State v. Burgess

• Decision Date: 06 November 1967
• Docket Number: No. A--1334,A--1334
• Citation: 97 N.J.Super. 428,235 A.2d 231
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Roger L. BURGESS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 428

97 N.J.Super. 428

235 A.2d 231

STATE of New Jersey, Plaintiff-Respondent, v. Roger L. BURGESS, Defendant-Appellant.

No. A--1334.

Superior Court of New Jersey Appellate Division.

Argued Oct. 16, 1967.

Decided Nov. 6, 1967.

Dimitry G. Nicola, Newark, for appellant.

Lawrence S. Schwartz, Asst. County Prosecutor, for respondent (Brendan T. Byrne, County Prosecutor of Essex County, attorney, James R. Zazzali, Newark, of counsel and on the brief).

Before Judges KILKENNY, CARTON and MOUNTAIN.

The opinion of the court was delivered by

CARTON, J.A.D.

Defendant was convicted by a jury of conspiring to obtain money by false pretenses. N.J.S. 2A:98--1, N.J.S.A. He seeks a reversal on the grounds that the indictment under which he was charged was fatally defective and that certain other errors were committed by the trial judge.

The indictment charged that defendant Burgess and another defendant (Mansueto) conspired with Solomon and Coleman (who were not named as co-defendants) to commit the crime of obtaining money by false pretenses. N.J.S. 2A:111--1, N.J.S.A.

The overt acts detailed in the indictment allege that defendant gave a bad check in the amount of $73.05 to Solomon on April 15, 1965 and that Solomon cashed it and gave some of the proceeds to defendant. Further, on July 23, 1965 defendant and Mansueto allegedly drafted another bad check in the amount of $93.45, and then gave it to Coleman, who cashed it and divided the proceeds with Mansueto.

Mansueto pleaded guilty to the indictment. Thus, trial on the charge of conspiracy proceeded against defendant Burgess alone. Solomon testified on behalf of the State. He stated that he knew defendant Burgess and had received from him the $73.05 check in April 1965. They made an arrangement whereby Solomon would cash the check and give defendant $10 or $15 out of the proceeds. Several days later, Solomon cashed the check at Wee Willie's Tavern and thereafter gave defendant $10 or $11.

Coleman testified on behalf of the State. He outlined the circumstances surrounding the cashing of a second check on July 23, 1965. Coleman, accompanied by Leon Knight, saw defendant on the street and the latter introduced him to Mansueto, who was with defendant. Mansueto asked Coleman if he would like to cash some checks and the latter said that he would. Defendant Burgess was standing 'on the side,' some seven feet away. The four men drove off in Mansueto's car to Coleman's home to pick up identification cards in the name of Joseph Hernandez which Coleman had found. Mansueto examined the identification, pulled out a check from under the sent cover of the car, and filled it out with the name 'Joseph Hernandez.' Driving to a nearby supermarket, Coleman cashed the check, obtaining $93.45 in proceeds which he handed over to Mansueto in the car. The latter then gave Coleman $20.

Mansueto corroborated Coleman's testimony generally. He also stated that he and Burgess had gotten blank checks 'off of some fellow' and were keeping them under the seat cover of the car, and that he and Burgess had made plans to cash the checks because they needed money.

Also produced as witnesses by the State were Mr. Fitten and Mr. Cohen who testified that the $73.05 and $93.45 checks respectively were not authorized checks on their accounts. There was testimony from the persons who had paid the checks and from the officer who investigated the passing of the two checks and arrested Solomon, Coleman and Burgess.

Defendant's motion at the end of the case to dismiss the indictment on the ground that the State had failed to make out a Prima facie case was denied. He thereupon took the stand on his own behalf and denied any participation in the transactions. On cross-examination, he admitted a record of several previous convictions for various crimes.

Defendant argues that he was prejudiced by the joinder of two conspiracies in the same count of the indictment; that each conspiracy was separate and distinct in time and purpose, and that there was no showing the two conspiracies were part of a common scheme, the only relationship between the two transactions being defendant's participation in each. The record supports defendant's contention that two separate charges of conspiracy are made in the indictment. Properly they should have been charged in two separate counts, rather than as a single count. See R.R. 3:4--7; State v. Torrance, 41 N.J.Super. 445, 452, 125 A.2d 403 (App.Div.1956), certification denied, 23 N.J. 59 (1956). Further, it is evident that what happened on April 15, 1965 in the checkpassing episode between defendant and Solomon was in no way related to the July incident in which defendant, Coleman and Mansueto were involved.

However, defendant made no motion before trial to object to the joinder of the two offenses charged in the indictment. The rules require that an objection to such a defect must be raised by a motion before trial, and failure to do so constitutes a waiver of the defect. R.R. 3:5--5(b)(2). Nor was there any objection to the proofs which showed two conspiracies rather than a single offense. Likewise, no motion was made to strike either of the conspiracies or the proof relating thereto before summation of the case to the jury.

Thus, the question is whether there was plain error committed by the trial court in allowing the proofs of the two conspiracies to be...