State v. MerlinoState v. Merlino
This matter poses the question, apparently not heretofore considered, of whether the State may introduce evidence tending to establish that “there is a substantial likelihood that defendant is involved in organized criminal activity,”
Defendant was convicted in a nonjury trial of attempting an unlawful gift to a public servant to influence the performance of his official duties,
Defendant more or less conceded the solicitations, but argued in defense that his state of intoxication at the time was such as to negate the mental state required for the commission of either of the offenses.3
The State brings this motion seeking a determination that there is a substantial likelihood that defendant is involved in organized criminal activity, so that this fact may be considered an “aggravating circumstance” for sentencing purposes. The State concedes that the offenses of which defendant has been convicted are “unrelated to his organized criminal activity.” Its proffer is that law enforcement personnel and others will testify that defendant holds membership in an “organized crime family” operating in the Philadelphia and Atlantic City areas. This testimony apparently will include the results of electronic surveillance, the association of defendant with other “crime figures,” and testimony of “informant information” regarding defendant‘s “membership and rank” within the organized crime family. The State asserts that a sentencing court may consider evidence that a defendant is connected with organized criminal activity even though the underlying convictions are not related to that activity, and that the proper focus of the reference to “organized criminal activity” is upon the offender rather than the offense.
On the question of the applicable burden of proof, the State suggests that the plain language of the statute contemplates a discretionary weighing of factors in the determination of a “substantial likelihood” of involvement in organized criminal activity. The State relies upon the absence of any evidentiary standard in the statute in reaching the conclusion that the State “need only show it is more likely than not that there are organized crime ties,” and that the court should consider this evidence if reliable and credible without reference to any specific burden of proof.
Defendant argues that a criminal statute must be construed narrowly and if the language is capable of more than one interpretation, the court must adopt the interpretation that limits rather than expands the plain meaning of the words. Defendant insists that the proper focus of this aggravating circumstance is upon the offense, not the offender, and that the State‘s concession that the offense is not related to organized criminal activity precludes any consideration of this circumstance by the court.
If the State is permitted to attempt to establish the aggravating circumstance, defendant argues that the State has the burden of proving its case by at least clear and convincing evidence, and possibly beyond a reasonable doubt. Lastly, defendant asserts that the rules of evidence should be strictly applicable at such a hearing without waiver or relaxation.
The importance of the determination the court is asked to make is immediately apparent from an analysis of the statutory sentencing scheme and an examination of the record in this case. In determining an appropriate sentence the court
The court finds that the only aggravating factors established by the evidence at trial and from a review of the pre-sentence report are that defendant committed the offense against a police officer performing his duties,
It is important to observe that the statute requires the court to impose a sentence of imprisonment for a second degree
Considering the nature and circumstances of the offense and the impact and relative importance of the two aggravating factors and six mitigating factors, the court concludes that the existence or nonexistence of “a substantial likelihood that the defendant is involved in organized criminal activity” is an important consideration in reaching an appropriate sentence. Such an aggravating factor, if established, could well preclude the court from being clearly convinced that the mitigating factors substantially outweigh the aggravating factors, thereby precluding sentencing of the second degree offense as a third degree offense.
For these reasons a determination of whether or not therе is a substantial likelihood that defendant is involved in organized criminal activity is an inescapable part of the determination of the appropriate sentence if, as the State suggests, this aggravating factor applies to the offender rather than to the offense.
I. Applicability of the Aggravating Circumstance
The legislative history of the Code of Criminal Justice, the changes intended in the sentencing process by the enactment of the Code, and long-standing guidelines in fixing appropriate
The bills ultimately enacted as the Code of Criminal Justice6 were introduced in January 1978.7 As introduced, these bills included the same languаge found in the Model Penal Code regarding the aggravating circumstance. After the bill was approved by the Senate, the General Assembly revised the language to its present form and the bill was so enacted into law. No record exists to document the reason for the change in language by the Judiciary Committee of the General Assembly. There were, of course, amendments to other sections of the bill, and § 44-1 itself underwent considerable additional alteration during the legislative process. The four original aggravating circumstances were revised and supplemented both in the Senate
The legislative history establishes that, had it chosen to do so, the Legislature could have drafted this provisiоn to apply unequivocally to the offense and to require a showing that the offense itself is characteristic of or involved with organized criminal activity. The change in the legislative language suggests, if it does not compel, the conclusion that the focus of the link to organized criminal activity shifted from the offense to the offender when the language was changed. It would be difficult to ascribe a different purpose to the amendment, particularly in view of the specificity of the original draft.
This result is emphasized by a comparison of the language of
This interpretation is all the more compelling in light of the legislative history оf
The careful and deliberate changes in the legislative evolution of §§ 2C:44-1(a)(5) and 2C:44-3(b) demonstrate that the focus intended by the former is on the offender and the focus of the latter is on the offense. In simultaneously drafting the “analogous” provisions of these two sections the Legislature could have used the same or substantially the same language, as indeed it did in §§ 2C:44-1(a)(7) and 2C:44-3(c) relating to the concept of committing or procuring the commission of an offense as consideration for anything of pecuniary value. The significant difference in the language finally adopted, particularly in view of the rejection of the original language of § 44-1(a) suggested in the Model Penal Code, constitutes a strong basis for the conclusion that the words of
The principal change effected by the Code of Criminal Justice in the area of sentencing is to make the severity of the crime the single most important factor in the sentencing process, rather than the pre-Code approach of considering the severity of the offense merely as one factor among many to consider at sentencing. State v. Hodge, 95 N.J. 369 (1984). Yet neither the defendant nor his offensе should be fictionalized for purposes of sentencing. The “whole person,” not censored versions of his personal history or selected facets of his character, is to be addressed in fashioning an appropriate sentence. State v. Marzolf, 79 N.J. 167, 180 (1979). While the
The Code of Criminal Justice is not the only recent legislative action on the subject of organized criminal activity. In §§ 124-130 of the Casino Control Act,
Against this background, no real doubt as to the meaning of
II. Appropriate Burden of Proof
Neither the applicable rules, R. 3:21-2, 3:21-4, the commentary thereto, nor any reported New Jersey decisions specifically address the question of the appropriate burden of proof applicable to the sentencing hearing. Some guidance, however, is afforded by the recent decision in United States v. Fatico, 603 F.2d 1053 (2d Cir.1979) (Fatico II). The procedural history of that case as outlined by the Court of Appeals should be set forth in full.
Precipitating the first appeal, which was by the Government, was Judge Weinstein‘s holding that, although membership in and ties to organized crime are material facts to be considered in sentencing, he would exclude as hearsay involving Due Process and Confrontation Clause limitations any evidence presented through an agent of the Federal Bureau of Investigation (FBI) from a reliable but confidential informer who was allegedly a member of the same New York organized crime “family.” United States v. Fatico, 441 F. Supp. 1285 (E.D.N.Y. 1977). This court agreed that “[t]he Due Process Clause is plainly implicated at sentencing,” United States v. Fatico, 579 F.2d 707, 711 (2d Cir.1978) (Fatico I), but noted generally that it did not necessarily follow that Due Process required all the procedural safeguards and strict evidentiary limitations of the criminal trial itself. And we held specifically that Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), permitting reliance on hearsay information even though the defendant could not confront or cross-examine the witnesses who supplied the information, was still viable
despite Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), which held that Due Process guaranteed against the imposition of the death penalty on the basis of information not disclosed at all. Thus we stated that: Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. Thus, the trial court erred in excluding the agent‘s testimony about the informer‘s declaration once the Government represented that it would produce the specified corroboration.
579 F.2d at 713 (footnotes omitted). Accordingly, we reversed the district court‘s exclusion of the evidence and remanded the cause for sentencing proceedings, but at the same time specifically stated that “the weight given to the informer‘s declarations and the assessment of credibility are matters for the sentencing court.” Id. at 713 n. 14.
On remand, the district court held an evidentiary sentencing hearing at which the Government called ten witnesses, seven of whom were law enforcement agents (four with the FBI). The law enforcement officers’ testimony indicated that seventeen different informers had told them that appellant and his brother were long-time, active members of the Gambino family. The Gambino family is one of the five active organized crime families operating in the greater New York City metropolitan area. There was also information to the effect that appellant was a “made” member, that is, one who has officially been initiated as a full-fledged member of the family, not born into it but not merely associated with it. Largely on the strength of this testimony, which the court found “highly probative,” United States v. Fatico, 458 F. Supp. 388, 412 (E.D.N.Y. 1978), the court, after numerous holdings of law, said: “While we must remain dubious of any conclusions based upon hearsay, the Government‘s proof here meets the rigorous burden of `clear, unequivocal and convincing evidence.’ The probability is at least 80% that defendant is an active member of an organized crime family.” Id. [Fatico II, 603 F.2d at 1054-1056 (footnotes omitted).]
On the second appeal Fatico argued, inter alia, that the proper burden of proof at the hearing was upon the Government and was proof “beyond a reasonable doubt.” In affirming the trial court the Court of Appeals said:
... we do not agree that the burden of proof on the Government should be “beyond a reasonable doubt.” Such a standard would turn sentencing hearings into second trials. As Judge Friendly said of sentencing hearings in Hollis v. Smith, 571 F.2d 685, 693 (2d Cir.1978), although expressly noting Judge Weinstein‘s opinion leading to Fatico I, 441 F. Supp. 1285, “[t]here is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding.” [Fatico II, 603 F.2d at 1057.]
The ability of trained judges to exclude from their consideration irrelevant or improper evidence and materials which have come to their attention and to so certify for appellate purposes, has been recognized throughout our law. We have no reason to doubt that it may properly be applied in the field of sentencing.
The sentencing hearing, as we have outlined it, will fairly protect the rights of the defendant as well as the State and, conducted in commonsensible and flexible fashion, will not entail any undue delays or undue burdens on the judicial system. The probation report, when accurate and adequate, will as a practical matter generally remain unchallenged. Even where it is challenged, inquiry may quickly disclose that the challenge relates to matter of insufficient importance to warrant the taking of proof and, in such event, the trial judge may disregard the challenged matter and so declare. It is only in the occasional instance where the challenged matter is crucial to the sentencing process that any further step will be called for but, clearly, here the risk of injustice is far too great to proceed without proof. There may be additional incidental procedural questions but they can readily be dealt with as they arise from time to time. [Kunz, 55 N.J. at 145-6.]
The emphasis in Kunz on fairness and flexibility supports the conclusion that some intermediate standard of proof, more than a mere preponderance and less than “beyond a reasonable doubt,” would be appropriate at a sentencing hearing. The “clear and convincing evidence” standard is well known in our law, and generally applies in cases “that involve circumstances or issues that are so unusual or difficult that proof by a lower standard will not serve to generate confidence in the ultimate factual determination.” In re Polk License Revocation, 90 N.J. 550, 568 (1982). This standard also applies in disciplinary or disbarment proceedings involving attorneys, because of the “serious consequences” resulting from such proceedings. In re Sears, 71 N.J. 175, 197 (1976); see also In re Pennica, 36 N.J. 401 (1962); In re Rachmiel, 90 N.J. 646, 661 (1982).
Nor is this standard unknown to the criminal law.
The “clear and convincing evidence” standard is a familiar and workable concept that does justice both to fundamental principles of fairness and due process and to the necessary flexibility inherent in a sentencing procedure. Accordingly the State will bear the burden of establishing by clear and convincing evidence that there is a substantial likelihood that defendant is involved with organized criminal activity.
III. Relaxation of the Rules of Evidence
There is no constitutional impediment to the consideration of any reliable information presented in the sentencing procedure. In construing a federal statute,12 which provides “no limitation ... on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider,” several courts have approved the use of responsible unsworn or “out-of-court” information, providing that the defendant is given the opportunity to review and meet any factual assertions that the court will consider. Moore v. United States, 571 F.2d 179, 182 (3d. Cir.1978) (“This case is controlled not by rules of procedure, but rather by principles of fairness articulated in cases dealing with the due process limitation on
The seminal decision in this area is Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Upholding the procedural policy of the New York courts, which permitted the trial judge to consider at sentencing information inadmissible under the rules of evidence, the court noted:
Tribunals passing on the guilt of a defendant always have been hedged by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and type of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law ...
In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rulеs rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession оf the fullest information possible concerning the defendant‘s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. [Williams, 337 U.S. at 246-247, 69 S.Ct. at 1082-1083, 93 L.Ed. at 1341-1342 (footnotes omitted).]
Concepts individualizing punishment in modern society have made it all the more necessary that the restrictive rules of evidence applicable to a trial should not deny a sentencing judge the opportunity to obtain the information required in his
Subject to рrinciples of fundamental fairness and the requirement that defendant be afforded the opportunity to be heard and to meet any factual allegations that are presented against him, there is no need to restrict the State‘s presentation at the sentencing hearing to testimony admissible under the rules of evidence. The court may consider any evidence which, from its content, nature and manner of presentation is inherently reliable, trustworthy and credible. The State shall file with the court and with defendant a formal proffer as to the witnesses it intends to call, the substance of their testimony and the nature and content of any nontеstimonial information the State proposes to adduce. Defendant will be afforded a reasonable period of time to review the proffer prior to the hearing and, of course, the opportunity to present appropriate evidence.
Notes
(1) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;
(2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mеntal power of resistance;
(3) The risk that the defendant will commit another offense;
(4) A lesser sentence will depreciate the seriousness of the defendant‘s offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;
(5) There is a substantial likelihood that the defendant is involved in organized criminal activity;
(6) The extent of the defendant‘s prior criminal record and the seriousness of the offenses of which he has been convicted;
(7) The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;
(8) The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority, or the defendant committed the offense because of the status of the victim as a public servant;
(9) The need for deterring the defendant and others from violating the law.