State v. Murphy

• Decision Date: 16 November 1964
• Docket Number: No. A,A
• Citation: 85 N.J.Super. 391,204 A.2d 888
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Alexander MURPHY, Defendant-Appellant. 599.
• Court: New Jersey Superior Court — Appellate Division

Page 391

85 N.J.Super. 391

204 A.2d 888

STATE of New Jersey, Plaintiff-Respondent, v. Alexander MURPHY, Defendant-Appellant.

No. A 599.

Superior Court of New Jersey

Appellate Division.

Argued Aug. 10, 1964.

Decided Nov. 16, 1964.

Ralph M. Lowenbach, Newark, for appellant (Hannoch, Weisman, Myers, Stern & Besser, Newark, attorneys).

Peter Murray, Asst. County Pros., for the State (Brendan T. Byrne, County Pros., attorney).

Before Judges LEONARD, CONKLIN and PASHMAN.

The opinion of the court was delivered by

PASHMAN, J.S.C. (temporarily assigned).

Defendant urges three grounds for reversal of his conviction, by the Essex County Court sitting without a jury, of a violation of N.J.S. 2A:119--2, N.J.S.A. (stealing personal property a value less than $200). First, he contends that the evidence used to convict him was obtained through an unlawful and unconstitutional search and seizure. Secondly, he argues for reversal because of several alleged trial errors affecting his substantial rights. No objection was made at the trial to these alleged errors; defendant asks this court to consider them as 'plain errors.' See R.R. 1:5--1 made applicable to this court by R.R. 2:5. Finally, defendant alleges that his constitutional rights were violated because the trial judge commented that he took into consideration the fact that neither defendant nor a codefendant testified and that he must assume they were unable to deny the inculpatory testimony adduced against them.

Defendant was found guilty on three of four indictments for shoplifting from various stores in Essex County. On October 5, 1961 defendant and two other men, Peter McLaughlin and Frank Scerbo, entered a radio and television store in Caldwell. Scerbo inquired about a refrigerator while the other two browsed. The store manager became suspicious and telephoned a friend to ask if these were the three men who had been in the friend's store. After presumably receiving an affirmative answer, the manager then asked his friend to call the police. The three men left shortly thereafter. After they had left, the manager noticed that a radio was missing from a shelf. He then called the police and told a Sergeant Sullivan that 'there definitely was a radio missing.'

Meanwhile, Officer Cosgrove was dispatched to the store, having been told that three men were suspected of shoplifting. When he arrived the officer stopped defendant, McLaughlin and Scerbo as they were pulling away in a white Cadillac. Detective Sergeant Penkowski had also been told to proceed to the television store because there were three shoplifters on the premises. En route he received a second call from Sergeant Sullivan. The totality of the testimony shows that while on his way to the store Sergeant Penkowski was told that a radio was missing. When Sergeant Penkowski arrived, Officer Cosgrove was checking McLaughlin's driver's license and registration. Sergeant Penkowski looked in the back window of the car and saw a white radio on the floor and a tan briefcase with a radio protruding from it. He took the radio from the briefcase and someone at the television store identified it at the missing radio.

The three men were taken to headquarters and the car was searched. A tape recorder, an adding machine and other radios were found in the trunk of the car. The adding machine was identified as one taken from a third store. There was positive identification that defendant, Scerbo and McLaughlin were present in these two stores on the day they were arrested. McLaughlin admitted stealing the items but said the defendant Murphy and Scerbo had no part in the thefts.

The prosecutor contends that defendant's failure to move to suppress the evidence within 30 days after the initial plea was entered constitutes a waiver of any right to object to the admissibility of evidence on the grounds of unlawful search and seizure. This is the substance of R.R. 3:2A--6(a). The rule also provides that the 30-day provision may be enlarged for good cause shown. Further,

'* * * The motion shall be determined before trial. A motion may be entertained at trial only if the court finds the defendant could not reasonably have made the motion prior to the trial.'

Defendant says that he did not move to suppress prior to trial because Scerbo had made a similar motion which was denied. This reason is frivolous and does not constitute 'good cause.' The failure of defendant to move, prior to trial, to suppress the evidence constituted a waiver of any objection to the admission of the evidence. See State v. Ferraro, 81 N.J.Super. 213, 195 A.2d 227 (Cty.Ct.1963).

But even assuming that there was no waiver, the proofs clearly show that the evidence was not unlawfully seized. A search and seizure without a search warrant may be conducted as an incident to a lawful arrest. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); State v. Doyle, 42 N.J. 334, 200 A.2d 606 (1964); State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962), certiorari denied, 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1962); State v. Griffin, 84 N.J.Super. 508, 202 A.2d 856 (App.Div.1964).

Defendant contends that there were insufficient grounds for the arrest. He further contends that the crime he was charged with was a misdemeanor, thereby precluding his arrest without a warrant unless the crime was committed in the presence of a police officer. The latter argument was rejected in State v. Doyle, supra, where the court said:

'* * * Misdemeanors under the crimes act which are punishable by imprisonment for more than a year in state prison, in our judgment and we so hold, are sufficiently equitable with common law felony to justify arrest by a peace officer without a warrant when he has reasonable ground to believe that an offense of that grade is being or has been committed by the person to be apprehended. See State v. Smith, supra (37 N.J., at p. 494, 181 A.2d 761). * * *' (42 N.J. at p. 349, 200 A.2d at p. 614.

The essential inquiry is whether there was probable cause for the arrest. Probable cause is said to exist if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Henry v. United States, supra; State v. Smith, supra; State v. Valentin, 74 N.J.Super. 502, 181 A.2d 551 (Law Div.1962). Defendant lays great stress upon the alleged fact that the phone call to the police was made by a friend of the manager of the television store. Defendant contends that based solely upon this suspicion Officer Cosgrove stopped defendant and his companions. It is true that mere suspicion will not sustain a search and seizure without a warrant. State v. Taylor, 81 N.J.Super. 296, 195 A.2d 485 (App.Div.1963); State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448 (App.Div.1964); State v. Valentin, supra. But the above facts were not the only ones which prompted the police to act. While Officer Cosgrove was checking the driver's identification, Mr. Eastlake, the service manager of the television store, phoned the police and told them that there definitely was a radio missing. This information was relayed to Officer Penkowski while En route to the scene. When Penkowski arrived he saw radios in the car. The court must conclude that based upon the information received by the police, there was probable cause to arrest defendant and his companions without a warrant. Since the search was incident to a valid arrest, it too was valid. But it should be noted that it is not even a search to observe that which is open and patent in either sunlight or artificial light. State v. Scanlon, supra.

The second alleged ground for reversal of the conviction is that the cumulative effect of trial errors deprived the defendant of a fair trial. Defendant urges that these errors affected his substantial rights requiring a new trial. See R.R. 1:5--1 and R.R. 2:5.

The first trial error alleged by defendant concerned the testimony of one Steven Macanga, the store manager of Bloomfield Appliance Co. He testified that defendant had been in his store on the day of the arrest and that a clock radio was subsequently missing. This testimony was stricken because there was no indictment charging a crime at the Bloomfield Appliance Co. Defendant says that this testimony must have added weight to the circumstantial evidence which formed the basis of the State's case. We do not consider this contention meritorious. In commenting about the ability of a judge to screen out irrelevant or immaterial evidence our Supreme Court observed in State v. Sullivan, 24 N.J. 18, 36, 130 A.2d 610, 620, 66 A.L.R.2d 761 (1957), certiorari denied, 355 U.S. 840, 78 S.Ct. 52, 2 L.Ed.2d 51 (1957), that:

'* * * By virtue of tradition, training and responsibility, the average judge is less likely to be awayed from objectivity through passion or the mere eloquence of counsel. From daily experience, he acquires a certain immunity to lawyers' emotional perorations and inevitably turns to the evidence as his ultimate guide.'

In this case, it was the judge himself who noted that there was no indictment.

The second alleged trial error was that two photographs of the stolen goods were admitted as State's exhibits without a proper foundation, because the identifying marks, i.e., serial numbers, were not visible when the photographs were taken. We hold that there was no error in admitting the photographs. Sergeant Penkowski testified that the photographs represented articles taken from the car and that he directed the pictures to be taken. This constituted a sufficient foundation for the admission of the pictures. See State v. Fiore, 94 N.J.L. 477, 110 A. 909 (E. & A. 1920). Further, upon cross-examination, McLaughlin who was testifying for defendant, admitted that the items were stolen from the stores.

Defendant also alleges that one of the photographs depicted items not mentioned in the indictment. In order for such evidence to be considered reversible...