State v. McGee

• Decision Date: 12 December 1974
• Citation: 329 A.2d 581,131 N.J.Super. 292
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John Edward McGEE, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 292

131 N.J.Super. 292

329 A.2d 581

STATE of New Jersey, Plaintiff-Respondent, v. John Edward McGEE, Jr., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 26, 1974.

Decided Dec. 12, 1974.

Randall W. Westreich, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Peter S. Hamerslag, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges HALPERN, CRAHAY and ACKERMAN.

The opinion of the court was delivered by

HALPERN, P.J.A.D.

Defendant appeals from a judgment of conviction, following a jury trial, for the unlawful possession of a gun without a permit (N.J.S.A. 2A:151--41) and for bringing a stolen gun into the State (N.J.S.A. 2A:119-- 9). He was acquitted by the jury of receiving stolen property, the same gun (N.J.S.A. 2A:139--1).

Defendant's application for a new trial was denied. He was sentenced to concurrent 3--5-year State Prison terms. The sentences were suspended and he was placed on probation for a period of five years.

The relevant facts can be briefly summarized. At about 1:30 a.m. on January 31, 1972 State Trooper Richard Gallo, with defendant's permission, searched defendant's car and found a loaded .22-caliber Harrington and Richardson revolver, serial number A.G.45438, beneath the driver's seat. The gun was turned over to Detective Sergeant John Lintott, a firearms expert. Lintott checked the gun's serial number against the records of gun sales in New Jersey in an effort to identify it, and when no sale record was found he furnished information to the National Crime Information Center ¹ (N.C.I.C.) in Washington, D.C., to ascertain whether the gun in question had been reported as having been stolen. He was advised by someone at the N.C.I.C. terminal that the gun found in defendant's car answered the description furnished to it by the Baltimore City, Maryland, Police Department on April 15, 1971, and that it had been stolen. Presumably a computer printout was sent by N.C.I.C. to Lintott confirming the oral notification, but it was not produced at the trial and Lintott was permitted to testify to its contents over defendant's objection. Defendant's application for a mistrial was denied.

Defendant denied having any knowledge of the gun's presence in his car. The substance of his explanation for the gun's presence was that he had bought the car about a month before the incident in question and had never looked beneath the driver's seat--implying it could have been there when he acquired the car. In addition, he testified that he had driven from Maryland to New Jersey with an acquaintance as a passenger who had some luggage with him--again intimating that perhaps his passenger, whom he was unable to locate, had left the gun beneath the seat on existing the car in Newark.

The dispositive issue presented is whether the information obtained by Lintott from N.C.I.C. was properly admitted into evidence. This issue is crucial because in order to convict defendant for bringing a stolen gun into this State the State had to prove, in addition to knowledge of the gun's presence and defendant's possession thereof, that it had been stolen.

The trial judge permitted Lintott's testimony into evidence primarily upon the theory that

Now, on the area of the N.C.I.C., and I have done this deliberately, purposefully, not with talking to the Prosecutor, but, and I may be wrong, Imay be wrong, but it seems to me in this day and age with our modern technology we get license look-ups, it comes into Court, and it seems to me that while it is technically hearsay, it's an incursion into another exception and it's almost, as I see it, sort of a--a business record or a public record of some sort, with the advent of the N.C.I.C., which I believe went on the line sometime in 1967 or 1968, that this type of a--of an exception in the line of a business record should be permitted as far as admissibility.

Now, as far as what weight is to be given to this type of a--of a read out from the computer check out, that would be for the jury.

It is obvious from what the trial judge said that he felt the data furnished Lintott by N.C.I.C. was trustworthy and, therefore, admissible as a business record under Evid.R. 63(13).

For the first time on this appeal the State contends it was admissible under Evid.R. 63(30) which provides:

Rule 63(30). Commercial Publications And The Like.

Evidence of a statement of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible to prove the truth of any relevant matter so stated if the compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them.

It should be noted that Evid.R. 63(30) creates a new exception to the hearsay rule, and is not contained in the Federal Rules. We agree that Evid.R. 63(30), on its face, would appear to permit the type of hearsay here involved to be admitted into evidence because: (a) N.C.I.C. is engaged in the occupation of maintaining listed data of stolen guns throughout the country which is of interest and concern to all police authorities in the country; (b) the data is compiled and published for the use by police authorities engaged in the occupation of apprehending criminals involved with stolen guns; (c) the data furnished is used and relied on by police authorities, and (d) the difficulty of obtaining direct testimony as to the...