State v. SciosciaState v. Scioscia
Defendants Anthony Scioscia and Home and Industrial Disposal Service, along with 55 other individuals and entities, were charged in a single count indictment with violating the New Jersey Antitrust Act,
The charges and resulting convictions emanated out of defendants’ participation in an unlawful customer allocation agreement. As part of the alleged conspiracy, members acquired exclusive “property rights” which permitted them to provide garbage collection service to different locations without competition. The agreement was designed to stifle “predatory”
At trial, the State‘s principal witness against defendants was Jack Bubenick. He testified that he was the owner of Bubenick Brothers Carting and that he had been involved in the garbage collection business for approximately 20 years. Bubenick was a member of the TWA from November 1976 until February 1977, and was aware that the ownership of property rights provided the exclusive authority to service a particular area. In November 1976, Bubenick attended a grievance hearing concerning solid waste disposal contracts which were about to be offered for public bidding by the Township of Westfield. In 1975 and 1976, Bubenick‘s company had been awarded the contract by submitting the lowest bid. Prior to that time, the contract had been shared by Custom Disposal Service and defendant Home and Industrial. Defendant Scioscia was the principal of the latter firm.
At the conclusion of the meeting, Bubenick was informed that his company had lost the grievance. As a result, the witness was directed to submit a complementary bid to insure that Home and Industrial would be awarded the contract. Although the record is somewhat unclear, it appears that defendant, Bubenick, Grillo, Argento, DiNardi and Scaffidi subsequently discussed the arrangements for the proposed bidding. It was agreed that Home and Industrial would submit a bid of two dollars a yard and that Bubenick would offer a higher amount. According to Bubenick, the parties agreed upon these figures following many hours of negotiations during which he, Scioscia, Argento, Scaffidi, Grillo and DiNardi were present.
Bubenick was unhappy with the committee‘s decision and decided to subvert the plan. Bubenick Brothers Carting and Home and Industrial were the only parties to submit bids for the Westfield contract. According to the witness, he deliberately submitted his bid after the 10 o‘clock deadline knowing that it would be rejected and that Westfield would not award the
Defendants advance numerous arguments on appeal. They first contend that a solid waste collector constitutes a public utility and is thus exempt from the monopoly and restraint of trade prohibitions contained in the New Jersey Antitrust Act. They further claim that the evidence presented to the grand jury was insufficient to support the return of an indictment. It is also argued that the trial judge abused his discretion in denying defendants’ motion for a severance. Defendants assert that their voluntary absence from portions of the trial requires reversal of their convictions. Lastly, they claim that the jury‘s verdict was against the weight of the evidence. Our thorough review of the record convinces us that all of defendants’ contentions are devoid of merit. We affirm.
I
We first address questions pertaining to the statutory exemption set forth in
No provisions of this act shall be construed to make illegal ... [t]he activities of any public utility, as defined in [
N.J.S.A.] 48:2-13 to the extent that such activities are subject to the jurisdiction of the Board of Public Utility Commissioners, the Department of Transportation, the Federal Power Commission, the Federal Communications Commission, the Federal Department of Transportation or the Interstate Commerce Commission....
This provision is supplemented by
We disagree. We do not doubt that Home and Industrial is a public utility subject to the jurisdiction of the BPU. Nor do we dispute the fact that the BPU is vested with broad statutory authority to regulate the solid waste collection industry. It has been said that
This much conceded, it is a far different thing to suggest that this pervasive regulatory scheme serves to exempt all activities of solid waste collectors from the purview of the Antitrust Act. Our Supreme Court had occasion to consider a somewhat related question in In re Application of Saddle River, supra. There, the Court confronted the issue of whether the “public utility” exception to the competitive bidding requirements of the Local Public Contracts Law,
From testimony adduced at the many legislative investigations of the industry, it is apparent that the system as it existed prior to the passage of the Solid Waste Utility Control Act not only tended to inefficiency in the form of wasteful fragmentation and conflicting licensing requirements, but also was fraught with the potential for abuse in the form of favoritism, rigged bids, official corruption, and the infiltration of organized crime. To remedy this situation, while at the same time giving due attention to the public health and environmental aspects of the industry, most of the recommendations to the Legislature stressed the importance of encouraging competition within a regulated framework. [Ibid.; footnote omitted].
In view of this strong public policy favoring competitive bidding, the Court rejected the argument that solid waste agreements were exempt from the Local Public Contracts Law. Id. at 24. The Court noted that the BPU was statutorily authorized to grant franchises, but had not yet exercised that power. “If at some later time, the [BPU] elects to exercise its authority to the full extent conferred by the Legislature and designates franchise areas for solid waste utilities, competitive bidding will no longer serve any purpose and the exception to the bidding statute will come into play.” Id. at 32. The Court, thus, held that “contracts negotiated with solid waste disposal and collection
We are satisfied that these considerations apply with equal force with respect to the exemption provided by
In our view, the legislative history strongly militates against such a construction. We note that our primary obligation in interpreting the statute is to seek to effectuate the legislative intent. State v. Fearick, 69 N.J. 32, 37 (1976); Monmouth County v. Wissell, 68 N.J. 35, 43-44 (1975); State v. Carlos, 187 N.J. Super. 406, 414 (App.Div. 1982). When all is said and done, “the matter of statutory construction ... will not justly turn on literalisms, technisms or the so-called rules of interpretation....” Jersey City Chapt. Prop. Owner‘s, etc., Ass‘n v. City Council, 55 N.J. 86, 100 (1969). See generally Bomse v. Mullin, 183 N.J. Super. 431 (App.Div. 1982). Rather, we must construe the statute in a commonsense fashion consonant with the legislative design. N.J. Builders, Owners and Managers Ass‘n v. Blair, 60 N.J. 30, 338-339 (1972); Jersey City Chapt. Prop. Owner‘s, etc., Ass‘n v. City Council, 55 N.J. at 100 Riccio v. N.J. Mfrs. Ins. Co., 179 N.J. Super. 65, 70 (App.Div. 1981).
We thus reject defendants’ argument that the anti-competitive agreement alleged in the indictment and proven at trial fell within the exclusive jurisdiction of the BPU. Of course, we recognize that the BPU is vested with the authority to preclude monopolies in the solid waste collection and disposal businesses. See
So posited, it is abundantly clear that defendants’ participation in the conspiracy constituted a violation of the Antitrust Act falling beyond the parameters of the exemption. Simply stated, we are not concerned here with anti-competitive activities expressly or impliedly permitted, encouraged or directed by the BPU. See, e.g., Bally Mfg. Corp. v. N.J. Casino Control Comm‘n, 85 N.J. 325, 335-336 (1981); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 564 (1978). It would, thus, be anomalous to apply the public utility exemption in a manner inconsistent with its essential purpose. Rather, the exemption must be anchored to the reason for its existence. We are entirely satisfied that the exemption is not applicable within the context of the facts presented here.4
II
Equally without merit is defendants’ contention that the trial judge erred in denying their motion for a severance. Defendants’
Preliminarily, we note that disposition of a motion for a severance pursuant to R. 3:15-2 is addressed to the sound discretion of the trial court. State v. Laws, 50 N.J. 159, 175 (1967), cert. den. 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968); State v. Manney, 26 N.J. 362, 365 (1958); State v. Bellucci, 165 N.J. Super. 294, 300-301 (App.Div. 1979), mod. other grounds 81 N.J. 531 (1980); State v. Whipple, 156 N.J. Super. 46, 51 (App.Div. 1978). Denial of such a motion will not be reversed in the absence of a clear showing of a mistaken exercise of discretion. State v. Rosenberg, 37 N.J. Super. 197, 202 (App.Div. 1955). No error of that character is discernible in this record.
While it is true that most of the evidence presented at trial related to the guilt of the co-defendants, that fact, by itself, is not sufficient grounds for a severance.5 We note that the potential for prejudice inherent in the mere fact of joinder does not of itself encompass a sufficient threat to compel a separate trial. A severance should not be granted “merely
Although the danger of guilt by association underlies all joint trials, State v. Freeman, 64 N.J. 66, 68 (1973), this peril can generally be defeated by forceful instructions to the jury to consider each defendant separately. See State v. Laws, supra, 50 N.J. at 175; State v. Manney, supra, 26 N.J. at 368; State v. Bellucci, supra, 165 N.J. Super. at 300-301. We do not suggest that such a charge will always be sufficient to obviate the danger of undue prejudice. Our Supreme Court has observed that “[t]he question is whether a jury is likely to be unable to comply with the trial court‘s instructions.” State v. Manney, supra, 26 N.J. at 368. It has been stated that courts “are ambivalent in their estimate of the intelligence of the layman, summoning one line of cases and then another to support the varying moods of their decisions.” State v. Hawthorne, 49 N.J. 130, 147 (1967) (Weintraub, C.J., concurring). To some, resolution of the question depends upon whether one views the jury as composed of twelve persons of average intelligence or twelve persons of average ignorance. Note, 35 Brooklyn L.Rev., 139, 140 (1968). Here, we perceive no possible prejudice to defendants in view of the trial judge‘s repeated and carefully worded instructions on the subject of separate verdicts. Moreover, the jury‘s ultimate verdict, convicting four defendants while failing to resolve the question of the guilt or innocence of the others, convincingly demonstrates that they were able to comply with the court‘s charge. State v. Coleman, 46 N.J. 16, 25 (1965), cert. den. 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966); State v. Cole, 154 N.J. Super. 138, 142 (App.Div. 1977), certif. den. 78 N.J. 415 (1978).
We also reject defendants’ contention that the State‘s proofs at trial disclosed several unrelated conspiracies.6 In essence, defendants claim that there was a prejudicial transference of guilt between conspirators participating in separate unlawful agreements. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Varelli, 407 F.2d 735 (7 Cir.1969), cert. den. sub nom. Saletko v. United States, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581 (1972); United States v. Borelli, 336 F.2d 376 (2 Cir.1964). See also Cohen, “The Single Versus Multiple Conspiracy Problem,” 2 Crim.Just.Q. 111 (1974); Comment, “Developments-Conspiracy,” 72 Harv.L.Rev. 920 (1959); Note, “Single vs. Multiple Criminal Conspiracies: A Uniform Method of Inquiry for Due Process and Double Jeopardy Purposes,” 65 Minn.L.Rev. 295 (1980).
Examination of the record plainly belies defendants’ contention. We are entirely satisfied that there was only one conspiracy — an unlawful combination to restrain competition through the assignment of exclusive rights to service particular areas and the utilization of prearranged bids. The Westfield grievance was perhaps a small but nonetheless an integral part of that illicit scheme. See State v. Louf, 64 N.J. 172, 176 (1973); State v. Yormark, 117 N.J. Super. 315, 336 (App.Div. 1971), certif. den. 60 N.J. 138 (1972), cert. den. sub nom. Mullvaney v. New Jersey, 407 U.S. 925, 92 S.Ct. 2459, 32 L.Ed.2d 812 (1972); State v. Coruzzi, supra, 189 N.J. at 300. We conclude that there was ample direct and circumstantial evidence to support the State‘s charge that defendants were involved in a single overall conspiracy to eradicate competition in the garbage collection industry.
Lastly, we reject defendants’ argument that they were tainted by evidence of violence which pertained to several of their co-defendants. Defendants refer to several isolated incidents which occurred during the course of the protracted trial. Although several of these incidents were unfortunate, they had no logical relevance to the defendants. Not every excursion beyond the rules of evidence necessitates a reversal of an otherwise valid conviction. We have carefully examined the record and are entirely satisfied that defendants were in no sense prejudiced.
III
It is next argued that the trial judge erred when he permitted defendants and their attorney to absent themselves from a substantial portion of the trial. Prior to selection of the jury, defendants and defense counsel expressly waived their rights to be present during those phases of the case relating to the co-defendants. The trial court ultimately acceded to defense counsel‘s request over the State‘s vigorous objection. Defendants now contend on appeal that the trial judge‘s decision requires reversal of their conviction. In support of their position, they heavily rely upon our decision in State v. Wiggins, 158 N.J. Super. 27 (App.Div. 1978), certif. den. 70 N.J. 512 (1976) and that of our Supreme Court in State v. McCombs, 81 N.J. 373 (1979).
Both decisions are clearly inapposite. In State v. McCombs, supra, defendant discharged his public defender attorney and advised the court of his intention to retain private counsel. The
The facts here are clearly distinguishable. The record reflects that defendants neither sought to waive their right to counsel nor refused to participate in their defense. Absenting themselves from a major portion of the trial was plainly part of their overall strategy which was designed to distance themselves from their co-defendants. In pursuit of that tactic, Scioscia requested and was granted the right to sit in the gallery and not at the defense table. In his opening statement, defense counsel expressly alluded to the fact that he and his clients would not be present during portions of the trial. Defense counsel stated:
My client[s] and I have waived our rights to literally be here every day of the trial. It is not because we are not interested. It is not because we are not concerned. It is because [the conspiracy] doesn‘t involve us.
These sentiments were again expressed in defense counsel‘s summation. Counsel noted that his clients’ decision not to be present at trial was not based upon a lack of concern or interest. Rather, counsel reiterated his contention that defendants were “not involved” in the conspiracy. According to defense counsel, defendant Scioscia was not acquainted with the State‘s principal witness and would not recognize him if
Under these circumstances, we have no occasion to address the merits of the arguments belatedly advanced by defendants on appeal. Although defense counsel pursued a course fraught with danger, we cannot fairly say that his strategy was misconceived or unreasonable. While we harbor reservations with respect to the wisdom of permitting an accused and his attorney to absent themselves during portions of a trial, any error in that regard originated with the defendants and cannot serve as a vehicle for reversal on appeal. State v. Simon, 79 N.J. 191, 205 (1979); State v. McDavitt, 62 N.J. 36, 48 (1972); State v. Pontery, 19 N.J. 457, 471 (1955); State v. Bishop, 187 N.J. Super. 187, 194 (App.Div. 1982); State v. Harper, 128 N.J. Super. 270, 278 (App.Div. 1974), certif. den. 65 N.J. 574 (1974). “Elementary justice in reviewing the action of a trial [judge] requires that [the] court should not be reversed for an error committed at the instance of [the] party alleging it.” Bahrey v. Poniatishin, 95 N.J.L. 128, 133 (E. & A. 1920). See also Titus v. Lindberg, 49 N.J. 66, 78 (1967); State v. McNeil, 164 N.J. Super. 27, 33 (App.Div. 1978), certif. den. 79 N.J. 497 (1979); Gilborges v. Wallace, 153 N.J. Super. 121, 139 (App.Div. 1977), aff‘d in part and rev‘d in part on other grounds, 78 N.J. 342 (1978); Venuto v. Lubik Oldsmobile, Inc., 70 N.J. Super. 221, 229 (App.Div. 1961). The only exception to this rule is when the errors are “of such magnitude that they trench directly upon the proper discharge of the judicial function.” State v. Simon, supra, 79 N.J. at 205; State v. Harper, supra, 128 N.J. Super. at 278. Applying these standards, we are convinced that the trial judge‘s decision, if considered error, was not of such patent gravity as to compel vitiation of the jury‘s verdict. Cf. State v. Macon, 57 N.J. 325, 337 (1971).
Defendants’ remaining arguments are clearly without merit and do not require extended discussion. R. 2:11-3(e)(2). We have carefully examined the grand jury minutes and are entirely satisfied that the evidence was sufficient to support the return of the indictment. See State v. New Jersey Trade Waste Ass‘n, supra, 96 N.J. at 18-19; State v. Weleck, 10 N.J. 355, 364 (1952); State v. Porro, 175 N.J. Super. 49, 51 (App.Div. 1980). So too, defendants’ motion for a new trial was properly denied. Indeed, the evidence of defendants’ guilt was overwhelming. We perceive no justifiable basis to disturb the jury‘s verdict. State v. Carter, 91 N.J. 86, 96 (1982); State v. Sims, 65 N.J. 359, 373-374 (1974). See also Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-598 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). Accordingly, the judgments of conviction are affirmed.