State v. Del Fino
Decision Date | 16 July 1985 |
Citation | 100 N.J. 154,495 A.2d 60 |
Parties | STATE of New Jersey, Plaintiff-Appellant, v. Robert DEL FINO, Defendant-Respondent. |
Court | New Jersey Supreme Court |
Harold J. Ruvoldt, Jr., Hudson County Prosecutor, for appellant (Harold J. Ruvoldt, attorney; Anthony Pepe, Asst. Prosecutor, on brief).
Seymour Margulies, for respondent (Margulies, Margulies & Wind, attorneys).
Carol M. Henderson, Deputy Atty. Gen., for amicus curiae Atty. Gen. (Irwin I. Kimmelman, Atty. Gen. of N.J., attorney).
The opinion of the Court was delivered by
O'HERN, J.
The central question in this appeal is whether one of two indicted co-conspirators may, after a separate trial and conviction, raise a challenge to the indictment that the co-conspirator timely raised before his trial. We hold that the circumstances of this case do not demonstrate the good cause required by Rule 3:10-2 to mount such an untimely challenge, nor do they reveal any fundamental miscarriage of justice that would invoke our supervisory power to correct a perceived injustice.
The case is made complex by its convoluted procedural history. In November 1981, Robert Del Fino and Thomas Fricchione were indicted by a Hudson County grand jury, which charged both with conspiracy to commit theft by extortion, contrary to N.J.S.A. 2C:5-2 (Count One), and attempted theft by extortion, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5 d. (Count Two). The indictment charged that the two had agreed or would agree for a price to use their influence to gain favorable job preference for another in the Jersey City school system.
On March 29, 1982, at a pretrial hearing attended by the attorneys for both parties, the court severed the two cases because of Bruton problems concerning the use of Fricchione's statement in a common trial. 1 After disposing of the severance issue, the trial court asked, "are there any motions open?". Fricchione's attorney replied:
The only one I have is this order, which I'm going to serve the Clerk of the Grand Jury, and I don't know that it will develop anything, but if it will, it will be a limited motion.
The court replied that it would reserve on that aspect, and set trial dates for each defendant on May 3 and May 17, 1982, for Del Fino and Fricchione respectively.
Del Fino went to trial in May 1982 and was convicted of agreeing to conspire to commit theft by extortion but was acquitted of the offense of attempted theft by extortion. In June 1982, he received a three-year custodial sentence and a fine of $10,000.
Following conviction and filing of notice of appeal, Del Fino moved before the trial court to dismiss the indictment on the ground that the records of the grand jury did not disclose that twelve or more of the grand jurors who voted for the indictment were present at all sessions to hear the entire presentation of evidence. Because jurisdiction was with the Appellate Division, the trial court denied the motion pursuant to Rule 2:9-1. On September 22, 1982, the Appellate Division refused to allow a partial remand so that the trial court could review the grand jury proceedings.
Thereafter, on September 27, 1982, the Hudson County assignment judge entertained Fricchione's motion to dismiss the indictment against him. Following a hearing and a re-polling of certain grand jurors, only nine jurors stated that they voted to indict Fricchione on Count Two (attempted theft by extortion). Three stated that they could not recall. On the First Count, thirteen said that they voted to indict but fewer than twelve of these had attended all sessions of the grand jury. The court made no inquiry as to the voting in regard to Del Fino. The indictment against Fricchione was dismissed on November 22, 1982. 2 Thereafter, Del Fino twice renewed his motion before the trial court to dismiss the indictment. Both motions were denied on jurisdictional grounds. He appealed the final denial to the Appellate Division. That court heard the motion along with the substantive appeal. On November 4, 1983, the Appellate Division entered an order of partial remand to the trial court to entertain the motion to dismiss the indictment. The remand required the trial court to hear and decide the motion by December 15, 1983. The time was extended to February 15, 1984.
On February 15, 1984, the trial court denied the motion to dismiss but indicated, however, that it would give defendant an evidentiary hearing at which time defendant would be afforded an opportunity to establish "good cause" for relief pursuant to Rule 3:10-2. The trial court further ruled that it would recall and question the grand jurors with respect to their votes concerning defendant. In a letter directed to the Appellate Division on the same date, the court requested a second extension (to April 16, 1984), to conduct the evidentiary hearing and re-polling of the jurors. The Appellate Division denied the trial court's request and directed both parties to supplement the record with the events that had occurred since the remand had commenced.
The Appellate Division concluded that since the grand jury proceedings concerning Del Fino were, for all that appears, identical with Fricchione's, and that since Fricchione's indictment was dismissed, "fundamental fairness requires that the result be the same as to each." We granted the State's petition to review the Appellate Division judgment dismissing the indictment against Del Fino. 99 N.J. 150 (1984).
Defendant argues that since the grand jury alleged only one conspiracy involving Fricchione and Del Fino, it is conceptually impossible that a single indictment adjudged defective as to one can withstand attack by the other. The premise of the argument is the common-law rule that if one of two co-conspirators is acquitted, it is impossible that the other be guilty of conspiracy.
We need not resolve the substantive merits of this contention for purposes of determining the issue posed in this appeal, that is, whether Del Fino has demonstrated the necessary good cause for relief under Rule 3:10-2. We note, however, that the Code departs from the traditional notion of conspiracy as an entirely bilateral or multilateral relationship, the view inherent in the standard formulation cast in terms of "two or more persons" agreeing or combining to commit a crime. N.J.S.A. 2C:5-2 a. ("A person is guilty of conspiracy with another person * * * if * * * he * * * [a]grees with such other person * * * that they or one or more of them will engage in [criminal] conduct.") Attention is directed instead to each individual's culpability by framing the definition in terms of the conduct that suffices to establish the liability of any given actor, rather than the conduct of a group of which he is charged to be a part--an approach that the Drafters of the Code designate as "unilateral."
One consequence of this approach is to make it immaterial to the guilt of a conspirator whose culpability has been established that the person or all of the persons with whom he conspired have not been or cannot be convicted. Present law frequently holds otherwise, reasoning from the definition of conspiracy as an agreement between two or more persons that there must be at least two guilty conspirators or none.
Consequently, it is by no means clear that the Appellate Division was correct in concluding that, as a matter of policy, "fundamental fairness" itself dictates that each of the charged conspirators must receive identical treatment. Regardless of the possible merit in his position, Del Fino did not raise the grand jury challenge before trial. Rule 3:10-2 specifically mandates that all defenses and objections based on defects in the institution of the proceedings or in the indictment must be raised before trial. Except for good cause shown, failure to present any such defense constitutes a waiver. See R. 3:10-2. The failure of timely assertion, even of constitutional rights, may result in such a waiver. State v. McKnight, 52 N.J. 35, 48, 243 A.2d 240 (1968). What constitutes good cause for delay will depend upon the circumstances. Even in the shortened time required by Rule 3:5-7(a), which mandates that any challenge to the validity of a search be made within 30 days of the plea, courts have not found good cause simply because a co-defendant was allowed to raise a timely procedural challenge. State v. Boyd, 165 N.J.Super. 304, 398 A.2d 129 (App.Div.1979), certif. den., 85 N.J. 128, 425 A.2d 285 (1980). But see State v. Price, 108 N.J.Super. 272, 260 A.2d 877 (Law Div.1970) ( ). Moreover, the merits of the underlying assertion must be persuasive if an untimely challenge is to be otherwise allowed for good cause. See Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ( ); State v. Allaband, 134 N.J.Super. 353, 341 A.2d 340 (App.Div.1974) ( ); State v. Hughes, 128 N.J.Super. 363, 320 A.2d 182 (App.Div.), certif. den., 66 N.J. 307, 331 A.2d 7 (1974) ( ).
Defendant argues that there was no way trial counsel could have known of the defects in the grand jury proceedings prior to trial, that this would clearly establish good cause, and that if in fact there was grand jury misconduct as to this defendant, good cause is established based on principles of fundamental fairness and a violation of the New Jersey Constitution. See N.J. Const. (1947) ...
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