State v. Seaman

Citation274 A.2d 810,114 N.J.Super. 19
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Joseph J. SEAMAN, Defendant-Appellant.
Decision Date09 March 1971
CourtNew Jersey Superior Court – Appellate Division

Walter D. Van Riper, Newark, for appellant (Van Riper, Belmont & Villanueva, Newark, attorneys; Frederic C. Ritger, Jr., Newark, on the brief).

David S. Baime, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges GOLDMANN, LEONARD and MOUNTAIN.

The opinion of the court was delivered by

LEONARD, J.A.D.

The Essex County grand jury returned four indictments against defendant charging him with the following: (1) No. 863--five counts of misconduct in office (N.J.S.A. 2A:85--1); (2) No. 864--conspiracy with one Stanley Broskie to violate the statutes prohibiting misconduct in office and extortion (N.J.S.A. 2A:98--1); (3) No. 865--five counts of bribery (N.J.S.A. 2A:85--1) and (4) No. 866--five counts of extortion (N.J.S.A. 2A:105--1).

Following a jury trial defendant was convicted of all offenses except the bribery charge which was dismissed by the trial court at the end of the State's case. Defendant received a total sentence of 1--3 years in State Prison and a fine of $5000.

Defendant, a certified public accountant since 1928 and an attorney since 1934, was appointed in 1937 to the State Board of Certified Public Accountants (State Board). He became its secretary in 1938 and served in that position until 1968.

The State Board was responsible for preparing, administering and grading the C.P.A. examinations. See N.J.S.A. 45:2A--1 et seq. Although the American Institute of Certified Public Accountants actually prepared the examinations and preliminarily graded the papers, its marks were purely advisory, final responsibility for grades resting with the State Board. N.J.S.A. 45:2A--7. The grades determined by the Institute usually were accepted in the first instance by the State Board and it notified candidates that they passed or failed. However, the grades of a number of those who failed would be reviewed by the State Board and in some cases the Institute grades were charged. The authority for reviewing and regrading these papers was delegated to defendant, he having exclusive jurisdiction and discretion in this respect.

The present charges stem from defendant's alleged improper conduct with regard to his regarding of the examination papers of Francis Cerny, Robert Pacca, George VanHook, Sol Glick, Sidney Stern and Gerrold Berr. Each of these individuals had been students in a cram or review course conducted by Stanley Broskie, a C.P.A. with offices in East Orange, New Jersey. Likewise, each had failed all or parts of the C.P.A. examination. (The examination consisted of four sections: Law, auditing, theory and problems.)

The State contended that each of the named candidates was approached by Broskie who told them that their papers would be regraded if they would pay him a certain sum of money and take an additional sum to defendant at his office. They were to talk to defendant generally about accounting, the examination and their personal situation, then hand him an envelope, usually containing $1000 in small bills. This money was to be for either 'his favorite charity' or the Joseph J. Seaman Scholarship Fund, the latter being a fund which defendant had begun (but did not administer) with the proceeds of a testimonial dinner previously given in his honor by the New Jersey Society of C.P.A.'s. No receipts were ever issued for these 'contributions.'

Incidentally, Broskie was indicted on the conspiracy, bribery and extortion charges along with defendant, but pleaded guilty to the conspiracy charge before defendant's trial began and fined $1000. The other charges were held open.

Robert Pacca (listed as a co-conspirator on the conspiracy indictment, but not included as a defendant) testified that he had taken the C.P.A. examination on several occasions from November 1963 to May 1967 but never passed any of the four portions. After taking Broskie's cram course, Pacca took the November 1967 examination. Before the grades were officially announced, Broskie called Pacca to tell him he had passed two parts. Pacca then went to see Broskie, and Broskie told him he 'could get (him) passed' on the other portions of the examination if Pacca were willing to 'make a contribution to the scholarship fund' at a total cost of $1500. Pacca agreed to the scheme about ten days later. Approximately one month thereafter Pacca received a letter from the State Board saying he had passed all four parts of the examination. A week later, at Broskie's direction, he brought Broskie an envelope with $500 in cash and then made an appointment to see Seaman, went to his office in Perth Amboy and left $1000 in small bills on his desk. Seaman did not open the envelope in Pacca's presence, give him a receipt, or send a letter of acknowledgment, as he promised he would. Pacca did not deduct the $1000 as a contribution to charity on his income tax return.

On cross-examination Pacca admitted he knew the State Board had the right to regrade the examination papers. He also said that he asked Broskie if he could pay him by check, but Broskie emphasized he should bring cash.

Similar testimony was adduced as to Francis Cerny, George VanHook, Gerrold Berr and Sol Glick, four other co-conspirators listed in the conspiracy indictment, and as to Sidney Stern, all five previously unsuccessful examination candidates. Cerny testified that he had originally brought Broskie envelopes with blank checks. Broskie said they were unacceptable so Cerny cashed the checks and gave both Broskie and Seaman cash in envelopes. VanHook said that when he went to Seaman he gave him the envelope, saying, 'I want to contribute the money to the scholarship fund.' Berr said Broskie told him, 'It will cost you two big ones.' Glick told Seaman the money was 'for (his) favorite charity.' Stern said Seaman picked up his envelope and began, on his own, telling Stern about the laudable aims of the scholarship fund. None of these men was given a receipt for his contribution and none took the contribution as a deduction on his income tax return.

John Kortbawi, an agent for Internal Revenue Service, testified that after he had taken the fourth part of the examination--he had earlier passed the first three parts--he received a letter from Broskie requesting an appointment. When Kortbawi got to Broskie's office, Broskie told him he 'didn't quite make it.' Kortbawi told Broskie he was an I.R.S. agent, to which Broskie replied, 'Wow, you're hot stuff. If I had known that, I wouldn't have called you.' However, after ascertaining that Kortbawi did want to become certified, Broskie said, 'If I'm going to give you something that you are going to have to pay for, you are going to have to get something back in exchange for it. * * * (Y)ou're a big boy. You know what the score is in this world.' He then told Kortbawi that he would have to make a contribution to the fund in order to pass. Kortbawi testified that Broskie said of Seaman, 'As independently wealthy and rich as this man is, he still likes to get a little money on the side.' Kortbawi said he reported the incident to a group supervisor and then had an electronic device attached to his telephone. Broskie and Kortbawi had several subsequent conversations pertaining to the amount of the 'contribution' that had to be made, and Kortbawi's most recent failure on the examination, all of which were taped and played for the jury. In another conversation Broskie told Kortbawi that he 'just got off the phone * * * with the big cheese,' in reference to the notification that Kortbawi was soon to get that he passed the examination. Kortbawi said he had visited Seaman earlier to discuss the examination and that he told Seaman at that time he would consider it 'an honor' to contribute to the scholarship fund. At that time Seaman indicated to Kortbawi that he did not want there to be any connection between a contribution and the examination.

Defendant took the stand on his own behalf and denied participating in any scheme with Broskie or having improperly accepted payments in his official capacity as Board secretary. He said he recommended Cerny and the others for certification because of the quality of their papers, not because of the contributions. He considered the monies as payments to the scholarship fund, totally unrelated to the regrading. However, he admitted that 22 of the 23 accountants who contributed to the fund had been regraded. Seaman said that on June 3, 1968 he sent a $10,000 check from his personal account to the scholarship fund; this contribution included the contributions made by the successful candidates, although their names were not mentioned in Seaman's letter of transmittal.

In addition to a host of fact witnesses, defendant produced an impressive selection of prominent character witnesses.

Defendant first contends that the introduction into evidence of the tapes of the various Broskie-Kortbawi conversations was prejudicial error because this procedure denied him the constitutional right of confrontation under the Sixth and Fourteenth Amendments. He asserts that all of Broskie's statements on th tape were made out of defendant's presence and were intended to involve defendant, without his knowledge.

Although the United States Supreme Court has recognized that the Sixth Amendment's right of an accused to confront the witness against him is a fundamental right made obligatory on the States by the Fourteenth Amendment, the court, nevertheless, in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), held:

It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.

'* * * The issue before us is the considerably narrower one of whether a defendant's...

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