State v. Taccetta

• Decision Date: 23 May 1997
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Martin TACCETTA, Defendant-Appellant. (Two Cases)
• Court: New Jersey Superior Court — Appellate Division

Page 227

301 N.J.Super. 227

693 A.2d 1229

STATE of New Jersey, Plaintiff-Respondent, v. Martin TACCETTA, Defendant-Appellant. (Two Cases)

Superior Court of New Jersey Appellate Division.

Argued Feb. 4, 1997.

Decided May 23, 1997.

John J. Gibbons, Newark, for appellant Martin Taccetta (Crummy, Del Deo, Dolan, Griffinger & Vecchione, and Ruhnke & Barrett, attorneys; Mr. Gibbons, Lawrence S. Lustberg, and David A. Ruhnke, Montclair, on the brief)

Michael Critchley, West Orange, for appellant Michael Taccetta.

Robert E. Bonpietro, Deputy Attorney General, argued the cause for respondent (Peter Verniero, Attorney General, attorney; Mr. Bonpietro, of counsel and on the brief).

Before Judges MICHELS, MUIR, Jr., and KLEINER.

The opinion of the court was delivered by

MUIR, Jr., J.A.D.

A State Grand Jury indictment is the legal genesis for these appeals by defendants Martin and Michael Taccetta which we have consolidated for opinion purposes. The factual genesis is the A State Grand Jury indicted the Taccetta brothers, Anthony Accetturo, Thomas Ricciardi, Michael Ryan, and Joseph Sodano in a seven-count indictment. The indictment charged: Accetturo, the Taccettas, Ricciardi, Ryan, and Sodano with second-degree racketeering conspiracy (count one, N.J.S.A. 2C:41-2b, c); Accetturo, Ricciardi, and Martin Taccetta with first-degree racketeering (count two, N.J.S.A. 2C:41-2c; 2C:2-6); Accetturo with second-degree leader of organized crime (count three, N.J.S.A. 2C:41-1; 2C:5-2g); Ricciardi, Martin Taccetta, and Ryan with first-degree murder (count four, N.J.S.A. 2C:11-3a(1), (2); 2C:2-6); Accetturo, Michael Taccetta, Martin Taccetta, and Ricciardi with two counts of second-degree theft by extortion (counts five and six, N.J.S.A. 2C:20-5; 2C:2-6); and Accetturo and Ricciardi with second-degree theft by extortion (count seven, N.J.S.A. 2C:20-5; 2C:2-6).

Taccetta brothers' participation in an organized criminal enterprise known as La Cosa Nostra (LCN), literally "Our Thing."

All defendants except Sodano were tried together before a jury. On August 13, 1993, the jury found Martin Taccetta guilty of counts one, two, five, and six, consisting of the racketeering conspiracy supported by two predicate acts, as well as the substantive offenses of racketeering and extortions of Pasquale and Vincent Storino, but acquitted Martin of the murder of Vincent Craporatta. The jury also found Michael Taccetta guilty of counts one, five, and six. Although not relevant to these appeals, the jury found Accetturo and Ricciardi guilty on all counts but acquitted Ryan on all counts.

The trial court found Martin Taccetta eligible for an extended term sentence both as a persistent offender and as a professional criminal. See N.J.S.A. 2C:44-3a, b. The court, after merging count one into count two, sentenced Martin as follows: life with 25 years parole ineligibility on count two; 10 years with 5 years parole ineligibility on count five consecutive to the term on count two; and 10 years with 5 years parole ineligibility on count six concurrent with count five but consecutive to count two. The The court similarly found Michael Taccetta eligible for an extended term and sentenced him to 20 years with 10 years parole ineligibility on count one, 10 years with 5 years parole ineligibility on count five consecutive to the sentence on count one; and 10 years with 5 years parole ineligibility on count six to run consecutive to the sentence on count five. The court also imposed required VCCB penalties.

court also imposed required Violent Crimes Compensation Board (VCCB) penalties.

Both Taccettas appeal. Martin contends:

POINT I

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MARTIN TACCETTA'S CONVICTION FOR EXTORTION.

POINT II

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MARTIN TACCETTA'S CONVICTION FOR RACKETEERING.

A. The Statute.

B. There was Insufficient Evidence Of Two Incidents Of Racketeering Conduct.

C. The State Failed To Show The Required Continuity to Establish A Pattern Of Racketeering Activity.

1. The Requirement of Continuity Under New Jersey Law.

2. The Failure to Prove Continuity.

POINT III

THE TRIAL COURT ERRED IN ADMITTING A CRITICAL TAPE RECORDING OF A CONVERSATION BETWEEN JOHN JANUSKA AND JOSEPH SODANO, WHICH CONVERSATION WAS HEARSAY NOT IN FURTHERANCE OF A CONSPIRACY.

POINT IV

THE PROSECUTOR'S SUMMATION, DURING WHICH HE REPEATEDLY DENIGRATED DEFENSE COUNSEL, INFORMED THE JURY THIS WAS A CASE OF "US" AGAINST "THEM" IN WHICH IT WAS "UP TO YOU," EXCEEDED ALL BOUNDS OF RESPONSIBLE ADVOCACY AND DENIED APPELLANT THE FAIR TRIAL GUARANTEES OF THE STATE AND FEDERAL CONSTITUTIONS.

POINT V

APPELLANT TACCETTA SHOULD HAVE BEEN SENTENCED AS A SECOND DEGREE OFFENDER ON COUNT TWO, AS HIS OFFENSE DID NOT INVOLVE VIOLENCE OR THE USE OF FIREARMS.

Michael contends:

POINT ONE:

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MICHAEL TACCETTA'S CONVICTIONS ON COUNTS FIVE AND SIX FOR EXTORTION.

POINT TWO:

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN MICHAEL TACCETTA'S CONVICTION FOR CONSPIRACY TO COMMIT RACKETEERING.

POINT THREE:

THE TRIAL COURT ERRED IN ADMITTING A CRITICAL TAPE RECORDING OF A CONVERSATION BETWEEN JOHN JANUSKA AND JOSEPH SODANO, WHICH CONVERSATION WAS HEARSAY AND NOT IN FURTHERANCE OF A CONSPIRACY.

POINT FOUR:

THE PROSECUTOR'S SUMMATION, DURING WHICH HE REPEATEDLY DENIGRATED DEFENSE COUNSEL, INFORMED THE JURY THIS WAS A CASE OF "US" AGAINST "THEM" IN WHICH IT WAS "UP TO YOU," EXCEEDED ALL BOUNDS OF RESPONSIBLE ADVOCACY AND DENIED APPELLANT THE FAIR TRIAL GUARANTEES OF BOTH THE STATE AND FEDERAL CONSTITUTIONS.

POINT FIVE:

FOR PURPOSES OF SENTENCING, THE TRIAL COURT SHOULD HAVE MERGED THE RACKETEERING CONSPIRACY AND THE SUBSTANTIVE OFFENSES OF EXTORTION.

A. The lack of evidence that the promotion of gambling was an object of the conspiracy.

B. Even assuming the gambling predicate was properly found, the extortions should have been merged, for sentencing purposes, with the conspiracy.

POINT SIX:

FOR SENTENCING PURPOSES, THE TRIAL COURT SHOULD NOT HAVE TREATED THE STORINO EXTORTION AS SEPARATE OFFENSES AND SHOULD NOT HAVE IMPOSED CONSECUTIVE SENTENCES.

Michael, on points one through four, adopts by reference the arguments set forth in Martin's brief.

We reject all the contentions. Accordingly, we affirm both judgments of conviction. All contentions raised but not specifically addressed in this opinion are considered to be without merit. R. 2:11-3(e)(2).

I.

The State presented a plethora of evidence. Nonetheless, we limit our review to those facts relevant to resolution of the appeals and certain background facts essential to an understanding of the scope of the complex criminal enterprises involved.

The State produced the testimony of two members of LCN, Phillip Leonetti, a member of the Bruno-Scarfo family, and Alphonse D'Arco, a member of the Lucchese family, to explain LCN's hierarchical structure, its purposes, the scope of its business, its methodology, and the terminology used by its members.

Nationally, the LCN is governed by a commission. The commission supervises the overall operation of the several families. There are five families in the Greater New York area, a Philadelphia family, and a Chicago family. In this instance, we are concerned only with the New York-based Lucchese family and the Philadelphia-based Bruno-Scarfo family and their continuing efforts to control criminal ventures in New Jersey, New York, and Pennsylvania.

Each LCN family has the same structure. In order of apparent rank, there is the family boss, the underboss, and the consigliere or counselor. Beneath that triumvirate are captains or capos, who manage crews made up of soldiers. The families also have large numbers of associates who are subject to family direction and control. The chain of command is from the boss down the line through the capos to the soldiers and associates.

All but associates are "made" or initiated members of LCN families. A member and the activities by which he makes money for the crime family are referred to as "with" his crime family, and those ventures, mainly illegal, must be put "on record" with the member's capo, a process by which the member informs the capo of his activities, gets approval from the upper echelons of the family, and arranges for the funds received from the operations to be paid to the family.

The crime family provides protection for all its members operating within its geographic region, recognized by other organized crime families, as within the control of a particular family. Disputes between families are normally resolved by a "sit down," a method of dispute resolution. Disputes with anyone who is not a member of the LCN are settled with threats and, if necessary, violence, which often includes murder. A member's violation of family rules is punishable by death. Death is the only means of leaving membership.

The LCN is in the business of making money according to the testifying members. It does so through bookmaking, loan sharking, extortion, murder, kidnapping, theft, and promoting gambling. The extortion is of both legitimate and illegitimate businesses. Leonetti testified his crime family extorted money from loan sharks, bookmakers, and drug dealers. The LCN promotes gambling by purchasing video slot machines and placing them in taverns, restaurants, and other businesses. It shares the net weekly revenue from the machines with the business owners. The families also "share" in the profits of slot machine manufacturers. It is the Lucchese family's extortion of principals of a manufacturer of slot machines, agreed to by the Bruno-Scarfo family, that gave rise to the Taccetta brothers' convictions.

SMS was a business that manufactured Joker Poker video slot machines for illegal gambling in taverns, restaurants, and other establishments. Both the Lucchese family and the Bruno-Scarfo family used the Joker Poker machines. The principles of SMS were Pat Storino, Sal Mirando, and Pat's brother, Vincent...