Opposition — DeCarlo v. New Jersey

ou, eme Court, U. &

Oe

MAY ,

Supreme Court of the United: States. x. curr

Ocrosper Term, 1978

No, 78-1444

VINCENT Ds CARLO,

Petitioner,

v.

STATE OF NEW JERSEY,

Respondent.

On Petition For Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

ee eee

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

©

Jonn J. Drawan

Attorney General of New Jersey

Attorney for Respondent

State House Annex

Trenton, New Jersey 08625

Susan W. Sciacca

Deputy Attorney General

Division of Criminal Justice

pene Section

P. O. Box CN24

Princeton, New Jersey 08540

Of Counsel and on the Brief

Adama Press Corp,, 5 Commerce Street, Newark, N. J, 07102—(201) 623-8611

TABLE OF CONTENTS

at PAGE

Orryions BEtow ..... 2

Srarures INVOLVED . 2

CoUNTER-STATEMENT OF QUESTION PRESENTED .............. 4

CouNTER-STATEMENT OF THE CASE 4

Reasons ror Denyrna CERTIORARI:

Point I—Due process does not require a factual

hearing when the question to be resolved is

purely one of law a 8

ConcLusIon 13

Cases Cited

DeMoura v. Newark, 90 N. J. Super. 225, 217 A. 2d

19 (App. Div.), certif. den. 46 N. J. 605, 218 A. 2d

644 (1966) 10

Dixon v. Love, —— U. S. —, 97 S. Ct. 1723 (1977) 10

Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433,

86 A. 2d 201 (1952), cert. den. 344 U. S. 838 (1952) 12

Gauli v. Board of Trustees, 143 N. J. Super. 480,

363 A. 2d 911 (App. Div. 1976) 11

Goldberg v. Kelly, 397 U. 8S. 254 (1970) 10

Jordan v. DeGeorge, 341 U. S. 223 (1951) 0... 8,13

Lozano-Giron v. Immigration and Naturalization

Service, 506 F. 2d 1073 (7 Cir. 1974)

Madden, In re, 184 A, 2d 204 (D. C. Mun. 1962) ........ 9

li TABLE OF CONTENTS

Makwinski v. State, 76 N. J. 87, 385 A. 2d 1227

(1978)

Marciano v. Immigration and Naturalization Serv-

ice, 450 F. 2d 1022 (8 Cir. 1971), cert. den. 405

U. S. 997 (1972)

Morgano y., Pilliod, 299 F. 2d 217 (7 Cir. 1962), cert.

den. 370 U. S. 924 (1962)

O’Halloran v. De Carlo, 156 N. J. Super. 249, 383

A. 2d 769 (Law Div.), aff’d per curiam 162 N. J.

Super. 174, 392 A. 2d 615 (App. Div.), certif.

den, —— N. J. ——, —— A. 2d —— (1978) ........

Otash v. Bureau of Private Investigators and Ad-

justers, 41 Cal. Rptr. 263, 230 Cal. App. 2d 568

(Cal. App. 1964)

Pied Piper Ice Cream, Inc. v. Essex County Park

Commission, 132 N. J. Super. 480, 334 A. 2d 337

(App. Div. 1975)

Soetarto v. Immigration and Naturalization Service,

516 F. 2d 778 (7 Cir. 1975)

State v. Begyn, 34 N. J. 35, 167 A. 2d 161 (1961) .....

State v. Carbone, 10 N. J. 329, 91 A. 2d 571 (1952)

State v. Lavary, 152 N. J. Super. 413, 377 A. 2d 1255

(Law Div. 1977)

State v. Schultz, 71 N. J. 590, 367 A. 2d 423 (1976)

State v. Sherwin, 127 N. J. Super. 370, 317 A. 2d 414

(App. Div.), certif. den. 65 N. J. 569, 325 A. 2d

703 (1974), cert. den. 419 U. S. 801 (1975) . uw.

Townsend v. Sain, 372 U. S. 293 (1963)

PAGE

8,9

TABLE OF CONTENTS lil

PAGE

Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471,

284 A. 2d 161 (1971) 11

United States ex rel. Volpe v. Smith, 289 U. 8. 422

(1933) ..... as...

Weinstein v. Division of Alcoholic Beverage Con-

trol, 70 N. J. Super. 164, 175 A. 2d 262 (App.

Div. 1961) 10, 11

Winestock v. Immigration and Naturalization Serv-

ice, 576 F. 2d 234 (9 Cir. 1978) ‘' 8

Statutes Cited

NJ.S.A. 2A :85-1 5, 6

N.J.S.A. 24:98-1(a) 2,4

N.J.S.A. 2A :98-1(e) | 2,4

N.J.S.A. 2A :98-1(f) ms 2,4

N.J.S.A. 2A :98-1(h) 2,4

N.J.S.A. 2A :111-1 6

N.JS.A. 2A 1135-9 | 2,8

N.JS.A. 40:50-1 5

N.J.S.A. 40A:11-1 (Local Public Contracts Law) ... 3

NJS.A. 40A:11-4 3,5

United States Supreme Court Rule 40-3, 28 U.S.C.A. 4

IN THE

Supreme Court of the United States

Ocroser Term, 1978

No. 78-1444

- =

a

VINCENT De CARLO,

Petitioner,

Vv.

STATE OF NEW JERSEY,

Respondent.

On Petition For Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

.

a

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPERIOR COURT OF

NEW JERSEY, APPELLATE DIVISION

Respondent, the State of New Jersey, respectfully prays

that the Writ of Certiorari sought by Petitioner to re-

view the judgment of the Superior Court of New Jersey,

Appellate Division, entered in this proceeding on Septem-

ber 21, 1978, be denied.

Opinions Below

The following proceedings of the state courts are re-

produced in the Petitioner’s appendix: the order of the

Supreme Court of New Jersey denying certification, not

yet reported; the opinion of the Superior Court of New

Jersey, Appellate Division, reported at 162 N.J. Super.

174, 392 A.2d 615 (App. Div. 1978); and the opinion of

the Superior Court of New Jersey, Law Division, reported

at 156 N.J. Super. 249, 383 A.2d 769 (Law- Div. 1978).

Statutes Involved

N.J.S.A. 2A :135-9

Any person holding an office or position, elective

or appointive, under the government of this state

or of any agency ovr political subdivision thereof,

who is convicted upon, or pleads guilty, non vult

or nolo contendere to, an indictment, accusation or

complaint charging him with the commission of a

misdemeanor or high misdismeanor touching the

administration of his office or position, or which

involves moral turpitude, shall forfeit his office or

position and cease to hold it from the date of his

conviction or entry of plea.

If the conviction of such officer be reversed, he

shall be restored to his office or position with all

the rights and emoluments thereof from the date

of the forfeiture.

N.J.S.A. 2A :98-1 (a), (e), (f) and (h)

Any 2 or more persons who conspire:

a. To commit a crime; or

e. To cheat and defraud a person of any prop-

erty by any means which, if executed, would

amount to a cheat; or

f. To obtain money by false pretenses; or

h. To commit any act for the perversion or

obstruction of justice or the due administra-

tion of the laws—

Are guilty of a conspiracy and each shall be pun-

ished, in the case of a conspiracy to commit a crime

involving the possession, sale or use of narcotic

drugs, as for a high misdemeanor and in all other

cases, as for a misdemeanor.

N.J.S.A. 40A :11-1

This act shall be known and may be cited as the

“Local Public Contracts Law.”

N.J.S.A. 40A:11-4

Every contract or agreement, for the perform-

ance of any work or the furnishing or hiring of

any materials or supplies, the cost or the contract

price whereof is to be paid with or out of public

funds, not included within the terms of section 3 of

this act, shall be made or awarded only by the gov-

erning body of the contracting unit after public ad-

vertising for bids and bidding therefor, except as

is provided otherwise in this act or specifically by

any other law. No work, materials or supplies shall

be undertaken, acquired or furnished for a sum

exceeding in the aggregate $2,500.00, except by con-

tract or agreement.

4

Courter Statement of Question Presented

1. Whether a public employee was denied due process

when he was removed from office upon a legal determina-

tion that his conspiracy conviction involved moral turpi-

tude.

Counter Statement of the Case

Pursuant to U.S.Sup.Ct. Rule 40-3, 28 U.S.C.A., Re-

spondent respectfully submits the following additions and

corrections to Petitioner’s Statement of the Case.

I{udson County Indictment No. 65-72 charged Vincent

De Carlo and two codefendants, Paul J. Lombardo and

James EX. Lagomarsino, with a series of offenses stem-

ming from construction work performed by De Carlo Con-

tracting Co., Inc. for the City of Union City, New Jersey.

Lombardo and Lagomarsino were the Director of Public

Safety and the Director of Revenue and Finance, respec-

tively, of Union City. De Carlo was a police officer in

North Bergen, New Jersey.

Count I of the indictment charged all three defendants

with conspiracy to “pervert the due administration of the

laws of the State of New Jersey pertaining to the re-

quirements for public advertisement for bids, and public

bidding on public contracts, [citations omitted], to vio-

late the criminal laws of the State of New Jersey per-

taining to the misconduct in office by public officials [cita-

tion omitted], and to cheat and defraud the City of Union

City of money and property by false pretense and cheat

. . contrary to N.J.S.A. 2A :98-1(a), (e), (f) and (h).

Count I listed 19 overt acts supporting the conspiracy.

The first nine overt acts specified that Lombardo had au-

thorized De Carlo, without public bidding, to perform

5

repair work in the office of the Detective Bureau Com-

mander; that the repairs were duly completed; that

De Carlo submitted two payment vouchers in the amounts

of $2475 and $2435; that Lombardo certified both of these

vouchers as to their necessity and propriety; and that

De Carlo was thereafter paid. The next six overt acts

specified that without prior bidding Lombardo had au-

thorized De Carlo to perform repairs on the Public Works

Building, “well knowing that said repairs would and did

cost in excess of $2,500.00.”* Thereafter, it was alleged,

De Carlo supervised the project, submitting vouchers to

the city for work in excess of $7000, which Lombardo cer-

tified. Lombardo also allegedly certified “the claims of

divers subeontractors and suppliers for services and mate-

rials” used in the Public Works Building, and totalling

over $11,000. For his part, Lagomarsino was charged with

certifying to the propriety of an additional $5500 of

claims, by falsely alleging that they had been furnished

to his department, rather than to Lombardo’s. In overt

act 17, Lagomarsino was charged with approving for pay-

ment claims vouchers worth $24,000. In overt acts 18 and

19, De Carlo was charged with ordering, receiving, and

appropriating for his own use $9000 worth of lumber,

while directing the supplier to submit the bill to Lom-

bardo.

Count II charged Lombardo with misconduct in office

for authorizing De Carlo to perform repairs costing in

excess of $2500 in the Detective Bureau Commander’s

office, without adhering to the public bidding laws, con-

trary to N.J.S.A. 2A:85-1.

* The figure $2500 is significant, since a municipality may not

contract for work or supplies in excess of $2500 unless there has

been prior public advertisement for bids. N.J.S.A. 40:50-1 (prior

to July 1, 1971); N.J.S.A. 40A:11-4 (effective July 1, 1971).

6

Count ITT charged Lombardo and Lagomarsino with

misconduct in office for authorizing De Carlo and various

subcontractors to furnish services «nd materials in excess

of $2500 for the repair of the Public Works Building,

without adhering to the public bidding laws, in violation

of N.J.S.A. 2A :85-1.

Count IV charged De Carlo and Lombardo with obtain-

ing property by making false representations to Taffaro

Lumber Co. and Union City, with intent to cheat and de-

fraud the company and the city, contrary to N.J.S.A. 2A:

111-1.

Trial of all three defendants was held before the Honor-

able James H. Dowden, J.C.C., and a jury, on January 16

to February 8, 1974. Following the presentation of the

State’s case, the court dismissed Count IV and struck the

language from Count I which charged the defendants with

“cheating and defrauding the City of Union City.” Fol-

lowing the defense case, the court acquitted Lagomarsino

of all charges.

The jury deliberated and found De Carlo and Lombardo

guilty of conspiracy, and Lombardo guilty of both counts

of misconduct in office.

Both Lombardo and De Carlo made motions for new

trials which were heard before Judge Dowden on March

15 and 25, 1974. Their motions were granted. There-

after, the Superior Court, Appellate Division, granted the

State’s motion for leave to take an interlocutory appeal,

reversed the order granting a new trial, reinstated the

jury’s verdicts, and remanded for sentencing. State v.

Vincent De Carlo and Paul J. Lombardo, No. A-2548-73

(App. Div., Feb. 23, 1976). On May 18, 1976, the New

Jersey Supreme Court denied defendants’ motion for leave

to appeal.

On December 21, 1976, Judge Dowden sentenced

De Carlo to a suspended one year term in Hudson County

Jail, and imposed one year of probation and a fine of

$1,000. This conviction was affirmed by the Appellate

Division. State v. Lombardo, Lagomarsino and De Carlo,

No. A-1838-76 (App. Div., Jan. 17, 1978).

Petitioner was advised on December 29, 1976 by the

North Bergen Director of Public Safety that his position

as a police officer was deemed to have been forfeited by

virtue of his conviction of a crime involving moral turpi-

tude. At Petitioner’s request, an administrative hearing

was held on January 5 and 11, 1977. The Director there-

after reversed himself and, on January 14, 1977, issued a

written opinion reinstating defendant as a North Bergen

police officer (A.1).

The present action was commenced by the Hudson

County Prosecutor on August 2, 1977. After hearing ar-

gument from the parties, the court issued a written opinion

and entered judgment declaring De Carlo’s office forfeit,

on the theory that his conviction for conspiracy evinced

moral turpitude. This judgment was affirmed by the Ap-

pellate Division and thereafter the New Jersey Supreme

Court denied certification. O’Halloran v. De Carlo, 156

N.J. Super. 249, 383 A.2d 769 (Law Div.), aff’d per curtam

162 N.J. Super. 174, 392 A.2d 615 (App. Div.), certif. den.

—— N.J. ——, —— A.2d —— (1978).

The present Petition for Writ of Certiorari was docketed

with this Court on March 19, 1979.

REASONS FOR DENYING CERTIORARI

POINT I

Due process does not require a factual hearing

when the question to be resolved is purely one of law.

Petitioner De Carlo argues that he was entitled to a fac-

tual hearing in the state courts of New Jersey to determine

whether the crime of which he was convicted evinces moral

turpitude. As a matter of New Jersey law, a public em-

ployee forfeits his office upon conviction of a crime of moral

turpitude. N.J.S.A. 2A :135-9. The State submits that in ap-

propriate cases the determination of whether a particular

offense comes within the ambit of the forfeiture statute is

a question of law, requiring no factual hearing.

It is well-settled that certain offenses per se evince moral

turpitude, permitting various collateral consequences to at-

tach based solely on the record of the judgment of convic-

tion. For example, “[w]ithout exception, federal and state

courts have held that a crime in which fraud is an ingredi-

ent involves moral turpitude.” Jordan v. DeGeorge, 341

U.S. 223, 227 (1951). When a conviction plainly evinces

moral turpitude, a court will not look behind the record

of conviction to ascertain whether there may be mitigating

factors. See, e.g., Jordan v. DeGeorge, supra (conspiracy

to defraud on payment of federal tax); United States ex

rel. Volpe v. Smith, 289 U.S. 422 (1933) (counterfeiting) ;

Winestock v. Immigration and Naturalization Service, 576

F.2d 234 (9 Cir. 1978) (dealing with counterfeit obliga-

tions); Lozano-Giron v. Immigration and Naturalization

Service, 506 F.2d 1073, 1076 (7 Cir. 1974) (possession of

counterfeit obligations) ; Marciano v. Immigration and Nat-

uralization Service, 450 F.2d i022 (8 Cir. 1971), cert. den.

405 U.S. 997 (1972) (statutory rape); Morgano v. Pilliod,

299 F.2d 217, 220 (7 Cir. 1962), cert. den. 370 U.S. 924

(1962) (conspiracy to defraud).

Thus, in Soetarto v. Immigration and Naturalization

Service, 516 F.2d 778 (7 Cir. 1975), the Court of Appeals

for the Seventh Cireuit refused to examine the circum-

stances surrounding an alien’s conviction for theft some

years previously in the Netherlands. Reasoning that “theft

has always been held to involve moral turpitude, regard-

less of the sentence imposed or the amount stolen,” the

court refused “to try the foreign crimes de novo” and af-

firmed the final order of the Board of Immigration Ap-

peals deporting the petitioner. 516 F.2d at 780-781.

So too, in Otash v. Bureau of Private Investigators and

Adjusters, 41 Cal.Rptr. 263, 230 Cal.App.2d 568 (Cal.App.

1964), a private investigator argued that the court should

consider the level and exact nature of the offense for which

he was convicted prior to making a determination of moral

turpitude for the purposes of license revocation. The court

rejected this contention, ruling that “whether a person

has been convicted of a crime involving moral turpitude

is a question of law and not of fact.” 41 Cal.Rptr. at 266.

Under this interpretation, the conviction itself is “the op-

erative fact upon which disciplinary action may be im-

posed,” id. at 267, and all that remains is to analyze the

elements of the crime to determine whether it embraces

conduct which is contrary to justice, honesty and good

morals. Jd. at 266.

Similarly, in In re Madden, 184 A.2d 204 (D.C. Mun.

1962), the Municipal Court of Appeals for the District

of Columbia was confronted with an appeal from an order

denying a renewal of a bondsman’s license, predicated on

the applicant’s conviction for filing fraudulent income tax

returns. The applicable statute provided that no person

who has ever been convicted of any offense involving

10

moral turpitude shall be permitted to engage in the busi-

ness of becoming surety upon bonds in criminal eases.

The court analyzed the issue presented as a pure ques-

tion of law:

The statute is plain and unambiguous. In order to

obtain a license the applicant must be a person who

has never been convicted of an offense involving

moral turpitude. Conviction of such an offense

automatically precludes qualification. The courts

have no latitude or discretion in the matter and

must follow the plain mandate of the statute. We

are therefore presented with only one question:

whether the crime for which Madden stands con-

victed is an “offense involving moral turpitude”

within the meaning of the statute just cited. 184

A.2d at 205 (citation omitted).

From these cases it is quite clear that a determination

of whether moral turpitude may be inferred from a critn-

inal conviction must be based upon an analysis of the

elements of the crime. Equally clear is the proposition

that when determinations turn solely on the law, due

process does not require a factual hearing. See, e.g.,

Dixon v. Love, — US. —, 97 S.Ct. 1723, 1729 (1977)

(concurring opinion); Goldberg v. Kelly, 397 U.S. 254,

269 (1970); Townsend v. Sain, 372 U.S. 293, 31

anes, , 312-319

The precedents in New Jersey, as elsewhere, indicate

that in appropriate cases a conclusion of moral turpitude

may be reached as a matter of law based on the fact of

conviction. DeMoura v. Newark, 90 N.J. Super, 225, 227-

228, 217 A.2d 19, 21 (App. Div.), certif. den. 46 N.J.

605, 218 A.2d 644 (1966) (filing false income tax return);

Weinstein v. Division of Alcoholic Beverage Control, 70

1l

N.J. Super. 164, 168-169, 175 A.2d 262, 264 (App. Div.

1961) (possession of stolen goods); cf. Makwinski v.

State, 76 N.J. 87, 385 A.2d 1227 (1978) (misconduct in

office, which need not involve mens rea, held not to con-

stitute moral turpitude; ruling limited to unique facts of

case); Gauli v. Board of Trustees, 143 N.J. Super. 480,

482-83, 363 A.2d 911, 912-913 (App. Div. 1976) (pos-

session of weapon).

In the instant case Petitioner’s conviction necessarily in-

volves moral turpitude, Conspiracy is “invested with a

potentiality for evil that renders the plans criminal in

themselves. . . .” State v. Carbone, 10 N.J. 329, 91 A.2d

571, 575 (1952). Indeed, a conspiratorial agreement may

at times pose an even greater evil than the substantive

offense “for the conspiracy may lead to other substan-

tive offenses of a like sort and perhaps to habitual prac-

tices.” State v. Lavary, 152 N.J. Super. 413, 377 A.2d

1255, 1260 (Law Div. 1977).

The objects of the conspiracy for which defendant was

convicted were the perversion of the administration of

the bidding laws and the violation of the criminal laws

forbidding misconduct in office by public officials. The pub-

lie bidding statutes are designed “ ‘to secure competition

and to guard against favoritism, improvidence, extrava-

gance and ecorruption.’” Trap Rock Industries, Inc. v.

Kohl, 59 N.J. 471, 479, 284 A.2d 161, 165 (1971); Pred

Piper Ice Cream, Inc. v. Essex County Park Commission,

132 N.J. Super. 480, 484, 334 A.2d 337, 340 (App. Div.

1975). A conspiracy to circumvent public bidding under-

mines “the fundamental assumption that the affairs of

government should be conducted in an atmosphere free

of corrupt influences.” State v. Sherwin, 127 N.J. Super.

370, 379, 317 A.2d 414, 419 (App. Div.), certif. den. 65

N.J. 569, 325 A.2d 703 (1974), cert den. 419 U.S. 801

(1975).

12

Official misconduct, the alternative goal of the conspir-

acy, amounts to “corrupt misbehavior by an officer in the

exercise of the duties of his office or while acting under

color of his office.” State v. Begyn, 34 N.J. 35, 49, 167

A.2d 161, 168 (1961). The essence of the crime is wrong-

ful action by a public official “done with ‘evil motive or in

bad faith and not honestly.’” State v. Schultz, 71 N.J.

590, 601, 367 A.2d 423, 429 (1976). Such misconduct

strikes at the heart of government and is inconsistent

with the fiduciary obligation of officials to “transact their

business frankly and openly in the light of public seru-

tiny.” Driscoll vy. Burlington-Bristol Bridge Co., 8 NJ.

433, 475, 86 A.2d 201, 221 (1952), cert. den. 344 U.S. 838

(1952).

Defendant’s crime thus necessarily resulted in a “fraud

upon the State.” (A.3) As the Superior Court, Law Divi-

sion, observed:

The public’s right to the benefits of public ad-

vertising and bidding were defeated, other contrac-

tors were cheated of their right to equal bidding

opportunity and the public was cheated of its

right to have public officials conduct its affairs with

propriety and in accordance with law. (A.3)

The insidious spread of corrupt officials, whether acting

from favoritism or venality, certainly offends the com-

mon moral sense prevailing throughout the community.

Moreover, the secret award of public contracts not only

invites corruption but also drains the public treasury by

circumventing competitive bids. Simply stated, “the pub-

lie was cheated.” (A.3).

Accordingly, from the intrinsic fraud and dishonesty

evinced by Petitioner’s conviction, the courts of New Jer-

sey properly concluded as a matter of law that Petitioner

13

it hi i i 1 turpitude.

must forfeit his office by virtue of his mora pi

Jordan v. DeGeorge, supra, 341 U.S. at 227. Petitioner

was not entitled to a factual hearing under these cireum-

stances, and this Court should deny his petition for writ

of certiorari.

CONCLUSION

For the reasons which are set forth herein, it is

scubantially urged that the Petition for Writ of Cer-

tiorari should he denied.

Respectfully submitted,

Joun J. Deanan

Attorney General of New Jersey

Attorney for Respondent

State House Annex

Trenton, New Jersey 08625

Susan W. Soracca

Deputy Attorney General

Division of Criminal Justice

Appellate Section

P. O. Box CN24

Princeton, New Jersey 08540 _

Of Counsel and on the Brief