State v. Moriarty

• Decision Date: 10 April 1975
• Citation: 133 N.J.Super. 563,338 A.2d 14
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph MORIARTY and Shirley Marie Watford, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 563

133 N.J.Super. 563

338 A.2d 14

STATE of New Jersey, Plaintiff-Respondent, v. Joseph MORIARTY and Shirley Marie Watford, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Dec. 2, 1974.

Decided April 10, 1975.

Decided April 10, 1975.

Alan Silber, Jersey City, for defendant-appellant Joseph Moriarty (Brown, Vogelman & Ashley, Jersey City, attorneys).

Horatius A. Greene, II, Jersey City, for defendant-appellant Shirley Marie Watford (William O. Perkins, Jr., attorney and on the brief).

Michael Graham, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney; L. Steven Pessin, Deputy Atty. Gen., of counsel and on the brief).

Before Judges LORA, HANDLER and TARLETON.

The opinion of the court was delivered by

HANDLER, J.A.D.

A four-count indictment returned by the state grand jury charged that (1) defendants Joseph Moriarty and Shirley Marie Watford a/k/a Shirley Marie Dawson (hereinafter Watford) conspired to possess lottery paraphernalia, in contravention of N.J.S.A. 2A:98--1 and N.J.S.A. 2A:98--2; (2) Moriarty did knowingly possess lottery paraphernalia, in contravention of N.J.S.A. 2A:121--3(b); (3) Watford did knowingly possess lottery paraphernalia, in contravention of N.J.S.A. 2A:121--3(b), and (4) Moriarty did willfully and knowingly commit an assault and battery upon a law enformcement officer, in contravention of N.J.S.A. 2A:90--4. Prior to trial a motion to suppress evidence was made by defendants, which was denied. Defendants were then jointly tried and the jury found them guilty as charged on all four counts of the indictment.

Moriarty was sentenced to the New Jersey State Prison for concurrent terms of 2 1/2 to 3 years and separate fines of $1,000 on the two gambling counts; and a consecutive 1 to 2 years and a $1,000 fine on the fourth count for the assault on a police officer. Watford was sentenced to the Hudson County Penitentiary to concurrent terms for 1 year, 4 months to be served in custody, with 8 months suspended and 2 years probation for the gambling charges. Defendants each filed a notice of appeal from their convictions, which appeals were consolidated.

I

Defendant Watford contends that she was not accorded a fair trial or a trial by an impartial jury. She asserts that she was entitled to a mistrial, or at the very least a severance should have been granted, because of a newspaper article appearing in the New York Daily News during trial. It is her contention that the combination of this newspaper article with 'Newsboy' Moriarty's reputation presented a 'substantial probability' that her due process right to a fair trial was subverted.

Upon being informed of the existence of this article the trial judge conducted a Voir dire of all members of the jury. By the time the last juror was questioned it was clear that none of them had read the article or knew of its existence. In addition, it was discovered that, although a copy of the Daily News had been brought into the jury room, this edition did not contain the offending article.

It is within the discretion of the trial judge whether to grant severance or any other appropriate relief where prejudice is alleged. R. 3:15--2(b); State v. Sinclair, 49 N.J. 525, 550, 231 A.2d 565 (1967); State v. Yedwab, 43 N.J.Super. 367, 380, 128 A.2d 711 (App.Div.), certif. den. 23 N.J. 550, 130 A.2d 89 (1957). A denial of severance by a trial court will not be disturbed upon appeal unless there is a clear showing of abuse of discretion. State v. Rios, 17 N.J. 572, 584, 112 A.2d 247 (1955); State v. Yormark, 117 N.J.Super. 315, 284 A.2d 549 (App.Div.1971), certif. den. 60 N.J. 138, 286 A.2d 511 (1972). The trial judge committed no error in ruling that no prejudice was suffered by defendant and that neither a severance nor a mistrial was justified by virtue of the newspaper article.

Watford also contends that it was prejudicial for her to have been tried jointly with Moriarty because of inevitable jury bias attributable to the fact that he was a notorious gambler. No timely motion for severance on this ground, however, was made and she failed utterly to demonstrate that any juror was biased because of Moriarty's notoriety.

This defendant also questions whether prejudice was created by the trial judge in ordering a sequestration of the jurors. Whether or not the jury is to be sequestered lies in the sound discretion of the trial court. His decision will not be disturbed on appeal, save for abuse of discretion. Koolish v. United States, 340 F.2d 513, 528 (8 Cir. 1965), cert. den. 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Estes v. United States, 335 F.2d 609, 615 (5 Cir. 1964); cert. den. 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965). In light of the circumstances it cannot be said that the trial judge abused its discretion in this respect.

II

Defendant Moriarty contends that the application for a search warrant based upon an affidavit of Detectives Room and Dragatto failed to establish probable cause to search vehicle UJR--501 and its occupant.

It is also asserted that the warrant was deficient in that it failed to identify Moriarty as the person to be searched or to describe him with sufficient particularity, defendant being described in the warrant as a 'white male, wearing black horn-rimmed glasses.'

Defendant has not furnished the court with a transcript of the hearing upon the motion to suppress. We are, nevertheless, of the view that upon the merits his contentions must fail.

The application for the warrant, fairly read, demonstrates sufficiently the the described person was observed to be engaged in lottery operations utilizing certain automobiles, one of which was the vehicle with the registration UJR--501. There was, therefore, a sufficient showing of probable cause for the search of this vehicle and its occupant. We are also satisfied that the description of the subject or person to be searched was not fatally deficient, considering especially the circumstance that the officers executing the warrant knew the person to be searched. State v. Malave, 127 N.J.Super. 151, 316 A.2d 706 (App.Div.1974); Cf. State v. Bisaccia, 58 N.J. 586, 279 A.2d 675 (1971).

Defendant contends that the trial court improperly restricted the cross-examination of the State's two key witnesses. In particular, he asserts that he was prevented from pursuing the issue of why Moriarty's name was not mentioned in the affidavit in support of the search warrant. He also states that he was prevented from delving into Roon's prior knowledge of Moriarty stemming from his relationship with a suspended Jersey City police officer, Detective Bullock. It is asserted that he was foreclosed in cross-examining the witnesses, Santelli and Roon, on the crucial issue of 'whether it really was Joseph Moriarty in horn-rimmed glasses * * * who received a brown paper bag from Shirley Marie Watford' on a particular date during the course of their surveillance.

Prefatorily we would observe that, in our view of the examination and cross-examination of the various witnesses, including Santelli and Roon, the defense was not fettered or circumscribed unduly in its efforts through cross-examination to explore fully the bases for the identification of Moriarty. Santelli, who had known Moriarty from a previous incident involving a kidnapping of defendant, clearly was in a position to identify defendant positively, as he did. The detectives who applied for the warrant were Dragatto and Roon. In actuality, neither was cross-examined to any extent as to why Moriarty was not referred to by name in the affidavit. While the defense did endeavor to cross-examine Room as to his knowledge of Moriarty's identity prior to the application for the search warrant, it was established, without substantial dispute, that Roon did come to know or strongly suspect Moriarty's identity Before he made the application for the search warrant. It was not highly significant, in the context of the evidence, that Roon may have come to this knowledge or belief prior to April 13, 1972, since this information in any event antedated the application for the warrant. Thus, defense counsel was able to exploit, for what it was worth, the asserted anomaly as to the prior knowledge of the investigating officers as to Moriarty's identity and their failure to identify him by name in the affidavit in support of the search warrant.

The court did restrict the cross-examination of Roon in some respects concerning the information obtained from Bullock, who was an informant. In the course of a proffer, out of the presence of the jury, it became apparent that the information brought by Bullock added nothing new or significant to the pending investigation. We conclude, upon our review of the record, on this issue, that the trial court did not abuse its discretion in placing limits upon the extent of cross-examination of State's witnesses and that particularly any asserted errors in this respect with regard to the cross-examination of Detective Roon had no appreciable impact on the outcome of the case, in light of the convincing evidence of the identification of Moriarty.

Defendant further argues, with respect to his conviction for assault upon a police officer, that the trial judge improperly restricted the introduction of evidence as to a kidnapping of defendant approximately two years before his arrest and the nature of the injuries which he had sustained as a result thereof. These circumstances, according to defendant, were relevant to the issues of his intent and knowledge as elements of this charge.

The trial judge did prohibit certain questions during the cross-examination of Santelli, who on direct examination had been permitted to testify, over objection, that he had met and questioned Moriarty at length approximately 11 months before his current arrest. This testimony had been permitted as tending to show that Moriarty knew Santelli and knew...