State v. Hodge
| Decision Date | 17 August 1978 |
| Citation | 162 N.J.Super. 43,392 A.2d 208 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Bruce Gregory HODGE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Stanley C. Van Ness, Public Defender, for defendant-appellant (Mary Ellen Shiever, Asst. Deputy Public Defender, of counsel and on the brief).
John J. Degnan, Atty. Gen., for plaintiff-respondent (William F. Hyland, former Atty. Gen., and Anthony J. Parrillo, Deputy Atty. Gen., of counsel).
Before Judges SEIDMAN, PRESSLER and KING.
Defendant was convicted by a jury of a charge of unlawful possession of a blackjack, in violation of N.J.S.A. 2A:151-41. His challenge to the conviction is predicated on two claims of error: first, that the trial judge erred in denying his motion for judgment of acquittal N. o. v. and second, that the trial judge committed plain error in including in his initial instructions to the jury a direction having at least the capacity to unfairly coerce it to reach unanimous agreement.
Our review of the record persuades us that both of these claims are clearly without merit. With respect to the acquittal motion, it is well settled that the standard to be applied by the trial judge is the same whether the motion is made before or after verdict, that standard requiring denial of the motion if the trial judge concludes that the State's evidence, both direct and circumstantial viewed in its entirety and giving the State the benefit of all favorable inferences reasonably supported thereby, is sufficient to permit the jury to find guilt beyond a reasonable doubt. See, E. g., State v. Kleinwaks, 68 N.J. 328, 336, 345 A.2d 793 (1975); State v. Reyes, 50 N.J. 454, 458-459, 236 A.2d 385 (1967). The evidence here, albeit largely circumstantial and raising sharp credibility questions, nevertheless met that standard. The facts testified to by the arresting officer, if he were to be believed, were adequate to enable the jury to conclude as it apparently did, that defendant had the blackjack in his pocket while standing outside the Trent Bar in the Trenton Mall and that upon his observation of the officer, he surreptitiously removed it therefrom, dropped it to the ground, turned, and started to walk away.
Defendant's appellate challenge to the judge's initial charge to the jury is equally without merit. The portion of the charge complained of was in essence an explanation to the members of the jury that they were obliged to make a conscientious attempt to reach unanimity in their verdict. It was thus a variant of the so-called dynamite or Allen charge, 1 typically given as a supplementary instruction after deliberations have commenced and at a point therein at which it appears that the jury might be having difficulty in reaching unanimity. Defendant does not now complain of the substance or verbiage of the instruction here and indeed, it conformed with the language and import of such an instruction approved by the Supreme Court in State v. Williams, 39 N.J. 471, 481, 189 A.2d 193 (1963) Cert. den. 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed.2d 1075 (1963). See also, State v Hutchins, 43 N.J. 85, 96, 202 A.2d 678 (1964); State v. Wright, 113 N.J.Super. 79, 83, 272 A.2d 758 (App.Div.1971); State v. Boiardo, 111 N.J.Super. 219, 239-240, 268 A.2d 55 (App.Div.1970), Cert. den. 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed.2d 231. And see United States v. Fioravante, 412 F.2d 407, 415-416 (3 Cir. 1969), Cert. den. Sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). The main thrust of defendant's challenge is the timing of the instruction, his argument being "that an Allen charge should be given only after the jury has indicated it cannot reach a verdict or has deliberated for some period of time." We disagree with this thesis. While the question has not heretofore been raised in a reported case in New...
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State v. Czachor
...certif. den. 57 N.J. 130 (1970), cert. den. 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed.2d 231 (1970); cf. State v. Hodge, 162 N.J.Super. 43, 45-47, 392 A.2d 208 (App.Div.1978) (trial court did not err by including a modified Allen charge in its initial jury The Allen charge has come under severe c......