State v. Dancyger

• Decision Date: 03 July 1958
• Docket Number: No. A--236,A--236
• Citation: 143 A.2d 753,51 N.J.Super. 150
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Marvin DANCYGER, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 150

51 N.J.Super. 150

143 A.2d 753

STATE of New Jersey, Plaintiff-Respondent, v. Marvin DANCYGER, Defendant-Appellant.

No. A--236.

Superior Court of New Jersey.

Appellate Division.

Argued May 19, 1958.

Decided July 3, 1958.

Samuel Allcorn, Jr., Montclair, for appellant (Goodell & Allcorn, Montclair, attorneys).

Myron W. Kronisch, Legal Asst. Pros., Newark, for respondent (Charles V. Webb, Jr., Essex County Pros., Newark, attorney).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from a County Court judgment entered upon a jury verdict, sentencing him to a term of three to five years in State Prison for larceny of a ring.

On October 8, 1956 the Essex County grand jury returned an indictment in three counts charging that on July 30, 1956 defendant (1) wilfully entered the room of one Estelle Grossbardt with intent to steal, in violation of N.J.S. 2A:94--1, N.J.S.A.; (2) stole a platinum diamond ring belonging to her valued at $2,750, and (3) stole another of her rings, worth $500, both in violation of N.J.S. 2A:119--2, N.J.S.A. At the outset of the trial the court granted the prosecution's motion to sever the third count, and the cause thereafter proceeded on the first two counts--entering with intent to steal, and larceny of the platinum diamond ring.

The evidence disclosed that the complaining witness, Mrs. Estelle Grossbardt, was a guest at Goldman's Hotel, a resort hotel in West Orange, New Jersey, during the 1956 summer vacation period. She was accompanied by her two children, aged ten and two, and their 'governess,' a girl of 17 or 18. Mr. Grossbardt joined his family on weekends. During her stay at the hotel Mrs. Grossbardt and her children--and her husband on weekends--all occupied the same room, while the 'governess' occupied a separate room. The Grossbardt room was located on the ground floor of the hotel. Access to the room was off a central corridor which led in one direction to the main lobby at the front of the hotel and in the other direction to a side door opening onto the parking lot and also to a door in the rear leading to the swimming pool area.

Mrs. Grossbardt had brought with her a quantity of her personal jewelry, consisting of a platinum diamond ring, charm bracelet, cultured pearls, wrist watch and other items. She kept this jewelry in an unlocked jewel box on top of her dresser. The door of her room was never locked except when she was inside asleep.

Mrs. Grossbardt testified that on Sunday evening, July 29, she wore some of her jewelry, including the platinum diamond ring and the charm bracelet. When she returned to her room in the early hours of Monday, July 30, she placed this jewelry in the unlocked box on the dresser and went to sleep. At about 11 a.m., after Mr. Grossbardt had departed for the city, the room was left empty and unlocked. Mrs. Grossbardt did not look into her jewel box again until 7 o'clock the next evening, Tuesday, when she discovered that all her jewelry was missing.

It was proved that the charm bracelet was pawned at a pawnshop in New York City on Monday, July 30, between 3:30 and 4:30 p.m. The State's handwriting expert, comparing the name signed on the pawn ticket, 'Max Doreshorne,' with samples of defendant's handwriting, testified that in his opinion they all were written by one and the same person. The clerk who actually handled the pawn transaction was not called as a witness by the State, although he was still employed at the pawnshop and his name and address were known to the police. Instead, the assistant manager testified as to the fact and time of the pawn.

The evidence further showed that on Tuesday, July 31, between noon and 1 p.m., defendant entered a jewelry store in Poughkeepsie, New York, owned by Morris and Rae White, showed Mrs. White a platinum diamond ring he said he had found lying in the street, and asked whether the stone was glass or diamond. She took the ring to her husband at the rear of the store and he, being suspicious, instructed her to call the police. They soon arrived and requested defendant to accompany them to police headquarters where, in response to their questioning, he informed them he was employed as a salesman by a pipe and tobacco company and had been making calls on his customers in Poughkeepsie that morning, and that as he crossed the street he saw a shining object in the gutter, picked it up and took it into the jewelry store to see if it had any value. Mrs. Grossbardt identified this ring, as well as the charm bracelet, as her property.

As defendant had told the police, he was a salesman for a New York City company engaged in the importing and wholesaling of pipes and smokers' articles. The State introduced order slips showing that on Monday, July 30, defendant had taken orders from four different customers, three located in Newark and one in East Orange, New Jersey. The prosecution offered no proof, however, of the time of day when the respective orders were taken or the means of transportation then being used by defendant.

Accepting as true the testimony of Mrs. Grossbardt that her hotel room was not empty until 11 a.m. Monday, and the fact that her charm bracelet was pawned between 3:30 and 4:30 p.m. that same afternoon, the obvious conclusion is that her jewelry must have been taken between those hours and transported to New York City. The only evidence placing defendant at the scene of the crime was the testimony of Maclyn Goldman, one of the owners of the hotel, and Herbert Fine, who described himself as in charge of athletic and social programs there.

Goldman's testimony essentially was that the person appearing in a photograph which had been shown him by the police prior to the trial--it was stipulated that this was a police photograph of defendant--had been a dinner guest at the hotel a week or two before July 30, 1956. However, when he looked at defendant in the courtroom he was not so sure of his identification; he said that defendant resembled some one he had seen at the hotel, but whether defendant himself had been there he did not know. When the trial resumed in the afternoon the witness was again shown defendant's police picture, and he then testified that he had seen the man in the picture in and about the hotel within a week or two of the date in question. On cross-examination he stated that he could not say the person in the photograph was the man he had seen at the hotel. He said that defendant bore a very strong resemblance to the man he had seen, but when asked directly, 'Is he or is he not the man,' he replied 'I can't answer that question, sir.' The rest of Goldman's testimony concerned the number of guests at the hotel on a summer weekend, 500 to 600; the fact that there were 150 to 170 employees on the weekend of the robbery, 30 to 40% Of them 'new faces'; that there were three exits out of the hotel from Mrs. Grossbardt's room, and the windows in her room could be opened from the inside.

Fine testified that he had seen defendant in the lobby of the hotel during the summer of 1956, but when asked to give the month he replied he could not. The State's attorney then said he had no further questions, but when defense counsel moved to strike Fine's testimony as being too remote in time and not connected, he resumed direct examination. Upon further probing by rather leading questions, to which no objection was entered, the time the witness said he saw defendant in the hotel lobby was narrowed to a Saturday night between July 15, and July 30. He could not recall just what Saturday night it was, but it was after 8 p.m. He remembered the time, so he explained, because at that hour every one not a guest at the hotel would be asked to leave preparatory to the evening show in the hotel's night club. Fine remembered seeing defendant wandering alone through the main lobby, but he could not recall how he was dressed and he did not tell him to leave. Although the general practice was to question a person who was not a guest, Fine did not stop or question defendant on that particular evening.

At the close of the State's case defendant moved to dismiss both counts of the indictment because of the State's failure to make out a Prima facie case. The motion was denied. Defendant did not take the stand; his wife was his only witness. She testified that she worked in New York City and defendant had picked her up at her place of employment every Saturday evening during the summer of 1956 and then spent the entire evening with her. Upon the completion of her testimony defendant again, unsuccessfully, moved for a judgment of acquittal. The court then charged the jury, stating that the case was one founded in circumstantial evidence and directing that it could return a verdict of guilty or not guilty on both counts, or guilty on one and not on the other. In concluding he made the comment, which he said the jury was not required to accept, that it seemed to him that under the facts of the case 'the verdict should be either guilty on both counts or not guilty on both counts.'

The jury could not agree on the first count (entering with intent to steal), and a mistrial was declared as to it. It returned a verdict of guilty on the second count (larceny). Defendant moved for a new trial because the verdict was contrary to the weight of the evidence and the court erred in not granting his motions for acquittal; the verdict was inconsistent and a compromise verdict; there was trial error in the admission of the police photograph and a police fingerprint chart, and there were errors in the charge. The motion was denied.

On appeal defendant claims that (1) the evidence does not support the larceny charge and the motions for judgment of acquittal should therefore have been granted; (2) the trial court's charge with respect to defendant's failure to testify was erroneous; (3) he was prejudiced by the improper...