State v. Mazur

• Decision Date: 29 March 1978
• Citation: 385 A.2d 878,158 N.J.Super. 89
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Donald MAZUR, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 89

158 N.J.Super. 89

385 A.2d 878

STATE of New Jersey, Plaintiff-Respondent, v. Donald MAZUR, Defendant-Appellant.

Superior Court of New Jersey,Appellate Division.

Submitted March 7, 1978.

Decided March 29, 1978.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Rabner, Weil & Allcorn, Montclair, designated counsel; Harold Rabner, Montclair, on the brief).

John J. Degnan, Atty. Gen., for plaintiff-respondent (William F. Hyland, former Atty. Gen., and Frederick S. Cohen, Deputy Atty. Gen., of counsel and on the brief).

Before Judges LYNCH, KOLE and PETRELLA.

PER CURIAM.

Defendant, an Atlantic City police officer, was indicted for conspiracy with 24 other police officers of that city and with one Lee Cohn to corruptly engage in misconduct in public office. The substance of the charge was that the officers agreed to afford to Cohn preferential treatment in enforcement of state laws and city ordinances with respect to three Atlantic City hotels which he owned. N.J.S.A. 2A:85-1. Defendant was also individually charged in five other counts of the 73 count indictment with unlawfully taking money in violation of N.J.S.A 2A:105-1.

After a jury trial defendant was convicted of the conspiracy charge and four of the counts charging extortion. The fifth count charging defendant with that offense had previously been severed by the trial judge. Defendant was sentenced on the conspiracy count to a suspended nine-month term in the Atlantic County jail and fined $1,000. We was also given a suspended $1,000 fine on each of the remaining four counts of extortion.

On appeal defendant contends:

POINT I:

The trial court committed plain error by charging the jury so as to require conviction of the defendant of conspiracy based upon an agreement between the defendant and Lee Cohn (not raised below);

POINT II:

The court committed plain error by failing to define the critical element of criminal intent with respect to any counts of the indictment (not raised below);

POINT III:

The trial court committed plain error in failing to charge the jury that moneys allegedly received by the defendant had to be given and understood by him to be in return for performance of his official duties (not raised below);

POINT IV:

The trial court erred in denying defendant's motion for acquittal on counts XXV and XXVIII;

POINT V:

The trial court's limitation on the number of defendant's character witnesses constituted reversible error in violation of N.J. Rule of Evidence 47 and U.S. Constitution Amend. 6 and N.J. Constitution Art. I, Paragraph 10;

POINT VI:

The trial court committed prejudicial error by not permitting the State's chief witness to be impeached by prior convictions of assault and battery and assault and battery on a police officer;

POINT VII:

The trial court's limitation on cross-examination of Lee Cohn, State's chief witness and of Richard Williams, on Cohn's interest and motive in testifying violated defendant's right to a fair trial and confrontation of witnesses guaranteed by Amendment 6, U.S. Constitution;

POINT VIII:

The trial court's limitation of cross-examination of Lee Cohn relating to the defendant's assertion that payments were loans violated defendant's constitutional right to cross-examination and trial by jury;

POINT IX:

The court erred in denying defendant's pretrial motion to dismiss the indictment on the grounds that the State engaged in invidious discriminatory and selective prosecution upon an arbitrary classification;

POINT X:

The trial of defendant's indictment in Ocean County violated his constitutional rights to jury trial and to a fair trial;

POINT XI:

The trial record read as a whole demonstrates that the defendant did not receive a fair trial.

We find no merit in any of defendant's contentions except Point I, Point VI and Point VII. We find reversible and plain error under Point I (the charge of conspiracy) and reversible error under Point VII (limitation of cross-examination of Cohn) and Point VI (defendant's attempt to impeach Cohn's testimony by reason of an alleged prior conviction in Maryland of assault and battery upon a police officer). The other points require no discussion. R. 2:11-3(e)(2).

I. The charge on conspiracy

In charging the jury on the crime of conspiracy the trial judge stated that the indictment charged that "Donald Mazur and Anthony Nicastro * * * did conspire, confederate and agree together with each other, then and there being members of the Atlantic City Police Department and with Lee Cohen (sic ) * * *" to engage in misconduct in office. He further noted, "Now, the defendant is basically charged with conspiring with one Anthony Nicastro and Lee Cohen (sic ) to commit the offense of what is called 'misconduct in office,' " and added "The State must only prove that the defendant conspired with someone else to commit that crime." No objection was raised with regard to the jury charge.

Nevertheless, defendant now claims that the trial judge's instructions permitted the jury to find defendant guilty of conspiracy if it found that defendant "agreed" with Cohn to commit the substantive offense. This, says defendant, is error because Cohn was acting at the time as a government agent and thus could not have been a "co-conspirator." Because, as we have noted, no objection to the charge was raised below, our inquiry must be to determine whether the charge constituted plain error under R. 2:10-2.

The State's testimony revealed the following facts. On March 15, 1973 Cohn applied to the Atlantic City Department of Revenue and Finance for a mercantile license to operate the Princeton Hotel which he had recently purchased. Before such licenses are granted the applications are sent to the Department of Public Safety where they are submitted for police, fire, electrical and building inspections. When these routine checks are completed the applications and inspection reports are returned to the Department of Revenue and Finance for final action. In general it requires approximately "a week to ten days" to process an application.

However, after his license application was submitted Cohn became aware of "some problems" in obtaining the license and he spoke with Atlantic City Police Officer Anthony Nicastro (a/k/a "Meatball") about the difficulty. Cohn told Nicastro that Atlantic City Police Sergeant James F. Barber, who was in charge of investigating retail licenses, was delaying the police investigation of his application because of prior "financial dealings" they had undertaken together.

Thereafter, on March 23, 1973, Cohn met with Atlantic County Prosecutor Richard Williams to discuss any assistance which Cohn might render in investigating official corruption in Atlantic City. Williams told Cohn that any information he gave regarding "payoffs" would not be used against him. And, as Williams said: "I also indicated that with regard to a general investigation which we had, that I was not interested in pursuing that. That general investigation related to the general operation of (Cohn's) hotels and was not necessarily criminal in nature."

After these conversations Detective William Wrotniewski of the New Jersey State Police, on April 4, 1973, equipped Cohn with an electronic transmitter and told him "to carry out his business as he normally would." Wrotniewski would monitor and record Cohn's conversations. That evening Cohn met with defendant Mazur, an Atlantic City police sergeant. Mazur told Cohn that he would speak with Clair Ordelli, Deputy Commissioner of Public Safety in Atlantic City, to see if she could "find something out" concerning his license application. He also indicated that Nicastro spoke with Barber and that Barber "don't have nothing against" granting Cohn the mercantile license. Cohn told defendant to temporarily "hold off" speaking with Ordelli. Thereafter, he gave defendant five dollars, noting that, "(f)ive dollars won't break me, Don."

At some point after this conversation Cohn met again with defendant and agreed to give him $500 to intervene with Ordelli. Defendant said he would see Ordelli. Thereafter, on April 12, 1973 the police department submitted its report on Cohn's license application and the Commissioner of Revenue and Finance approved the license.

Cohn and defendant met the next day in Cohn's office at the Princeton Hotel. Detective Wrotniewski monitored the conversation. During the course of that conversation defendant admonished Cohn not to tell anyone how he had received the license and Cohn thereupon passed to defendant a $250 installment on the agreed figure of $500.

Over the next few weeks there followed several other monitored conversations between defendant and Cohn, and Cohn and defendant Nicastro, concerning Cohn's problems in obtaining other licenses for his hotels. The conversations detailed the efforts of defendant and Nicastro to assist Cohn in securing the licenses, in return for which Cohn gave defendant additional money. It appeared that the money which Cohn passed to defendant had been supplied to him by the State.

It is apparent from the foregoing review of the evidence that Cohn was acting as an agent for the prosecution. The question, then, is whether defendant could be found guilty of conspiracy with Cohn who was a government agent at the time and thus never formed an intent on his part to enter a conspiratorial relationship and never "agreed" on his part to embark on a criminal enterprise.

In State v. Dougherty, 88 N.J.L. 209, 96 A. 56 (E. & A.1915), the Court of Errors and Appeals reversed a conspiracy conviction where defendant's alleged coconspirator was an undercover police agent. The agent, one Harris, approached defendants, Atlantic City public officials, and promised them money if they would vote for an ordinance ostensibly in the agent's interests. Upon apprehension, defendants were convicted of conspiracy with Harris to "pervert the due administration of the law." Five members of the...