State v. Sparano

• Decision Date: 08 July 1991
• Citation: 592 A.2d 608,249 N.J.Super. 411
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard SPARANO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 411

249 N.J.Super. 411

592 A.2d 608

STATE of New Jersey, Plaintiff-Respondent, v. Richard SPARANO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 27, 1991.

Decided July 8, 1991.

Mark Catanzaro, Mount Holly, for appellant (Jerome A. Ballarotto, attorney, Trenton).

Jay Hindman, Deputy Atty. Gen., for respondent (Robert J. Del Tufo, Atty. Gen., attorney; Jay Hindman, of counsel and on the brief).

Before Judges LONG, R.S. COHEN and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant pled guilty to conspiracy to manufacture and distribute cocaine and methamphetamine, N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-24; racketeering, N.J.S.A. 2C:41-2c; and income tax evasion, N.J.S.A. 54A:9-15(a). Pursuant to the negotiated disposition, thirteen other counts were to be dismissed, a maximum custodial recommendation was made by the Attorney General, defendant agreed to testify against others, and the parties advised the plea judge that if they could not agree on the amount of forfeiture pursuant to the racketeering conviction (see N.J.S.A. 2C:41-3b), the "forfeiture issue would be brought before a jury." ¹

At the time of plea, defendant admitted his involvement with his brother Dennis and others "in the illegal manufacture and distribution of CDS" and "particularly methamphetamine during the time period as stated in the indictment, roughly 1983 through 1987." He further admitted "the ordering of certain precursors for the manufacture of methamphetamine" including participation in the purchase of "[a]pproximately five gallons" of P2P and the purchases of P2P from his brother Dennis. He further admitted manufacture and distribution with others for profit and income tax evasion between January 1, 1984 and April 15, 1985.

The parties were unable to reach an agreement regarding the amount of forfeiture, and that matter was ultimately tried to a jury. The jury returned a special verdict, as required by N.J.S.A. 2C:41-3f, finding that defendant had "an interest, directly or indirectly," in the marital residence at 8 Kristin Way, Hamilton Township, a condominium unit in the Grandville Arms, 516 Silver Court, Hamilton Township, and $298,917 in currency, and that his interest in each "derive[d], c[a]me from, or result[ed] from proceeds, monies or cash obtained or realized directly or indirectly as a result of [his] admitted violation of the New Jersey racketeering law." The jury further concluded that "[a] hundred percent" of each of these items should be forfeited. ²

Consistent with the negotiated plea, defendant was subsequently sentenced to concurrent ten-year sentences on counts one and two, with a four-year period of parole ineligibility on count one. On count three, a term of eighteen months was imposed, to be served consecutively with the sentences on counts one and two. ³ No final judgment of forfeiture pursuant to N.J.S.A. 2C:41-3c is included in the record, although an order restraining the sale, conveyance or disposition of the real properties has been entered. We are told that actual forfeiture has been stayed pending this appeal.

On this appeal, addressed only to the forfeiture issues, defendant argues:

POINT I DEFENSE COUNSEL WAS INEFFECTIVE AND THUS THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS ARTICLE I PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.

POINT II THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT.

POINT III PERMITTING DENNIS SPARANO TO TESTIFY AS AN EXPERT WITNESS WAS PLAIN ERROR.

POINT IV THE TRIAL COURT ERRED IN QUALIFYING AND PERMITTING INVESTIGATOR ANTHONY HIGHAM TO TESTIFY.

POINT V THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT VI THE STATE'S CLOSING ARGUMENT EXCEEDED ALL BOUNDS [OF] PROPRIETY THEREBY PREJUDICING DEFENDANT[']S FUNDAMENTAL RIGHT TO A FAIR TRIAL.

POINT VII THE TRIAL COURT ERRED IN DECLINING TO CHARGE A PRESUMPTION OF NON-FORFEITURE.

POINT VIII THE TRIAL COURT'S CHARGE IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT.

Our review of the record leads us to conclude that these contentions and the arguments in support of them are without merit and do not warrant extended discussion, R. 2:11-3(e)(2), except as noted herein with respect to some aspects of several of the points.

The primary issue in the trial was whether defendant's interest in the $298,000 cash and the real properties were directly or indirectly derived from his admitted illegal drug business. The State endeavored to prove that defendant's expenditures during the period covered by the indictment far exceeded his known legitimate sources of income, while defendant contended that he and his wife, Donna, had generated considerable (although not necessarily reported) cash income from legitimate business ventures. Suffice it to say that there was more than sufficient evidence presented at the eight day trial to permit the finding that defendant's income far exceeded his earnings from legitimate sources.

Anthony Higham, an accountant/investigator with the Narcotics Task Force who did a source and expenditure of funds analysis on the Sparanos "from 1982 through 1987," concluded that they spent "$353,000 ... in excess of known funds" during that period. Defendant did not deny the fact that he failed to report income; in fact, he pled guilty to one count of the indictment to that effect. His defense was that the income he failed to report was from legitimate cash businesses unrelated to his drug activities. However, through counsel, he acknowledged that defendant was "in the narcotics business to make profit. And, in fact, he admitted before this Judge he was." He subsequently argued to the jury that "I said to you there was some profit. And I almost say, unfortunately, it's your burden to find out what that profit is." In other words, while he did not and could not deny that he benefitted economically from his illegal narcotics activities, he emphasized the State's burdens with respect to relating them to the property the State sought to forfeit by virtue of the allegations in count two of the indictment.

The State offered the testimony of defendant's brother, Dennis, who testified regarding his knowledge of defendant's legitimate business ventures, including an arcade game business ("Space Station") and liquor store (Mercer Wines and Liquors) which he concluded were unsuccessful. He testified that defendant "lived good,", "wanted for nothing" and lived off "the drug business." ⁴ Dennis testified that during the relevant period he and others sold P2P to defendant for the manufacture of methamphetamine. Defendant did not testify, although his wife and parents did.

I.

Defendant argues that he was denied effective assistance of counsel because his trial attorney inadequately investigated and prepared the case. Before entering his guilty plea, defendant moved for leave to substitute new counsel for the trial. The court denied the motion, finding that the substitution at the late date when the trial was "very ready to proceed" would result in many "problems" and that the motion was motivated by a desire to postpone the proceedings. ⁵

At the subsequent plea, defendant stated in the plea form that he was satisfied with counsel's representation. The same appeared to be the case during the in-court proceedings. No question about counsel was thereafter raised until four months later when the forfeiture proceeding was scheduled to begin. Defendant again moved for an adjournment in order to allow him to retain new counsel. The judge found that defendant was "again" trying to postpone the case "on the eve of trial." During the trial, defendant retained present counsel to assist with the financial aspects of the case. Present counsel, in fact, cross examined Investigator Higham and conducted the direct examination of Donna Sparano, her friend and her mother. He was also active in discussions and objections regarding the charge and objections to the State's summation.

In order to show ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984) ].

However, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...", 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, and a defendant must show that there is "a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The Strickland standard has been held applicable with respect to claims of ineffective assistance of counsel under our State constitution. State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987).

The record does not support defendant's conclusion that the Strickland standard has been satisfied. Further, some of the judge's statements in denying adjournments suggest findings to the contrary with respect to some of the claims. But we cannot speculate as to the reasons for counsel's conduct or accept without a more fully developed record the State's explanations for that conduct.

Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal. Rather, defe...