State v. Fleckenstein

• Decision Date: 28 March 1960
• Docket Number: No. A--786,A--786
• Citation: 60 N.J.Super. 399,159 A.2d 411
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edward A. FLECKENSTEIN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 399

60 N.J.Super. 399

159 A.2d 411

STATE of New Jersey, Plaintiff-Respondent, v. Edward A. FLECKENSTEIN, Defendant-Appellant.

No. A--786.

Superior Court of New Jersey, Appellate Division.

Argued March 7, 1960.

Decided March 28, 1960.

Edward A. Fleckenstein, Jersey City, for appellant, pro se.

Frank A. Dolan, Sussex County Pros., Newton, for respondent.

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

HANEMAN, J.A.D.

Defendant Edward A. Fleckenstein appeals from a judgment of conviction after a trial without a jury before the Sussex County Court based upon two indictments charging acts of lewdness and carnal indecency in violation of N.J.S. 2A:115--1, N.J.S.A. He also appeals from the trial court's denial of his motions to take additional testimony and for a new trial.

Defendant was charged with committing acts of fellatio upon the persons of W, the complaining witness at the trial, and one R, presently a resident of New Castle County, Delaware, who could not be located and served with a subpoena requiring his presence at the trial, pursuant to the provisions of the Uniform Act to Secure the Attendance of Witnesses from without a State, N.J.S. 2A:81--18, N.J.S.A.

At the time of the alleged offense on June 9 and June 19, 1957, W and R were 16 and 15 years of age, respectively; defendant was an adult. As a member of the New Jersey and New York Bars, defendant personally conducted his own defense.

Testimony was introduced at the trial demonstrating that defendant was wellknown to the youth in the community of Hamburg and vicinity, and that he frequently associated with youngsters.

On June 22, 1957, after receiving a series of anonymous telephone calls reporting that a man in the Hamburg area had been see associating with young boys and picking them up on the highway, the state police, after a brief surveillance of the car with the reported license registration H/F 400, intercepted said vehicle. Defendant was identified as the driver and W as the passenger. As a result of the questioning that followed, defendant was arrested and, with W, was escorted to the Sussex substation of the state police where statements were taken.

W, who at the time of the trial was serving in the United States Army as a military policeman, told of how he had met defendant and how defendant had often given him rides in his car and bought him snacks at various times. The sordid facts of the alleged sexual acts performed upon W need not be detailed here. W described the meetings with defendant by himself on June 9 and with R on June 19, 1957, and the events that followed. He further testified that he was not a willing participant in the alleged activities with defendant.

Defendant denies having engaged in sexual perversion with either W or R. He contends that the United States Army, the municipal and county court judges, the prosecutor, and the state police are all against him, even though he is completely innocent of the crimes charged. He accuses the state police and the municipal court judge of forgery and perjury in forging the complaint against him, alleging that the complaint he saw when apprehended on June 22, 1957 specified the date of May 25, 1957 as the date of the alleged offense with W rather than that of June 9, 1957 as set out in the present complaint. He further charges that the prosecutor misrepresented a material fact to the court in that he withheld a statement signed by W in which the latter allegedly named May 25, 1957 as the date of the first charged offense. In short, defendant alleges that the conviction from which he is here appealing is the result of a vicious plot 'to frame the defendant and involve defendant in trouble.' In his brief, for example, defendant asserts 'The long standing disputes and feuds between defendant and the Army, * * * his heading a McCarthy organization, his arrest in Germany by the Army and forcible expulsion from that country and his law suits and threatened suits against the Army, play an obvious role.'

Stating that this case resolves itself into the question of whom the court believes from the testimony presented, the trial judge concluded:

'(A)fter giving this a great deal of thought and after weighing all the testimony regarding this act, and considering the collateral issues that have been brought in here to test the credibility of certain individuals, the one Inescapable conclusion that I come to is that this defendant is guilty of the charges * * *.' (Emphasis supplied.)

The trial judge denied defendant's motions for taking additional testimony and for a new trial on the grounds that the former motion was, in reality, a motion for a new trial, it was not brought within ten days, and it was not based on newly discovered evidence.

I.

Defendant asserts that his conviction must be set aside because of a lack of corroboration of W's testimony. He cites State v. Lefante, 14 N.J. 584, 103 A.2d 585 (1954), as authority for the proposition that in morals cases such as that Sub judice, corroboration is required in order for the State to obtain a conviction. However, the Lefante case, in which the defendant was appealing from a conviction of carnal abuse of a nine-year-old girl, does not so hold. To the contrary, the Supreme Court clearly stated therein, 14 N.J. at page 592, 103 A.2d at page 589, 'Suffice it to say that the Child's story, both on direct and cross-examination, carries conviction.' (Emphasis supplied.) It was claimed by defendant in Lefante that he was prejudiced by the testimony of a doctor who had examined the complaining witness more than two years after the first charged offense and found that her hymen had been partly ruptured and healed. This testimony, argued defendant, was too remote, and furthermore, the doctor never connected the defendant with carnal abuse. The court held, however, that the complaining witness herself had identified the defendant as the guilty person, and that although the testimony of the doctor was relevant, it was not prejudicial to defendant since he cross-examined the doctor in order to show that such a rupture was not uncommon in children. The corroboration issue was never raised or discussed. Certainly the court, by its treatment of the issue of whether or not the doctor's statement was admissible, did not intend to convey the impression that said statement was necessary corroboration of the child's story. The only question before the court was whether this testimony was properly admitted by the trial judge and, if not, whether its admission was prejudicial to defendant.

Defendant cites People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, 160 N.E.2d 494 (Ct.App.1959), and People v. Porcaro, 6 N.Y.2d 248, 189 N.Y.S.2d 194, 160 N.E.2d 488 (Ct.App.1959), as authority for the argument that corroboration is required in all cases 'on moral subjects.' An examination of these opinions discloses that they are not authority for the principle so urged.

In the former case the indictment concerned a morals charge by a daughter against her father and in the latter case by a stepdaughter against her stepfather. In both instance the complaining witness was under 12 years of age. Section 392 of the N.Y. Code of Criminal Procedure provides that when in criminal proceedings a child under 12 years of age does not, in the opinion of the court or magistrate, understand the nature of an oath, the unsworn statement of the child may be received, 'But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.' The court extended the legislative mandate for corroboration to instances involving the testimony of children under 12 years of age even though sworn. It is plain the court was influenced in its conclusion by the specific section of the New York statute above cited. This State has no comparable statute, and the cases cited are therefore not apposite.

The rule at common law and in most jurisdictions today is that in the absence of statute, a conviction for a morals or sex offense may be sustained on the uncorroborated testimony of the victim. 7 Wigmore on Evidence, § 2061, p. 342 (3d ed. 1940); Annotation, 60 A.L.R. 1124, 1125 (1929). New Jersey statute generally do not require corroboration for a conviction for a morals or sex offense. In the exceptional cases where the Legislature intended to impose the requirement of corroboration for the conviction of a crime, it did so expressly as, for example, in N.J.S. 2A:142--3, N.J.S.A., dealing with the crime of seduction, and N.J.S. 2A:148--1, N.J.S.A., dealing with the crime of treason. The crime with which defendant herein is charged, as defined in N.J.S. 2A:115--1, N.J.S.A., does not require corroboration of the complaining witness' testimony.

State v. Andoloro, 108 N.J.L. 47, 154 A. 819 (Sup.Ct.1931), like the Lefante case, supra, involved a charge against the defendant of carnal abuse of a minor child. The court therein, although inclined to believe that there was corroboration in fact, expressly stated, 108 N.J.L. at page 50, 154 A. at page 821, 'But whether so or not, corroboration of the complaining witness was not legally essential to a conviction.' See also State v. Cohen, 108 N.J.L. 216, 157 A. 437 (Sup.Ct.1931), where the court upheld a conviction of defendant for an act of lewdness and carnal indecency, apparently based upon the sole testimony of the complaining witness. In State v. Welsch, 29 N.J. 152, 148 A.2d 313 (1959), defendant was convicted of committing an act of open lewdness in violation of N.J.S. 2A:115--1, N.J.S.A. The State's case rested entirely upon the testimony of the complaining witness, which was not corroborated in any respect. Although the conviction was reversed, the court's decision was based solely upon the grounds that the prosecutor had made highly prejudicial remarks in his summation to the jury and not on the grounds, as urged by defendant therein that the verdict of...