State v. Ball

Page 72

268 N.J.Super. 72

632 A.2d 1222, RICO Bus.Disp.Guide 8646

STATE of New Jersey, Plaintiff-Respondent, v. Patrick BALL and Big Apple Leasing Co., Defendants-Appellants.

STATE of New Jersey, Plaintiff-Respondent, v. George HURTUK, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Joseph DULANIE, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Joseph MOCCO, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Michael HARVAN, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Richard BASSI, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 10, 1993.

Submitted March 10, 1993.

Decided Aug. 6, 1993.

Harvey Weissbard, West Orange, for defendants-appellants, Patrick Ball and Big Apple Leasing Co. (Weissbard & Wiewiorka attorneys; Mr. Weissbard and Alan L. Zegas on the brief).

Harold J. Ruvoldt, Jr., Jersey City, for defendants-appellants, George Hurtuk, Joseph Dulanie and Joseph Mocco (Ruvoldt & Ruvoldt, attorneys; Mr. Ruvoldt, Avivith Oppenheim and Richard C. Heubel on the brief).

Robert E. Bonpietro, Deputy Atty. Gen., for plaintiff-respondent, State of N.J. (Robert J. Del Tufo, Atty. Gen., attorney; Mr. Bonpietro of counsel and on the briefs).

Zulima V. Farber, Public Defender, for defendant-appellant Michael Harvan (Kevin G. Byrnes, designated counsel, Princeton, of counsel and on the brief).

Zulima V. Farber, Public Defender, for defendant-appellant Richard Bassi (Philip A. Ross, designated counsel, East Orange, of counsel and on the brief).

Before Judges KING, BRODY and THOMAS.

The opinion of the court was delivered by

THOMAS, J.A.D.

On April 1, 1986, the State Grand Jury handed down a 116-count indictment charging numerous individuals and entities with various crimes, including conspiracy to commit racketeering, racketeering, bribery, theft of services, falsifying and tampering with public records, forgery, and the unlawful engagement in the business of solid waste collection and disposal. The indictment alleged that the defendants conspired to illegally dump solid waste generated in New York in several New Jersey sites. They were tried by jury before Judge Humphreys from October 11, 1988 until April 17, 1989 and convicted of certain of the charges. It is from these convictions that defendants appeal. These appeals have been consolidated for the purpose of this opinion. After a careful review of the issues they raise, we affirm.

Specifically, defendants Richard Bassi and Michael Harvan (dirt brokers), Patrick Ball (a dumper) and Big Apple Leasing Co. (a truck company Ball owned), and three public officials from the Town of North Bergen (Joseph Mocco, Town Clerk, Joseph Dulanie, Deputy Chief of Police, and George Hurtuk, License Inspector), have appealed from their convictions. Many of the issues raised by these defendants, and the arguments posed with respect to them are identical. A statement of facts presented by the State at trial describing the general scenario relevant to the appeals of all seven defendants follows.

FACTS

During the time frames involved, Joseph Mocco was the Town Clerk of North Bergen, George Hurtuk was the License Inspector, and Joseph Dulanie was the Deputy Chief of Police. Mocco, Hurtuk and Dulanie shall hereinafter be jointly referred to as the public official defendants. Richard Bassi and Michael Harvan were dirt brokers. A dirt broker brings together individuals who need their property filled and dumpers who provide that fill. Patrick Ball was the sole owner of Big Apple Leasing Co., a New York company that engaged in waste dumping or hauling.

Bassi and Harvan located illegal dump sites in North Bergen and other North Jersey locations, contacted New York waste haulers (such as Ball and Big apple Leasing) looking for less expensive ways to dispose of the solid waste they hauled, and arranged for those haulers to dump their solid waste at the illegal sites. The public official defendants accepted bribes to permit and facilitate this illegal dumping enterprise.

The evidence of this scheme introduced at trial is voluminous. It consists of trial testimony, surveillance videotapes, recorded telephone conversations and records created by the various codefendants. The events leading to the convictions of these defendants is essentially the same and, for the most part, not disputed.

Bassi and Harvan, by paying bribes to Mocco ($29,100); to Dulanie ($42,100); and Hurtuk ($27,500), obtained "permission" to dump debris at illegal dumping sites in North Bergen and at a waste disposal operation (baler) owned and operated by the Hackensack Meadowlands Development Commission (HMDC). This dumping began in North Bergen in January 1986 at a site adjacent to the intersection of 83rd Street and West Side Avenue (83rd Street) and at a site near the intersection of 69th Street and West Side Avenue (69th Street). After the dumping was stopped at the 83rd Street location, a new area was opened at the Walsh Trucking property on 16th Street (Walsh).

The dumping at Walsh eventually encroached upon a nearby Public Service Electric and Gas (PSE & G) right-of-way, underneath the company's high tension power lines. At 7:55 p.m., May 13, 1986, a truck carting debris from New York, while in the process of raising its back to dump a load of debris, struck a line carrying 138,000 volts, causing an explosion. When representatives of PSE & G arrived on the scene, they observed the truck, in the "up" position, entangled in the wires. The high voltage had grounded through the body of the truck, causing its tires to be blown out and burnt. They also noted that previously dumped debris had raised the level of the ground underneath the wires about fifteen feet. The driver of the dump truck told a PSE & G engineer that they were filling in a road off Tonnele Avenue to make the area accessible.

The baler was a landfill operated by the HMDC which compacted waste into bales. These were then stacked and covered with earthen material. Haulers dumping at the baler were required to complete origin and destination (O & D) forms promulgated by the Department of Environmental Protection (DEP), to prove that the trucks came from areas approved to send waste to the baler. Trucks dumping at the baler were required to present an HMDC decal and a rate-averaging ticket, which would be used for filling purposes, based on the weight of the loaded trucks. The haulers, including Ball's company, Big Apple Leasing, as well as other companies, would falsely indicate on the O & D forms that the waste originated in a place from which the baler was permitted to take waste, usually Clifton, in Passaic County, when in reality the waste originated in New York.

Not only the baler, but all North Bergen dumping sites were within an area over which the HMDC had jurisdiction for purposes of controlling dumping. Therefore, its approval, plus North Bergen's, as well as approval by the DEP, were all required before legal dumping could proceed. No such approvals were ever received. Once a dumping site was "acquired", Bassi and Harvan would "contract" with New York haulers to dump their waste material.

In order to protect and control their program, checkers were hired to monitor the dumping activity; men were placed at crossing locations to warn off truckers if the time for dumping was not right; much of the dumping activity was done at night; and fictitious placards were used to cover each truck's true identity. "Big M" and "Harbas" were two of the more frequently used cover logos. Additionally, in order to provide money for their program, a fictitious check-cashing scheme was established. Fraudulent dumping permits were also reproduced.

North Bergen dumping licenses were issued for the dumping sites to a fictitious M. Black. Initial casual inquiry or complaints about the dumping were met with these licenses. HMDC undercover investigators were assured that HMDC had also granted approval (no such approvals had ever been obtained). Dumping was also attributed to the town's desire to fill paper streets and to create a pistol range for the police department near the Walsh site.

Dumping began in January 1986 and continued into June. Ultimately, the operation came under the joint scrutiny of investigators from the DEP, the HMDC and the New Jersey Department of Criminal Justice (DCJ). During the investigation, permission was granted to obtain telephone records and to install telephone wire taps. In addition, some conversations with various defendants were recorded by using personal concealed recording devices. All of this material was produced as State's evidence at trial.

Despite the ongoing investigations which resulted in the closure of various sites, the enterprise continued its efforts to provide dumping sites in and out of North Bergen. On July 10, 1986, Dulanie was overheard telling Harvan that he was "trying to work on that thing for you" and that he had called a political figure from Jersey City to help. Harvan claimed to Dulanie that Hurtuk and Mocco had gone "around his back" and "opened up a place" on their own. Harvan complained, "I paid a lot of rent and got fucked ... what they're doing now is not right." Harvan wanted to find a couple of acres in Jersey City, just "[t]o bring dirt [in] and bring the dirt out[.] I'm not looking to fill nothing in." Dulanie agreed to see what he could find out.

Meanwhile, Harvan and Bassi were conducting a dumping operation near Routes 1 and 9 in Newark, as well as continuing to dump at the baler. On July 16, Bassi's vehicle was spotted at the Routes 1 and 9 site. On July 20, Bassi and Harvan discussed other possible sites for dumping in that area. They also discussed who was going to dump, and the amount to charge for each load. Bassi said he thought $300 per load was the "magic number" because they would still be "below everybody." Harvan also mentioned that if "they do start up in...