# Opposition — DeCarlo v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 917

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2644%3A2. Public record. Not legal advice.