State v. DeBellis

• Citation: 413 A.2d 986,174 N.J.Super. 195
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Wayne DeBELLIS, Defendant-Appellant.
• Decision Date: 23 May 1980
• Court: New Jersey Superior Court – Appellate Division

Page 195

174 N.J.Super. 195

413 A.2d 986

STATE of New Jersey, Plaintiff-Respondent, v. Wayne DeBELLIS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted May 12, 1980.

Decided May 23, 1980.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Maurice J. Molyneaux, Asst. Deputy Public Defender, of counsel and on the brief).

John J. Degnan, Atty. Gen., for plaintiff-respondent (Frederick S. Cohen, Deputy Atty. Gen., of counsel and on the brief).

Before Judges BISCHOFF, BOTTER and MORTON I. GREENBERG.

PER CURIAM.

The state grand jury, in a 33-count indictment charged defendant Wayne DeBellis and James Joyce, Morris Hacker and Miles Burke with conspiracy, embracery, perjury, obstruction of justice and misconduct in office. The indictments were returned as a result of an investigation of circumstances surrounding an earlier trial at which Joyce had been acquitted. All of the defendants were not charged in each count. The trial of Hacker was severed since he was hospitalized. The case was tried against the remaining three defendants. Jury selection started June 15, 1978. The first testimony was heard by the jury on June 19, 1978. The evidential portion of the trial lasted until July 24, 1978. Verdicts were returned July 27, 1978. Burke was found not guilty of all charges. DeBellis was convicted of conspiracy, two counts of misconduct in office, obstruction of justice and seven counts of perjury. N.J.S.A. 2A:98-1(h); N.J.S.A. 2A:98-2; N.J.S.A. 2A:85-1; N.J.S.A. 2A:85-14; N.J.S.A. 2A:131-1. He was found not guilty of embracery and two counts of perjury. Joyce was found guilty of three counts of embracery but was found not guilty of conspiracy, two additional counts of embracery, aiding and abetting misconduct in office, two counts of obstruction of justice and five counts of perjury.

DeBellis was sentenced to concurrent terms of not less than two years or more than three years on the counts for conspiracy, misconduct in office (two counts) and obstruction of justice. He was also fined $1,000 on each count, for a total of $4,000. On each of the perjury charges he was sentenced to a term of not less than four years or more than six years. The perjury sentences were made concurrent with each other but consecutive to the other sentences. There were no fines imposed on the perjury counts.

DeBellis filed a notice of appeal from the judgment of conviction against him. The appeal was perfected with an appropriate brief, appendix and transcripts filed. We are advised that he subsequently died. But nevertheless we decide the appeal except with respect to an issue of merger of four counts of perjury. R. 2:3-2; Newark v. Pulverman, 12 N.J. 105, 115-116, 95 A.2d 889 (1953). Since no application has been made for a substitution of parties we will consider the appeal as though still being prosecuted by DeBellis.

DeBellis asserts five grounds for reversal:

The trial court was in error in denying the closure motion made in behalf of all the parties to the litigation to exclude the news media during the pretrial evidentiary hearing.

The trial court committed reversible error in sending the transcripts of the sound recordings into the jury room over objection of defense counsel.

Sending the trial court's skeleton outline of the indictment into the jury room accompanied by 72 overt acts was inherently dangerous and outweighed any benefit the jury might have derived from its use during deliberation.

The trial judge's admonition to the jury, in advance of any such request, relevant to reading of a witness' testimony had a chilling effect on their deliberations.

Counts 25, 26, 32 and 33 of the indictment were nothing more than a single transaction motivated by one criminal episode which was fractionalized by the state in an effort to enhance defendant's punishment.

We see no error in the trial court's reported decision, State v. Joyce, 160 N.J.Super. 419, 390 A.2d 151 (Law Div.1978), refusing to exclude on motion of all parties the press from a pretrial evidentiary hearing held pursuant to State v. Driver, 38 N.J. 255, 183 A.2d 655 (1969), to determine the audibility of recordings of conversations and the accuracy of transcripts made from them. Certainly the press ought rarely if ever to be excluded from judicial proceedings. State v. Allen, 73 N.J. 132, 373 A.2d 377 (1977). While DeBellis argues that "a substantial likelihood existed that an open hearing would prejudice the defendant's right to a fair trial," in fact the selection of the jury showed that media publicity did not preclude the court from impaneling an impartial jury.

There was no error in admission into the jury room of transcripts of tape recordings of conversations obtained by the State. The trial judge carefully explained that he was allowing the transcripts into the jury room because as a result of his review he was certain that they were reasonably accurate; witnesses testified they had read the transcripts and they were accurate; defendants did not deny the accuracy; the jury had already seen the transcripts; the jury would find it difficult without the transcripts to know which recordings they wanted to hear; the judge was afraid that he had unintentionally deceived defendants into believing that the transcripts would go into evidence, and the transcripts would help the jury understand the evidence in this lengthy trial. The judge indicated that he would give a limiting instruction to the jury that the transcripts were only a guide to the recordings and that the recordings were the primary evidence. In fact, such an instruction was given. The jury was told that the transcripts were not binding and that they should be disregarded if not accurate.

It has been recognized in New Jersey that a transcript may be used as an aid for understanding a tape recording. State v. Zicarelli, 122 N.J.Super. 225, 239-240, 300 A.2d 154 (App.Div.1973), certif. den. 63 N.J. 252, 306 A.2d 455 (1973), cert. den. 414 U.S. 875, 94 S.Ct. 71, 38 L.Ed.2d 120 (1973). We cannot say that the very careful exercise of discretion by the trial judge was erroneous. United States v. West, 574 F.2d 1131, 1138 (4 Cir. 1978); United States v. Dorn, 561 F.2d 1252, 1257 (7 Cir. 1977). It is evident that the ultimate rationale for admission of the tapes was that the jury would receive accurate information of material...