STATE OF NEW JERSEY v. FREDERICK J. MASSIMI, JR
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4424-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FREDERICK J. MASSIMI, JR.,
Defendant-Appellant.
________________________________
Argued: November 18, 2009 - Decided: April 30, 2010
Before Judges Stern, Graves and Harris.
On appeal from the Superior Court of New
Jersey, Law Division, Criminal Part, Bergen
County, Indictment No. 06-03-377.
Robert Carter Pierce argued the cause for
appellant.
Annmarie Cozzi, Assistant Prosecutor, argued
the cause for respondent (John L. Molinelli,
Bergen County Prosecutor, attorney; Ms.
Cozzi, of counsel and on the brief).
PER CURIAM
After a bench trial, defendant was found not guilty of
conspiracy to commit aggravated assault and two counts of
aggravated assault.1 He was found guilty of conspiracy to commit
terroristic threats as a lesser-included offense to conspiracy
to commit aggravated assault in violation of N.J.S.A. 2C:5-2 and
2C:12-3. He was sentenced to probation for two years with 280
days to be served in the Bergen County Jail as a condition of
probation.
Defendant now argues that "conspiracy to commit a
terroristic threat is not a lesser included offense of second
degree aggravated assault [and] therefore, the trial court erred
by finding Mr. Massimi guilty of the lesser included offense,"
"the trial court erred by considering an alleged lesser included
offense that was not specifically included or discussed during
the charge conference pursuant to R. 1:8-7(b)," and "the
sentence imposed was manifestly excessive."
The trial dealt with an attack on defendant's brother-in-
law. For purposes of this opinion, we incorporate an abridged
version of the statement of facts as contained in the State's
brief:
In September 2005, Michael Middleton, a
[forty] year old resident of Newborugh
1
The conspiracy count alleged a second degree crime, conspiracy
to violate N.J.S.A. 2C:12-1b(1). See N.J.S.A. 2C:5-4a. Count
two charged second degree aggravated assault in violation of
N.J.S.A. 2C:2-6 and N.J.S.A. 2C:12-1b(1), and count three
alleged aggravated assault in violation of N.J.S.A. 2C:2-6 and
N.J.S.A. 2C:12-1b(2).
A-4424-07T4
2
[sic], New York, with six prior felony
convictions, met defendant Frederick Massimi
at a restaurant in that town called
Chianti's. The owner of Chianti's, John
Frontier, introduced Mr. Middleton to
defendant Massimi.
A short time later, defendant and Mr.
Middleton left the restaurant and took a
short walk. According to Mr. Middleton, at
this time, defendant told Mr. Middleton that
he wanted someone "beaten up," specifically,
hit in the legs with a bat, and "something"
broken. Defendant offered to pay $3000 for
this beating.
Following his meeting with defendant,
Mr. Middleton called Kevin Bennett, someone
he met while incarcerated in New York. Mr.
Bennett agreed to take the "job," and called
defendant to tell him.
[At a meeting with Middleton and
Bennett] [d]efendant told Middleton the
intended victim, a medium built male, drove
a black Denali and gave Middleton the
vehicle's license plate number. Defendant
also told Middleton and Bennett that the
intended victim arrived at the gym [to which
they drove in defendant's late model
Mercedes] about 4:30 [a.m.] or 5:30 a.m.,
and that at this early hour no one else
would be in the gym parking lot and
surrounding area.
During this meeting, defendant and
Middleton again discussed the subject of
payment in the amount $3000. Defendant
agreed to pay the "fee" after the job was
accomplished the following week.
On the morning of September 29, 2005,
[Kevin] Bennett set his alarm for 4:00 a.m.
and drove to The Gym in Montvale, New Jersey
....
A-4424-07T4
3
Sometime between 5:00 [a.m.] and 5:30
a.m., a black SUV bearing the license plate
number that defendant had supplied pulled
into the gym's parking lot. The driver of
the SUV, Donald Dinallo, got out of the car,
retrieved a gym bag from the rear seat and
closed the car door. At this point, Bennett
ran toward the man and hit him in the right
leg, between his knee and ankle, with the
bat. The man did not fall down, so Bennett
aimed a blow at Dinallo's leg. Dinallo
tried to grab the bat from Bennett, so the
second blow hit Dinallo's hand. A third
swing of the bat resulted in another blow to
Dinallo's leg and caused him to fall.
Immediately thereafter, Dinallo got back up
and ran into the gym.
Bennett ran back to his white Ford SUV
and drove away. A short time later, the
police stopped him. [He was not immediately
arrested, but police obtained sufficient
information to arrest him following the
prosecutor's investigation.]
At the hospital, doctors administered
four stitches to Mr. Dinallo's shin. They
also diagnosed a broken bone in his left
hand and told him to ice his swollen knee.
Mr. Dinallo was released from the hospital
at approximately 8:00 a.m.
Mr. Dinallo testified that after he was
released from the hospital, his pain was at
a "10" on a scale of 1 to 10. At trial, he
explained that he got to work the morning of
the attack "out of my own resolve." His leg
bears a scar that is one to two inches wide.
[Dinallo was told] that the person they
had stopped was from Newburgh, New York.
Mr. Dinallo told Detective McMorrow that the
only person he knew from Newburgh was his
brother in law, defendant.
A-4424-07T4
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After meeting with Mr. Dinallo,
Detective McMorrow signed a complaint
against Kevin Bennett for aggravated assault
and forwarded it to the New Windsor Police
Department in New York. On September 30,
2005, between 3:30 [p.m.] and 4:00 p.m., the
New Windsor Police Department arrested Kevin
Bennett.
The police advised Bennett of his
Miranda rights and thereafter he confessed
to having committed an assault at The Gym in
Montvale. Bennett told the police that the
assault had been arranged by Michael
Middleton. [Middleton ultimately gave the
police defendant's cell phone number which
he used to contact defendant and confirmed
his meeting with defendant.]
After receiving the cell phone number
from Middleton, Detective McMorrow obtained
records pertaining to the phone. These
records confirmed telephone contact between
defendant and Middleton on September 20 and
29, 2005, and October 1, 2005. Detective
McMorrow also learned that Frederick
Massimi, Sr., had a house in Franklin Lakes.
Detective McMorrow drove to the house and
saw a car that matched [the] Mercedes
described by Middleton and Bennett [in which
they were driven to the gym].
Following [Middleton's] identification
of defendant's driver's license photo, a
warrant [was] issued for defendant's arrest.
Defendant surrendered on October 13, 2005.
The police investigation also revealed
that in late December or early 2005,
defendant's wife of [twenty-five] years
filed for divorce. Mrs. Massimi discussed
the possibility of a divorce with her
brother, Donald Dinallo[,] and Mr. Dinallo
assisted his sister by helping her find an
attorney and paying the attorney's fees.
A-4424-07T4
5
In an order dated September 12, 2005,
and filed September 15, 2005, a judge in
Florida entered a court order granting
defendant's wife's motion to sequester
$300,000 in assets. By order of October 19,
2005, a judge in Florida found defendant in
contempt for not depositing funds with the
court as required by the September 12, 2005
order.
In November 2006, defendant approached
Mr. Middleton at the Bergen County
Courthouse and asked . . . Mr. Middleton to
"switch it up," and make it seem like it was
Kevin Bennett's idea to beat up Mr. Dinallo.
Defendant also suggested that Middleton
"could just say that defendant just told us
to go talk to the guy." Finally, defendant
told Middleton that he could get him a good
lawyer "to beat this case," and asked
Middleton where he lived.
Defendant testified at trial. He
admitted that he was introduced to Michael
Middleton by John [Frontier] at the Chianti
Restaurant on September 14 or 15, 2005.
Defendant admitted that, on the same day,
shortly before this introduction took place,
he had told John "this f------ brother of
[my wife] is interfering in this f------
divorce. He's interfering in my f------
marriage . . . He's driving me f------. I
don't understand what I did to this guy."
Shortly thereafter, defendant met with
Middleton and Bennett at the rest area in
Montvale and then took them to the gym his
brother-in-law Donald Dinallo regularly
attended. Defendant admitted that he
described Dinallo and his car to Middleton
and gave him the vehicle's license plate
number.
Defendant denied that he told Middleton
to hurt Dinallo. He instead claimed that he
wanted Middleton and Bennett to tell Dinallo
A-4424-07T4
6
to stay out of Massimi's divorce and to
leave his family alone. Defendant explained
that, at the time, he was frustrated,
"wanted to put some sense in [Dinallo's]
head with this divorce," send Dinallo "a
message," and scare Dinallo.
[Portions of the text, footnotes and
transcript cites omitted.]
The judge did not find Middleton and Bennett to be credible
and could not find, beyond a reasonable doubt, that defendant
conspired to injure Dinallo with a bat. He stated that
defendant would not hire "two guys of this nature who he doesn't
even know [to] assault a guy with a baseball bat with the idea
that if one or both get caught, he's jammed up."
According to the judge:
So what is it that Massimi and
Middleton and Bennett decided? My opinion,
I think -- I think that Mr. Middleton, Mr.
Massimi, and Mr. Bennett all had a little
conversation and I think what Mr. Massimi
did was tell them to threaten Mr. Denalo
[sic] and to threaten him in a way[,] in my
opinion[,] with a crime of violence to
terrorize him, as the statute says, put him
in fear as the statute says.
In fact, I'll read you, the threat must
be serious -- psychological result intended
a risk be -- a person is guilty of a crime
in the third-degree if he threatens to
commit any crime of violence with the
purpose to terrorize another, et cetera.
Well, that's where it stops because the rest
doesn't apply.
That's what I think he did. And I
think it was a threat that he meant to shake
A-4424-07T4
7
Mr. Denalo [sic] up. And I think he thought
by that that he would be able to accomplish
his purpose. Okay.
Well, in this case I think what Mr.
Massimi wanted to do was tell, you know, Dr.
[sic] Middleton and Dr. [sic] Bennett to go
down to see Mr. Denalo [sic] and to
basically tell him certain things that would
prevent him from interfering any further in
his matrimonial circumstance.
As a result, the judge made the following findings:
So for that reason and because the
standard is beyond a reasonable doubt, you
know what that means, am I convinced beyond
a reasonable doubt, I'm not, that he's
guilty of a conspiracy to commit aggravated
assault. So I find him not guilty of Count
1.
Am I convinced beyond a reasonable
doubt that he attempted to commit an
aggravated assault causing serious bodily
injury or the lesser-included charge of
causing significant bodily injury? Okay.
But I do think he's guilty of 2C:12-3(a), of
conspiracy to threaten to commit a crime of
violence with the purpose to terrorize
another.
So I find him not guilty of Count 1.
I'll go back to Count 1 for the moment. But
I find him guilty of what I believe is a
lesser-included charge there of conspiracy
to commit terroristic threats, I find him
guilty of that.
I find him not guilty of the attempt to
cause serious bodily injury or the lesser-
included charge of third-degree and DP. And
also I find him not guilty of attempting to
cause or did or purposely cause bodily
injury to Mr. Denalo [sic] which is Count 3.
A-4424-07T4
8
In State v. Thomas,
187 N.J. 119 (2006), the Supreme Court
developed the distinction between lesser-included offenses, as
defined in N.J.S.A. 2C:1-8d, which must be charged if there is
"a rational basis in the evidence to support a charge on that
included offense," Thomas, supra,
187 N.J. at 131, and a
"related offense," that is "offenses that share a common factual
ground, but not a commonality in statutory elements, with the
crimes charged in the indictment." Id. at 132. Because of the
constitutional right of indictment, a related offense can be
charged only by "waiver by the defendant," flowing from his or
her consent or request for the charge, ibid.; see also id. at
133, "and there is a rational basis in the evidence to sustain
the related offense." Id. at 133.
As the decision to consider conspiracy to commit a
terroristic threat was not considered at a charge conference,
and defendant did not request or consent its consideration, it
must be a true lesser-included offense in order to sustain the
conviction.
N.J.S.A. 2C:1-8d, regarding lesser-included offenses,
provides:
(d) Conviction of included offense
permitted. A defendant may be convicted of
an offense included in an offense charged
whether or not the included offense is an
indictable offense. An offense is so
included when:
A-4424-07T4
9
(1) It is established by proof of the same
or less than all the facts required to
establish the commission of the offense
charged; or
(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit
an offense otherwise included therein; or
(3) It differs from the offense charged
only in the respect that a less serious
injury or risk of injury to the same person,
property or public interest or a lesser kind
of culpability suffices to establish its
commission.
In the first count, defendant was charged with conspiracy
"to commit the crime of aggravated assault." As we understand
the findings, defendant was found guilty of a lesser-included
offense under that count, not either aggravated assault count,
despite the first point heading. Nevertheless, we agree with
defendant that "[c]onspiracy to commit a terroristic threat is
not a lesser included offense of conspiracy to commit aggravated
assault because of the added element of the threat to commit a
violent crime with the intent to terrorize." The relevant
portion of N.J.S.A. 2C:12-3a requires such a threat to "commit
[a] crime of violence with the purpose to terrorize
another . . . ." Certainly, a second degree aggravated assault
is a crime of violence. It is found within Part 1, Subtitle 2
of the Code of Criminal Justice containing "offenses involving
danger to the person." See also N.J.S.A. 2C:43-7.2d (the
A-4424-07T4
10
history of which reflects, by virtue of its pre-June 2001
provisions, application to second degree aggravated assaults).
But while an aggravated assault may terrorize a victim, it need
not do so and need not be performed with that purpose.2 Thus,
while N.J.S.A. 2C:12-3 follows the provisions of Chapter 12 of
the Code of Criminal Justice dealing with aggravated assaults,
it is not a lesser-included offense within the meaning of
N.J.S.A. 2C:1-8d.
In light of our disposition, we need not consider if the
conviction must be reversed on other grounds because the trial
judge did not indicate he would consider conspiracy to commit
terroristic threats as a lesser offense, and in fact conducted
no equivalent of a charge conference before summations.
Although our holding in this case does not adversely affect
defendant, the trial judge's approach causes considerable
2
The conspiracy count alleged conspiracy to commit second degree
aggravated assault, which requires an attempt "to cause serious
bodily injury to another, or causes such injury purposely or
knowingly or under circumstances manifesting extreme
indifference to the value of human life recklessly causes such
N.J.S.A. 2C:12-1(b). On the other hand, to commit a
injury."
terroristic threat, the perpetrator must act "with the purpose
to terrorize." N.J.S.A. 2C:12-3a. The relevant portion of
N.J.S.A. 2C:12-3a remains as drafted by the Criminal Law
Revision Commission. See I Report and Penal Code, section
2C:12-3 and II Commentary, section 2C:12-3 at 180-81. There is
no "commonality in statutory elements," Thomas, supra,
187 N.J.
at 132, fewer of the same elements or lesser culpability for the
same acts.
A-4424-07T4
11
concern because defendant had no opportunity to address the
offense of conspiracy to commit a terroristic threat or to
comment on it during summation.
Accordingly, the judgment of conviction must be reversed.
A-4424-07T4
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