75 A.2d 476 (N.J.Super.A.D. 1950), No. A--476, State v. Cicenia

Docket Nº:A--476
Citation:75 A.2d 476, 9 N.J.Super. 135
Opinion Judge:Jacobs, S.J.A.D.
Party Name:STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VINCENT CICENIA, ET AL., DEFENDANT-APPELLANT
Attorney:Mr. Frank A. Palmieri argued the cause for the appellant. Mr. C. William Caruso argued the cause for the respondent (Mr. Duane E. Minard, Jr., Essex County Prosecutor, attorney).
Judge Panel:Jacobs, Bigelow and Jayne.
Case Date:August 17, 1950
Court:Superior Court of New Jersey
 
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Page 476

75 A.2d 476 (N.J.Super.A.D. 1950)

9 N.J.Super. 135

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,

v.

VINCENT CICENIA, ET AL., DEFENDANT-APPELLANT

No. No. A--476

Superior Court of New Jersey, Appellate Division

August 17, 1950

Argued August 7, 1950.

Mr. Frank A. Palmieri argued the cause for the appellant.

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

Jacobs, Bigelow and Jayne.

OPINION

Jacobs, S.J.A.D.

[9 N.J.Super. 136] The defendants Cicenia, Corvino and DeMasi were indicted for murder. Before trial the appellant Cicenia applied for an inspection of alleged confessions 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 (1950); State v. Bunk, 4 N.J. 461, 470 (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 [9 N.J.Super. 137] 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 (E. & A. 1947). The same practice has been followed since the adoption of our new Rules (see State v. Pierce, supra; State v. Bunk,

Page 477

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 Rule of Criminal Procedure 41 which specifically permits motions to suppress certain types of evidence before trial. Cf. In re Fried, 161 F.2d 453, 466 (2d Cir. 1947); cert. dismissed, 332 U.S. 807...

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