State v. Mangrella
Decision Date | 04 February 1965 |
Docket Number | No. A--899,A--899 |
Parties | STATE of New Jersey, Plaintiff-Respondent, v. Thomas MANGRELLA, Defendant-Appellant. |
Court | New Jersey Superior Court — Appellate Division |
Clyde A. Szuch, Newark, assigned counsel, for defendant (Harold J. Wallum, Jr., Newark, on the brief).
Philip R. Glucksman, Asst. Pros., for plaintiff (Brendan T. Byrne, Essex County Pros., attorney, Peter Murray, Asst. Pros., on the brief).
Before Judges GAULKIN, FOLEY and COLLESTER.
The opinion of the court was delivered by
GAULKIN, S.J.A.D.
Defendant was convicted of selling heroin to Anthony Palmieri and he appeals. Palmieri, who testified for the State, was the only witness to the sale. Defendant's assigned counsel, in an excellent brief, has painstakingly dissected Palmieri's testimony in an effort to show that it was so shot through with contradictions and untruths, and was so vague and vacillating that it should not be accepted as sufficient to convict defendant. Furthermore, defendant charges that Palmieri, who was under indictment for possession of the heroin, falsely implicated him to save himself from punishment. For these reasons, defendant argues that his motion for an acquittal should have been granted. In the alternative, he argues that the verdict should be set aside as against the weight of the evidence.
Our examination of the testimony satisfies us that the evidence was sufficient to withstand the motion for acquittal that Palmieri's credibility was for the jury, as was defendant's; and that the verdict was not against the weight of the evidence. Cf. United States v. Simon, 119 F.2d 679 (3 Cir. 1941), certiorari denied 314 U.S. 623, 62 S.Ct. 78, 86 L.Ed. 500 (1941).
Defendant argues that the trial court's failure to charge the so-called 'accomplice rule' was plain error. Trial counsel (not present counsel) did not ask for such a charge.
It has been held that the buyer of narcotics is so much the accomplice of the seller that he is entitled upon request to a charge based on the 'accomplice rule.' Lett v. United States, 15 F.2d 686 (8 Cir. 1926); Lett v. United States, 15 F.2d 690 (8 Cir. 1926); Fletcher v. United States,81 U.S.App.D.C. 306, 158 F.2d 321 (D.C.Ct.App.1946). Cf. State v. Hyer,39 N.J.L. 598, 601 (Sup.Ct.1877); State v. Rachman, 68 N.J.L. 120, 123 (Sup.Ct.1902); State v. Bove, 98 N.J.L. 350, 116 A. 766 (Sup.Ct.1922), affirmed o.b. 98 N.J.L. 576, 119 A. 926 (E. & A. 1923).
However, to speak of the 'accomplice rule' with reference to the testimony of the buyer in cases such as this is illogical and leads to confusion, for the buyer was not the defendant's 'accomplice' unless the defendant was indeed guilty of selling him the narcotics. As Chief Justice Weintraub said in his concurring opinion in State v. Begyn, 34 N.J. 35, 58, 167 A.2d 161, 173 (1961):
It follows that what is really meant by the so-called * * *''accomplice rule' is that one who testifies while he is faced with criminal charges may be influenced to testify falsely by the hope of leniency, and ordinarily the defendant upon request is entitled to have the jury so advised by an appropriate charge. It makes no difference that the witness was not an accomplice of defendant, or, indeed, that defendant had no connection with the transaction which led to the charge against the witness. Cf. Fletcher v. United States, supra. As Justice Hall said in the majority opinion in Begyn, supra:
(at p. 54, 167 A.2d at p. 171)
See also State v. Rachman, supra.
In short, what we are dealing with is simply on kind of interest of a witness. The difference between the interest of such a witness and witnesses who are suspect for other reasons is merely a matter of degree. We deal with the 'accomplice' as having a 'special interest' only because our law has accepted the assumption that a witness 'already enmeshed * * * in the hope of leniency * * * may falsely involve another' (Beg...
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