State v. Fornino
| Decision Date | 16 February 1988 |
| Citation | 223 N.J.Super. 531,539 A.2d 301 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. James FORNINO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Leonard Ginsberg, Designated Counsel, New Brunswick, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Leonard Ginsberg, on the brief).
Robert E. Bonpietro, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen., attorney; Robert E. Bonpietro, on the brief).
Before Judges PRESSLER, MUIR, Jr. and SKILLMAN.
The opinion of the court was delivered by
SKILLMAN, J.A.D.
Defendant was indicted together with two others for second degree conspiracy to commit the crimes of escape and murder, in violation of N.J.S.A. 2C:29-5, N.J.S.A. 2C:11-1 et seq. and N.J.S.A. 2C:5-2 (count I), second degree attempted murder, in violation of N.J.S.A. 2C:11-3, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:5-1 (count II), and second degree attempted escape, in violation of N.J.S.A. 2C:29-5, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:5-1.
The charges arose out of a plan for the forcible escape from Rahway State Prison of codefendant Carmen Michael La Bruno. La Bruno and another inmate, Joseph Satkin, were both transported out of the prison on a regular basis for medical treatment. The plan called for defendant, James Fornino, to kill the guards who accompanied the inmates on one of these trips and to free La Bruno and Satkin. La Bruno's father, codefendant Carmen La Bruno, Sr., also was involved in making arrangements for the escape. 1
La Bruno discussed these escape plans with Satkin in November and December of 1982 and solicited his participation. La Bruno asked Satkin to arrange for the payment of $10,000 to defendant. However, Satkin informed prison officials of the plans and thereafter cooperated in gathering the evidence on which criminal charges ultimately would be based.
The State Police had Satkin tell La Bruno that a friend of his called "Louie K," (actually an undercover trooper) would deliver the money Satkin had been asked to pay defendant. On the night before the escape was to be committed, the trooper posing as "Louie K" met with defendant and La Bruno, Sr. at a diner in Hoboken. As the three men were leaving the diner, the trooper made the agreed payment to defendant. Shortly thereafter, defendant was arrested.
Before the jury which was to try the three defendants was sworn, the prosecutor disclosed that several telephone calls made by La Bruno from Rahway State Prison regarding the planned escape had been monitored by prison officials without a warrant. Defense counsel argued that this telephone monitoring was illegal and might require dismissal of the charges. Anticipating that resolution of the issues raised by the telephone monitoring might consume a substantial amount of time, the trial court declared a mistrial.
Several months later, an evidentiary hearing was held on motions by defendant and his codefendants to suppress the evidence obtained through the telephone calls intercepted without a warrant. At the conclusion of the hearing, the trial court denied the motions.
During the hearing on the motion to suppress, La Bruno and La Bruno, Sr. pled guilty to count I of the indictment (conspiracy to commit the crimes of escape and murder). 2 Consequently, the charges against the La Brunos were severed and only defendant was tried.
A jury found defendant guilty on all charges. The trial court merged the conspiracy convictions into the convictions for attempted escape and attempted murder. On the conviction for attempted murder, defendant was sentenced to an extended term of 20 years, with 9 years of parole ineligibility. On the conviction for attempted escape, defendant was sentenced to a concurrent term of 10 years, with 5 years of parole ineligibility.
* * *
* * *
We reject all the arguments made by defendant and affirm the judgment of conviction. The only arguments which require discussion are contained in points I, II, VIII, X(B) and XII of defendant's brief. Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2).
Defendant's first point is that the evidence was insufficient to support a finding of guilt of attempted murder or attempted escape. His second point is that the evidence was insufficient to support a finding of guilt of conspiracy to commit murder. Since defendant entered into a conspiracy with the La Brunos before taking any steps to carry out that conspiracy, it is appropriate to consider defendant's first two points in reverse order.
There is ample evidence from which the jury could conclude that the conspiracy into which defendant entered involved a plan not only for the escape of La Bruno and Satkin but also for the murder of the correction officers guarding them. Satkin testified that La Bruno told him that the plan was for defendant to overpower the guards and kill them. Handguns equipped with silencers were to be used for this purpose. Satkin further testified that La Bruno had told him that La Bruno, Sr. and defendant had surveyed the woods behind the doctor's office where the escape was to occur in order to find a place to dispose of the guards' bodies. Some corroboration of Satkin's testimony was provided by statements made by La Bruno while riding in a van with Satkin on the day of the planned escape, which were surreptitiously recorded by the State Police. For example:
[Satkin]: Three bullets can't even hit, knock that motherfucker [referring to one of the guards] out.
[La Bruno]: Your ass, Joe. Are you nuts? They'll blow him right out of his fucking shoes. Are you wacked out?
Defendant also made several statements which provide inferential support for the conclusion that he intended to kill the guards. During the meeting in the diner where he received the payment for his part in the planned escape, defendant said:
Problems, problems, you get out of the way. Just get them out of the way. Whatever way you gotta do it you get them out of the way.
* * *
* * * You know. Like I said before, you know, if you got an obstacle, you get it out of your way. You know, you ah accomplish your goal and ah you ah get all your obstacles out of your way to accomplish your goal, right?
A reasonable jury, viewing this evidence most favorably to the State, could conclude that defendant and his coconspirators planned to kill the guards in carrying out the escape.
The more difficult question is whether the evidence was also sufficient for the jury to conclude that defendant took sufficient steps in carrying out the conspiracy to have committed attempted escape and attempted murder. N.J.S.A. 2C:5-1 provides in pertinent part as follows:
a. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: ...
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
b. Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.
The 1971 report of the New Jersey Criminal Law Revision Commission which drafted the Code of Criminal Justice indicates that the intent of N.J.S.A. 2C:5-1 was to expand the scope of criminal responsibility for attempts:
New Jersey's cases adopt a rule which has become known as "the probable desistance test." ... It provides that the actor's conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will probably result in the crime intended. The test requires a judgment, in each case, if an attempt is to be found, that the actor had reached a point where it was unlikely that he would have voluntarily desisted from his efforts to commit the crime. The leading case is State v. Schwarzbach [84 N.J.L. 268, 86 A. 423 (1313) ], supra ( ).... We reject this, as well as several other tests, as the standard for distinguishing preparations from attempts. [1971 New Jersey Penal Code Commentary, Vol. II, at 116-117].
The Commission's reformulation of the law of attempt contained in N.J.S.A. 2C:5-1(a)(3) and (b) is taken from the substantially similar language of the Model Penal Code. 3 Accordingly, the Commission's report describes the intent of these provisions by quoting the pertinent part of the report of the drafters of the Model Penal Code as follows:
First, this formulation shifts the emphasis from what remains to be done--the chief concern of the proximity tests--to what the actor has already done. The fact that further major steps must be taken before the crime can be completed does not preclude a finding that the steps already...
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