State v. Gelb

• Decision Date: 25 September 1986
• Citation: 515 A.2d 1246,212 N.J.Super. 582
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Randy Lee GELB, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 582

212 N.J.Super. 582

515 A.2d 1246

STATE of New Jersey, Plaintiff-Respondent, v. Randy Lee GELB, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 9, 1986.

Decided Sept. 25, 1986.

Lorane Posner for defendant-appellant (Brown & Brown, attorneys; Alan Dexter Bowman and Raymond Miller Brown, Newark, of counsel; Lorane Posner, on the brief).

Steven Pasternak, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen., attorney; Steven Pasternak, Deputy Atty. Gen., of counsel and on the letter brief).

Before Judges MICHELS and O'BRIEN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Randy Lee Gelb was convicted of (1) aggravated manslaughter, a crime of the first degree, in violation of N.J.S.A. 2C:11-4a (Count One); (2) aggravated assault, a crime of the second degree, in violation of N.J.S.A. 2C:12-1b(1) (Count Two); (3) criminal mischief, a crime of the third degree, in violation of N.J.S.A. 2C:17-3a(2) (Count Three) and (4) recklessly causing widespread injury or damage, a crime of the third degree, in violation of N.J.S.A. 2C:17-2b (Count Four). The trial court sentenced defendant to an indeterminate term, not to exceed five years, at the Youth Reception and Correction Center at Yardville for the aggravated manslaughter (Count One) and to three additional indeterminate terms for the other convictions (Counts Two, Three and Four), which terms were to be served concurrently with the sentence imposed for his conviction for aggravated manslaughter. The trial court also imposed penalties totaling $100, payable to the Violent Crimes Compensation Board. Defendant appeals.

Defendant seeks a reversal of his convictions and a new trial on the following grounds set forth in his brief:

I . THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT ANY ENCOURAGING COMMENTS UTTERED BY APPELLANT MUST HAVE BEEN MADE PRIOR TO THE IRREVERSIBLE ACCOMPLISHMENT OF THE ACT IN ORDER TO RENDER HIM LIABLE AS AN ACCOMPLICE.

II. THE STATEMENT OF JULY 8, 1982 WAS INVOLUNTARILY COERCED AND TAINTED BY STATEMENTS MADE PRIOR TO THE INVOCATION OF MIRANDA RIGHTS. THEREFORE THE DENIAL OF THE MOTION TO SUPPRESS THAT STATEMENT WAS ERRONEOUS.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2).

However, some further comment is necessary with respect to defendant's claim in Point I, infra, that the trial court committed reversible error by refusing to instruct the jury that if he "performed some act designed to aid, abet or incite the commission of [a] crime subsequent to the actual and irreversible lifting of the switch, it would be impossible for him to have participated in the offenses set forth in the indictment." The thrust of defendant's argument is that he could not aid or abet a completed act, and therefore the jury should have been instructed that "criminal intent, absent active and effective participation with influence over the outcome of the events, is an insufficient basis for [a finding of accomplice] liability." In defendant's view, the absence of such an instruction was erroneous and denied him a fair trial. We disagree and affirm defendant's convictions.

As a result of a train derailment which occurred in the Borough of Fair Lawn, New Jersey, on July 7, 1982, defendant, together with Peter Wade (Wade) and Peter Benton (Benton), was indicted by the Bergen County Grand Jury and charged with aggravated manslaughter, aggravated assault, criminal mischief and recklessly causing widespread injury or damage to the property of Conrail and the property of A. Zerega and Sons. Wade and Benton subsequently entered into plea agreements with the State. Defendant, however, denied guilt and stood trial.

The proofs at trial established that during the summer of 1982, defendant and a group of his friends were in the habit of "hanging out" along the Conrail railroad tracks which ran behind defendant's house in Fair Lawn. In late June, the group moved the location of their meeting spot to an area near a railroad switch, which was located alongside the tracks. This switch was designed to change the tracks so that a train could be directed from the main line track to an industrial siding track running alongside the A. Zerega and Sons pasta factory. When the handle on this switch was moved, it would activate a red signal light located approximately twenty-five feet from the intersection of the railroad tracks and Morlot Avenue. Facing north, the signal light alerted trains coming from that direction that the switch was opened; however, the signal light was not visible from the switch area.

On Monday evening, July 5, 1982, defendant, Kevin Held (Held), Benton, Wade and George Yannitsadis (Yannitsadis) met at their usual "hang out" near the railroad switch. Held was angry on that night, and, at some point during the evening, he began striking the lock on the switch with a railroad spike in order to break it. After the lock was dislodged, Held moved the switch from its original position. In turn, defendant and Wade also moved the switch. By "testing" the switch in this manner, the boys ascertained that the switch controlled the tracks and direction in which a train would go.

During the course of this activity, it was mentioned that, when the switch was thrown, an oncoming train would leave the main track and be transferred to the siding track which ran alongside the factory buildings. It was defendant's recollection that during this conversation, on Monday, July 5, 1982, he mentioned to his companions that there was a signal light on the tracks, near the Morlot Avenue intersection, which he believed had "something to do with the switch." Defendant further testified that, during the remainder of the evening, the boys did not have any discussions regarding future plans to throw the switch.

Defendant next returned to the area of the railroad tracks near the switch during the early evening hours on Wednesday, July 7, 1982. He met Held there and they were later joined by Wade, Benton and Yannitsadis. Shortly thereafter, Stuart Shapiro (Shapiro) and David Herstein (Herstein) also joined the group. At approximately 7:40 p.m., defendant, Shapiro and Benton left the area to purchase beer at a local liquor store. Upon their return, the group consumed at least five six-packs of beer in the area around the switch and smoked marijuana.

It was defendant's testimony that he did not go to meet his friends on Wednesday night with any intentions regarding the railroad switch. Furthermore, he did not recall any conversation about throwing the switch during the evening of July 7, 1982. However, Herstein testified that during the evening he heard a conversation between defendant and Benton about the fact that the switch lock had been broken on Monday night. During this conversation, Benton told defendant and Herstein that "they [were] going to switch the tracks."

At approximately 8:40 p.m., defendant and Herstein left the area to go to defendant's house to pick up a stereo tape. Wade recalled that defendant returned fifteen to twenty minutes before the train was seen. It was Herstein's recollection that after he and defendant returned from their walk to the house, Benton, Wade, Held and defendant were hovering around the switch. Wade further testified that the headlight of a train approaching from the direction of Morlot Avenue was first seen by the group at approximately 9:30 p.m. As the train got closer, those individuals who were sitting on the tracks or on nearby chairs got up and moved. Shortly thereafter, Wade recalled that Held yelled, "Throw the switch." After hearing this, Wade began pulling on the switch. He maintained that he had no intention of doing this before Held made his statement. Wade further testified that, after he had begun pulling the switch handle, he heard defendant yell to him "to wait until the train passed Morlot Avenue so the engineer doesn't know the switch is pulled." This statement was made within a few seconds of Held's comment that the switch should be thrown.

Although Wade was not aware of whether the train had passed Morlot Avenue at the time defendant's comment was made, it was Benton's recollection that the train was well past Morlot Avenue when Wade first began pulling the switch. After Wade heard defendant's comment, he let go of the switch. However, as he was releasing it, Benton reached across and pulled the switch handle the rest of the way down. Thereafter, defendant and his companions ran from the area.

Conrail Train 1164, a passenger line embarking from Suffern, New York, had experienced no mechanical difficulties and had arrived timely at each of its first two scheduled stops on the evening of July 7, 1982. However, at some time between 9:00 p.m. and 10:00 p.m., after passing the Morlot Avenue intersection, the train left the main railroad tracks, proceeded along the industrial siding tracks and slammed into a brick wall at the A. Zerega and Sons factory on Zinc Avenue. As a result of this impact, three quarters of the cab car of the train entered the factory building and all six cars and the engine were derailed.

An inspection of the area, made after the derailment, revealed that the switch controlling the side tracks at the Zerega factory had been moved to a locked position. In this position, a train coming along the main tracks would have been led onto the siding tracks. Additionally, after the derailment, the signal light on Morlot Avenue was found to be operative and showing a red light.

As a result of the derailment of Train 1164 on July 7, 1982, Conrail engineer Jack Duffy suffered a laceration of the brain, causing his death. Joseph Sandora, a passenger on the train, suffered a ruptured spleen, a concussion, a collapsed lung and multiple abrasions and lacerations to the...