State v. New Jersey Trade Waste Ass'n

• Decision Date: 21 March 1984
• Parties: , 1984-1 Trade Cases P 65,928 STATE of New Jersey, Plaintiff-Appellant, v. NEW JERSEY TRADE WASTE ASSOCIATION, et al., Defendants, and Lawrence Ricci, also known as Larry Poppola, Defendant-Respondent, and Tino Fiumara, Defendant-Intervenor-Respondent. STATE of New Jersey, Plaintiff-Appellant, v. NEW JERSEY TRADE WASTE ASSOCIATION, et al., Defendants, and Michael Coppolla, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 8

96 N.J. 8

472 A.2d 1050, 1984-1 Trade Cases P 65,928

STATE of New Jersey, Plaintiff-Appellant, v. NEW JERSEY TRADE WASTE ASSOCIATION, et al., Defendants, and Lawrence Ricci, also known as Larry Poppola, Defendant-Respondent,

and

Tino Fiumara, Defendant-Intervenor-Respondent.

STATE of New Jersey, Plaintiff-Appellant, v. NEW JERSEY TRADE WASTE ASSOCIATION, et al., Defendants, and Michael Coppolla, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 10, 1984.

Decided March 21, 1984.

Allan J. Nodes, Deputy Atty. Gen., for plaintiff-appellant (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney; John K. Enright, Deputy Atty. Gen., on the brief).

Thomas J. Cammarata, Jersey City, for defendant-respondent Lawrence Ricci, etc. (Shaljian, Cammarata & O'Connor, Jersey City, attorneys).

Miles Feinstein, Clifton, for defendant-respondent Michael Coppolla (Feinstein, Bitterman & Schey, Clifton, attorneys).

Michael Critchley, West Orange, submitted a brief for defendant-intervenor-respondent Tino Fiumara (Critchley & Roche, West Orange, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal requires us to determine the perimeters of a complex antitrust conspiracy. Specifically, the issue is whether the trial court was correct in dismissing the indictments against defendants Lawrence Ricci, Michael Coppolla, and Tino Fiumara alleging violation of the New Jersey Antitrust Law, N.J.S.A. 56:9-1 to -19. ¹ Resolution of this issue requires first a decision whether the trial court was correct that two separate and distinct conspiracies were improperly included in the one count indictment. It then requires a decision whether, drawing every reasonable inference in favor of the State, sufficient evidence was presented to the grand jury to establish a prima facie case that defendants were part of the conspiracy in restraint of trade in the garbage collection industry. We find that the indictments were neither duplicitous nor deficient for lack of sufficient evidence. We therefore hold that the indictments were improperly dismissed.

I

Defendants were 3 of 57 individuals and businesses indicted by a state grand jury under the New Jersey Antitrust Act, N.J.S.A. 56:9-1 to -19, for knowingly engaging in "a combination and conspiracy in unreasonable restraint of the business of providing garbage collection services to customers" in nine Northern New Jersey counties. The indictment described the conspiracy as a "continuing agreement, understanding and concert of action among the defendants and coconspirators that [the defendants] would not compete for garbage collection among themselves." The indictment alleged that certain companies and individuals in the garbage collection business formed the New Jersey Trade Waste Association (Association) to effect and enforce the agreement. It also charged defendants with aiding and advising in the conspiracy; they were not identified specifically as members of the Association.

As part of the operation of the conspiracy, an Association member allegedly acquired "property rights," which were understood by the conspirators to be a claim of ownership to the exclusive right to provide garbage collection service to a location without competition from other collectors. Competition was barred regardless of a change in the use of the location or the identity of the customer occupying it. Property rights belonged to the first Association member to serve a given place. In the event of a dispute, a "grievance hearing" determined who owned the property rights to a specific stop. The Association held weekly meetings to hear grievances arising from conflicting property right claims to customer accounts.

The indictment alleged that defendants intimidated nonmembers, coerced them to join the Association, retaliated against anyone who interfered with the Association, prohibited sales of certain customer accounts, and exacted money from each member to guarantee noncompetition. The indictment also gave three illustrations of the conspirators' enforcement of property rights to restrain trade. Two illustrations concerned the enforcement of property rights by grievance hearings conducted by the Association. The third illustration, contained in paragraph 9(c) of the bill, was the only part of the indictment that specifically named the defendants. ²

This part of the indictment charged that defendants ordered Anthony Tomae, an Association member who wished to sell his garbage collection business, to sell to someone they selected. They advised Tomae that Carmine Franco, the Association's President, had to approve the sale; otherwise, Franco would take over Tomae's customers. Defendants also wanted to obtain a three per cent fee on the sale. According to the indictment, Tomae successfully resisted the pressure.

The record contains excerpts from the testimony presented to the grand jury. Several witnesses testified concerning the Association's general activities. Only Patrick Kelly, a police informant who participated in the undercover investigation, specifically mentioned each of the three defendants in his testimony. ³

Kelly testified that Fiumara, Coppolla, and Ricci were his associates in the criminal world. Fiumara was the head of a group that functioned as a cog in a larger group engaged in criminal activities. Coppolla was subordinate to Fiumara; Ricci was subordinate to Coppolla. Kelly testified that Franco, the president of the Association, answered to Fiumara, who effectively controlled the Association.

Kelly testified that the activities of Fiumara and Coppolla in the Tomae transaction were motivated by a desire for control as well as financial gain. He stated:

A. They were looking for both financial, three points over the sales price and control of the buyer that bought the route.

Q. How would this control be affectuated [sic]; was there any "legitimate organization" that they operated through?

A. There was an organization. New Jersey Trade Waste Association.

Q. And did that control extend into that association?

A. Yes; it did.

Q. Who was their control, contact or party within that association?

A. A person named Carmine Franco.

In excerpts of tape recordings made by Kelly of conversations on June 9, 1977, the grand jury heard Coppolla tell Ricci and Franco of the need to obtain an agreement not to compete from the Fiore brothers, the individuals to whom defendants wanted Tomae to sell his route. As Coppolla noted, "[a]t least with these kids I gotts [sic] ask for an agreement that they're not gonna rob each others [sic] work. You know." ⁴ The grand jury also heard Ricci and Franco, during the same conversation, discuss "somebody from the city" who was interested in the Tomae route. According to Kelly's testimony, the discussion of that "somebody" revealed that he was coming for "permission to buy." ⁵

Additionally, the grand jury heard excerpts from conversations that occurred on June 8, 1977. It heard Coppolla remark to Ricci and Kelly about an offer to purchase a member's route: "And let them [Tomae] say no and we'll let them go do something better and we'll take the [expletive] big stop off them and let him go see who he [expletive] want then. Ya know." It also heard Fiumara's remark that "[i]f they [Tomae] don't sell it they're gonna be a lot of trouble ... Franco will take the stops from him. Take those two big stops right away."

Finally, the grand jury heard Coppolla's appraisal of the Tomae situation. Coppolla suggested that everyone knew Tomae joined the Association because "[he] knew he couldn't sell it." He then noted that "[y]a know, when you sell a business like this, there's other people involved there. That wise guys are involved." ⁶

II

Defendants do not challenge the evidence presented to the grand jury regarding their participation in the Tomae transaction. Instead, they argue that such participation does not constitute a conspiracy to violate the antitrust laws of this State, but is merely evidence of an unrelated alleged conspiracy to extort money from a member of the Association who was attempting to sell his garbage business.

Accordingly, defendants filed a motion to dismiss the indictment because it charged multiple conspiracies in one count in violation of the due process principles enumerated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Alternatively, defendants sought to strike from the indictment certain language describing the Tomae transaction on the grounds that it evidenced a separate and distinct conspiracy from the alleged antitrust conspiracy. The State, however, argued that the main conspiratorial goal alleged in the conspiracy indictment was the monopolization of the garbage industry to create an artificial inflation of the value of the businesses belonging to members of the Association, and that the Tomae transaction was an overt activity engaged in by these defendants to reach that goal. The indictment, therefore, should not be dismissed.

The trial court ruled that the indictment charged two separate conspiracies: one to restrain trade, and the other to extort money. Nevertheless, the court refused to dismiss the indictment. Instead, it struck the langauge concerning the Tomae transaction, the alleged second conspiracy. Immediately thereafter, Ricci moved for an order dismissing the indictment against him on the grounds that the only evidence pertaining to him was his participation in the Tomae transaction. The trial court granted Ricci's motion and the State appealed. Thereafter, Fiumara and Coppolla each successfully moved to dismiss the indictments against them on the same grounds.

Because the dismissal orders were signed 12 months apart, the State brought two separate appeals--one in the Ricci case and one in the Fiumara case. The Appellate Division in the Ricci case affirmed the trial court's dismissal of the indictment, one judge dissenting. The Appellate...