# Supplemental Appendix — Graziani v. New Jersey (No. 951) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0385%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Appendix - **Published:** January 1, 1959 ## Text 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 ty 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). , 10 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, 10 : 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 10 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 Sa 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: : ; | 30 ‘ “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 10 6a 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 a 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. 0 20 + 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. 9a ‘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- 10 av 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, 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 10 ' 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 Oo _ 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 Dissenting Opinion © 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 20 oc 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. - { 4 ~ . - 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 30 to November 6, 1956. He disclaimed any knowlege that either the purchase order or the guarantee designated the car as being S‘used.”’. He did not realize.that he had purchased a © 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 . 10 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 oe *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 © . Ba - 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 “\ . ‘ 20 10 - 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 —-agreement need not be proved by direct. testimony as to its. © 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 : ; 37 ““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 - 539, 559, 92 L ed 154, 169, 68 S Ct 248, all practicing law- © _ yers know to be unmitigated fiction. See Skidmore v. -Balti- more & O. R. Co., (CCA 2d NY)°167 F2d 54. . 9 . 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.’ Krulewitch v. United States; 336 U.S. 440,.93 L. ed.-79, 69 © » 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” a8 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, ; 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 continuing to and inclyding the 14th of March, 1957, in New- © _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 ? 10 Michael Moore: | Dissenting Opinion 52a. Probation for 3 years and to pay.a ‘fine of $500. 00 within. 3 months. pe 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, L Dated: on 8, 1959. “ -* tne _ a og \ s/ George R. Sommer © - 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0385%3A3. Public record. Not legal advice.