Supplemental Appendix — Graziani v. New Jersey (No. 951)

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a a or ons. te ; / Uince-Supr ere a os.

Pie Cry... ° -) veives:

} No. OH ee | fs MAY 23° 1950-°

eg, DAMES R. BROWNING.-Clork

United States Supreme Court —

May Term 1960

, . . ie

THe STAT E'QF NEW LK, Y. ; :

Plaintiff, * " * (Om Petition for

( ertiorari to-

. La eee ee the Supreme ( ourt

: = Lane ’ ae ; of the ‘State of °

ERNEST/GRASTANT-€Lals/, New Jersey ?

-Defendant-Petitioner. *

: ¢

} i TS sahysnnenem

SUPPLEMENTAL APPENDIX.

P 7. 7 .

Va JosEpa A PENNICA ‘

’ . Me . ~~

_ Attorney for and of»:

i, Counsel with Petitioner

5 Broad Street

Rok ges Elizabeth, New jersey

son = i

a .

. _ Ne

TABLE OF CONTENTS

Opinion .

_Dissehting Opinion

Notice of Appeal

| SUPPLEMENTAL APPENDIX aie tae

. _ OPINION

ft i ; i MESS ° C

(7 Argued October 20, 1958 ~ Decided June 29, 1959 7

.. Before Judges Goldmann, Freund and Haneman a

.. Mr. John E. Toolan argued the cause for appellants’

. Emest Graziani, James Graziani, Halsey Pakcard, Inc.,

. and Halsey Automobile Co. (Messrs. Toolan,- ‘Haney &

Romond, attorneys). ,

Mr. Charles Stanziale argued the cause for ‘ileiitteite

Joseph Motese, Dominick Canace and Angelo,Aquilino).

Mr. George mmer argued the cause for appellants

Henry Rellah, Michael Moore and Joseph Marcelli (Mr.

~ Joseph Schoenholz, attomey).

Essex y, argued the cause for respondent (Mr.

Charles V: Webb, Jr., Essex County Prosecutor, attomey; 20

Mr. = Cea Kronisch, Legal Assistant Prosecutor Sh

° Mr. Kronisch, of counsel and on the brief). O

The opinion of the court was-delivered by

FREUND, J. A. D. { |

Eight individual and two corporate defepdants appeal from a

judgment of conviction entered agafnst them in the Superior

Court, Law Division, Essex County, after a jury verdict. ©

The charge in the indictment was that between about Septem-

ber 1, 1955 and March 14, 1957 they unlawfully conspired to

obtain money by false pretenses ‘‘from members of the general 30

> ‘public, particularly purchasers and prospective purchasers of

motor vehicles’’ by falsely, representing to some customers

, that certain motor vehicles were “‘leftover new cars’’ when in’

fact they were ised’cars, contrary to the provisions ‘of N. VJ.

S. 2A:98-1 and N. J. S.'2A:98-2.

' .The corporate defendants are Halsey Packard, Inc., iad

Halsey Automobile Co. The former, which “began business in

Se February 1955, is a franchised Packard automobile Godlee,

: 2a . es : s

Opinion

and also sells new and used cars of other manufacture at its

showroom in a large two-story building omCentral Avenue in.

. the City of Newark. During the period mentioned in the in-

dictment, this corporation employed between ten and twenty

salesmen. The Halsey Automobile Co. went into businéss a-

bout October 1956 as. an unfranchised dealer of new and used *

cars of various makes, operating from a lot on Springfield

Avenue in Newark, a considerable distance from the Halsey

Packard, Inc., location. - -

The defendant Emest Graziani is president and owner of

all the shares of stock of both corporations except for one ©

share in each. He testified that his functions were to ‘‘do

the advertising * * * set the policy * * * [and] the financing.”

His brother, the defendant James Graziani, held one share of

qualifying stock in each corporation, and was secretary and a

member of the board of directors of both comoratins. , He was

a salaried employee of Halsey Packard, Inc., and the pincess-

_ ing and preparation of automobiles for sale were under his di-.

rection and supervision. Neither Emest Graziani nor James

Graziani was a salesman of automobiles.

* Included as defendants were the sales manager, Joseph _

Morese, and the e salesmen: Harry Rellah, Michael Moore,

Joseph Marcelli} Dominick Canace and Angelo Aquilino.

In the indictment, 21 were charged with the conspiracy.

The trial of ten of the defendants was severed on the State’s _

motion. One defendant, Anthony D’Urso, was acquitted by

the court at the end of the case.

The theory of the State’s case was that the Conspiracy was

established by the defendants’ joint ao on three levels:

‘ vtz., false advertisements innewspapers 4nd over radio and

television of ‘leftover’ new automobiles for sale; the acqui-

_ sitién of second-hand-or used cars and¢he rehabilitation of

them to look like new automobiles; and the sales of such used .

- cars by the ‘sales staff, who falsely and knowingly represented

-them to be new automobiles. The advertising was under thé |:

irection of Emest Graziani, and the rehabilitation of used

cats was under James Graziani’s supervision.

~~ *

3a.

Opinion

We shall deal with each of these three essential\ stages

separately. = ; } | ‘

(1) |

_ ADVERTISEMENTS

It was stipulated “that.the word ‘leftover’ as used in the

advertisements of Halsey Packard, Inc., referred to new

cars.’ a

The proofs established that in the 18- month saat covered.

bythe indictment the defendant Halsey Packard, Inc., spent

over $300,000 for broadcasts and for the printing of over 900

full-page advertisements in two Newark newspapers and in a

chain of ten weekly newspapers distributed in Berged County.

‘Of the many exhibits.in the record, the. following are typical

ae — published advertisements in bold type:

“Buy YOUR NEW CAR

FROMA RELIABLE NEw CAR AR DE ALER

HLALSEY PACKARD INC.’

advertising 55 Chevrolets and 5S Oldsmobiles. (Newark

Star-Ledger, Sunday, September 18, i955) An advertisement

of January 27, 1956 read:-

‘ . “The Last of. he

LEFTOVERS”

Mesias 55 Fords, Chevrolets and Plymouths and again

-““Buy Your NEw CAR FROM A KELIABLE NEW CAR

DEALER!”’ Another adverijpemen| of November 11, 1956 of-

fered “LEFTOVERS = — aa

’56 Forps . CHEVS. PLyms..”’

followed by the admonition that the purchase be made * “from

a reliable new car dealer.’”’ Some advertisements carried the

words '*F actory Equipped” beneath ‘Leftover.’ ,

The defendants also advertised over television and radio

stations. The cost of telecasts was shared by Packani

4a,

Opinion

(the ‘teencfactuce:), and incthese about one-haif the time was

devoted to Packard cars and the other half to’ defendants’

_ leftovers. Radio scripts carried the same message that left-

over (new) cars were offered for sale and urged that “‘a re-

liable new car dealer’’ be patronized. , .

Both Emest Graziani and James Graziani knew that the

word “‘leftover’’ in advertisements conveyed and was intend-

: ed to convey to the public the idea that the cars were new.

(2)

RECON DITIONING OF USED CARS.

James Graziani supervised the purchasing of used cars. ~

He directed the cleaning up of the vehicles, which, beside

removal of dents, or tt and replacement of slip-covers,

included steam cleaning of the motor. Speedometers were

tumed back to zero. Emest was familiar with the practice of

the tuming-back of speedometers and the steam cleaning of

motors under James’ direction.

. @

SALES

Thirteen separate fraudulent sales by the above-named

salesmen to ae many walks of life) responding to

the advertisements wé@e proved. Eleven of these sales were

made for Halsey Packard, Inc., and two for Halsey Automobile

The defendant-Henry Rellah made three of these sales: to

Stewart M. Clippinger, -Frank Williams and Dorothy Schrauth.

Detendant Michael Moore sold four cars: to Peter Hughes,

Andrea Frascino, Ite Hamming and. John Klaymeier. Defend- |

ant Joseph Marcelli sold four automobiles: to Frank Ferrigno,

Harry Jahoda, Stanley Kasmarek and Gilbert Delgado. De- —

fendants Dominick Canace and Angelo Aquilino participated

in the sale of one car to Gladys Gargalowitz, and Canace

Opinion | ]

sold another to Lillian Brown.’ Defendant Joseph Morese, the

“sales manager, was shown to have assisted the salesmen in

several of the sales. -. Kae

It was stipulated that “‘[e} ach of the cars involved in the” |

transactions, testified to by the State’s witiesses, were

used cars, and the particular salesman who made the sale |

knew at the time he made the sale that the car was used."’

Each of the’above-named purchasers testified concerning! 10

_ his or her. purchase and, while the transactions were not |

identical, the pattern was the sanfe. They testified about

their attraction to the defendanis’ premises by the advertise-

ments; they came to buy new cars;. each purchased upon the

representation and ufder the belief that the car was a new

automobile, but later ascertained through some defect in the

vehicie that it was in fact a used automobile. The car sold .

to Williams. had be¢n involved in an accident. In the Clipp-

inger, Williams, and Brown transactions, standard new car

forms of sale were used. In the Clippinger order, however, a 20

‘discount’? was allowed; in the Williams order, er des-.

cribed the car as “‘Demo,”’ meaning demonstrator; and in the

Brown sale, the word “‘used’’ appeared as “U Sed.”’ In.the

other transactions, a used car order form was given to the

purchaser. Whei interrogated about this, the salesmen, and

in some instances Morese, the sales manager, assured the

buyer that the car was new but, ‘because the defendant Hal-

sey Packard, Inc., was an authorized Packard dealer, they

could use only the used car form in connectio# with the sale

of a car of another make. Mrs. Klaymeier, for example, testi-

as follows: : ; |

‘ “1 told Mr. Moore I wanted the car canceled because it

was a used car, And he told me they used this blank be- |

cause they are an authorized Packard dealer and in order \

to sell other type cars besides Packards they used this | |

used car order form, but that it was @ new car,’ Ve

There was testimony that salesmen adopted a selling tech-

nique, referred to as **switch-sell or bait,’ which divemed

Opinion

the interest of a prospective purchaser from a new automo-

bile on the floor of the salesroom to one which appeared new

and was represented to be new but which was in fact a used 3

car. 3

" Both Emest and James Graziani participated i in the bea

- ment of claims of some of the 13 above-named buyers; and, in

the WiHiams case, Emest soon recognized that this car had ©

been __ .vived in an accident. This was one of the‘cars which

at the time of sale had been represented as a new-car by the -

salesman Rellah. However, none of the salesmen was ever

discharged.

The defendants on their case dusted t a conspiracy. . They Zé

offered evidence that Halsey Packard, Inc., was an author-

ized Packard automobile dealer and sold other new and used

cars; that during the period stated’in the indictment it sold

4,332 automobiles, of which-55 were new Packards, 488 new

cars of various other makes, and 3,790 used cars. Defendant

‘ Halsey Automobile Co. sold new and used cars of various

makes and, in the period of about six months from October

-1956 to March 14, 1957, sold a total of 494 cars, of which 33

_were new and 46] were used cars. |

Defendants insisted that the advertisements were not mis-

leading or untruthful; that they had new Packard cars for sale

and that whenever they: ‘advertised new cars other than Pack-

ards for sale, they had such cars available for sale.

Emest Graziani, as noted, knew about the stea cleaning

of cars and the turning. back of the speedometers by his

brother James. James, in his testimony, chia that the

company gave a 90-day or 4000-mile guaranty, and. it was for

that reason that he turned the speedometers to zero.

All of the salesmen;.with the éxception of defendant

Aquilino, who did not testify, denied a conspiracy and, the

fraudulent acts attributed to them. It will be recalled, how-

- ever, that.it had been stipulated that each of the cars in-

valved in the 13 sales referred to were used cars and that the

particular salesman who made the sale knew at the t time the

sale was made that the car was’ used.

7a 2

Opinion

At the close of the State’s case the defendants moved for an

acquittal which the court denied. Upon the conclusion of the

defendants’ case these motions were renewed and again de-

«nied. Appellants claim that this was erroneous. After the .

jury verdict of guilty, defendants moved for a new trial wich

the court also. denied.

The following sentences were ‘imposed: Emest Graziani to

serve 12. months in the Essex County Penitentiary; James

Graziani, probation for three years‘and a fine of $1,000; Hal-

sey Packard, Inc., and Halsey Automobile Co., each to pay a

fine of $1,000; Joseph Moresé, probation for three years and a

fine of $1,000; Henry Rellah, probation for three years and a

fine of $750; Michael Moore, probation for three years anda “-

fine of $500; Dominick Canace, probation for three years.and

a fine of $300; and Angelo Aquilino, sentence suspended.

Three separate briefs have been filed on behalf of the de-

fendants. The principal contention is that the court erred in

denying their motions for acquittal because the State failed to

present any direct evidence of a conspiracy and that the cir

cumstantial evidence adduced did not exclude every reason-

able hypothesis except that of guilt.

_ Defendants argué that the State’s evidence may have war-

ranted the inference that- certain of the salesmen may have

been guilty of a substantive. criminal. offense, namely, viola-

tion of the statute for obtaining money by false pretenses, N.

J. S. 2A:111-1, but that the State failed to prove the offense

charged in the indictment—conspiracy, contrary to N. J. S.

2A:98-1.

On behalf of Ernest Graziani and James Graziani, itis °

contended that the State offered nq evidence from which it

could reasonably be inferred that they had any knowledge of

the existence of a conspiracy and that even knowledge that :

some of their salesmen were misrepresenting cars would be

insufficient to constityte participation in the conspiracy

charged in the indictment. On behalf of the corporations, it is

argued that in the absence of’ knowledge by its officer or agent,

~_ could not be found guilty of the offense.

+ 10

Opinion

Defendants emphasize that the circumstantial evidence is

more consistent with legality than with any taint of illegality

because the State presented proof of only 13 fcandalent sales

out of a total in. excess_of 4,300 sales-of cars:~-— - -. = —~---~-

The issue for the-trial court and for us is not shethes the |

Circumstantial evidence excluded every reasonable hypothesis -

‘except that of guilt. State v. Bulna, 46'N. J: Super. 313, 317

(App. Div. 1957), affirmed 27 N. J. 93 (1958). . The issue to

be decided is instead whether the evidence before the trial

- court, viewed in its entirety, and giving the State the benefit

of all legitimate inferences therefrom, was ‘such that the jury

could properly find, beyond a reasonable doubt, that the de-

fendants had corruptly agreed to obtain money by false pre-

tenses from purchasers and prospective purchasers of motor

vehicles. This is the accepted standard by which to test the

propriety of the trial court’s ruling on defendants’ motions.

State v. Goodman, 9 N. J. 569, 581 (1952); State v. Dancyger,

29 N. J. 76, 84 (1959); State v. Hall, SSN. J. Super. 441, 447

(App. Div. 1959).

It is well known that a conspiracy is rarely capable of proof

through direct evidence. The unlawful agreement is most fre-

‘quently established by inferences drawn from prof of overt

acts done in pursuance of it, State v. Greenberg, 105 N. J. L.

- 383, 385 (E. & A, 1928), and the circumstantial evidence is -

often “ more certain, ‘satisfying and persuasive than direct evi-

dence.”’ State v. Goodman, supra, 9 N. J., at p. 581; State v.

' Carbone, 10 N. J. 329, 339 (1952); State v. Corby, 28 N. J.

106, 119 (1958); State v. O'Connor, 134 N. J>L. 536, 539

(Sup. Ct. 1946); 3 Underhill; Criminal Evidence (5th ed. 1957),

§ 859, p. 1924. ‘The probative value of circumstantial evi-

dence is determined by the rules of ordinary reasoning such

as govern mankind in the ordinary affairs of life. While cer-

tain actions of each of the defendants, when. separated from,

the main circumstances and the rest of the case, may appear -

innocent, that is not significant and undoubtedly appears in.

every case of criminal conspiracy.

‘Opinion

oe: “Conspiracies are. concocted secretly and are . proved

; ‘with difficulty. Ordinarily the prosecution must rely on

circumstances and inferences. But as Wharton put it:

Piiemsis *-*-This-evidence may be such as shows that the

parties acted together or in. ‘concért;-th-a-manner, under

* the circumstances, warranting the belief that their acts

were the result of previous understanding and agree- |

ment between them. A series of acts constituting one

‘systematic scheme and. having a natural ¢ connection is

admissible.

- Circumstances attending a series of criminal acts

may satisfy the ordinary mind that they result from

concerted and associated action, although if each cir-

cumstance was considered separately, it might not

show confederation.’ 1 Wharton, Criminal Evidence,

(12th ed..1955), § 180, at p. 354; State v. Goodman,.9

N. J. 569, 581 (1952).””

State ». Yedwab, 43 N. J. Super. 367, 378-79 (App: Div. d

- certif. denied 23 N. J. 550 (1957).

The evidence in this case adequately sustains the allega-

tions in the indictment. We agree entirely with the trial .-

judge’s denial of the motion for acquittal and the submission

of the case to the jury. There was an abundance of evidence

from which the jury could draw the reasonable inference that

a corrupt agreement had been entered into among the defend-

“ants. The extensive advertisements under the direction of.

Emest Grazhani on behalf of the corporations of which he was

the sole owner were intended to and did attract prospective

purchasers of automobiles to the premises. The phraseology

in the bold type in the press and the announcements over.

- radio and television repeating the words “‘leftover cars”

were intended to convey the idea of new, as-distinguished

-from used, automobiles, and thé repeated direction that. deal-

ings be conducted with a reliable new car dealer was lure to

the salesrooms of. the defendants. The reconditioning and |

rehabilitation of the used automobiles by James Graziani, in-

10a a dea

Opinion

cluding the tuming back of the speedometers to zero and

steam cleaning of the automobiles, were quite assuredly de-

" signed to give the prospective purchaser the impression that

the automobiles were new. The admitted misrepresentaticn -

by salesmen to prospective purchasers that the automobiles

were new, and the pretext for the use of used-car order forms,

constitute separate links in the chain, beginning with the ad-

vertisement and terminating with the sale. From the evidence

in this case, thé jury could reasonably and legitimately find

beyond a reasonable doubt, as they did find, a corrupt scheme

or agreement among the parties. State »v. ae 49 N.J.

Super. 429 (App. Div. 1958).

That Emest Graziani’s. proved acts. in aibiaenes of the

_ conspiracy extended only to the direction of advertisements, <a

. whicli, because of the actual availability of new cars, were

truthful standing alone, does not compel a finding that he -

was not a participant in the conspiracy. The overt acts in

execution of the conspiracy ‘‘need not be enacted by all or

any specified number of the conspirators. One will suffice.’’

State v. Western Union Telegraph Co., 13 N. J. Super. 172,

2 (Cty. Ct. 1951), affirmed 12 N. J. 468 (1953). The. un-

' lawful agreement becomes an indictable offense when ‘one

of the parties to such agreement takes a step in furtherance

of the execution of it.”” State v. ‘Hemmendinger, 100 N. J. L.

234, 237 (Sup. Ct. 1924), affirmed 100 N. JL. 417 (E. & A.

1925). See also N: J. S. 2A:98-2; State v. Ellenstein, 121 N.

J. L. 304, 315 (Sup. Ct. 1938).

The defendants Strenuousl y argue that proof by thé State. of

only 13 fraudulent sales out of sales of more than 4,000 auto-

mobiles by the defendants could‘hardly be called a pattem

of fraudulent conduct. The fact that the State charged and .

provec only 13 instances wherein purchasers bought used

cars in the belief that they were buying new ones hecause of.

the false representations of the salesmen does not neces- | __

sarily indicate that the total number of fraudulent sales was |

not in excess of the 13 proved. In our judgment, sufficient .

Hao

Opinion . . Sake

‘evidence of the corrupt agreement was ‘adduced by the proof of - a

‘13 frauduleit sales. The argument of the. defendants could tse

appropriately be, and probably was, ma‘le before thejuyas

an element in support of their claim of innocence, but this _

contention would not and did not warrant the removal of the

case from the Consideration of the-jury.

Defendant Emest Graziani argues that the advertisements

were truthful and that there wére new Packard cars and other 10

“pew automobiles always available for sale during the adver- e

\ tising campaign. Since the newspapers refused to accept.

“new car’ advertisements before being satisfied that the -

dealer actually had such cars available, this point was prob-. |

ably true. But the truthfulness of the advertisements again ~~ _

does not negative the existence of. an unlawful agreement. vj

The overt act which is performed. need not be criminal. See,

‘ e.g., United States v. Rabinowich, 238 U. S..78, 35 S. Ct.

682, 59 L.&d. 1211 (1915); State v. pales Supplies, ind.

—43.N. J. Super..110, 115 (Cty. Ce. 1957). The jury might wail

have concluded that the defendants agreed to divert the atten- .

tion of prospective purchasers from the new automobiles to

-used ones which app@hred new. The defrauding of the public

came not from the advertisements themselves but from the .

employment of the techniqué referred to as the “‘switch- sell’

or “*bait,”’ and’ there was nothing in the case to justify a

li Fl that, as a matter of law, there was no agreement to .

defraud the public by use of these techniques combined with

the advertisements. The evidence, as already reviewed, « 0

clearly pointed in the opposite direction. State.v. Vojacek, ——

supra, 49 N.. J. Super., at p. 438...

The defendants also urge that the oie of the jury was

against the clear weight of the evidence and was the product

of bias, passion, prejudice, mistake or ignorance. In the ab-

- sence of a clear and convincing showing that the verdict was |

the result of such influence, a jury verdict will not be set a-..

side. Here. no — showing has been made. From our review

‘

- of the entire record, we contlude thet the verdict should not

» the motion for a new trial was proper. - 2

“12a

Opinion |

be disturbed and that the fuling of the trial judge in denying.

The contention on behalf of Halsey Packard, inc., and

Halsey Automobile Go. that they were entitled:to a indgment

of acquittal because of absence of proof of knowledge or

guilty intent.of the corporate offigers is palpably without .

merit.. The corporations here are close corporations, and the —

defendant Emest Graziani is the sole owner of all the ‘stock

of both corporations. The knowledge of the activities of his

- employees and associates, which the jury coald-have inferred |

he essed, is in turn imputable to the corporation. The

guilty io of corporate officers may be imputed to a cor- ..

poration to pro e corporation’s guilt. New York Central

& H.R.R. Co. v. United States, 212 U.S. 481, 29 8. Ct. 304,

53 L.Ed. 613 (1909); Mininsohn v. United States, 101 F. 2d - -

477, 478 (3d Cir. 1939); State v. Western Union Telegraph

Co., supra, 13 N. J. Super., at p. 221; Joseph L. Sigretto &

Sone, Inc. v. State, 127 N. J. L. 578 (Sup: Ct. 1942).

The second major contention urged-in behalf of the defend-

ants concems the trial court's refusal to make certain charges’

to the jury as requested. Emest and come: Graziani request-

ed the following instruction:

“1. The defendants James Graziani and Emest

Graziani are officers of the defendant corporation. An

officer of a corporation is not criminally liable for the

acts of the corporation, performed through its agents or

employees, unless such acts done by his authority-or

permission or with his knowledge and acquiescence and

in the execution of a criminal purpose on his part. State

v. Parker, 112 Conn. 39, 151 A.-325 (Sup. Ct. 1930).

Therefore, unless you are satisfied beyond a reasonable

doubt that the defen ‘ants had knowledge of the transac--

tions here involved and that they actively participated or

_ gave their passive acquiescence therein, with a criminal

- State-v: Pincus, 41 N. J. Super. 454, 458 (App. Div. 1956),

13a

Opinion

retum a verdict of not guilty in their favor.”

The substance of the first part of this request was that, | ex-

cept in certain citcumstances, the Grazianis, as officers of

the corporation, could not be held guilty for the acts of the.

corporation performed through other agents or employees.

Although, as, the State properly obsetves, such a charge .was

at variance with the evidence indicating that°the operation

ran from the management down and not from the sales force

up, the trial judge did in fact offer to charge as far.as the

word “part” pteceding the citation. Since counsel did not

respond to this offer, error may not be assigned as to this.

portion. ‘

As to the belenie of the request, the trial judge refused 50

to charge because the language seemed to require proof that

two Grazianis had knowledge of the particular transac-

~ tions of the salesmen. The court was clearly correct that

one conspirator need not have knowledge of,. - approve, or

participate in every specific act of another maine in”

furtherance of the conspiracy.

Defendants Morese, Canace, and Aintites requested the

-court to instfuct that it must be proved beyond a earagmaed

doubt that each accused associated with-the principals ‘i

_.. the sense that he had a stake in the success of the venture.’

However, it was not disputed at the ‘trial that-each of the de-

fendants had an interest in the increased volume ‘of sales by

the defendant corporations. There was therefore no evidence

before the jury as to which the one phrase would have

- been meaningful.

It is well to observe that we have found the court’s emp

to be lucid and fair. ;

Defendants’ third contention is that the trial court seed in

denying them the opportunity to prove misconduct on the part

“of the grand jury in retuming the-indictment. Prior to the °

purpose, then Emest and James Graziani, are not criminal-

ly responsible for such transactions an (sic) you must _

Opinion

trial below, the defendants in ‘this case joined with others”

- indicted for conspiracy by thé same grand jury in a “Joint

Petition to Dismiss and Quash Indictments.’’ The first

“*grievance"’ alleged i in the petition was that-the Grand j jury

was guilty of misconduct.

eo ie having found and retumed the within indict-

ments indifferently and openly without any evidence ~

whatever having been received or heafd by them to sup-

port the charges, and your petitioners herein allege that

there was not, in fact, any evidence of any Qature or

kind before the said grand jury * * *. Such information

as here-alleged, has been furnished to your petitioners :

who, while they have-no personal knowledge of the

. same at this time, nevertheless, .in their verification,

herein charge and allege this occurrence upon informa-

‘tion and belief, believing the same to be true, and they

hereby request the opportunity to bring the proofs before

this Honorable Court, and request the Writ of Subpoena

_of this court to issue for the nee aforesaid.’’ (Em-.

phasis supplied):

The petition was supported by the joint affidavit of sai

Graziani and the president of another indicted corporation

charged with a like offense in the sale of automobiles to the

public. Their affidavit récited that “‘as to those matters fin

the petition] alleged upon information and belief, we believe .

them to be true.”’

On the basis cfithe petition and affidavit, the trial judge

‘ issued an order to ‘the Prosecutor of Essex County to show |

cause why a day should not be fixed for thé taking of testi-.

mony and for the introduction of such other proofs and evi-

dence as might be submitted by the Petitioners to substanti-

ate their challenges: .

The State’s answer to the petition, submitted by the Pros-

_ ecutor and Assistant Prosecutor, stated that ‘‘The Grand

Jury voted the indictments in the above entitled cases only

‘ . . a]

— | “6 . . 7 T}, eo eeene +s ¥ e

| Sas Srey

©:

. . ° Opinion Ree. l

_ after having heard and considered the swom 1 oral testimony of

complaining witnesses concerning each and every charge be-

fore it, and in addition thereto having examined and con-

sidered real evidence in support of the charges laid in the in-

dictment.’’. Attached thereto was the affidavit of the grand

jury foreman, stating unequivocally that ‘‘real and testimonial

evidence was presented to, and considered by, the said Grand

Jury,”’ and that it had heard witnesses on each of the indict- 10¢

ments handed down. ;

-Qn the. return date of the order to show cause, the trial

judge inquired of defendants’ counsel as to whose testimony

they proposed to take, and the following colloquy took place:

Mr. Herman Kapp: Well, we propose to take the —

testimony of the Prosecutor; we propose to take the .

teStimony of'the clerk of the grand jury; and we propose ,

to take the testimony of such other custodians of records, _ Pa

minutes, and other indicia of proof, documentary and off ya

otherwise, as would Satisfy your Honor, as well as mem- .

. bers of the grand jury who were présent at the time.

fhe Court: Is.it your thought to ask not only what’

witnesses appeared but also what they testified to?

Mr. Herman Kapp: 1 cannot go into the details of the

testimony, your Honor, That is not my right..

The Court: You are limited to the names of the wit-

nesses? - xe

/ . £ee

The. Court: You need not answer thie but it will have

a bearing on my disposition of the case. Are you pre<

pared to say what information, whether it is by hearsay,

you have as to the areagrenee of witnesses and who gave

it -to you? 9

Mr. Herman Ka I] don’ t think I should be asked to

divulge a van Kapp I this time if it was given to me rs

in confidence. | merely make a tender of what proof we

"want » ‘put in to: establish our challenge ard sebstenti-

ate a." .

*““—~

l6a

Opinion

* Briefly stated, the defendants’ complaint was that ike

had heard hearsay statements that no witnégges had been

called before the grand jury; that they had 8 way to.sub-

_ Stantiate the fact because the record of the witnesses who

appeared was ‘onder fick and key’’; that they had heard

hearsay that there was no suth record; that the court should

_ examine the record, if‘it existed; that their suspicions were

"aroused because the-grand jury found the conspitacy indict-

. ments only 14 days after having been convened; that the

grand jury clerk knew “‘nothing about this case having been

presented and has no minutes and did not even get the vote.’’

_ Counsels’ argument to the trial judge was more that there —

\ were no witnesses before the grand jury than that there may

have been some witnesses but not enough to implicate all

those who were indicted.’ w

Three days later the trial judge rendered his Dudlahi on

the defenaants’ application to take testimony. Relying on

State v. Dayton, 23 N. J. L. 49 (Sup. Ct. 1850); State v. Borg,

BN. J. Misc. 349, 150 A. 189 (Sup. Ct. 1930); In re Kelsey,

127 N. J. L. 568, 573 (Sup. Ct. 1942); State v. Biehl, 135

L. 268, 271 (Sup. Ct. 1947); and State v. Grundy, 136

L. 96, 99 (Sup. Ct. 1947), he said: ,

**Before a court orders the taking of such testimony ‘as

is sought here, it seems.to me the cases hold that there

should be a strong prima facia showing of misconduct or

that the Grand Jury. heard no witness and received no’

testimony * * *, Assuming without admitting that an af- -

fidavit upon information and belief is properin a matter |

such as this, certainly the source of the information and .

- the grounds of belief should have been stated, agd the

. nature of the information should have been given in ‘such

detail that the court could determine whether, if proven,

it would constitute such misconduct as would cause the —

court to nullify: the indictment,’ ?

Defendants’ motion for leave to appeal from this inter-

locutory order was denied by the Appellate Division in an

‘17a

» Opinion ~

oral ruling on October 21, 1957. The case proceeded to

trial, the defendants have been convicted, and-the order is

now before us for review.

' RR. 3:3-7, ordains that the “requirements as to secrecy of

" proceedings of the grand jury shall remain as heretofore.”

The rule is to be read in conjunction with R.R. 3:3-5 which

‘confers upon the assignment judge the power to order the

record of the vote of each juror, kept by the clerk of thé grand

jury, to be made public, No procedure is suggested by the

. tules, however, as to the manner in which defendants may ob-

tain information concerning what, witnesses have testified be

fore the grand jury, whether there was any testimony, taken,

- or whether the testimony, jf taken, was sufficient to substan-

tiate an-indictment. In view of the fact that witnesses before

the grand jury are not bound by the oath of secrecy taken by

’ the jurors themselves, the tactic most frequently employed by

counsel, although not pursued in this-case, is to inquire of

grand jury anti whether their testimony at the trial is contra-

dictory thereof. See Costello v. United States, 350 U.S.

359, 76 S. Cé. 406, 100 L.Ed. 397 (1956), teh. den. 35] U. S.

* 904, 76 S. Ct. 692, 100. L.Ed: 1440 (1956); State v. Bovino,

89 NV. J. L. 586, 588 (E. & A. 1916); State v. Silverman, 100

N.J.L. 249, 252-54 (Sup. Ct. 1924); State ». Goldman, 14

N. J. Mise. 463, 465, 185 A. 505 (Sup. Ce. 1936); 8 Wigmore,

. Evidence (3d ed. 1940), § 2363, ‘p. 726. Cf. State.v. Manney,

ia N. J. 571, 583 (1957).

‘As stated, that method of proving the alleged lack of evi-

dence before the grand jury was not employed inthe present

case, This is not said by. way of criticism, for here the at-—

tack on the indictment, was pressed prior to the trial. thereon,

_ the ra at the trial whether they appeared before the

and a defendant with substantial grounds for having an indict-

_ ment dismissed should not be compelled to go to trial to

prove the insufficiency. 7 '

Yet, inasmuch as no showing was made at the trial to con-

- firm the alle-etions on the ares jury acted on insufficient

18a

_ evidence, the narrow question before us is not whether there

was misconduct in fact on the part of that body, but whether

the pretrial showing by the defendants and the other indictees

was of such caliber as to require the taking of testimony to

‘prove the allegations contained in the “‘Joint Petition.’’ As

to this, we are satisfied that the trial judge, in the absence

of facts to: rebut: the presumption that the indictment was re-

tumed on sufficient evidence, properly refused to permit the

defendants to explore the proceedings before the grand jury.

| _ The vague hearsay affidavit of the defendants attached to.

the “‘Joint Petition” was based on “‘information and belief”’

only, and, in such circumstances, the remote possibility that

facts might be adduced to substantiate the challenge did no'

warrant any further interruption of the normal course of crim-

inal proceedings. See Kastel v. United States, 23 F . 2d 156,

158 (2d Cir. 1927), cert. denied 277 U. S. 604, 48 S. Ct. 600,

72 L.Ed. 1010 (1928); Gor v. Vaught, 52 F. 2d 562 (100A Cur.

1931); Laska v: United States, 82 F . 2d 672, 678-79 (102A.

Cir.), cert. denied 298 U. S., 689, 56 S. Ct. 957, 80 L.Ed.

1407 (1936); 42 C. J. S., Indictments and Informations, § 24

(ce) (2), p. 869; 27. Am. ie. Indictmenta and Informations.

164, p. 715;.éd., § 142, p. 699.

- Authority to the contrary in this jurisdiction is said to

have been established by the decisions in State v..Jones,

11S NJ. L. 257 (E. & A. 1935); State v. Donovan, 129 N. J.

L. 478 (Sup. Ct. 1943); State v. Donovan, 130 N. J. L. 42

(Sup. Ct. 1943); and State v. Manney, supra, 24.N.J., at p.

577 (1957). These cases are clearly distinguishable. In

State v. Jones, the defendant challenged the array, charging

the systematic exclusion from the grand jury of those of his

color. The trial court’s refusal to make any inquiry into the

allegation Or to receive any evidence i in support thereof was

reversed. 115N.J.L., at p. 258. The case was clearly cor-

rect, for the composition and qualifications of the grand jury,

’ -unlike its intemal proceedings, are subject to judicial

scrutiny ee sae challenged. - P

192i‘ . =

Opinion

In the State. v. Donovan cases, the cherge was that certain.

presentments tetumed against former public officials were

politically inspired and were a progressive step in ‘a planned

campaign of political assassinatiom 129N.J.L. 478. It) —

was held that the indictees were entitled to ask not the de-

tails of the evidence, but simply whether there was evidence

before the grand jury to justify the presentments. /d., at p.

483. In the instant case, however, there is no basis at all in

the record for even a suspicion that the grand jury was in any

way prejudiced against the defendants. Nor were there

present in the Jones and Donovan cases an unequivocal affi-

davit by the grand jury foreman.and a representation by the _

assistant prosecutor in open court, both to the effect that the

- indictments wére retumed on the basis of evidence received

and considered. And State v. Manney, far from Sustaining the

defendants’ contention, is an instance where the Supreme

Court reversed the aetion of the trial court in quashing an in- .

dictment on the basis of affidavits alone, which charged that

‘ unauthorized persons were present in the grand jury room. The

Court expressly warned against subscrébing to “* ‘delays and

defeats in the prosecution of crime’ unless some prejudice is

shown constituting a trespass upon fundamental justice.’’

24.N.J., at p. 583. Fundamental justice does not demand

thal defendants be afforded an opportunity to explore alleged

irregularities in the internal operations of the grand jury. until

there is a clear preliminary showing of possible misconduct— _

based on something more than “‘information ‘and belief.’

The ‘‘second grievance”’ in the “‘Joint Petition’’ ‘compiain-

ed of a letter sent to prospective witnesses by the prsecu-

tor in which it was suggested that if the defendants approach-

’ ed them for a statement, the statement, if any, should be given

to defendants at the prosecutor's office. Although there was

no instruction in the letter that the witnesses not give a State-

‘ment to defendants privately, defendants complained .to the

trial judge (and again:to the Appellate Division on the motion

for leave to appeal) that the letter resulted in a refusal of the

°.

‘

10 ‘

‘10

20a

| Opinton

witnesses to give ahem any statement, thereby destroying

their right to interviéw material witnesses in advance-of

‘trial and making a fair trial impossible. The trial judge did

not pass on whether the letter was justified, but he ruled that

whatever prejudice it occasioned could be removed by a sec-

ond letter. Accordingly, he ordered the prosecutor to mail a- |

nother letter, prepared with the assistance of the attomeys

_for defendants, to make it clear. that the witnesses were to

feel free to give defendants whatever statements they wished.

Although the attomeys refused to participate in the drafting

‘of the second letter lest they prejudice the defendants’ posi-—

tion, it was mailed by the prosecutor sufficiently prior to the

trial so that defendants could not have been prejudiced by the

_. first-letter. Defendants not having beén prevented from. pre-

paring their case, the incident.does not justify a reversal.

The judgments of conviction are affirmed.

Sn eo

DISSENTING OPINION

HANEMAN, J. A. D., dissenting.

. The majority has determined that the evidence at the close —

of. the State’s case, taken together with the legitimate in-

- ferences which may be’ drawn therefrom, was such that a jury |

could properly find, beyond a reasdnable doubt, that defend-

ants had corruptly agreed to obtain money by false pretenses.

Thus, they conclude, it was proper, at that stage in the pro-

ceedings, that the trial court deny defendants’ motions for

acquittal. The standard which they employ for testing the evi-

dence in a circumstantial evidence case, follows the language

of the mle recently restated by the Supreme Court in State v.

Dancyger, 29 N. J. 76 (1959). That statement of the standard

_is an amalgamation of two seemingly different tests which

have been employed over aperiod of years. “The two cases

cited in Dancyger i in support of the rule there laid down, State .

v. Rogers, 19 N. J. 218 (1955) and State v. Goodman, 9 N. J.

‘569 (1952), are not cited as direct: authority for the statement

of the mule. It i is reasonable to.assume, therefore, that the

“accepted standard’ employed by the majority is that against

which the evidence in the present case must be measured.

And there is no doubt that it represents a lesser burden to

_ the State than the forceful language, exy. of State v. Rogers,

19 NV. J. at 232. I do not disagree sith thet standard and ac-

cept it as the rule; however, when| test the proofs of this

case by that rule I arrive at the opposite conclusion from that

reached by the majonty, and thus, to the ultimate conclusion -

that it was error to deny the motions for acquittal at the close |

of the State’s case.

The principal support for the indictment is the unlawful a-

greement. Without proof of its existence.none can be con-

victed of the crime of conspiracy; with proof of its existence

‘and some overt aci in furtherance of that agreement, noné in-

_ volved can escape entanglement in the conspiratorial net.

. But, in any case, the conspiratorial pudding wil] not set: un-

less the proofs at the close of the, State’ s case are such ‘as

will warrant -a ey by the jury beyond a reasonable doubt,

10 ©

22a

Dissenting Opinion

that there existed. among the defendants an agreement to ac- ©

complish the things with which they stand charged and that

there was an overt. act in furtherance of some ‘purpose em-

- braced by their agreement.

Appellate review of the propriety of den ying a-motion for a

judgment of acquittal is confined to a review of the evidence

as it affected. the defendant at the time the trial court was |

called upon to rule: Defects in the State’s- proofs which were

cured-on defendant’s case cannot be considered on the review

of the ming by the trial court. State v. Yedwab, 43. N. '

Super. 367 (App. Div. 1957); certif. den. 23 N. J. 550 (1957).

The proofs which satisfy the-rule may be circumstantial. It is

“the trial court’s duty to determine whether the evidence is

competent to justify certain inferences but it is not the trial.

court’s function to decide which of the various inferences

should be drawn. United States v. Valenti, 134 F. 2d 362 -

(2d Cir. 1943), certif. den. 319 U. S. 761, 87 L. ed. A712, 63

S.Ct. 1317 (1943).

Twenty-one persons were indicted by the co County

grand jury for conspiracy to obtain money by false pretenses. .

N. J. S. 2A:98-1 and 2A:98-2. The trial of ten was severed on

the State’s motion. The remaining eleven-were tried together .

ander the indictment. The trial court directed a judginent of

acquitta! in favor of one of the eleven. The ten remaining de-

fendants were convictéd and appeal from the judgment of con- |

viction which was entered upon the verdict of a jury and from

‘the sentence imposed upon each of them. Defendants moved

for a judgment of acquittal at the end of the State’s care.

I dissent from the opinion of my colleagues on the propriety

‘ of the ruling on the motion for acquittal at the close of the

State’s case, which is but one of five grounds advanced for

réversai and argued on this appeal. And so, | turn to a de- .

tailed’ summary of the proofs adduced on the State’s case. .

23a

| Dissenting Opinion.

STATE’S CONTENTIONS” -

Defendant Halsey-Packard, Inc. was a franchised dealér for

Packard automobiles. -The corporate business was conducted

from a large Building situate at 57] Central Avenue, Newark.

-In his opening to the jury, counsel for the Grazianis and

the corporate defendants, stated that Emtest Graziani is the ©

: brains of the business; he is the owner of the business; his

brother James is the secretary of the corporation and-owns

one share of stock. ‘He is an employee of those corporations.

- Defendant Morese was sales manager from September 1955 to,

January 1957. Defendant Rellah then became sales manager.

- All other defendants were e salesmen ne by Halsey-

. Packard, Inc.

Same of the automobiles which Hal sey= Piicbaind dnc. had

for sale were so-called ‘‘leftovers.’’ ’ Courisel stipulated

“that the word leftover as used in the advertisements of

Halsey-Packard, Inc. referred to new cars.’’ The public has

apparently accepted this‘trade meaning of the term *‘leftover.””

The term identifies an unused automobile of the manufactur-

er’s model year immediately preceding the current model year,

e. g., a ““leftover’’ 1958 model car is one which is unused

and on hand when the 1959 models are. announced.

The theory of the State’s case is that the defendants-con-

spired to cheat and defraud the general public and to obtain

money from them under false, pretenses, through the sale of

used automobiles as “‘leftovers.’’ It is not contended fhat —

this conspiracy was: directed at any particular.individual

prospective purchaser but rather at those individuals as.mem-

bers of the general public.

The view of the State is that the alleged conspiracy is con-

stituted by jcining together three links in the business activ-

ity of Halsey-Packard, Inc. When the links are bent together .

’ the result is the conspiracy alleged. The components are —

these:

1, Advertising: On or about eens 1, 1955 dlalsey-

Packard, Inc., through its president, Emest Graziani, under-

*.10

; 20

Halsey-Packard, Inc. would divert custome

peared new but was, in fact,-used,

ese Vk

—— ; Bie,

ite 24a |

Dissenting Opinion

° 2? . e

took an advertising campaign via the mass ‘communication.

media, t. e., newspapers, radio ‘and television. . The campaign —

‘spanned a.périod of 18.1.2 months, ending March 14, 1957.

Its ‘alleged object was to “‘educate’’ the public to believe -.

that Halsey-Packard, Inc., a reliable new car dealer, had a-

‘Vailable for sale ‘‘leftover’’ automobiles of divers manufacture oe

at.low prices. The underlying purpose ascribed by the States

to this campaign was to build the prestige of Halsey-Pack ard,

{nc., especially the “‘reliable new car dealer’ facet of that

prestige, and thus attract a large volume of prospective cus

tomers,.so imbued by the’advertisements that they would ac-

cept, as new and unused, vehicles which.were, in fact, used.

Parenthetically, it is admitted that whehever, during this ad-—

vertising program, a “‘leftzover’’ vehicle was: advertised for °

sale, Halsey-Packard, Inc. had in its possession and for sale

a°vehicle of the make, model and year advertised and, thus, .

that the advertisements were not, ipso facta, false. ;

2. Servicing of automobiles: The second link im theeState’s

shetey of the-case js the processing and conditioning of « d-

vehicles’so as to make them appear as-new. The allegzed s:0-

cedures involved replacing the odometers in used vehicles

so that they redd at zero miles, and the steam cleaning ofthe

. engines of such vehjcles so as to give the impression that tne

vehicles were new and unused, These pmcesses, it is al-

leged, were accomplished at the direc tion and under the super-

Vision of Jamés Graziani.

4. Sevtch sales: The alleged-transaction which completes

the chain is the “‘switch-sell or bait’? techniqae. It.is al-.

leged that through this selling technique thyesalesmen for

from their con-

amobile ¥% one which ap-

ould represent such

vehicles as new and unused. The implication which the State

draws from this selling procedure is that it was conducted a!

cor under the direction of ‘Halsev-Packard, Inc. through ita -

agents and effecjuated the result which all had planned.

sideration of a legitimate new a

25a

Dissenting Opinion ©

‘The’ State asserts that these three elements, taken to-

gether, constitute a conspiracy to defraud the public,

PROOFS

The State argues that the existence of a conspiratorial a-

greement was proved by circumstantial evidence which fell

into three categories, i. e., (1) advertising; (2) servicing of

used automobiles; (3) “switc ‘h’’ sales. The testimony will

be examined in that order, having in mind that the inference

of guilt must arise from the entire préof and not simply a

segregated portion thereof. - State v. Daneyger, supra; State ;

v. Rogers, supra.

Advertising: Over a period of 18 1/2 months Ilalsey- Pack-

ard, Inc. spent in excess of $300, 000 on advertising. Of the

advertising copy employed (new Spapers, radio and television)

the prosecution produced 28 newspaper advertisements and

nine television scripts. Most of that advertising copy point-

ed ott that Halsey-Packard, Inc.*was a new car dealers All

such as was introduced in evidence stressed that the corpora-

“tion had “leftover”. vehicles for sale. The copy was pre-/

pared for Halsey-Packard, Inc. by members of a firm specia!.

izing in that work: [he content of the copy was arrived at

through conferences between the advertising firm and Emest

“Graziani. The witness who was responsible for the Halsey-

Packard, Inc. advertising account testified that-he knew that .

the firm was an authorized dealer in Packard automobiles:

’ that he knew the firm had bath new and used automobiles for.

sale; that when particular “‘left-overs’’ were advertised for

- sale Halsey-Packard, Inc. in fact had “‘leftovers’’-of the

makes and models advertised. - ‘Halsey-Packard, Inc. also

advertised Packard automobiles (it’s franchized new car line)

for sale during this same period of time.

It is admitted that the advertising statements were truthful —

that ineach instance Ilalsey-Packard, Inc. had a*new car a-

vailable as advertised. ‘| note again, parenthetically, that the

—

“a

10.

‘though i

MA-

26a

Dissenting Opinion -

format and content of at least one newspaper advertisement

was substantially the same as that insefted by other auto-

mobile sales companies. The advertisement referred to is

one which appeared in The Newark Star-L edger on. january

12, 1956 and is one in which Halsey-Packard, Inc. did not -

use the new car dealer phrase. This advertisement is similar

in format and content to tho’ of another automobile sales

company advertisement which appeared on the same page of

the newspaper.

The State admitted that the 28 copies were the only ones

.of such a tenor which it could discover, and that there were

other advertisements during the sagie period of time where

the phrases, ‘“‘new car’’ and “‘new car dealer” were not stress-

ed. In five of the 18 newspaper advertisements reproduced in

the appendix the “‘new car dealer’ phrase is not used. Con-

ceming these advertisements, the prosecutor stated:

“We had some discussion earlier about whether there

were other ads. It was also my understanding that there

were other advertisements other than left-overs. They

hltemated Halsey Packard sales with a leftover sale

during the same date. The advertisements which have

_ been marked in evidence are substantially all the left-

_ over ads that 1 have been able to pull out from the news-

papers during that sightocn-menth pened. ** (emphasis

- supplied)

The only newspaper advertisements pian ic the State

were those which appeared in The Newark Star-Ledger, al-

ny appears from the testimony-of the advertising agency

representative that the advertising campaign included other

newspapers. Quite patently, the expenditure of $300,000 must

have been concemed with a far greater. number of inserts and

scripts than were offered as exhibits. Upon the proof of the

foregoing, it could not.be concluded that the advertising cam-

paign was part of a a to mislead the public into the

\ : 2 ee 2a

X ia ‘Dissenting Opinitn

belief that Halséy-Packard, Inc. was solely a dealer innew

cars an had available only new cars for sale. ‘Not only was”

it admitted that the new cars were available as advertised,

but there is absent my. proof that new cars were, not actually |

sold. \

Hemember, thet the State’ s contehtion’ is that the advertis-

ing campaign resijted in misleading the public into the belief

that Halsey-Packar Inc. wi: a new car dealer selling’ only

‘new cars. To’prove that the’public had been so mislead, it

produced 13 purch sof cars. An examination of the tésti-

mony of these purch®sers on the question of the effect of the

- advertising is most revealing.

1. Schrauth testified that\she had seen a television "adver.

; _ tisement—inferentially of new cars, Since she requested to be

shown a new car. Implicit in her her statement to the salesman

that she “‘wasn’t interested in us and] didn’t want to

get stuck’’ is the admission that she knew lsey-Pack-

ard, Inc. was engaged inselling both new and used cars;

2. Clippinger“did not testify that he had seen or heard any ~~

advertisements. He made two inquiries as to whether the car

he purchased was a new or second-hand car, Again, it is evi-

dent that he did not believe Halsey-Packard, wg sold only”

* —new cars.

3. Hamming had read an advertisement concerning 1956

Chevrolets.

4. Hughes did not testify that he had heard or seen any ad-

vertisements. . |

5. Jahoda testified that he had seen a television adder

tisement of 1956 “‘leftovers.’’ He too made inquiry whether

the cars he was examining were new Cars.

6. Gargalowitz had seen “and /heard idvertiaements of 1956 '

“leftovers.’’ She was shown both new and used.cars. She

also inquired whether the car she had selected was a new. car.

- At least when she entered the salesroom she was alerted to.

the fact that Halsey-Packard, Inc. sold bo'th hew and used

cars.

7. . Ferrigno both saw and: heard. advertisements of “‘left-

heen

(30

sa ~

Mtéconting ) Opinion }

over’ cars. He was advised that they had sold thé cars ad- — :

vertised but had “‘several new cars.”

8. Frascino had seen an advertisement of different models

at different prices. He did not state whether they were used

.oF new cars.

9. Delgado testified that although he had seen an adver-

tisement on television, he “‘never paid that any mind.”

10. Kasmarek did not ‘tomnify that he had ever seen any ad-

Nerina vs

new cars advertised on television. She noted a sign reading

“used cars’’ at the salesroom and was hence alerted before .

_ purchase to the fact-that Haleey-Packard, Inc. sold both new

and used cars.

12. Williams did not testify that he saw any advertise-

ments.

13. -Brown saw ~~ advertisement of 1955 “leftovers” on

television.

Five of the 13 purchasers, therefore, failed to rectify that

they had read any advertisements, and a sixth testified that

_ he did not pay.any attention to the advertisements. Of the

seven who saw some advertising, at least five were alerted

_ to the fact that Halsey-Packard, Inc. sold used cars before

consummating a purchase. If the State’s theory that the pur-

pose of the advertising campaign was to mislead the public,

it failed in six of the recited sales to have any effect whatso-

ever, and in five additional sales, the purchasers were dis-

abused of any such impression before purchasing.

But the State urges that this advertising campaign must be

viewed in the light of the following two ‘‘essential”’ steps.

~~ Servicing used cars: The sole evidence submitted which,

it ‘is alleged, related to placing used automobiles in such a

* condition as to mislead a prospective purchaser into the be-

lief that they were new cars, concemed speedometers. The

gist of the testimony of Wright, a speedometer expert, not an

employee of Halsey-Packard, Ine., was that when he was -

9a.

» (it Dissenting Opinion

called to. do work for Halsey:Packard, Inc. it was to perform

onirea work on speedometers. Among.the services per

formed by fiim was the repair of defective odometers... Because

of their composition, the defective odometers on which he

worked had to be replaced with new units. ‘He testified that

he did not reset the odometers in other cars for Halsey-Pack-

ard, Inc. It was only when‘an odometer was damaged and had

to be replaced that he installed a new odometer with: ‘no mile-

Cage réflected thereon. ~

The effect of a stipulation by pean for James Graziani

~, was that speedometers on used cars fell into three classes,

(1) odometers on used cars which reflected zero when pur

chased by Halsey-Packard, Inc; %2)- odometers which reflect-

ed the true mileage where cars -were resold’ before there was

an opportuhity to reverse, and (3) other odometers which re-

flected zero were reversed at the direction of Halsey-Pack-

ard, Inc. It does not appear under whose direction or authority

* odometers were reversed. There is absent any proof that the

speedometers in the cars involved’in the 13 sales, mex

adverted to, were reversed.

The proof indicated that i in many instances no ‘woul ol”

been done on the 13 cars here involved, The evidence dis-:

closed that on the following sales, the following defects were

noted by purchasers before purchase: (1) Schrauth — dent. in.

left rear fender, dirty upholstery, the odometer 'on the first ve-

hicle which she purchased registered 100 miles;.(2) Clipp- -

singer — scratches on finish, air filter and oil filter dirty, four

worm tires, 4 miles registered on odometer; (3) Hamming -

front headlight not functioning, no stop-light, worn spare tire;

(4) Hughes — odometer registered .09 miles; (5) Jahoda — ,

odometer registered 154 miles; (6) Gargalowitz — paint chipp-

ed, no handle’ on side vent, inside light not functioning, seat

adjustment handle missing; (7) Kasmarek — scratches near

door; (8) Klaymeir — dust and scratches; (9) Brown — door

- . handle stuck, odometer registered 60 miles. :

There was no proof that the motors had been steam-cleaned.

There i is testimony in my three instances with regard to the —

cae us a. . .

10 =

20 -

30a

at | oe , Dissenting Opinion

engines. Clippinger testified that the engine looked clean but |

other apparent conditions of the engine warmed him that the

vehicle was not new. Dalston, one of the witnesses involved

in the Kasmarek sale, and Johoda, testified that the engine |

_ of the vehicle purchased looked new.

There was no competent proof that used cars had been gen-

-erally reconditioned and particularly that the cars concerned

10 in the sales here involved had been reconditioned so as to /

mislead prospective-purchasers. Nor is there proof that the F

engines had been steam-cleanec.

Sales: It was stipulated that each of the 13 sales were of

used ‘cars, known to be such by the salesman who closed the

: b see ety 2 In considering this testimony it must be remem-

“bered that we are not concemed.with the substantive crime of

obtaining money under false pretenses. Whether the individ-

‘ual salesmen were guilty of that crime is of no moment./ A.

‘consideration of the sales may be madé only to decide wheth-

er those sales, in conjunction with the advertising and al- —

leged reconditioning, spell out a conspiracy to defraud or, re-

stated, whether the proof relating to sales, when viewed in

the light of the other proof, was such as would give rise to a

natural inference that. the sales Were a result of an conspira-

torial agreement and were made in furtherance of the alleged ©

’ conspiracy.

Of the 13 cities” 12 signed used car and 4 re-

ceived used car guarantees. The purchase orders were in the

30 ° following generai format:

3la -

‘Dissenting Opinion Janae — ..

| : “UsED CAR ORDER

HALSEY-PACKARD, INC.

571 Central Ave., Newark, N. J.

. Date.

Please enter my order for one used car as is

‘ ' ; other is

Make So ae Year 410

Motor No. . License or Title No. |

- }\’Gash price of’ car ° °

Accessories

Total cash price ' |

Deposit on order ‘ See ee i)

Used car allowance *_ :

Less bal. due on my car.

Cash on delivery ‘\

Record of car traded in . or

-\. Total credit ‘Balance dae : 20

“: Make Year °° fr %

Motor No. Finance charges ;

Serial No. © -- Model Amount, of Contract @

To be paid in payments of each’

No salesman’s verbal agreement is, binding on the Company; *s

all terms and conditions of this sale are expressed in this

agreement; any promises or understandings not herein speci-

fied in writing are hereby expressly waived. The above car.

is in good condition and we do not guarantee. Any adjust-- -

ments of repairs made from this day will be charged for. We 30

do not guarantee the mileage, or model. It is understood and

agreed that the Title of Ownership of car as above described

does not pass.to me until the final cash payment‘is made. |

certify that | am twenty one years of age or over and that the

car | am trading inis free from.all incumbrances whatsoever,

except as noted above. In the even’ this order'is cancelled,

the Dealer reserves the right to retain all deposits sufficient

to cover liquidating damages. This oder is not binding un-

less authorized by an officer of the company. |

10 .

32a °

Dissenting Opinion

Buyer’s signature }

Address Phone

Accepted * Salesman

Date delivered (Dealer's signetess). “

(underscoring supplied) ;

The guarantees were. in the following’ gemeral format: |

HALSEY PACKARD, INC. °

90 day — 4000 mile Guarantee

Make eS

Model Custom line

The used motor vehicle described below is omen by

the undersigned dealer under normal use and service for the

exclusive benefit of the Purchaser for a period of 90 days or

Four Thousand Miles, which ever occurs ‘first, against any

necessary mechanical repairs to the extent of fifty (S0%) per .

cent reduction from the regular current list price of materials

as said list prices are established by the manufacturer of the -

vehicle; provided the vehicle is delivered to our place of

‘business during the above stated period.

The obligatica of the dealer under the terms of this guaran-

tee is woid-if the above-described vehicle is not brought i in to

Halsey Packard, Inc. for lubrication and oil chianges at the

customer's expense, at the end of each 1000 miles of use

during the 4000 mile period. Dealer's guarantee is expressly

limited to repairs and replacements made by Halsey Packard,

Inc. at its place of business, does not include bills contract-

-ed elsewhere, is reudered void if the above motor vehicle is

serviced or repaired élsewhere, or has been subject to mis-

use, negligence, or accident.

.No guarantee is made as to ‘Automatic Deseeibesten. Tee.

ing Charges, leaks, rattles, motor failure, tires, radio, glass,

accessories, médel or mileage, electrical equipment, steering

gear, thermostats, gasoline guages or speedometer. Buyer

’ understands that this guarantee is given to him in lieu of

4 .

! o

33a

Dissenting Opinion oa ie 1

_ any and all other guarantees whether expressed or implied

and it constitutes the only obligation on the parteof the dealer

and no person is authorized to assume any other liability or

obligation against the dealer in connection with the sale of

this motor vehicle.

Date of delivery ne Halsey:Packard, Inc.

. ye By 10

| have read the above, accept

the terms and limitations as

stated, and acknowledge that

this guarantee constitutes the

entire obligation of the dealer.

| acknowledge receipt of my copy of

used car order and that all papers

were filled out before I signed

them. °

(Customer's signature] | * 20

If defendants employed hone forms for the purpose of

covering their tracks it was a most ingenious, but,. dangerous

. method, since the purchasers, in spite of glib explanations,

‘were surely alerted to tread cautiously. Of the 12 purchasers

so receiving used car orders, six made inquiry as to the rea-

son.for including the word ‘‘used’’ ina ‘“‘new’’ car sale.

The State proceeded with proof of the circumstances sur-

rounding 13 purchases. The testimony in connection, with 0 :

these purchases is as follows:

1. Dorothy Schrauth, a secretary setae by the Civil

Service Department of Duchess County, New York, saw a

television advertisement‘o! Halsey-Packard, Inc. and made

inquiry by letter as to the amount of trade-in allowance she

~ could receive for a 1951 Hudson on account of the purchase

of an automobile.: She received # reply letter from defendant

Rellah, which has been destroyed. On or about J une 28, 1956 -

she went to the office of eetoay-Seeaees, Inc. and met

)

_ lah whether the word ‘‘used’”’ meant anything in the guarantee

‘all of their cars.”” Thereafter the automobile which she had

‘purchased developed generator trouble and would not start.

-stery in this automobile was dirty and called Rellah’s atten-

‘cepted delivery of the Chevrolet on July 5, 1956. Later she

‘order in the above form. Mrs. Schrauth admitted that she read

34a

. Dissenting Opinion _

Reilah. She inquired of Rellah whether “‘the cars were as ad-

vertised’’ and advised him that she ‘‘wasn’t interested in any ©

used cars and didn’t want to get stuck,’’ Rellah told her that

the automobiles were as advertised. She asked for and was

shown a Ford automobile. Upon inquiry as to whether it was

new, Rellah replied ‘doesn’t it look like anew car?’’ She

noted that the speedometer showed 100 miles. Upon being

questioned about the mileage, Hellah replied that it was put

‘on in transporting the car from the place of purchase to the

showroom. An examination of the car disclosed a dent in the

left rear fender which Rellah explained was probably inflict-

‘ ed in moving the vehicle about the showroom. She agreed to

‘purchase the car and took delivery of it.on the same day. At

». the time of purchase she signed a used car purchase order

and received a used car guarantee. She made inquiry of Rel-

and was advised by him that it was ‘‘a form that they used for ®

Upon being adyised by telephone of this condition, Rellah

suggested that she return the car to Halsey-Packard, Inc. and. —

he would give her another one. Upon her return she was shown

a Chevrolet. When inquiry was made of Rellah whether it was

a new car he failed to answer. She noticed that the uphol- _

tion ‘to that fact. He replied that she was too fussy. She ac-

found that the brakes would not hold and that the front seat —

was out of-line. She retumed to Halsey-Packard, Inc. and —

told Rellah of her complaint. The brakes were repaired and |

she was referred to another firm to have the seat repaired.

This.apparently could not be accomplished. At the time of

the purchase of the Chevrolet she signed a used car purchase

over the purchase order and the guarantee on the day she pur

chased the car and that Rellah had at no time represented

either of the automobiles to be new cars.

35a

Dissenting Opinion 6 eae

2. Stewart M. Clippinger, an engineer for eae: eae

- Co., testified that he was engaged in the’sales and service of

: precision equipment used in- aircraft. He did not testify that.

he had seen or heard any of the advertisements of Halsey-Pack-

ard, Inc: On December 24, 1955 he approached Rellah at Hal-

sey-Packard, Inc. and asked for a “‘leftover’ 1955 Packard

automobile. Rellah showed him an automobile, explaining that

it was the only. Packard left and that it was a new car and 10

special, i. e., that it had been specially ordered fora custo- ~:~

mer who was killed in an airplane accident before delivery was

made. The vehicle was on display on the main floor of Hal-

sey-Packard, Inc., decorated in a Christmas motiff. The decor

ations prevented Clippinger from examining the vehicle in de-

tail, except for the rear deck, which looked “*beautiful.’’ He

did, however, notice some scratches in the finish on the door.

The price was agreed upon and Clippinger signed a purchase

_order, making a deposit of $10 on account thereof. Nowhere -

on this order does there appear any legend which would lead - 20

to the conclusion that the automobile sold was aused car. On

.. the date of the purchase he was told that the car could nat be

serviced because it was being used as a Christmas display,

-ut was advised that he should return on December 27th to

take delivery. Upon his.return on December 27th the vehicle

was still decorated and in the same place. While he and

Rellah were preparing the necessary papers for the transfer of

title, the vehicle was taken to the second floor shop to be

serviced, He was told that customers were not pemnitted in

- the shop, but after the car was serviced Rellah invited him to 30

go upstairs in order to view his purchase. Clippinger then

looked under the engine hood and testified that “‘the engine

_ was beautifully clean, with two exceptions; the air-cleaner

and the oil filter. The dirt en these two elements was some-

thing that could not be built up in the four mites shown on

the speedometer.’’ He said to Rellah: ‘*What the hel! did you

sell me, a second-hand car?’ Rellah replied: *‘No, this is a

new astomobile; ‘and pointed to the paper tags onthe engine,

s oe

‘ a 360

‘Dissenting Opinion

and they were burnt to e crisp." Three of the tires on the

automobile were wom and the fourth was very much wom. On.

second inquiry as-to whether this was a new car, Rellah re-

plied: **What kind of an outfit do you think you are dealing

. -with?. Certainly it’s anew car."’ He explained that old tires

were used in the garage to preserve new tires from being |

’ scuffed. Rellah had four new tires installed the following day.

The certificate of tithe was delivered on January 4, 1956: It

_ bore the serial number A461549aZ. Clippinger became sus-

_ picious that the “‘A”’ designated something otber than a new

car but did not further pursue his suspicions. The day after

Clippinger took delivery, i..¢e., December 28; 1955, he ob-

served an oi! spot on the floor of his garage . He drove to a

gasoline service station and had the automobile placed on a

- dift. He then noticed that the front bumper and shock ab-

sorber were damaged and that the crankcase was dented. He

retumed to Halsey-Packard, Inc. and was again reassured by .

Rellah that it was a new car and that the damage was prob-

ably caused by the cartage trailer that brought the car from —

the factory to Newark.

3. Ite Hamming testified that he read in a newspaper adver-

tisement that Halsey-Packard, Inc. had 1956 Chevrolet cars.

It diy -be noted that he had no difficulty in reading this adver

tisement, but at the trial, in connection with the two purchase

’ orders. and the guarantee which he signed, he suggested a

limited capacity to reac and write English, and hence a fail-

ure to understand the nature‘ and import of those instruments. _

Although the testimony of Hamming, his wife Jennie and his

cousin John Kepperus is somewhat confusing, it leads to the |

following factual conclusions. On November 24, 1956 they

went to the Halsey-Packard, Inc. building and there spoke to

"’ Moore. Hamming and his wife had decided that they wanted

a new 1956 Chevrolet automobile and they so indicated to

Moore. Moore asked — “*You don’t want to buy a used car?”’

They*replied i in the negative. He was shown one or two auto-

mobiles and decided upon the purchase of a two-door Chevro-

37a

, Dissenting Opinion

let sedan. The price arived at was $2100. On thet. day he

signed a used carorder in the form above set forth. Across

the face of that purchase order appears the legend ‘‘subject

to approval of house.’’ On November 28th Hamming returned

to Halsey-Packard, Inc. without lfis wife but accompanied by

his cousin, Kupperus. He was advised by Moore, at that time, _

that Halsey-Packard, Inc. could not sell the car selected for

$2100. Moore sought an additional payment of $300 to com-

plete the sale. Upon Hamming’s refusal to pay the additional

purchase price, he, Moore and Kupperus repaired to the office

of Joseph Morese, the corporation sales manager: Morese:ad-

-‘vised Hamming that they could not sell a new Belair Chevro-

-. Jet for $2100 and in that connection took from his file various

papers in an effort to substantiate his statement. There was

some discussion conceming the payment of a commission to

Moore and after a lengthy argument, Moore’s‘ commission. was

compromised at $20 and the sale price raised to $2120. Ham-

ming wandered through -the various floors of the salesrooms

“> with Kupperus but was unable to discover the car which he -

said he had purchased on November 24th. On November 28th

he signed a second used car-order, aciqss the face of which |

Murese wrote — “‘this is a used car.’’ Thereis some confu-

sion as to whether this. legend was written before or after

Hamming had signed the purchase order. Hamming testified

- that on separate occasions both Moore and Morese explained

the appearance of the word “‘used’’ by stating that they were

Packard dealers, and that all other cars had~tw be sald as

“used cars.’’ Hamming accepted delivery of a car at 10:30

‘P.M. on November 28th, at the curb in front of the Halsey-

Packard, Inc. sales office. He admitted that when he entered

. _ the car so delivered to himhe knew it was different from the.

one he had seen on November 24th. Hamming admitted that

he read ‘‘used’’ in the several places where the word appears

‘in the first purchase order, between November 24th and No- .

~ 10

vember 28th, and that he knew the difference between new.

and used. He also admitted that no‘“‘deal’’ had been consum-

mated after the discussion in Morese’s office on November

' 38a

Dissenting Cavite

28th and until the meal on order Was signed. The ar-

rangement for the purchase was thereafter made upon the com-

promise with Moore on the amount of the commission to be -

paid to the latter.

4. Peter J. Hughes testified that he was a payroll super-

visor and did payroll and cost accounting. On October. -

_ 1956 he went to the salesroom of Halsey-Packard; Inc.,

gether with his wife Mary and his two sons, Thomas 9

_. Allen. They had been shopping for automobiles and had

looked at some 1957 cars. As they were riding down Central

- Avenue they happened to see the Halsey-Packard, Inc. show-

room. He did not testify that he had seen or heard any of the

-advertisements of Halsey-Packard, Inc. On their afrival at

the showroom they were met by Michael Moore, of. whom they

made inquiry conceming a Ford automobile. Being undecided

about colar, they looked at a number of cars, both in and out

_ of the presence of Moore. They finally discovered. a car of a —

color satisfactory to them but refused to make any purchase on ’

that evening. During a conversatién. with Moore they were ad-

vised to “‘take any one you want, they are ai] brand new.”

Upon inquiry as to the full price “‘of this new car’ they were —

_ advised that it was $2100. On the next night Hughes retumed

and after discussion as to the price, decided on the ‘purchase.

Mhile i in the process of signing a purchase order upon a -

“*used caf order’ Mary Hughes made i inquiry as to the connota-

tion of the words “used car.”” She was advised by Moore:

“*We are working under the Packard Company name and we

can’t give out any bills‘of sale because we sell several types

of cars. We work under the Packard nanie.’ The fifty-sevens

" are out and we cannot sel] *** we-can't give out new bilis of

sale."’ Hughes accepted delivery on October 17th. While

driving home, or shortly after his arrival there, he discovered

that there was no front headlight, no tail stoplight or signal

- light, that there was no jack in the trunk, and the spare tire

was worn. He retumed the next day ake an additional

- $100 payment on account of the on and the mechanic

“|

- 39a

if attendance fixed the lights and replaced ihe spare tire.

Prior to the purchase, Moore was-asked: “How come only .

nine-tenths of amile’’ on the speedometer? He replied that

that was the distance the car had been operated to drive it in

from the delivery truck. Moore as well explained the damp-

ness on the seats by suggesting that they must have been

washed off, sinee they had probably gotten dusty from stand-

ing around. The pext day Hughes discovered that he could,

: not throttle the car speed below 35 miles per hour. He never

made any complaint to Halsey-Packard, Inc., the Grazianis

nor to Moore about his having received a used car which had ~

been represented as a new car, nor made any complaint until

he noticed a newspaper article conceming an investigation

of these defendants. Mary Hughes testified, inter alia, that

prior to paying the balance required on account of the pur-

chase, she had a discussion with Rellah conceming an adver. |

tisement which appeared that day in the newspaper, advising

that Halsey-Packard, Inc. was selling cars for $1400. She. _

complained that if they had waited a day longer that she and

--her husband would have saved some money on account of the

purchase. Hellah then replied that they would not have want- :

-ed the car as advertised, which he showed her. The automo-

_ bile thus exhibited had no seats in the back and no mg on the .

floor. In answer to the inquiry — ‘How would you expect any-

body to buy a car like that?’’ Rellah replied — ‘‘We don’t ex-

_ pect them to buy a car like that. It’s just a gimmick we have

to have. We have to have something to drag people inoff the

_streets and if people come_in looking for cars at that price,

- that’s what we show.them.’’ |

- §. Harry J. Jahoda, who had attended Long Island Univer-

sity. for two years, testified that onor about December Ss

1956 he had been watching television and saw a commercial ~

advertisement fv ' Halsey-Packard, Inc. advising that they had

1956 leftovers at a pricé of $1695. On that day he went to

the salesroom of Halsey-Packard, Inc. and was waited upon: by .

Joseph Marcelli. In answer to his: inquiry whether the cars

(10

400

' Dissenting Opinion __

bie was then exeminiig were new, he was advised that they

were all new, but that some had been driven in to save ship-

‘ping charges.- He advised Marcelli that he wanted @ new Car,’

‘10

preferably a Ford station wagon. He was unable to: locate a

station wagon to suit his desires but located a Ford F airlane _

four-door sedan which he leter purchased. ‘He admitted that.

there was no discussion about this particular car but that

Marcelli showed him the motor, the interior and the trunk. The

motor and the interior looked exceptionally clean and the tire

in the trunk looked new. Jahoda signed,a used car order. He

was advised by Marcelli that it could not be sold.as anew car

. since the speedometer showed thst it had been driven 154

miles.

6: Gladys M. Gargalowitz, an office nurse, testified that

she had seen the Halsey-Packard, Inc. advertisement of 1956

leftovers on television and had read such advertisements in

the Newark Star Ledger. On November 22, 1956 she went to

Halsey-Packard, Inc. showroom and was waited on by: Angelo

Aquilino. She requested that she be shown a new car and

apparently saw two new cars and some used cars. She was

advised: by Aquilino which of said cars were new and which

were used. She locateda Ford Fairlane. which appealed to

her and she inquired whether the car was new and was ‘advised

by Aquilino that it was a leftover 1956 model. She noticed

that the paint on this«vehicle was chipped off in a few places;

that there was no handle on the side vent window; that the in-

- side overhead light did not function, and the seat adjustment

- handle was missing. Upon inquiry directed to Aquilino he ex-

plained that such defects occurred in the transportation of

the vehicle. . She made no purchase on that date but returned

on two further occasions, November 24th and December 4th.

On the first occasion she was accompanied by her brother

Roland and on the second occasion by her father and brothel

On the'second visit they. were again waited on by Aquilino,

-who was accompanied by Dominick Canace. Canace advised,

upon inquiry, that she would receive a new-car guarantee.

- {

- Aquilino had signed the purchase order they repaired to’

_Morese’s office; who, in her presence, wrote across the face

4la

Dissenting Opinion . - \ Mae

Aquilino, replying to ‘an inquiry Fm her father, stated that.

the vehicle they were considering was anew car. On Novem- .

ber 22nd, although she did not enter into an agreement to pur

chase, she left a deposit. On November 24th she made a fur-

ther payment and signed a “‘used car order.” After she and

Othe purchase order, “this is not a new car.”” On making *.-

inquity of Morese as to why he had added this legend, he just

_“walkéxlaway.’’ She admitted that after the papers had been

signed she,knew that the car she had purchased was not a

new car. Shaigeceived a used car guarantee.

7. Frank Ferrigno, a maintenance mechanic, testified that

he saw a Halsey-Packard, Inc. advertisement on television,

.and a. Newark newspaper advertisement conceming leftover

cars. On November 6, 1956, in the Halsey-Packard, Inc. show-

room, he was waited on by Marcelli. Upon making inquiry for

a 1956 leftover car advertised for $1495, he was told-by Mar- 20

celli that there were no such cars left, but that they did have

"several new cars.”” He was shown a Chevrolet Belair by

'. Marcelli and was told that it was anew car just outof the .

- “showroom. Marcelli repeated-this statement on several oc- — .

casions. Upon stating his intention to purchase the vehicle

so shown, he was advised th&t it had been standing on the

_ woof of the building and required servicing and cleaning. Mar-

_. He signed a “‘used car order” and received a used car guaran-

"tee, the latter having beén mailed to him sometime sibsequent

celli told him to retum in an hour and the car would be ready. — 7

to November 6, 1956. He disclaimed any knowlege that

either the purchase order or the guarantee designated the car

used car until he was so. advised by Marcelli after he liad made

' complaints concerning various mechanical -defgcts. Ferrigno’s

wife, Helen, generally corroborated his testimony, but also

' stated that they had viewed some 20 Vehicles, all of which

she assumed were new because they had requested to be

shown new Cars, | ‘

o .

30.

ferent models at different prices; but he did not s

er such advertisement referred to new or used cars. On Auig- °

pany Baran 42a

Dissenting Ortatin yo

ust ‘15, 1956 he went to the salesroonrof Halsey-Packard,. :

gnc. with his brother-in-law and brother and was there waited

on by Michael Moore. He told Moore that he wanted a 1955 -«

Chevrolet. He lookeu at various automobiles, for approximate-

ly one and a half hours anid finally: located cne which pleased

_-his fancy. He thereupon signed a ‘‘used car purchase orde:"’

- and had the automobile delivered to him. He stated that

there was not much discussion with Moore conceming the au-

tomiobile. He did’ not testify that any representations were

_made ‘by Moore as to whether the vehicle he had purchased

-was new or uS@. On the same day that he obtained delivery,

« and shoftl y after leaving the showroom, he was involved in

an accident. may

*9. Gilbert Delgado,-a sergeant-in the United hikes’ Marine |

Corps, testified that on December 22, 1956 he was introduced

~ oto Joseph Marcelli. Delgado:had gone to Halsey-Packard,

Inc. in-the company of ee ancle, who had purchased: a Ford

from that company. and had goné there :to accept delivery. He.

looked at a 1956 Chevrolet with a standard shift. He’retum-. -

ed on January 4, 1957and arranged for the purchase. As he

was +s leave the salesroom he saw a 1956 Chevrolet on |

the first" Wor and inquired of Marcelli whether it was equip-

ped with an automatic transmission. Marcelli’s response .

was that it was a leftover 1956, so equipped, and that Del- .

gado could take’ the car he had purchased, equipped with the

standard shift, over the weekend,’ and if it was not sati’sfact-

ory," afrangenrents could be made to get the car equipped*with *~

_t‘power glide.” Delgado retumted on January 7, 1957.and

.then exchanged the Chevrolet equipped with standard trans-

_ mission. for the one equipped with ‘automatic ‘transmission.

Upon cross-examination it faystcned that the purchase order .° ~

was signed on behalf of Halsey-Pakcard, Inc. by a Joseph

5 : Pe ae .

oe Vitae g ca ey

- Dissenting Opinion

" Roselli, who first waited on Delgado on esiabins 22nd and

. sold him the Chevrolet with the standard transmission. He

’ testified that although he saw the Halsey-Packard, Inc.ad- .

vertisement.on television, he “‘never paid that any mind."’ -

- 10. Stanley Kasmarek testified that he wentto Halsey-

Packard, Inc. showroom on December 16, 1956, in the com-

pany of his.uncle; Hichard Dalston, his cousin-(an 1] year

old boy), and Joseph Craparotta, Ite was attended by

Joseph Marcelli. Dalston advised Marcelli that ‘he wanted a

. _ new car for his nephc. . He was shown.two Oldsmobile’

automobiles by Marcelli. Craparotta thereupon observed a’

" third wehicle, in which Kasmarek displayed some jnterest.

Dalston assumed this to be.a new car because of his original.

request to be shown new cars. Except for some scratches on

the finish near the door handles, the car appeared clean and

new. Craparotta and Kasmarek testified tha upon ‘making i in-

quiry about the presence of the scratches, Marcelli informed

them that it was a new car and that the scratches were show-

room sératchés. On December 10, 1956 Kasmarek signed a

“used car order’ and received delivery on December 12th or

13th. He did not testify that he had seen any of the Halsey-

Packard, Inc. advertisements, but rather that he went to their

salesroom- upon the recommendation of his uncle. ;

ll. Peggy Klaynreier testified that on November 4, 1956 she

and her husband went to -the Halsey-Packard, Inc. showroom. .

They advised Michael Moore that they wefe interested’in pur-

chasing a new:Chevrolet which: ‘they-had seen advertised on

“television. .On their way. to the sécond floor she noticed a

- sign marked ‘‘used cars’’ and advised Moore that they were

interested: in a new car. Moore replied that the new cars.

' would be upStairs because they had to be cleaned and polish-

ed as a result of being transported. They.saw a vehicle

which appealed to them. Upon calling Moore’s attention to a

. defit-and some scratches, he. advised that he Would have them

Tepaired before they-took delivery. John Klaymeier thereupon

. Signed a “‘used ce iepase - Upon retuming home, Mrs. Klay-"

+ . a

“\ . ‘

- cheating my sister.

44a

Dissenting Opinion

meier, and her husband noticed the “used car order” and °

telephoned Moore, seeking to cancel the purchase because it * .

was a used car, She was then advised by Moore that Halsey: —

- Packard, Inc. was an:authorized Packard dealer and they —

were required to usé such a form for other makes of automo-

biles, but assured ner that she had purchased a new car. They?

accepted delivery on November 6th. A used car ' guarantee was

_ subsequently received by mail. The éar developed engine -~.

trouble and the Klaymeiers did not receive the treatment in

“connection with this engine trouble to which omy conceived

they were entitled. ~~ a

12. Frank Williams, a tailor, testified that on December

26, 1955,he went to the Halsey-PRackard, Inc. showroom and

-was-waited on-by Henry Heltah. He did not testify that he -

had seen any advertisements of Halsey-Packard; Inc. He. be-.

-came interested i in’a Pontiac which he was advised by Rellah

was a new car. He signed a purchase order, on the top of

which appears the following: . ‘‘/lease enter my order for one

Demo. car as follows: Used.” He denied that he knew he -

was purchasing a demonstrator.

13., Lillian Brown, a telephone operator employed by the

New Jersey Bell Telephone Company; testified that on or a-

bout February 17, 1956 she telephoned Halsey-Packard, Inc.

as a result of having seen a television advertisement of 1955

leftover cars, and she spoke to Dominick Canace. She ad-

vised him that she wanted a green Plymouth. ‘Shortly there-

after Canace; in the company of one b’ Urso, arrived at her

residence with an automobile and took Mrs. Brown and her

sister for a demonstration ride. As she was about to open

the car door she noticed that the door handle‘Stuck. . On call-

. ing this to the attention of Canace he replied, “‘It’s new, it

will work itself out.’ Upon returning to the house her sister

Suggesied to Canace, “‘! hope this is anew car and you aren’t

= Casson replied,’ ‘*We won't cheat you.”

She thereupon signed a used car purchase order. She testi-

fied that she did not notice the word “‘used’’ on the purchase

is 45.

+ * Dissenting Opinion = oe

_ order. The car duvcined various items of mechan ical

‘trouble, which Halsey-Packard, Inc. repaired..

A conspiracy is a separate and distinct“crime from the

crime that has been planned. Staie v. Vanderhave, 47 N.J.

Super. 483°(App. Div. 1957),-aff’d on other grounds, sud.

nom; State v. Giardina, 27 N. J. 313 (1958); State v. Qats, 32 .

N.J. Super. 435 (App. Div. 1954); State v. Chevencek, 127 -

ON. d. L. 476 (Sup. Ct. 1941). , 10

The gist of the offense of conspiracy lies in ie Siete of

- the scheme or agreement among the parties. State v. Car

bone; 10 N. J. 329, 337 (1952). The agreement is the basic

_. element. of the crime. Without proof of the agreement there

can be no crime under the statute. Of course, thé scheme or

terms.’ That it existed may arise by fair implication from the

circumstances. State v. Yedwab, supra; State v. Kobylarz,

44.N. J. Super. 250, 253 (App, ‘Did. ‘1957), certif. den. 24.

J. 548 (1957); State v. Carbone, supra, at 34). . 20

Proof of.the conspiracy need not be bottomed upon proof |

_of the -vefy words of the actual agreement, but such a charge

' may be sustained by evidence of other unlawful acts from

which a natural inference’ arises that ‘such unlawful acts were

committed in furtherance of the common design of an alleged

conspiracy. When the overt acts are of a character which are

_ usually, if ndt necessarily, doné tendency*to show such pre-

existing conspiracy. When so proven they may be considered

" as evidence of the crime charged. United States v. Crowe,

188 F.. 2d 209 (7th Cir. 1951); United States v. Morris, 295 30

F.2d 91, (7th Cir. 1955), certif. den. 350 U.'S. 901, 106 L.

ed. 792, 76 S. Ct. 179 (1955), certif. den. 350 U., S$. 943, 100

-L. ed. 823, 76 S. €t. 300 (1956).

The gist of an indictment for conspiracy lies in-the form-’

ing of the scheme or agreement among the parties. The of- —

~fense depends on the unlawful agreement and not the act

which follows, and the act is not evidence of the agreement.

- State v. Carbone, supra, (10 N. J.-329 (1952).

4 " _ Dissenting Opinion

The State did. not prove the devon conspiratorial agree-

‘ment under which the defendants allegedly functioned, but

proved facts which it is asserted-demonstrated that the de-

fendants acted so together and in concert as to warrant the

belief,that a conspiracy existed. Tne, it is normally so dif-

ficult to prove a conspiracy out of the mouths of the conspira-

tors‘as to well nigh approach the impossible. ‘The ptosecu-

10 tion must generally, as here, rely upon circumstances and in-

ferences which give rise, to such a conclusion. State v. Yed-

wab, supra. :

®.- The defendants are ngt individuall y charged with the sub-

E>. '. stantive crime of, obtaining money under false pretenses, They °

are jointly charged-with having conspired to obtain money and

- other things by false pretenses. It is our dut?to decide sole-

ly whether the State, on its case, has borne the requisite bur

den of proving the defendants guilty of the crime for_which’

they -have been jointly indicted, i. e., conspiracy. We should

20.‘ not tet ourselves be confused by proof which might Support a

conclusion that defendants had individually obtained money by

_ means of false pretenses. - N. J. S. 2A: 1}1-1. The confu- ;

sion of the elements and proofs. feared to Support a convic-

“- tior of the crime charged with those which may tend: to estab-

- . lish a case under an indictment for a substantive offense com-

mitted in the course of the alleged crime is one of the inherent

dangers which underlies conspiracy indictments:

There is a growing and wide-spread habit. of prosecutors to

indict for conspiracy in lieu of prosecuting for the substan-

tive offense itself. It must be recognized that there are oc-

Wad . casions when such a means of conbating crime is. not only

- “warranted but necessary. -The tendency to extend this crime

‘which “‘is so vague that it almost defies definition” has

been deprecated as a “threat to faimess in our administra-

tion of justice.’ eae : ;

““But the conspiracy concept is also’ superimposed

upon many concerted crimes having mo political. motiva-

tion. It is not ‘intended to question that the basic con-

47a.

_» Dissenting Opinion Sie 25 1

_ spiracy principle has some place in modern criminal lan be-

" eatise to unite, back of a criminal purpose, the strength,’ dp-

portunities and resources of-many’i8 obviously more danger-

‘ous and, more difficult to police than the efforts of a lone

_ wrongdoer. It also may be trivialized, as here, where the

‘ conspiracy consists of the concert of a loathsome panderer

“and a prostitute to go from New York to Florida to ply their |

trade (see 145 F.2d 76,156 ALK 337 for details) andit would 19

appear that a simple Mann: Act prosecution would vindicate

* the majesty of federal law. However,.even when appropriate-.

ly invoked, the looseness and pliability of ‘the doctrine pres-

ent inherent dangers which should be in the background of

. judicial thaught wherever it is souglit to extend the doctrine

to meet the exigencies of a particular case. *** :

of course, it is for the prosécutors rather than courts to de-

temine. when to use a scatter gun. to bring down the defend-

ant,-but there are procedural advantages from using it whith

add to the danger of unguarded extension of the concept. *** ‘20

When the trial starts, the accused feels the full impact of

‘the conspiracy strategy. Strictly, the prosecution ‘should first.

~establish prima-facie the conspiracy and identify the con- -

spirators, after which evidence of acts and declarations of

- each in the course of its execution are admissible against all.

But the otter of proof of so sprawling charge is difficult for

a judge to control. As a practical matter, the accused often .

is confronted with a hodgepodge of acts and statements by

others which he may never have authorized:or mtended or

even known about, but which help ‘to persuade the jury of . 30°

existence of the conspiracy itself. In other words, a con- i

_spiracy often is proved by evidence that is admissible onl y

; az-upon the aSsumption that conspiracy existed: The naive as-

“sumption that prejudicial effects can be overcome by instruc-

tions to the jury, cf.. Blumenthal v. United States, 332 US

_ yers know to be unmitigated fiction. See Skidmore v. -Balti-

more & O. R. Co., (CCA 2d NY)°167 F2d 54.

. 480

Wssenting O pinion. aie .

‘The trial of a conspiracy charge doubtless imposes a

heavy burden on the prosecution, but it is an especially

difficult situation for¢he defendant.. The hazard from

loose application of the mules of evidence is aggravated

where the Government institutes\ mass trials, *** |

A co-defendant in a conspiracy trial occupies an un-

easy seat. There generally will be evidence of wrong-

doing by somebody. It is difficult for the individual to

_ make his own case stand onits own ments in th® minds .

of jurors who ate ready to believe that birds of a feather

are flocked together. If he is silent, he is taken to ad-

mit it and if, as oftén happens, co-defendants can be

prodded into accusing or contradicting eachother, they - —

convict each-other. There are many practical difficul-

ties in defending against a charge of sunapeeeny which |.

will not enumerate.’

» S. Ct. 716 (1948, concurring op.). See also United States i. -

Falcone, 109 F.2d 579-(2d Cir. 1940), aff'd 311.U.-S. 305,

85 L. ed: 128 (1940); Dodson »v. United States, 215 F. 2d (196 .

—_———-ttthr CF. 1954).

There is absent here any direct proof of the existence of

an agreement among these defendants to obtain-money by

means of false pretenses: Thus, at the close of the State’s

case in the instant matter, the proof of the circumstances *

_ surrounding the sale of automobiles, together with all irifer-

ences which may be fairly drawn therefrom, must establish -

a state of affairs from which the jury could logically infer

the existence of an agreement or conspiracy to obtain money

.__—_by_false fretenses fromthe-general public. The proofs must

first’be viewed with this purpose in mind, for-unless the con-

Spiracy is established the State’s case under this indictment |

* must fail.

The indictment charges that the “false pretenses con-

sisted in that defendants; knowingly, fraudulently; and falsely

represented to some customers that certain motor vehicles”

Gp )

ae,

49a

Dissenting. Opinion i Fai, ee 1

were new when in fact those vehicles were 5 eik (enpheate

supplied) Implicit i in the charge is an admission that false

pretense, was not an element i ales made by these de- +

fendants. That implied sis of no moment, however,

if the jury could logically conclude from the proofs made that

‘an agreement to obtain money by faise aera from some

persons in fact existed.

However, the-State urges that the conspiracy may be fairly 10

and logically ‘inferred from a pattern of events established by

the thirteen sales here involved, Thus, the 13 particular

transactions become vitally important for the? involve the

persons to ‘whom the alleged conspiracy applied. Inother

_ words, the alleged conspiracy was to obtain money by false

‘pretenses from some of the customers of Halsey-Packard, <

Inc. Other sales, assumedly untainted, are not within the ‘

scope of the alleged conspiracy. Some are those involved -

in the 13 transactions, The proof of the existence of the. a-

greement is circumstantial. One of the essential circum- . 20

. 8tances upon which the State relies to establish the fact of

the scheme is a pattern of false pretense-in these 13 transac- _

—tions:* Thus, the proofs and logical inferences’ must be blend-

ed to determine whether, on a total view, the conspiracy which

the State theorizes was in existence, had been established.

The State sought by the 13 sales to prove s concéeed ac: . |

tion under an alleged conspiracy to obtain money by false _

_ pretenses. {t must be recognized that the State selected -

- these purchasets out of al! the purchases made over an 18 1/2 * -

- month period, and that those so selected would, of neces- ray

sity, be of such a nature as Faget tt vg

—tontention. The State has argued that the conduct of the =.

salesmen demonstrated a common pattern. The testimony

demonstrates that in three instances no express or implied’

representations were made in reference to the car sold being

new, t. e., Schrauth, Frascino, Kasmarek; in four instances

i. e., Hamming, Hughes, Jahoda, Klaymeier; in one instance

the purchaser knew at the time of signing. the purchase order .

that she was purchasing a used car, i. e., Gargalowitz. The

50a

Dissenting Opinion

- . approach and the‘ ‘sales pitch” were so different in the 13

‘sales thet they: canno raise an inference that there was an”

agreement, adopting the State’s language, to “*switch’” sales, .

The State failed on its case to prove, upon its own theory, >

; the three essential steps — advertising, reconditioning, pa Hg

sales. In the State’s view the conspiracy to defraud included .

all three elements. Failure to prove any one would, therefore,

result in a vital defect in proof. s

Accepting. as true all croofs offered by the State at the ~~

close of its case, together with alkiinferences which can log

ically be drawn therefrom, | amconvinced that the proof was

' ~ insufficient to permit the jury to logically infer the existence

of a conspiracy:among the defendants. |. conclude, therefore,

‘that the trial judge erred in denying defendants’ motion for a

judgment of acquittal andfor that reason the _judgment appeal-

.ed should be reversed.

Additionally, insofar as three defendants are concemed,

there was insufficient proof to link any. of them with t

‘* leged conspiracy, '

. The only proof conceming « defen dant Halsey Automobile.

. Co, is that the title to some of the vehicles sold came through

that corporation, to Halsey-Packard, Inc. In one instance

title- was transferred directly from Halsey Automobile Co. to '

- the purchaser. There is no other proof of that corporation’s

association-with the other defendants. ‘This prof is insuf-

ficient to sustain a conviction of that corporate défendant. |

James Graziani was not showf#to have any connection with .

the alleged conspiracy excepg in ordering new speedometers

installed for damaged speedometers and in eccnntaneny : de-

livering advertising copy.

James Morese participated in only two sales and then clear -

_ly wrote on the face of the purchase order a legend denoting

that it was a sale of a used car. In only-one of these sales -

"is he alleged to-have implied that the vehicle-was a new car.

The trial court, in any-event, should have granted the -

specific individual motions for acquittal of. Ralsey Automobile

Co., James Graziani and James Morese. -

ar ne Co., a corporation, Joseph am j

= Sla. :

. - > ,

“MOTICE OF APPEAL 5 hike me 3

/ To: BRENDAN T. BYRNE, SI ae -

Deputy Attorney General in chargeof- = ¢

Essex County Prosecutor’s Office

_ Court House - Symi atse. ; -

' Newark, N. J. oe Fi Fice Ae f

Sir: ° oF ass 2 e's 2 10

"PLEASE TAKE NOTICE. that the defendants, ID if Bocas

Graziani, James Graziani; Halsey Packard, Inc., acorpora- =

ichael Moore, Henry ‘Rellah, Joseph Morese, Dominick

Canace and Angelo Aquilino, hereby appeal to Supreme.

Court of New Jersey from ‘the final judgment ofthe Appellate D, ,

Division of the Superior Court entered in favpr of the plaintiff

jn this action on June 29th, 1959. os aa e

The Defendants were convicted on naan No. 1769 > 20 *

\ which charged that between about Sep ember Ist, 1955 and

_ark, they did unlawfully conspire/ confederate, combine and

agree together to obtain money And other things of value by. *

false pretenses from member#of the general public, particu-. - __

-. larly putchasers and prosp@¢tive purchasers of-motor wehicles.

” The jury rétumed its vesdtct on November 18th, 1957 and.

the following sentences were imposed by the trial court.on

Decémber 5th, 1957,’

Emest. Graziani: Ne , 30

Halséy Packard, Inc., a corporation:

Ao pay a fine of $1,000.00

Halsey Automobile Co., a corporation

To pay a fine of $1,000.00 ?

Michael Moore:

| Dissenting Opinion

52a.

Probation for 3 years and to pay.a ‘fine of $500. 00 within.

3 months.

Probation for 3 years and to pay a a flee of $750. 00 within’

3 months. -

Joseph Morese:

ae’ : .

Probation for 3 years and to pay ‘a fine of £ $1000.00 within

3 months.

. a Dominick Canace:

Probatica for 3 years. am and to pay a fneof $50,00 within

3 months.

Angie Aquilino:

_ @ Suspended.

and they are not confined in jail.

‘The Appellate Division, by a vote of two to one affirmed the

conviction,

Dated: on 8, 1959.

“

tne

a og \

George li. Sommer, At- ;

tomey for Defendants,

Henry Rellah, Michael

Moote and Joseph

Marcelli

TOoLaN. HANEY & ROMOND

_ Attameys for Defendants, Emest

Graziani, James Graziani, Haleey

Packard, Inc. and“Halsey Automo-. ~~

bile, Inc.

By s/ John E. Toolan

John E. Toolan-

‘A Member of the Fim.

s/ Charles Stanziale

Charles Stanziale, Attome¥ £3

- Defendant Joseph ! Morese,

Dominick Canace and

‘Angelo Aquilino. a.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.