Petition for Writ of Certiorari — DiGilio v. New Jersey

84 uF 1 28 : "| Office-Supreme Court, UR

FILED

No. JAN 8 1985

| ALEXANDER 4 STEVAS,

a CLERK

In The ‘.

Supreme Court of the United States

OCTOBER TERM, 1984

JOHN DI GILIO,

Petitioner,

-VS-

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

ALAN DEXTER BOWMAN

Gateway One, Suite 300

Newark, New Jersey 07102

(201) 622-1846

Attorney for Petitioner

THE SUPERIOR APPELLATE PRINTING COMPANY

PO Box 363 ; Area Code 609

Cranbury. NJ 06512 443-4202

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

QUESTIONS PRESENTED

1. Whether misinstruction of a grand jury as to

the law in a fashion which misleads the grand jury into

the view that wholly lawful conduct is illegal requires

dismissal of the indict~ent and re-presentation of the

evidence under a correct legal analysis?

|

ii

TABLE OF CONTENTS

OPINION Ek errr ee ee ee ee ee ae ee ae ee

SERISDEGSE BOG 0 0 06 © 6 66 06 66-60 6 SOR HSE C HOO CeO eA

CONSTITUTIONAL, STATUTORY AND RULE

PROVISIONS LEV ORU EDs 66 bos 65 60466 6S Od bee eo eek

ORDER EXTENDING TIME TO FILE PETITION

FOR CERT COM 6 6 66 6 8 666 6566 SSH OS CE KO ORR OCE

STATEMENT OF THE CEGEs cto occesawessbedvesevedl

Le tia ge fe! | eo ee rae

a. Procedural Background... cccceeeeeed

be. Factual Background. cccccsccccccsese ce

- The TOES CCOOOE «cb. 0 ks 64h bo 666662 OH OOO

ii. The Facts As Adduced At The

Pacilio Ae eae eee ed Be ee ae ee ee

REASONS FOR GRANTING THE WRIT

CERTIORARI MUST BE GRANTED TO PERMIT

THIS COURT TO ESTABLISH A RULE

OF LAW RESPECTING REMEDY OF A

PROSECUTOR'S MISINSTRUCTION OF THE

GRAND JURY AS TO CONTROLJ.ING PRINCIPLES

‘ OF LAW IN A FASHION WHICH MISLEADS THE

GRAND JURORS INTO THE BELIEF THAT

WHOLLY LAWFUL CONDUCT IS CRIMINAL.......13

i. The Trial Court's Opinion.........15

ii. The Constitutional Right To

Cv TTS. | ee es ie

iii. Conspiracy Law Under 2A..........--18 :

iv. The Opinion in State v. Mazur.....19

le EE

v. The Misinstructions to the Grand

Jury Upon Which The Indictment Is

iii

Based Are Violative Of Due Process

And Mandate Dismissal Of The

eres os oe ic be ae ee

SE RE EE OR

CASES CITED

IN RE BUEHRER, 50 N.J. 501 (1967)........-.17

SEARS V. UNITED STATES, 343 F.2d 139 (5

Cif « Dele a 66 6a 6a 6 be seco ewescosececansceoesee

STATE V. BROWN, 188 N.J. Super. 656 (Law

Div. i 5} wT eee ee se ee a ae

STATE V. CHANDLER, 98 N.J. Super. 241

(Cty.Ct. BUOT Sc cbeeecoecesesesesctoaesneeeelel

STATE V. DORSEY, 65 N.J. 428 (1974)......-..217

STATE V. DRAYTON, 23 N.J.L. 49 (Sup.Ct.

1850) cccccccccccccccscccccccescccesceeselO

STATE V. FERRANTE, 111 N.J. Super. 299

(App. Div. Lay er a a ae ee ee ee ee |

STATE V. FUREY, 128 N.J. SUper. 12 (App.

Div. Le) ees ee ee es Ph ee a a ee a ee eS

STATE V. GROTHMAN, 13 N.J. 90 (1953).......18

STATE V. LAFERA, 35 N.J. 75 (1961)........ 17

STATE V. LAWRENCE, 142 N.J. SUper. 208

(App. Div. ot) ees ee ae ee ee ea ee

STATE V. LOUF, 126 N.J. SUper. 321 (App.

Div. 1973), aff'd inpart and rev'd in

part 64 N.Jo 1782 (C1973) wccccccccsccceee 19

STATE VY. MACUK, S37 Bede 1 (1l197TO) cccecccccecld

STATE V. MADDEN, 61 N.J. 377 (1972)....2...19

STATE V. MAZUR, 158 N.J. Super. 89 (App.

Div. 1978), certif. den. 78 N.J. 399

Pee tithe cee seb et eeneeececesee 33,239, 20,21

iv

STATE V. NEWELL, 152 N.J. SUper. 460 (App.

Div. G7 t 30-000 646-50 @ Oho 6eee absense ss oak Baas

STATE V. OWNES, 54 N.J. 153 (1969), cert.

den. 396 U.S. 1021 CL re eT ee ee eee FY

STATE V. ANTHONY PACILIO, Docket No.

A-1 SES “Bit Goce weve eee sees esveceersesvseceshd «ib

STATE V. PORRO, 153 N.J. Super. 179 (App.

Div. LIRA TRCTETCECOUU CTT eT CCR Tere

STATE V. PRICE, 108 N.J. Super. 272 (Law

Div. SOT ek eh bb0e6 446 68 CRRA O KER ObR OO e eat

STATE V. REYNOLDS, 166 N.J. Ssuper. 570

(Law Div. Lo) an eae oF

STATE V. SENNO, 79 N.J.w 216 (1979)........-17

STATE V. WAGNER, 180 N.J. Super. 565 (App.

Div. 1 b ® Fer ee ee eee ee

STATE V. WEIN, 80 N.J. 491 (1979).......17,18

STATE V. WELECK, 10 N.J. 355 (1952)........26

STATE V. WILSON, 183 N.J. Super. 86 (Law

Div. LP ae ae re eee ree ee ee eee

STATE V. WOLDEN, 153 N.J. Super. 57 (App.

Div. oe go ee ae er re re ee ene &

UNITED STATES V. BROWN, 555 F.2d 407 (5

Cites log eS Pe ee ere ee eer a ee eee eee

UNITED STATES V. CROCKER, 568 F.2d 1049....26

UNITED STATES V. CRYAN, 490 F.Supp. 1234

(DNJ 1980), aff'd 636 F.2d 1211 (3 Cir.

oof eee Terr ree See ee | ee LS ee ee ee eee

UNITED STATES V. DANSKER, 537 F.2d 40 (3

Cir. 1976), cert. den. 429 U.S. 1638

( 297 TP ie he she tees Oke ss CEOS EO 446608 OKO 0 KEO

UNITED STATES V. DECAVALCANTE, 440 F.2d

1266 (3 Cie « Lies Perwrrery ee eo Pee Pe ee eee 2

Vv

UNITED STATES V. GOLDSTEIN, 562 F.2d 526

(3 Cir. CP, SPEER TET OTE TEPC CTTET CCT eer f

UNITED STATES V. RADOWITZ, 507 F.2d 109

(3 Cit. OTS) 6 6000056 64600666464 600 OOO ORT

UNITED STATES V. SILVERMAN, 430 F.2d 106

(2 Cie o ROTO) 4 066 6684 CERO RES ECE Oe HEE ESCMOT

vi

TABLE OF CONTENTS

APPENDIX

SUPERIOR COURT OF NEW JERSEY OPINION

DATED NOVEMBER 7, 1983....... cc cccees

ORDER DENYING DEFENDANT'S PRETRIAL

MOTION TO RECONSIDER DENIAL OF A

MOTION TO DISMISS THE INDICTMENT

FILED FEBRUARY 21, 1984.....eeeeeeee

ORDER FILED MAY 1, 1984.....222ee eevee

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

DATED DECEMBER 13, 1984...-+e+eeeeeee-s

PAGE

10a

12a

l3a

14a

IN THE

SUPERIOR COURT OF THE UNITED STATES

OCTOBER TERM, 1984

JOHN DIGILIO, Petitioner

-vVs-

STATE OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW JERSEY SUPREME COURT

Petitioner prays that a writ of certiorari issue to

review the judgment of the New Jersey Supreme Court

entered in this proceeding on October 16, 1984.

OPINION BELOW

The Judgrnrent Order of the New Jersey Supreme

Court and letter-opinion of the trial ourt are appended

to this Petition.

JURISDICTION

The jurisdiction of the Supreme Court to review

the Final Judgment of the New Jersey Supreme Court

is based on 28 U.S.C. Sec. 1257.

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS INVOLVED

— or a —— ae — —

Petitioner seeks review of issues of law arising

under the Fifth, Sixth and Fourteenth Amendments to

the United States Constitution.

ORDER EXTENDING TIME TO FILE

PETITION FOR CERTIORARI

An application was made to Associate Justice

Williar Brennan, Jr. seeking an extension of tire

within which petitioner could timely file the within

petition for certiorari. Justice Brennan .ssued an order

extending the time until January 5, 1985.

STATEMENT OF THE CASE

I.

Introduction

The instant case presents an important issue which

has not been resolved by the State courts of New

Jersey nor this Court. Resolution of the issue is

, critical to the growth and developrent of the grand

jury process in jurisdictions where this procedure is

employed to determine probable cause. Specifically, the

issue presented herein is whether a prosecutor's

misinstruction of a grand jury as to the law requires

dismissal of an indict:nent in circurnstances where the

incorrect instructions clearly misled the grand jury into

the belief that wholly lawful conduct was criminal.

Abuse of the grand jury by virtue of

misinstructions as to the law’ essentially renders the

grand jury process a nullity. Guidelines ior review of

such misinstructions must be fashioned as well as a

fair remedy for any prejudice which stems therefrom.

The remedy of a new trial, in cases where the

misinstruction is repeated before the trial jury, is

wholly insufficient to preserve the soundness of the

grand jury process. The grand jury and indictrnent

process is the seed of a prosecution in most

parladactions. A poisoned seed can only bear poisoned

fruit. Modification of the indictment by a Court is also

an insufficient and iimpermissible remedy. The

substantive form of an indictirent is a grand jury

function exclusively.

Petitioner was indicted pursuant to New Jersey

State statutes for alleged entry into a conspiratorial

agree'rent with a government undercover operative.

The grand jury was misinstructed that an agreement to

commit an offense with an undercover police officer

constituted a crime within Title 2A. See, State v.

oe

Mazur, 158 N.J. Super. 89 (App. div. 1978), certif. den.

78 N.J. 399 (1978). Petitioner raised the grand jury

misinstruction issue as part of a motion to dismiss the

indictment. Notwithstanding clear evidence of

misinstruction of the grand jury, which is bolstered by

the concession of the State that it relied upon

incorrect law, the State courts refused to remedy this

infringement of the absolute right to an independent

grand jury assessment of probable cause.

Serious error or :nisconduct in the grand jury

process in our view has greater significance than errors

or omissions which occur at trial. A defendant and/or

his counsel are present at every stage of trial and may

act swiftly to rectify misconduct or omission. The

prosecutor is alone with the grand jury when the grand

jurors are educated as to the law. The prosecutor,

therefore, has great leverage. That leverage was

enhanced at the tire of the instant indictrrent because

the prosecutor's ‘anipulation of legal principles was not

transcribed. The exclusive rreans to judge the grand

jurors’ assessment of the law is by virtue of an

examination of the face of the indictrrent. The grand

jurors' misapprehension as to the law is clearly

manifested by the decision to nanie the undercover

- 4.

police operative as a co-conspirator in circumstances

where the law precluded such a finding. And, more

importantly, the State conceded that the grand jury

was reisinstructed.

Avoidance of an ill-founded indictment is the

prirrary interest of any individual whose conduct is

under review by a grand jury. And, all citizens are

entitled to absolute fairness in this process. Petitioner

was denied his right to indictment because the State

advised the grand jury that wholly lawful conduct was

crirrinal. That body night well have declined to indict

petitioner had it been correctly instructed. This Court

must disrriss the instant indictrrent and order the State

to re-present is evidence to the grand jury under a

correct assessment of applicable legal principles. Justice

de‘rands no less.

a. Procedural Background

On March 1. 1978 State Grand Jury

Indictrrent No. SGJ43-77-3 was filed. That indictment

charged petitioner John DiGilio, Anthony Pacilio and

Neil Pacilio with conspiring together with Robert

Weisert to engage in the business of making usurious

loans in violation of N.J.S.A. 2A:II9A-3. Trial

~~

commenced on May 18, 1981 before the Honorable

Jacques H. Gascoyne, J.S.C. and a jury. Petitioner, due

to a continuing health problem, was ruled physically

unfit to participate in the trial. Thus, only Anthony and

Neil Pacilio were tried. On June 24, 1981, following an

18-day trial, Anthony Pacilio was found guilty of

conspiracy. (T18.14-11 to 14). Codefendant Neil Pacilio

was acquitted. (Ti8-14-17 to 21). Thereafter, the

conviction of Anthony Pacilio was reversed by the

Appellate Division on July 13, 1983.

On March 25, 1983, petitioner moved before

the Honorable Donald G. Collester, J.J.D.R.C. t/a for

an order dismissing the indictment. On November 7,

1983 Judge Collester denied petitioner's motion.

Thereafter, petitioner moved for reconsideration of

Judge Collester's decision. On February 21, 1984, Judge

Collester denied petitioner's motion for reconsideration.

Thereafter, the Appellate Division and Suprere Court

“of New Jersey denied petitioner's Motions for Leave to

Appeal. This petition follows.

b. Factual Background

i.

The Indictment

*

The indict:rent charges that petitioner and

others conspired with an undercover police operative.

Specifically, the indictrrent alleges that Anthony

Pacilio, petitioner, Neil Pacilio "and Robert Weisert, a

detective in the New Jersey State Police acting in an

undercover capacity and using the name Bobby

Hesse...knowingly, willfully and unlawfully did

conspire..." Weisert was named as a conspirator in the

indict rent because the grand jury was misinstructed by

the prosecutor that he could legally be a party to the

alleged conspiracy.

ii.

The Facts As Adduced At The Pacilio Trial

Weisert has been employed by the New

Jersey State Police for approxirnately ten years.

(T3.21-7 to 13). During 1977, Weisert "was employed as

an undercover detective at a company called Alamo

Transportation." (T3.2I-17 to 18). The government

surreptitiously purchased an interest in the company in

order to create a front for an investigation. The

premises of the company were equipped with

sophisticated eavesdropping devices designed to record

conversations occurring at any pre-arranged meeting.

Utilizing the fictitious name "Robert Hesse,"

Weisert in his undercover capacity pretended to function

as the bookkeeper of the company. Anthony Pacilio had

an ownership interest in Alamo Transportation.

Anthony Pacilio was unaware that his business

associates were undercover police operative and made

no effort to involve those individuals in crime.

Contrarily, Weisert set out to tempt Pacilio into crime.

Weisert testified that discussions commenced on

July 5, 1977 wherein he instigated a conversation with

Anthony Pacilio concerning initiation of "a loan shark

operation." The conversation was taped. The discussions

centered upon Weisert's ability to finance the operation.

Anthony Pacilio's participation was to be limited to

supplying clients. Anthony Pacilio was completely

insolvent and unable to consider any such endeavor,

absent financing of it by Weisert. In an attempt to

fabricate an opportunity for Pacilio to contribute value

“to creation of the operation, Weisert stated that

"permission" from petitioner to conduct the business

would be a sufficient contribution by Pacilio.

Weisert continually pressed Anthony Pacilio to

arrange a rreeting with petitioner. Pacilio knew full

well that petitioner had no power to license a

otis

loansharking enterprise nor any interest in it. Due to

faulty intelligence informatio, petitioner was a prime

target of the investigation and Weisert was zealously

interested in constructing a scenario wherein it would

appear that petitioner had an interest in the scheme.

The loansharking operation which was instigated by

Weisert was to be fully capitalized by Weisert's

provision to Anthony Pacilio of $5,000.

Discussions involving only Weisert and Anthony

Pacilio continued on July 7, 1977. Weisert sought out

Anthony Pacilio to instigate further conversations

: concerning criminal activity. Weisert inquired whether

Anthony Pacilio remained interested in the "shylock

operation." Pacilio replied that such an operation would

cor wens in mediately upon the extension of financing

by Weisert. Pacilio was destitute and would make any

representation in order to gain access to Weisert's

money.

On August 2, 1977 Anthony Pacilio introduced

Weisert to Neil Pacilio at Alamo Trucking. Oddly, the

conversation was not recorded despite the fact that the

meeting was pre-arranged. Weisert testified that Neil

Pacilio "thought it would be a good idea and since

[Anthony] had tne clients he saw no problems in

i ee ee oe — - ee eee - - _——.. i — ——

establishing the business." Weisert further stated "[Neil

Pacilio] told us that we had his okay." Weisert testified

that he told Neil Pacilio that he would provide the

money on or about August 22. The jury at trial

disbelieved Weisert's account of his conversations and

acquitted Neil Pacilio.

On August 3, 1977 the private discussions of

Weisert and Anthony Pacilio continued. Anthony Pacilio

told Weisert that when Alamo Transportation closed, he

(Weisert) "would be working with Neil Pacilio and

Anthony Pacilio." Thereafter, conversations continued

between Anthony Pacilio and Weisert on August 15,

August 18 and August 25, 1977 respecting the

operation. In the August 25, 1977 conversation, Weisert

stated that he had not as yet secured the $5,000.

needed to finance the venture. The following day,

Anthony Pacilio inforr.ed Weisert that he (Weisert) was

"now with the...Pacilio group." The jury verdict

“acquitting Neil Pacilio indicates that the Pacilio group

consisted only of Weisert and Anthony Pacilio, if at all.

On August 30, 1977 Weisert and Anthony Pacilio

again met to discuss the operation. Weisert. continued

to press Anthony Pacilio for a meeting with petitioner.

Weisert indicated that he would not provide the money

-10-

unless Anthony Pacilio was able to stage such a

meeting. In his desperation to secure Weisert's money,

Anthony Pacilio stated to Weisert that he had managed

to arrange a meeting with petitioner.

On September 6, 1977 Weisert was introduced to

petitioner by Pacilio. The meeting was to be carefully

structured by Pacilio, who knew that petitioner had no

interest in the scheme. Prior to the meeting, Pacilio

told Weisert that he was noi to discuss loansharking

with petitioner. Weisert was equipped with a recording

device, which was attached to his body. A portion of

Weisert's conversation with petitioner was recorded and

played at the prior trial. Weisert claimed that the

conversation was not recorded in its entirety because

the recording device malfunctioned. The recorded

portions of the conversation were in no_ sense

inculpatory. Weisert testified as to the alleged

substance of the unrecorded portions of the

conversation. He stated:

DiGilio told me I should stay

close to [Anthony ]...where we could

earn some money properly...i told

Mr. DiGilio that from now on I

would be with [Anthony] and when I

told this to him, he said that if I

cared to be.

On September 7, 1977 Weisert again met with

Anthony Pacilio. Weisert subsequently gave Pacilio $40

to finance an extension of credit. The following day,

Weisert supplemented that amount with an additional

$2,460. Weisert had further discussions exclusively with

Anthony Pacilio on September 12, September 14,

September 15, September 16, September 18, September

20, September 21, September 23, September 26 and

September 28. Subsequent to the conversation on

September 28, the undercover operation ended and

Pacilio was placed under arrest.

at 2s

REASONS FOR GRANTING THE WRIT

CERTIORARI MUST BE GRANTED

TO PERMiT THIS COURT TO

ESTABLISH A RULE OF LAW

RESPECTING REMEDY OF A

PROSECUTOR'S MISINSTRUCTION

OF THE GRAND JURY AS TO

CONTROLLING PRINCIPLES OF

LAW IN A_ FASHION WHICH

MISLEADS THE GRAND JURORS

INTO THE BELIEF THAT WHOLLY

LAWFUL CONDUCT IS CRIMINAL.

The issue presented to this Court is the

appropriate remedy where a clearly misinstructed grand

jury has returned an indictment. Specifically, the grand

jury herein was misinstructed that title 2A mandated

indictment of petitioner upon a prima facie showing

that he entered into an agreement with Weisert to

commit a crime. Weisert was at all times acting in the

capacity of an undercover police operative and had no

intent to cornmit any crime. See State v. Porro, 153

N.J. Super. 179, 184 (App. Div. 1977); State v. Wilson,

183 N.J. Super. 86, 94 (Law Div. 1981). It is conceded

by all parties that this instruction was incorrect and

misstated applicable law. When this matter was

presented to the grand jury, it was the law in New

Jersey that an individual could not legally conspire with

an undercover police operative, who merely feigned

agree'-ent. See State v. Mazur, 158 N.J. Super. 89

13.

(App. Div. 1978), certif.den. 78 N.J. 399 (1978). On the

basis of the prosecutor's misinstructions as to the law,

the grand jury returned an indictment charging that

petitioner conspired with the undercover police

operative. The indictment to that extent does not

charge an offense. It cannot now be deterinined

whether the grand jury would have returned any

indictment had it been informed that neither petitioner

nor Anthony or Neil Pacilio could legally be charged

with entering into a conspiratorial agreement with

Weisert.

The indictment is palpably defective and as a

matter of law must be dismissed. The State courts

erred in denying petitioner's motions for dismissal on

this ground. See State v. Ferrante, 111 N.J. Super. 299,

304 (App. Div. 1970). The error of the State stervis

from the absence of any staternent of law within New

Jersey jurisprudence respecting the proper analysis and

femedy for misinstruction of a grand jury. This Court

must act to ensure that both State and federal courts

are provided an analytical framework for review of this

issue. A proper analysis below would have resulted in

dismissal of the indictrnent. Courts must effectuate the

absolute right to a grand jury finding of probable

«ti.

cause. The grand jury is interposed between a putative

defendant and the State. It has a duty to guard against

unsupported indictrents. A court nay not negage that

function by resort to wholesale substantive :nodification

of an indictinent. Such a modification, like a

prosecutor's rnisinstructions, precludes a grand jury frorn

serving its tirne-honored function. Stated somewhat

differently, just as a court may not dismiss an

indictment supported by adequate evidence on the

ground that it disputes the quality of the evidence, it

may not sustain an indictrent which is predicated upon

a well-defined misinstruction which led the grand jury

to believe that wholly lawful conduct was crirninal.

i.

The Trial Court's Opinion

The lower court's first opinion was rendered in

this matter on November 7, 1983, eight tronths after

petitioner filed his motion to dismiss. The Court was

awaiting a decision in State v. Anthony Pacilio, Docket

No. A-15-05-81T4. The Appeilate Division reversed

Anthony Pacilio's conviction. That Court did not address

the grand jury irisinstruction issue. It reversed due to

repetition of the misinstruction to the petit jury. In

denying petitioner's motion, the trial court stated:

my

[Petitioner] argues based upon

Mazur and Pacilio that’ the

indictment in the present case is

fatally defective and must be

dismissed...1 do not agree...The

Appellate Division in Pacilio did not

dismiss the indictment but rather

reversed the conviction and

remanded the case back for a new

trial. At no point is the conclusion

reached that the indictment is

fatally defective. Rather, the

interpretation I draw from Pacilio is

that with proper instructions, the

indictment could be submitted to a

petit jury.

In its consideration of this issue, the trial court

did not perceive that the issue as to grand jury

misinstruction was not before the Pacilio Court.

Accordingly, we sought a rehearing because the trial

court erred in its reading of the Pacilio opinion. The

trial court had also failed to offer any guidance of its

own as to resolution of the grand jury misinstruction

issue. In denying our motion for a rehearing, the trial

court stated:

The argument that the Grand Jury

: may have been instructed

(incorrectly) with regard to whether

or not there could be conspiracy

with an undercover police officer to

any mind misses the

mark...Regardless as to the principle

of law which could be considered -

which was governing at that time -

I find that defendants are not

prejudiced, that their cases can be

fairly heard by a jury upon proper

instructions...

‘tithe

Thus, the trial court ruled that a criminal defendant

has no right to a correctly instructed grand jury.

ii.

The Constitutional Right To Indictment

The purpose of an indictment is to provide the

defendant with notice of charges against him in order

that he may prepare a defense, to effectuate the Fifth

Amendment's double jeopardy provision and to shield an

accused from unwarranted and unfounded charges of

involvement in serious crirres by interposing the

independent judgrent of the grand jury. United States

v. Radowitz, 507 F.2d 109 (3 Cir. 1974); State v. Wein,

80 N.J. 491, 497 (1979). No man may be brought to

trial for crime unless a grand jury shall first find

sufficient cause for a charge. And, the indictr-ent must

allege all essential facts of the crime. State v. LaFera,

35 N.J. 75 (1961); See, State v. Senno, 79 N.J. 216, 233

(1979); State v. Dorsey, 65 N.J. 428, 434 (1974); Stae v.

Macuk, 57 N.J. 1, 8 (1970); State v. Ownes, 54 N.J. 153,

161 (1969), cert. den. 396 U.S. 1021 (1969); In re Buehrer,

50 N.J. 501, 512 (1967). Simply put, it is the duty of the

grand jury to determine whether a crime has been

committed. State v. Reynolds, 166 N.J. SUper. 570, 575

(Law div. 1979); State v. Price, 108 N.J. SUper. 272,

+ a

276-2777 (Law Div. 1979). Further, it should be

emphasized that an indictment is not amendable by a

court to charge an offense not found by the grand jury,

either by substitution of offenses or to supply

substantive oissions. State v. Grothman, 13 N.J. 90,

95 (1953).

In State v. Wein, supra at 501, the New Jersey

Supreme Court emphasized that "a person criminally

accused is entitled...to be charged with crime only by a

grand jury." In Wein, in a concurring opinion, Justice

Pashman stated that "no doubt [should] exist...as

to...whether the grand jury found probable cause as to

each...offense [in the indictment]." 80 N.J. supra at

502. See State v. Wagner, 180 N.J. Super. 5€5, 568

(App. Div. 1981); State v. Lawrence, 142 N.J. Super.

208, 215 (App. Div. 1976). Similarly, in State v. Wolden,

153 N.J. Super. 57, 60 (App. Div. 1977), the Court

stated that a defendant may not be tried “on proof of

a different offense from that charged and purported to

have occurred by the State's indictment and proffer of

proof [to the grand jury ]."

iii.

Conspiracy Law Under 2A

«4@e

The gist of the critne of conspiracy under Title

2A is an unlawful agreement between two or more

persons. State v. Furey, 128 N.J. Super. 12, 23 (App.

Div. 1974). The crime of conspiracy requires an actual

agreement to commit the substantive crime. State v.

Madden, 61 N.J. 377, 394 (1972) (emphasis added). Even

where the object of the conspiracy is unattainable, the

fact that parties agreed to cornmit a crime renders

thern subject to prosecution for conspiracy. State v.

Mazur, 158 N.J. Super. 89, 99 (App. Div. 1978). It is

not necessary that there be direct contact between all

the parties to the conspiracy, nor need they all enter

into it at one time. It is not even required that

members of a conspiracy have even heard of each

other. State v. Louf, 126 N.J. SUper. 321, 339 (App.

div. 1973), aff'd in part and rev'd in part 64 N.J. 1782

(1973). The commission of an overt act is an essential

element of the crime of conspiracy under Title 2A and

an integral part of a conspiracy indictrent. State v.

Wein, supra. The overt act required to establish liability

must represent a substantive element of the crime and

is not a mere evidential requirement. State v Newell,

152 N.J. Super. 460 (App. Div. 1977).

iv.

-19-

The Opinion In State v. Mazur

In State v. Mazur, supra, the Appellate Division

considered whether an individual may properly be

convicted of conspiracy with an undercover police

operative. In Mazur, the court failed to instruct the

petit jury that it could not find the defendant guilty

under Title 2A of conspiring with an undercover police

operative. The Mazur Court stated that such a failure

was plain error and established the appropriate remedy

as reversal of the conviction. In Mazur, as part of its

instructions to the jury, the court read the substance

of an indictment which was structured in the sare

fashion as that in the instant case. 158 N.J. Super. at

94 The defendant in Mazur did not challenge the

misinstructions provided to the grand jury and sought no

pre-trial relief. Accordingly, that defendant was tried

on the basis of an indictment which was founded upon

the legal misconception that the law of conspiracy

enconipassed imaginery agreements with undercover

police. Just as in the instant case, the indictrnent in

Mazur stated that the defendants and an undercover

opertive conspired to commit a Title 2A crine. Id.

Thus, the grand jury therein clearly was misinstructed

as to the law. The trial court's instructions, issued to

-20-

the petit jury subsequent to the reading of the

indictrrent, consistent with the misinstruction of the

grand jury, stated "the State must only prove that the

defendant conspired with someone else to commit that

crime." Id. The defendant in Mazur also failed to

object at trial to the charge given to the petit jury.

id. On appeal, the defendant therein challenged the

instruction on the ground that "the...misinstructions

permitted the jury to find [him] guilty of conspiracy if

it found that [he] agreed with [the undercover

operative] to commit the substantive offense." Id. The

Mazur Court framed the issue as:

whether defendant could be found

guilty of conspiracy with [the

undercover operative] who was a

government agent at the time and

thus never formed an intent on his

part to enter a conspiratorial

relationship and never agreed on his

part to embark on a criminal

enterprise." [158 N.J. Super. supra

at 96)

The Court in Mazur ruled that "in New Jersey one inay

not be convicted of conspiracy where the co-conspirator

is a police agent who never intended to enter into a

crin-inal agree nent." 158 N.J. Suer. supra at 97.

21.

In concluding that the error mandated reversal of

the conviction, the Mazur Court focused upon whether

there existed a possibility that the jury believed that it

could convict the defendant upon a finding that he

conspired with the undercover operative. The Court

stated:

While it is true that the jury might

have held defendant guilty of

conspiracy with Nicastro alone, it is

impossible to know whether the

conspiracy conviction was, in fact,

so founded. The point is that under

the court's charge the jury could

have found that he conspired with

[the agent] alone. Further, the

great preponderance of the evidence

adduced below relates exclusively to

conversations between Cohn and

defendant. Thus, it seems quite

likely that the jury found that

defendant conspired with Cohn. [158

N.J. Super. supra at 102]

Having found that the instruction permitted a finding of

guilt of conspiracy with the agent, the court ruled it to

be plain error "since the court's charge would permit

defendant's conviction with a person with whom he

could not, under our present statutes and governing

decisions, be cnvicted." 158 N.J. Super. supra at

102-103. Cf. Sears v. United States, 343 F.2d 139, 142

(5 Cir. 1965).

ve

22.

The Misinstructions To The Grand

Jury Upon Which The Indictment Is

Based Are Violative Of Due Process

And Mandate Dismissal Of The

Indictment.

Title 2A required that any finding as to the

existence of a conspiracy be based upon a

demonstration of a "shared objective" among all the

alleged conspirators. State v. Mazur, supra at 99. That

rule of law precluded indictment or conviction on the

basis that an individual conspired with an undercover

police operative, who merely feigned an agreement. Id.

at 101. In the instant case, the grand jury was

misinstructed as to the law and led to believe that it

was required to indict petitioner if it found that he

agreed with Weisert to comrmit a crime. That

risinstruction, in effect, required that the grand jury

indict petitioner for wholly innocent conduct.

In State v. Newell, 152 N.J. Super. 461, 464 (App.

Div. 1977), the Appellate Division considered an

indictrrent which did not allege sufficient facts to

indicate that the grand jury was properly informed as

to all of the elements of the offense. In this case, the

indictrnent alleges sufficient facts to indicate that the

grand jury was clearly misled into charging a

non-offense, viz. a conspiracy with Weisert. The Newell

o23~

Court stated that an indictment must allege all the

essential fcts of the crime charged. Id. at 466. And,

the omission of an essential elernent cannot be supplied

by inference or implication, or left to intendment. Id.

The State argued in Newell that the conspiracy count

could be coupled with a substantive count for analytical

purposes as part of the determination as to whether the

grand jury found all of the elerents of the conspiracy.

The Newell Court disagreed stating that an accusation

may not "be in part made by the court, and in part by

the grand jury." Id. at 467. An indictment must be

exclusively returned by the grand jury. Id.

In the instant matter, in order to correct the

error in the face of the indictment, the court would

have to subtract as opposed to add facts. Specifically,

the court would be required to remove Weisert as a

conspirator thereby altering the offense (actually a

non-offense) found by the grand jury. Such would

constitute a blatant violation of due process and equal

protection, in addition to a violation of the general

right to indictment. A court may not supplant itself for

the grand jury by substantively amending an indictment.

In this context, the Newell Court stated:

It is fundamental in the

constitutiorial limitation that an

indictment is not amendable by the

oft.

court to charge an offense not

found by the grand jury, either by

substitution of offense or to supply

substantive omissions. [152 N.J.

Super. supra at 467]

As is reflected by the overt acts set forth in the

indictment, the exclusive evidence proffered to the

grand jury as to petitioner's liability was a conversation

in which he engaged with the undercover agent. This

Court rust fashion a remedy for the obvious prejudice

stemming from the fact that the grand jury was

misinstructed that it was required to indict »retitioner

upon a finding that a conspiratorial! agreement was

struck between he and Weisert. The conduct of

petitioner was wholly innocent and the indictment

therefore is palpably defective and should have been

dismissed by the trial court. See United States v.

Dansker, 537 F.2d 40 (3 Cir. 1976), cert. den. 429 U.S.

1038 (1977); United States v. Brown, 555 F.2d 407 (5

Cir. 1977). The basis of the trial court's opinion is that

"with proper instructions the indictment can be

presented to a petit jury.” That rationale bears no

relationship to denial of due process and equal

protection at the grand jury stage. The court ruled that

the grand jury process, in effect, is a mere forrrality.

High regard is accorded to a "defendant's valuable right

i . e

not to be held to answer for a criminal offense unless

on presentment or indictment of an [independent] grand

jury." State v. Chandler, 98 N.J. Super. 241, 245 (Cty.

Ct. 1967); See State v. Brown, 188 N.J. Super. 656, 671

(Law Div. 1983); Cf. State v. Weleck, 10 N.J. 355

(1952); State v. Drayton, 23 N.J.L. 49 (Sup.Ct. 1850).

Thus, an indictment is null and void where the grand

jury by virtue of misinstruction has been deprived of

its independence. If a prosecutor is permitted to frame

the law in any fashion which he chooses, he may

completely dominate the grand jury. and render it a

nugatory process. The sole means to avoid such

prosecutorial abuse is by formulation of a rule that a

tainted indictrrent voids a prosecution ab initio.

So too, we stress that if courts are permitted to

amend indictments to charge offenses not found by the

grand jury, the court becomes the grand jury. The

grand jury herein found a conspiracy in which Weisert

was the common link. Therefore, the grand jury did not

charge an offense due to the _ prosecutor's

misinstructions. No new charge may be constructed by a

court or prosecutor. See, United States v. Cryan, 490

F.Supp. 1234 (D.N.J. 1980), aff'd 636 F.2d 1211 (3 Cir.

1980). Cf. United States v. Crocker, 568 F.2d 1049,

« 260

NN 2 RN tee COE Net ented a

1059-1060 (3 Cir. 1977) (Court and prosecutor may not

usurp the constitutionally guaranteed role of the grand

jury); United States v. Goldstein, 562 F.2d 526, 531 (3

Cir. 1974) (Only grand jury may amend charges); United

States v. DeCavalcante, 440 F.2d 1266, 1271, 1272 (3

Cir. 1971) (Indictment must remain the same one as

brught by grand jury and tnay not become through

interpretation, the indictment of the prosecutor or the

court); United States v. Silverman, 430 F.2d 106, 110 (2

Cir. 1970) (Indictment may not be amended without

re-submission to grand jury). This Court must grant

certiooari to facilitate formulation of a just and fair

rule.

es

CONCLUSION

For the foregoing reasons, we respetfully request

that this Court grant certiorari.

Respectfully submitted,

‘ee

ALAN DEXTER BOWMAN

ATTORNEY FOR PETITIONER

ALAN DEXTER BOWMAN

OF COUNSEL AND ON THE PETITION

MICHAEL A. QUERQUES

OF COUNSEL

«2a.

APPENDIX

la

NOT FOR PUBLICATION WITHOUT THE APPROVAL

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION

November 7, 1983

John J. Sheehy, Esq.

Deputy Attorney General

Departiment of Law & Public Safety

Division of Criminal Justice

25 Market St.

CNo86

Trenton, New Jersey 08625

Alan Dexter Bowman, Esq.

| Palmer Square

Princeton, New Jersey 08540

Michael A. Querques, Esq.

433 Central Ave.

Orange, New Jersey 07050

Re: State of New Jersey v. John DiGilio

Docket No. SGJ-43-77-3

Gentle-nen:

The defendant was indicted by State Grand Jury

Indictinent No. SGJ43-77-3 charging that he together

with a Neil Pacilio and Anthony Pacilio, Jr, ‘as

defendants together with Robert Weisert, a state police

detective acting in an undercover capacity, conspired to

engage in the crime of loansharking. The indictment

indicates that Weisert, pursuant to the demands or the

requests of Anthony and Neil Pacilio, provided money

to Anthony Pacilio to facilitate the loansharking

2a

operation. Prior to that time Anthony Pacilio and

Weisert conversed with regard to the operations to be

conducted and whether or not Pacilio had "the okay" to

go into the business. The "okay" was allegedly to be

given by the defendant DiGilio. Thereafter, at a

subsequent meeting Anthony Pacilio told Weisert that

he had permission from “Johnny” (ostensibly the

defendant) to go into the business and that $300 a

week would have to be paid to DiGilio in order to

operate.

Eventually, at the pressuring of Weisert, Pacilio

arranged a rreeting with DiGilio at Certo's Tailor Shop

in Secaucus, New Jersey. Allegedly, at that meeting

DiGilio made certain incriminating statements.

Thereafter, monies were paid and still more demanded

prior to the arrest of all defendants.

The defendant's first and rost forceful point is

his contention that the indictment must be dismissed

because the Grand Jury was misinformed as to the law

of conspiracy.

The indictrent sets forth that,

ANTHONY PACILIO, JR., JOHN J.

DI GILIO a/k/a THE OTHER GUY

and NEIL PACILIO. herein named as

defendants, and Robert Weisert, a

detective in the New Jersey State

Police acting in an undercover

capacity and using the name Bobby

Hesse, between on or about the sth

AE nt a ete

3a

day of July, lo77 and on or about

the 28th day of September,

1977...within the jurisdiction of this

Court, knowingly. willfully and

unlawfully did conspire, confederate

and agree to engage in the business

and making loans and forbearances

of money at a rate of interest

exceeding 50% per annum and at

the equivalent rate for longer and

shorter periods while not being

—" or permitted by law to

© $0...

It was further part of the said

conspiracy that JOHN DI GILIO

would permit ANTHONY PACILIO,

JR., NEIL PACILIO and Det. Robert

Weisert to engage in the business of

raking loans and charging interest

at a rate exceeding 50% per annum

and at the equivalent rate for

longer and shorter periods;

It was further part of the said

conspiracy that after the business of

making loans at a rate of interest

exceeding 50% per annum and at

the equivalent rate for longer and

shorter periods, was established and

underway, JOHN DI GILIO, NEIL

PACILIO, ANTHONY PACILIO, JR.

and Det. Robert Weisert would

divide any profits from said business

airong themselves.

Among the seven overt acts listed, the only one

involving the defendant stated the following:

3) On or about September 6, 1977, in an

autorobile travelling in the town of

Secaucus and in the City of

Bayonne, in the County of Hudson,

JOHN DI GILIO, ANTHONY

PACILIO, JR., and Det. Robert

Weisert did meet and have a

conversation.

4a

The indictment against defendant, Anthony Pacilio,

Jr. and Neil Pacilio, was returned on March Il, 1978.

Later the same ‘month, specifically, March 29, 1978, the

Appellate Division decided State v. Mazur, I58 NJ.

Super. 92 (App. Div. 1978), certif. den. 78 N.J. 399

(1978) which held that an individual could not legally

conspire with an undercover police operative. In Mazur,

the Appellate Division followed the majority rule on

the subject including State v. Collins, lzo N.J. Super.

48 (Law Div. 1972) and declined to follow State v.

Lavarty, Is2 N.J. Super. 413 (Law Div. 1977). Indeed,

Mazur held that to instruct the jury that it could

convict the defendant of conspiracy if it found that he

agreed with a governrent informer to engage in a

crime was plain error.

Defendant DiGilio remains untried by virtue of his

contentions that he is physically unfit to participate in

a trial. However, defendant Anthony Pacilio, Jr. and

Neil Pacilio were tried by a jury , the result being that

Neil Pacilio was acquitted and defendant Anthony

Pacilio, Jr. was convicted. However, on appeal

defendant Anthony Pacilio, Jr. argued that it was plain

error for the Court to fail to instruct the jury that the

defendants could not be convicted on a finding that he

is, ices, Anthony Pacilio, Jr., conspired with Det.

5a

Weisert. The Appellate division re-affir~ed State v.

Mazur, supra, and decided that the plain error rule was

to be invoked, thereby mandating a reversal of Anthony

Pacilio, Jr.'s conviction. State v. Pacilio, | N.J. Super.

__ (App. Div. 1983) (Decided July 20, 1983), certif. den.,

__N.J. __ (October 31, 1983).

Defendant argues based upon Mazur and Pacilio

that the indictment in the present case is fatally

defective and must be dismissed. That is, the argurent

is that the Grand Jury, just as the Petit Jury, was

misinstructed that a defendant could be charged with

conspiring with Weisert. However, I do not agree.

An analysis of Pacilio does not yield the result

sought by defendant. In explaining its rationale for its

finding of error by the trial court, the Appellate

Division stated that,

The trial judge failed to caution the

jury that it could not convict the

defendant merely on the basis of his

agreement with Det. Weisert. The

evidence was compounded by the

fact that most of the evidence

adduced during the trial related

solely to conversations between the

defendant [Anthony Pacilio. Jr.} and

Weisert. In failing to instruct the

jury that the defendant could not be

convicted of conspiring with

Weisert, who not only had no

intention to commit the crime of

loansharking but intended _ to

frustrate the commission of such a

crime, the trial judge committed the

type of error which could lead to

6a

an unjust result and therefore

constitutes plain error. (Emphasis

added). }

The Appellate Division in Pacilio did not dismiss

the indictrrent but rather reversed the conviction and

remanded the case back for a new trial. At no point is

the conclusion reached that the indictment is fatally

defective. Rather, the interpretation | draw from

Pacilio is that with proper instructions the indictrent

could be submitted to a Petit Jury. Indeed, a

reasonable jury could find that there was conspiracy

between Anthony Pacilio, Jr. and defendant wherein

defendant gave his "approval" to the establishment of a

loansharking operation, an act which in itself would

constitute a conspiracy. Therefore, the application of

the defendant to dismiss the indictment on the basis

asserted is denied.

The second argument submitted by defendant is

that the investigative methodology utilized by the State

violated the defendant's rights of due process. | find

absolutely no basis in these contentions for disrrissal of

the indictment. Even assuring the argunents made by

defendant, | find that there was not entrapment under

existing law. See, e.g., State v. Talbot, 7] N.J. l60,

7a

167-68, 176; State v. Molnar, 81 N.J. 475, 484 (l980).

See also, Hampton v. United States, 425 U.S. 484

(1976).

The next contention of the defendant is that the

prosecution committed rank misconduct and corrupted

the Grand Jury process by procuring Grand Jury

minutes respecting the testirony of Anthony Pacilio by

an exparte order to enable the prosecution to prep

Robert Weisert as a rebuttal witness. | see no basis in

law or in fact that this be an appropriate reason for

dismissal of the indictrent. Moreover, reliance upon In

Re Isth Essex County Grand Jury, Ill N.J. Super. 564,

568 (App. Div. 1970) is misplaced since that case does

not hold that it is misconduct for a prosecutor to

permit an investigating officer as a rebuttal witness to

inspect Grand Jury minutes. Moreover, the holding does

not even require the prosecutor to give notice when

transcripts are ordered during Grand Jury proceedings

and retained by the prosecutor.

The defendant argues that he should be permitted

to cross-examine Det. Weisert at trial with regard to

his involvement in an unrelated civil matter on the

basis of his bias and interest in the outcome of this

litigation. I find this application to be premature. It is

more properly to be made at trial. Similarly, the

-_—- oe + ww -

8a

application to strike Neil Pacilio fror the indictrent

due to his prior acquittal is a matter to be handled by

the trial court at the time of trial.

The defendant further moves under R.|I:l2 that |

disqualify ryself from this case on the basis that I

previously served as Prosecutor of Morris County.

However, I terminated my service in that position in

April, 1977, approximately one year prior to the

indictrent against defendant. Moreover, both the

investigation and preparation of the case was by the

Attorney General. In no way did my office participate

to my knowledge. I see absolutely no basis upon which

I cannot sit on pre-trial applications or as trial judge

if | ar: called upon to do so.

Various miscellaneous motions are made by

defendant that rust be treated. First, he contends that

evidence should be admitted that he suffered froim a

mental disease or defect so as to negate the mens rea

attendant to the offense charged in the indictment.

This is a matter which should properly be addressed to

the trial court. This court has had absolutely no

showing sufficient to decide the point. Defendant then

claims that his right to a fair trial and to counsel were

violated due to the seizure of certain materials by

9a

federal agents. This matter was previously dealt with.

and in any event it is unsupported by the papers

attendant to this motion.

Defendant next argues that absent evidence as to

the extension of a loan there is an insufficiency of

evidence to support the proposition that he conspired to

engage in the business of loansharking. I find that this

argurent has no basis in law. It is hornbook law that

the crime of conspiracy is distinct from the substance

of offense corimitted pursuant to that conspiracy. See,

e.g. State v. Cormier, 46 N.J. 494, 501 (1966).

Furthermore, if the State's proof is indeed accepted,

there would be a basis upon which to find the crive of

conspiracy although no loans in fact were committed.

See, e.g., State v. Travis, 133 N.J. Super. 326, 322

(App. Div. 1975).

In summary, the applications to dismiss the

indictment are all denied. The other points raised by

defendant are to await presentation at the time of

trial.

Very truly yours,

Donald G. Collester, Jr.

P.J.JD.R.C. t/a

DGC:jh

10a

ORIGINAL FILED ON FEBRUARY 21, 1984

IRWIN I. KIMMELMAN

ATTORNEY GENERAL OF NEW JERSEY

ATTORNEY FOR PLAINTIFF

BY: THOMAS J. CHIRICHELLA, JR.

DEPUTY ATTORNEY GENERAL

DIVISION OF CRIMINAL JUSTICE

STATE GRAND JURY LITIGATION SECTION

CN 085

TRENTON, NEW JERSEY 08625

(609) 984-4461

SUPERIOR COURT OF NEW

JERSEY,

MORRIS COUNTY - LAW

DIVISION

INDICTMENT NO. SGIJ43-77-3

Criminal Action

ORDER DENYING

DEFENDANT'S

PRETRIAL MOTION TO

RECONSIDER DENIAL

. OF A MOTION TO

DISMISS THE

INDICTMENT.

STATE OF NEW JERSEY,

Plaintiff,

Ve

JOHN J. DIGILIO, et al.

Defendants.

This matter having been presented to the court on

January 27, 1984, by Michael Querques, Esq., and Alan

lla

D. Bowman, Esq., attorneys for defendant John J.

DiGilio, and Philip B. Papier, Jr., Esq., attorney for

defendant Anthony Pacilio, with Thomas J. Chirichella,

Jr., Deputy Attorney General, appearing on behalf of

the State of New Jersey, Irwin I. Kimmelman, Attorney

General, and the court having reviewed the subrritted

papers and listened to the argurrents of counsel;

It is on this 2lst day of February 1984

ORDERED that defendants' motion for

reconsideration of this court's denial of a motion to

disroiss Indictment No. $GJ43-77-3 is denied for the

reasons set forth in the court's oral opinion of January

27, 1984.

Donald G. Collester, Jr. P.J.F.P.

Papers Considered

x Notice of Motion

Movant's Brief

Movant's Affidvits

Answering Brief

Answering Affidavits

Cross Motion

Movant's Reply

Other - oral arguyent and post ‘notion papers

Pad

~<

12a

ORDER ON MOTIONS/PETITIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. AM-633-83T5

MOTION NO. M-3020-83

BEFORE PART G

JUDGES: COLEMEN

GAULKIN

SHEBELL

STATE OF NEW JERSEY

vs

JOHN DIGILIO

MOVING PAPERS FILED MARCH 19, 1984

ANSWERING PAPERS FILED

DATE SUBMITTED TO COURT APRIL 25, 1984

DATE ARGUED

DATE DECIDED APRIL 30, 1984

ORDER

THIS MATTER HAVING BEEN DULY PRESENTED

TO THE COURT, IT IS HEREBY ORDERED AS FOLLOWS:

MOTION FOR LEAVE GRANTED DENIED OTHER

TO APPEAL x

SUPPLEMENTAL:

FOR THE COURT,

s/ J.H.C., JR.

JAMES H. COLEMAN, JR.,

J.A.D.

WITNESS, THE HONORABLE JAMES H. COLEMAN, JR.,

JUDGE OF PART G, SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION, THIS 30 DAY OF APRIL, 1984.

ELIZABETH MCLAUGHLIN

CLERK OF THE APPELLATE

DIVISION

13a

ORIGINAL FILED IN SUPREME COURT ON OCTOBER I8, 1984

SUPREME COURT OF NEW JERSEY

M-lol7 SEPTEMBER TERM 1983

22,684

STATE OF NEW JERSEY,

Plaintiff-Respondent, : ORDER

vs.

JOHN DIGILIO,

Nefendant-Movant.

This matter having been duly presented to

the Court. it is ORDERED that the motion for

reconsideration is granted; and it is further

ORDERED that the motion for leave to

appeal is denied.

WITNESS, the Honorable Robert L. Clifford,

Presiding Justice, at Trenton, this l6th day of October,

1984.

STEPHEN TOWNSEND, Clerk

—_— - — —_

14a

ORIGINAL FILED DECEMBER 13, 1984

SUPREME COURT OF THE UNITED STATES

NO. A-460

JOHN DIGILIO, Petitioner

Vv.

NEW JERSEY

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon consideration of the application of counsel

for petitioner,

IT 1S ORDERED that the time for filing a

petition for writ of certiorari in the above-entitled

cause be, and the same is hereby, extended to and

including January 5, 1985.

/s/ William J. Brennan, Jr.

Associate Justice of the

Supreme Court of the United

States

Dated this 13th

day of December, 1984.