State v. Stefanelli

Decision Date28 March 1977
Citation380 A.2d 276,153 N.J.Super. 452
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Nicholas STEFANELLI, Samuel Corsaro and Robert Bisaccia, Defendants-Appellants.
CourtNew Jersey Superior Court — Appellate Division

Thomas Ford, Nutley, designated counsel, for appellants Stefanelli and Corsaro (Stanley C. Van Ness, Public Defender, attorney); Thomas Ford, Nutley, for appellant Bisaccia (Frank H. Reimers, Newark, of counsel and on the brief for all appellants).

Marc J. Friedman, Asst. Prosecutor, for plaintiff-respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges MATTHEWS, SEIDMAN and HORN.

PER CURIAM.

Defendants were each found guilty after a 21/2 week jury trial on three counts of an Essex County Indictment which charged them each with conspiracy to break and enter and conspiracy to commit larceny (N.J.S.A. 2A:98-1); entering with intent to steal (N.J.S.A. 2A:94-1), and larceny of goods the value of which exceeded $500 (N.J.S.A. 2A:119-2). The trial judge sentenced Bisaccia to an aggregate five to seven years, and Corsaro and Stefanelli to an aggregate seven to nine years on the three charges.

Defendants have filed an elaborate brief on appeal, raising numerous arguments for reversal which we treat seriatim.

A brief statement of the facts is necessary for an understanding of the various arguments raised by defendants on this appeal.

The evidence adduced by the State established that one Cicala, as the result of knowledge obtained by him, informed one Festa that a house in North Newark owned by the Brunos would probably be a good place to burglarize because of the probable existence of items of wealth therein. Cicala stated that he knew Festa to be a professional burglar, and it was his hope that if Festa was successful in burglarizing the Bruno home, he would receive a cut in any proceeds. About two weeks after speaking to Festa, Cicala was informed by Festa that the job could not be successful because of the existence of a burglar alarm in the house. That was the end of Cicala's activities with respect to any burglary, and he never received any proceeds of the burglary that ultimately ensued.

Festa testified as to his conversation with Cicala and corroborated the fact that Cicala had nothing further to do with the conspiracy or entry once he had informed him of the existence of the burglar alarm. However, Festa, after checking the house, contacted Stefanelli and one Sperduto about the Bruno house. Subsequently, the State contends, Corsaro, Bisaccia, Sperduto and Stefanelli, bypassed the burglar alarm and entered the Bruno home and stole various items, the value of which exceeded $500. It was through the cooperation of Festa with the State that the three defendants and Sperduto were apprehended. As indicated, Festa testified at trial and was, for all intents and purposes, the State's "star" witness.

I

The Admission of the Testimony of Cicala with Respect to the

Conspiracy

Defendants first contend that the trial judge improperly permitted the testimony of Cicala to be admitted against them. The trial judge relied on Evid. R. 63(9), which permits a statement to be admitted against a party if that statement was made while the party and the declarant were participating in a plan to commit a crime and the statement was made in furtherance of that plan. The State denies that it used this rule as the basis for admission. Rather, it contends that the testimony of Cicala was admissible because he was a coconspirator. We have some doubt as to both the relevancy and the competency of the testimony of Cicala considering the proofs of the State as adduced.

Cicala's conversation with Festa with respect to the Bruno house and its contents took place during June 1971. The conversation between Festa and him with respect to the burglar alarm took place not more than two weeks thereafter. It is undisputed that there were no conversations between Cicala and Festa, or Cicala and any of the defendants between June 1971 and August 1972. The indictment under which these defendants were charged alleged that a conspiracy existed among the parties "between on or about the 15th day of July 1972 and on or about the 1st day of September 1972." Although the indictment was later amended to have a commencement date of the conspiracy in June 1971 (an amendment about which we have grave doubt) the proofs adduced by the State do not tie Cicala to the three defendants in any way. For this reason and without deciding the issue presented to us, we observe that the use of Cicala's testimony was probably an example of prosecutorial "overkill" and is harmless error.

II

The Admission of Assistant Prosecutor Falcone, Detective

Donahue and F.B.I.Agent Wilson regarding other

crimes of Festa.

As indicated, Festa became the principal witness for the State. Festa had a long career of criminal activity both in this State and in Pennsylvania. He was also involved with the federal authorities. Under an arrangement made with the federal authorities and the Essex County Prosecutor's office, Festa was to cooperate in solving numerous crimes in return for which he was to receive lenient treatment with respect to sentencing. In addition, the New Jersey authorities were to appear in Pennsylvania and inform the sentencing court there of Festa's cooperation with authorities here in New Jersey. Anticipating an attack on Festa's credibility on cross-examination, the State produced the assistant prosecutor, a detective and an F.B.I. agent to describe the extent of Festa's cooperation with authorities and the promises that were made to him for such cooperation.

Defendant's first argument, that it was improper for the State to introduce evidence of Festa's criminal activity on direct examination, is without merit. We do not read R. 20 as inhibiting such a procedure. Nor do we find any limitation in this respect in the provisions of N.J.S.A. 2A:81-12. Moreover, we do not regard the testimony of the three witnesses mentioned as an attempt to neutralize the testimony of any witness, or as being supportive of Festa's credibility. It was obviously nothing more than an attempt on the part of the prosecution to establish that an agreement existed between the prosecutor's office and Festa whereby Festa would benefit if he told the truth and provided the prosecutor with information that would implicate others.

Defendants' second argument, that this testimony went to the reliability of Festa's testimony is also without merit. It was the cross-examination of the three witnesses mentioned in which defense counsel, over the objection of the prosecutor indeed, elicited from the witnesses that they believed the testimony that Festa had given. Any error, if it existed, was induced by defense counsel's cross-examination and not by the State.

III

The Admission into Evidence of Cicala's Guilty Plea to the

ConspiracyIndictment

Prior to trial, Cicala pleaded guilty to conspiracy to break and enter the home of Bruno; however, he refused to plead guilty to the indictment in which he was charged...

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5 cases
  • State v. Stefanelli
    • United States
    • United States State Supreme Court (New Jersey)
    • January 10, 1979
  • State v. Johnson
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 22, 1987
    ......22(d)). The testimony that Green was an informant and that the "information was always good" bolstered Green's reputation for veracity in providing accurate and reliable information in the past. Cf. State v. Stefanelli, 153 N.J.Super. 452, 457, 300 A.2d 276 (App.Div.1977), rev'd on oth. grds. 78 N.J. 418, 396 A.2d 1105 (1979) (testimony of law enforcement officials as to cooperation by an accomplice witness not supportive of credibility but the relationship of witness with prosecutor's office) . ......
  • Murphy v. Nogam
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 3, 2018
    ...cross examination by other defendants to which defendant either objected nor moved to strike as unresponsive. See State v. Stefanelli, 153 N.J. Super. 452, 457 (App. Div. 1977), rev'd on other grounds, 78 N.J. 418 (1979).[Fn] Defense summations suggested different things, including that Gor......
  • Bisaccia v. Attorney General of State of N. J., 79-2040
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 12, 1980
    .......         Ladies and gentlemen, isn't your intelligence being insulted by an argument like that? I mean, aren't these defendants talking down to you as if you were a bunch of five year old children? .         Quoted in State v. Stefanelli, 153 N.J.Super. 452, 458, 380 A.2d 276, 279 (1977) (emphasis added). Bisaccia appealed his conviction, along with his co-defendants, to the Appellate Division of the New Jersey Superior Court. In his brief, Bisaccia alleged numerous grounds for reversal, among them the introduction of the Cicala ......
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