altercation Conway was retained to represent Lombardo who was then jailed by the Dover Township police. Conway immediately dispatched an associate to represent Lombardo at the police station. Lombardo was released from jail and his impounded car was retrieved. Conway met and interviewed Lombardo the following day. He prepared to file a complaint against McDowell and the club. He also entered a formal appearance for Lombardo at the Ocean County Prosecutor's office and requested a probable cause hearing. Later that same day Conway telephoned Rigolosi, the attorney who represented Barcellona, the club's owner; they scheduled a meeting with Barcellona to see if the Lombardo matter might be disposed of amicably without litigation.
Conway met Barcellona for the first time in Rigolosi's law office on Wednesday, July 22, 1981. After discussing the altercation, Conway stated his client would not file counter complaints if McDowell would withdraw his charges. Barcellona replied that he "would be more than happy to resolve it by having the charges dropped." As a result, Conway never filed a cross-complaint. At a later date, however, Barcellona was recorded on tape stating that Conway "begged" him to do "anything that can be done ... I mean anything," to drop the charges.
On Friday, July 24, 1981 McDowell equipped himself with a recording device and went to Barcellona's club. McDowell spoke to Lazaro privately. Lazaro stated that Lombardo's father and Grecco were members of the Vito Genovese organized crime family and that the trooper's family might be in danger because of young Lombardo's arrest.
Through Lazaro's testimony at trial and the tape recorded conversation, it was established that Barcellona asked Lazaro to approach McDowell and inform him that Grecco offered to pay $10,000 to get rid of the charges against Lombardo. When approached by Lazaro, McDowell acted interested in the bribe and stated that he could easily retype and alter the arrest report since it was not yet officially filed. In an effort to determine the true source of the bribe, McDowell requested to meet with Lombardo or Grecco. At the close of the July 24 tape recorded meeting, Lazaro telephoned his uncle, Lazzara, to arrange a meeting with Grecco, McDowell and himself.
The following evening Lazaro met Grecco at Lazzara's home. Grecco would not permit McDowell to be present at the meeting. Lazaro testified that the men discussed altering the arrest report or, in the alternative, having McDowell fail to identify Lombardo in a lineup. Lazaro further testified that Grecco refused to allow McDowell to meet with Lombardo, stating "our attorneys would get the reports" and "would be able to handle that."
Shortly after the meeting, Lazaro returned to Lazzara's home and received $5,000 to give to McDowell. Lazaro was told the money was from Grecco and McDowell would receive $5,000 now and $5,000 "when it's done."
Late that same evening McDowell, equipped with a tape recorder, went to Barcellona's club to meet Lazaro. The two men discussed the meeting with Grecco; Lazaro gave McDowell $4,900 and kept $100 for himself. Lazaro informed McDowell he would be paid an additional $5,000 when the charges against Lombardo were dropped.
On July 29, 1981 McDowell met Barcellona and gave him the two-page original arrest report and the one-page altered report. During this tape recorded meeting Barcellona indicated that Grecco and "those guys" wanted to see both reports.
On August 16, 1981 McDowell brought Lazaro to New Jersey State Police superiors. When confronted with the taped conversations Lazaro admitted the bribery and agreed to assist in the further investigation of the incident. State Police superiors told Lazaro to locate the original and altered reports and to meet with the attorneys in the case to ascertain their involvement in the scheme.
Conway telephoned the Ocean County Prosecutor's office on August 17, 1981, to learn the status of the Lombardo case. On August 19, 1981 Conway and Rigolosi met Barcellona for lunch at a restaurant owned by Barcellona in Clifton. At this meeting Barcellona indicated to the attorneys that McDowell suggested having a lineup. According to Conway, however, Barcellona stated: "He's not sure he's got the right guy and why don't you just have a lineup and get the whole thing done that way." Conway testified that he attempted to dissuade Barcellona from having a lineup.
At Rigolosi's request, Conway returned that evening to an office above Barcellona's restaurant to meet with Lazaro, Rigolosi and Barcellona. Lazaro recorded their...
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