State v. Cicenia, A--476

Decision Date17 August 1950
Docket NumberNo. A--476,A--476
PartiesSTATE v. CICENIA et al.
CourtNew Jersey Superior Court — Appellate Division

Frank A. Palmieri, Orange, argued the cause for the appellant.

C. William Caruso, Newark, argued the cause for the respondent (Duane E. Minard, Jr., Essex County Prosecutor, Newark, attorney).

Before Judges JACOBS, BIGELOW and JAYNE.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

The defendants Cicenia, Corvino and DeMasi were indicted for murder. Before trial the appellant Cicenia applied for an inspection of alleged confession by the defendants and for an order suppressing his confession on the ground that it had been obtained while he was under arrest without complaint or warrant, without having been advised of his constitutional rights and after having been denied counsel. But cf. State v. Pierce, 4 N.J. 252, 261, 72 A.2d 305 (1950); State v. Bunk, 4 N.J. 461, 470, 73 A.2d 249 (1950). In addition, leave was sought to take oral testimony in support of the application to suppress. The County Court, after pointing out that the admissibility of the confession may be determined at the trial, questioned its power to suppress it in advance thereof and denied the application in its entirety. Thereupon, and without awaiting trial, appeal was taken to the Appellate Division.

The practice has long been established in our State, as well as elsewhere, of determining the admissibility of a confession at the trial; there the rights of the defendant may be fully protected by having the court pass on its competency and the jury on its credibility. See State v. Cole, 136 N.J.L. 606, 612, 56 A.2d 898, (E. & A. 1947). The same practice has been followed since the adoption of our new Rules (see State v. Pierce, supra; State v. Bunk, supra) and we find nothing therein to support the contention that, upon application, the court is obliged to determine the admissibility of the confession before the trial. Indeed, although our Rules have in large measure been patterned after the Federal Rules, we have not adopted any counterpart of Federal Rules of Criminal Procedure 41, 18 U.S.C.A., which specifically permits motions to suppress certain types of evidence before trial. Cf. In re Fried, 161 F.2d 453, 466, 1 A.L.R.2d 996 (2d Cir.1947) certiorari dismissed 332 U.S. 807, 68 S.Ct. 105, 92 L.Ed. 384 (1947). It is not our purpose to imply that there is a total absence of power to entertain such motion to suppress before trial; on the contrary, there may well be special situations where the interests of justice will dictate that the issue be determined immediately and in such instances the trial court ought do so in the proper exercise of its discretion. Cf. In re Fried, supra. However, nothing whatever was presented by the appellant which suggested any reason for departing from the customary practice of deferring determination of the admissibility of the confession until trial.

The appellant asserts that he has an absolute right to inspect copies of his confession and the confessions of his co-defendants, relying primarily on Rule 2:5--8(c) which provides that the court may direct that books, papers, documents or other objects designated in a subpoena be produced before the court at a time prior to trial. This Rule was taken from Federal Rule of Criminal Procedure 17; we did not adopt Federal Rule 16 which provides that upon motion the court may order the attorney for the government to permit the defendant to inspect books, papers, documents or tangible objects obtained from or belonging to the defendant or obtained from others by seizure or process. In Shores v. United States, 174 F.2d 838 (8th Cir.1949) the court held that even under the comprehensive provisions of the Federal Rules the defendant has no absolute right to obtain copies of confessions obtained by the government, and the same interpretation is to be given to our Rules. See State v. Bunk, 63 A.2d 842 (N.J.Co.Ct.1949), not officially reported. However, the Shores case did recognize that apart from any express Rule the trial court has inherent discretionary power to compel discovery by the government in advance of trial, particularly where the defendant seeks a copy of his confession. In reaching a similar result the Maryland Court of Appeals in State v. Haas, 188 Md. 63, 51 A.2d...

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7 cases
  • State v. Cook, A--51
    • United States
    • United States State Supreme Court (New Jersey)
    • January 13, 1965
    ...modeled after Rule 17 of the Federal Rules. See R.R. 3:5--10(c); State v. Bunk, 63 A.2d 842 (N.J.Cty.Ct.1949); State v. Cicenia, 9 N.J.Super. 135, 137, 75 A.2d 476 (App.Div.1950), modified, 6 N.J. 296, 78 A.2d 568 (1951), cert. denied, 350 U.S. 925, 76 S.Ct. 215, 100 L.Ed. 809 (1955). Howev......
  • Cicenia v. La Gay
    • United States
    • United States Supreme Court
    • June 30, 1958
    ...had been illegally obtained. The County Court denied the motion. The Superior Court of New Jersey dismissed the appeal, State v. Cicenia, 9 N.J.Super. 135, 75 A.2d 476, and the Supreme Court of New Jersey affirmed the dismissal, with modifications. 6 N.J. 296, 78 A.2d 568. The State Supreme......
  • Application of Cicenia, Civ. No. 274-56.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 28, 1956
    ...of it before trial. These proceedings involved appeals to the New Jersey Superior Court, Appellate Division, State v. Cicenia, 1950, 9 N.J.Super. 135, 75 A.2d 476, and to the New Jersey Supreme Court, State v. Cicenia, 1951, 6 N.J. 296, 78 A.2d 568. The upshot was a holding by the Supreme C......
  • State v. Winne, A--659
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 15, 1953
    ...rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200 (N.Y.Ct.App.1927). In our own State, we have State v. Cicenia, 9 N.J.Super. 135, 75 A.2d 476 (App.Div.1950), affirmed 6 N.J. 296, 78 A.2d 568 (1951), and State v. Tune, supra. The exercise of the power to afford a defendan......
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