The New Jersey Supreme Court on Monday set out to determine whether a “thumbs up” and a encouraging word between co-defendants can amount to an overt act in furtherance of a continuing criminal conspiracy, and whether those out-of-court communications can be admitted into evidence.

How the court rules could determine whether Aurelio Ray Cagno, a 69-year-old member of the Colombo crime family, will get a third trial in the May 17, 1993, execution slaying of James Randazzo in the parking lot of a Holiday Inn in Tinton Falls, N.J.