State v. Detroit Motors
| Decision Date | 20 July 1960 |
| Docket Number | Nos. 357,J,358,s. 357 |
| Citation | 163 A.2d 227,62 N.J.Super. 386 |
| Parties | STATE of New Jersey v. DETROIT MOTORS, a New Jersey corporation, Morris Rotman, also known as Morris Roth, Ernest Graziani and Donald Orlowski, also known as Don Orley, Defendants. STATE of New Jersey v. DETROIT MOTORS, a New Jersey corporation, Morris Rotman, also known as Morris Roth, Ernest Graziani, Johnny Doe and Bill C., being fictitious, true name unknown, Defendants. Indictmentan. Sess., 1957 Term. Criminal |
| Court | New Jersey Superior Court |
Ralph DeVita, Asst. Prosecutor, Elizabeth, for the State (H. Douglas Stine, Union County Prosecutor, attorney).
Joseph Schoenholz, Newark, for defendants Detroit Motors and Morris Rotman.
BARGER, J.C.C. (temporarily assigned).
This is a motion to dismiss indictments Nos. 357 and 358, January session, 1957 term, by the defendants Detroit Motors and Morris Rotman. The motion is based on the following two grounds:
(1) In substance, that the circumstances set forth indicate a breach of confidence in the attorney and client relationship existing between the firm of which former Prosecutor H. Russell Morss, Jr., was a member and these defendants who were represented by such firm on a consultation retainer basis generally, and in particular in a civil action involving the same facts and subject matter as indictment No. 357, and generally on a consultation basis as above indicated as to indictment No. 358, during a period prior to the presentation of the matters to the grand jury and presentation of the indictments to the court. And further, that the circumstances indicate a conflict of interest situation as provided in Canons of Professional Ethics, Canons 6 and 37.
(2) There was no evidence before the grand jury from which such body could determine that a crime had been committed by these defendants or that the State had Prima facie evidence connecting these defendants thereto.
The indictments charge the defendants with obtaining money under false pretenses, being violations of N.J.S. 2A:111--1 and 2A:111--5, N.J.S.A. There are other defendants named in the indictments not involved in this motion.
H. Russell Morss, Jr., Esq., was the duly appointed Prosecutor of Union County from on or about February 23, 1953 to and including April 7, 1958, these indictments being presented to the court on the last day of his service as such official; and as a member of the bar he was a member of the law firm of O'Connor, Morss and Mancini, Esqs., having offices in the City of Elizabeth, upon all of the relevant and material dates herein cited.
As a result of complaints received from various sources by the prosecutor's office during his term of office concerning the practices engaged in by used car dealers, relating to the purchase and sale of such motor vehicles in Union County, Mr. Morss, as such prosecutor, did in or about June 1957 assign one of his assistants, Richard P. Muscatello, Esq., to take charge of all such complaints and of an investigation to be made to secure and compile data, information and evidence relating to such practices for contemplated future presentation thereof at the proper time to the grand jury.
The data, information and evidence assembled as a result of the investigation referred to was presented to the grand jury in the spring of 1958, and as a result these and other indictments were presented to the court on April 7, 1958.
At some date, about March 1958, and prior to the presentation of the evidence to the grand jury, Mr. Morss, obtained knowledge that one of the dealers being investigated was the defendant Detroit Motors, and he further learned, about this time, that a member of his firm, and being one of his partners, represented Detroit Motors and perhaps an officer or officers thereof generally, and in particular in a civil cause involving similar facts and the subject matter of indictment No. 357. There is no indication that there was a civil cause pending involving similar facts or the subject matter of indictment No. 358. A partner of the firm of which Mr. Morss was a member had generally represented the defendant Detroit Motors and some of its officers from sometime in the latter part of 1956 or early 1957 to the latter date referred to, on a general retainer basis and in a general manner. When Mr. Morss learned that his firm represented the dealer mentioned he informed the assistant prosecutor, then in charge of the investigation, of the situation and instructed him not to discuss any matters relating to the investigation referred to, insofar as the Detroit Motors was concerned, with him, and the file in the case was not to be made available to him, and such investigation as to such defendant was to be handled totally independent of him. About this time there was a substitution and another assistant prosecutor was assigned to the investigation because of the resignation of Mr. Muscatello. Also, Mr. Morss made a request of the member of his firm representing Detroit Motors and handling the civil action to terminate the representation of such defendant or any of its officers or employees in the civil action or any other matters and to have another attorney substituted, to be chosen by the defendants mentioned, and this was accomplished early in April of 1958.
The motion is based on the affidavit of Morris Rotman which generally states the facts concerning the representation by the firm on general matters relating to the business, and in particular in the civil action referred to. The prosecutor has filed an affidavit by Mr. Morss indicating that during the investigation referred to and the presentation of the evidence to the grand jury, insofar as his recollection permits, he did not at any time secure any information from his partner or confer with any member or members of the grand jury relating to any information or evidence submitted against these defendants; and further, that he did not convey or transmit any information or evidence of any nature whatsoever to any member of his staff or to the grand jury relating to the affairs of the defendants mentioned which may have been conveyed to him from any member of his firm, because until the date herein mentioned he had absolutely no knowledge of or information relating to the representation of the defendants by a member of his firm, and that immediately upon securing such knowledge and information he took the steps above indicated. From the circumstances it is indicated that there was no intent on the part of Mr. Morss, as the prosecutor, consciously to become involved, directly or indirectly, in any breach of confidence or conflict of interest situation, and immediately, as indicated he took the steps that appeared to him to be proper and necessary to avoid any inference or implication of any such breach of confidence or conflict of interest. The defendants do not charge Mr. Morss with any improper intent, motive or purpose, but generally claim that because of the circumstances which arose, as indicated, they are prejudiced because the circumstances themselves give rise to an inference of a breach of confidence of the attorney-client relationship and a conflict of interest situation, without further inquiry, and that under the authorities herein cited they are entitled to a dismissal of the indictments.
After presentation of the evidence to the grand jury the indictments took the usual course of being approved as to form by the clerk of the grand jury and were then signed by Mr. Morss, as the prosecutor, and by the then foreman of the grand jury and presented to the court.
The facts do not indicate that there was any...
To continue reading
Request your trial
-
Food Fair Stores, Inc. v. Joy
...criminal charges solely to obtain an advantage in a civil matter. ABA, Code, Disciplinary Rule 7-105; See State v. Detroit Motors, 62 N.J.Super. 386, 163 A.2d 227, 230-31 (1960). (Emphasis These same ethical considerations were relied upon in MacDonald, supra, 425 F.2d 373 at 376 to void th......
-
U.S. v. Heldt
...Sinclair v. Maryland, 278 Md. 243, 363 A.2d 468 (1976); People v. Jimenez, 187 Colo. 97, 528 P.2d 913 (1974); State v. Detroit Motors, 62 N.J.Super. 386, 163 A.2d 227 (1960). The threat posed to a prosecutor's interests in his personal and professional reputation by a bona fide civil action......
-
Farber v. Douglas
...v. Rocker, 130 Iowa 239, 106 N.W. 645 (1906); Coblentz v. State, 164 Md. 558, 166 A. 45, 88 A.L.R. 886 (1933); State v. Detroit Motors, 62 N.J.Super. 386, 163 A.2d 227 (1960); People v. Krstovich, supra. See generally State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979); State v. Wetzel, 7......
-
Young v. State
..." Sinclair, 278 Md. at 253-54, 363 A.2d at 474-75 (emphasis added). It additionally quoted from State v. Detroit Motors, 62 N.J.Super. 386, 391, 163 A.2d 227, 229-30 (L.Div.1960): " 'The principle long ago was recognized that no man can adequately or properly serve two masters, and this is ......