State v. Petrolia

• Decision Date: 07 May 1956
• Docket Number: No. A--134,A--134
• Citation: 21 N.J. 453,122 A.2d 639
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Benjamin PETROLIA, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 453

21 N.J. 453

122 A.2d 639

STATE of New Jersey, Plaintiff-Respondent, v. Benjamin PETROLIA, Defendant-Appellant.

No. A--134.

Supreme Court of New Jersey.

Argued April 23, 1956.

Decided May 7, 1956.

Frank B. Bozza, Newark, for appellant.

Archibald Kreiger, Deputy Atty. Gen., Acting Asst. Pros., Paterson, for the State (Charles S. Joelson, Deputy Atty. Gen., Acting Pros. of Passaic County, Paterson, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

This appeal is from a judgment of the Appellate Division dismissing an appeal from a judgment of conviction for armed robbery entered in the Passaic County Court. We granted certification. State v. Petrolia, 20 N.J. 138, 118 A.2d 730 (1955).

At about 2 p.m. on August 4, 1950 two armed men entered the offices of L. Stein & Company in the City of Paterson and robbed the payroll on which the plant employees were than working. The bandits ran from the plant, and as they did so the ensuing commotion inside the offices attracted the attention of a police officer who was stationed nearby. The officer, Kearns, saw the bandits emerge from the building, enter into a car being driven by a third person, and drive away. Kearns commandeered a passing truck and pursued the fleeing car. After a chase of several blocks, the get-away car collided with another automobile at an intersection. The driver, a heavy-set man, staggered out of the car, followed by the two stick-up men, and the three of them fled. Officer Kearns, with the assistance of a motorcycle patrolman who came upon the scene, gave chase and together they apprehended the two stick-up men, James Boeri and Raymond Ramirez. However, the heavy-set man escaped.

Later the same day the police ascertained that the get-away car had been stolen the night before in Hackensack from a man named Joseph Petrolia. Petrolia was brought to Paterson police headquarters, where he was questioned and the information elicited that he had two brothers, one named Benjamin, who is the present defendant. The police obtained a picture of Benjamin, which was shown to Boeri and Ramirez, and they positively identified him as the man who had driven the get-away car.

On August 7 the Paterson police were advised that Benjamin Petrolia had been taken into custody in Passaic, and the defendant was brought to the Paterson police station later the same day. He was placed in a line-up and identified by his alleged accomplices and then interrogated. He signed a confession, of which more hereafter.

Subsequently, the defendant was arraigned and was admitted to bail in the amount of $15,000. Not long thereafter he fled the State and went to live in Chicago under an assumed name. He was apprehended in 1954 and brought back for trial.

In the meantime, between August 1950 and October 1954, the defendant's alleged confederates, Ramirez and Boeri, pleaded Non vult to charges of armed robbery and received prison sentences.

The defendant offered an alibi defense at the trial, but in view of our disposition of the appeal, we need not detail the substantial evidence which the State adduced to prove the defendant's guilt. However, included in the evidence which the State offered was the confession signed by the defendant following his interrogation at the Paterson police headquarters on August 7, 1950. The admission of this document was objected to by the defendant, who claimed the confession was obtained by the use of brutality on the part of the police officers who interrogated him. After hearing the State's and the defendant's witnesses, the court admitted the confession into evidence.

The jury's verdict of guilty was returned on October 25, 1954 and sentence was imposed upon the defendant on November 19, 1954. However, because of an error in the sentence imposed, the defendant was resentenced three days later, on November 22, 1954.

On the day of resentencing, the defendant filed a motion for a new trial on the ground of newly discovered evidence. This motion was taken under advisement by the court and no decision was made thereon until March 18, 1955, when an order denying the motion was entered. Notice of appeal was filed on May 4, 1955, well within three months from the entry of the order denying the motion for a new trial, but more than three months following the entry of the judgment of conviction.

R.R. 1:3--1(a) provides that an appeal shall be taken: '* * * within the following periods of time after the entry of judgment, order or determination appealed from:

'(a) 3 months--final judgments in criminal causes in the trial divisions of the Superior Courts and county courts.'

However, R.R. 1:3--3(c) provides for a tolling of the time in which to appeal in criminal causes where 'a motion for a new trial or an arrest of judgment (is) made within 10 days after the determination of guilt * * *.'

The State urges before us, and the Appellate Division held below, that inasmuch as the motion for a new trial in the case Sub judice was not made within ten days following the jury's verdict, the making of the motion was ineffective to toll the time in which to appeal under R.R. 1:3--3(c). The argument is based upon the supposition that the words 'determination of guilt' in R.R. 1:3--3(c) refer to the jury's verdict, rather than the entry of the judgment of conviction, and concededly the motion was not made within ten days of the verdict. On the other hand, if by the phrase 'determination of guilt' the Rule refers to the entry of the formal judgment of conviction, then the motion for a new trial, since it was made on the same day as the entry of judgment, would have tolled the running of the time for the taking of an appeal.

R.R. 1:3--3(c), properly interpreted, tolls the time in which to take an appeal only where a motion for a new trial is made within ten days of the rendition of the verdict, and not the entry of judgment. The language used in the Rule has obvious reference to R.R. 3:7--1(a), which deals with motions for new trials in criminal causes and provides that where such motions are based upon any ground other than newly discovered evidence, they should be made 'within 10 days after the verdict or finding of guilty.' While it is true that a motion for a new trial based upon the ground of newly discovered evidence can be made at any time, it is equally obvious that such a motion can have no tolling effect unless made within ten days; otherwise a defendant would be enabled to prolong the time in which to appeal almost indefinitely through the medium of post-trial motions.

We think, however, there is sufficient...