State v. Simon

Citation398 A.2d 861,79 N.J. 191
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Robert SIMON, Robert Van Wettering, Jr., and Frank P. Haussmann, Jr., Defendants-Appellants.
Decision Date26 February 1979
CourtUnited States State Supreme Court (New Jersey)
Lewis Stein, Succasunna, for appellant Robert Van Wettering, Jr. (Nusbaum, Stein & Goldstein, Succasunna, attorneys)

Thomas M. Maher, Hackensack, for appellant Frank P. Haussmann, Jr.

Solomon P. Rosengarten, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

The opinion of the court was delivered by


This is an appeal from criminal convictions of conspiracy and other crimes based upon the misconduct of public officials while in office. At the trial the judge submitted to the jury special interrogatories relating to the applicability of the statute of limitations as a bar to the criminal prosecution. The jury was directed to respond to these interrogatories before it was asked to deliberate upon its general verdict and without being fully instructed with respect to the law applicable to the criminal charges. We must determine whether this procedure constituted reversible error.

On September 19, 1974, appellants Van Wettering and Haussmann, together with Simon, were indicted for conspiracy to receive money unlawfully for performing official duties and to commit misconduct in office in violation of N.J.S.A. 2A:98-1, as well as for the substantive crimes which were the objects of the conspiracy, N.J.S.A. 2A:105-1 and N.J.S.A. 2A:85-1. The jury found each defendant guilty on all counts. The Appellate Division, in an unpublished opinion, affirmed their convictions.

Defendants Van Wettering and Haussmann were charged as former public officials of the Borough of Little Ferry, New Jersey, having served as members of the municipal governing body and the planning board for varying periods from 1963 to 1969. They and other unindicted co-conspirators

were accused of participating in a scheme to coerce property owners and contractors into making illegal payments to members of the governing body and planning board in order to gain approval of construction projects and zoning changes. This conspiratorial scheme was pursued throughout the years they were in office

The testimony of the State's witnesses indicated that these payments were made [398 A.2d 863] to Ferdinand Heinige, the mayor of Little Ferry, and Edward Gorleski, the borough's building inspector. Where a payment had been so arranged, Heinige would inform the planning board that a "deal" had been consummated and the proposed project would be approved. The monies collected by Heinige were accumulated in a safe at his home and distributed later to the planning board members as well as to certain members of the governing body.

The statute of limitations applicable to all counts upon which defendants were tried provides that an indictment must be returned within five years of the commission of an offense. N.J.S.A. 2A:159-2. The indictment was lodged against defendants on September 19, 1974. It therefore was necessary for the State to prove that the substantive crimes, the illegal receipt of monies and misconduct in office, had been committed within five years of the indictment, in other words, after September 19, 1969. Further, in order to prevail on the conspiracy charge, the State had to show that an overt act in furtherance of the conspiracy was committed within the same period of limitations. Only one of the 61 overt acts listed in the indictment was alleged to have occurred within this period, this, a payment by Heinige to defendants and others "on or about December 19, 1969".

A sharp fact issue arose as to whether payments were made to defendants in December 1969 and, if so, whether they were criminal in nature and in furtherance of the conspiracy charged in the indictment. It was conceded that the money used for these payments came from one of three sources, (1) payments made by one Vecchiotti to Heinige and Gorleski for approval of a proposed garden apartments development

known as Ledgewood Terrace, (2) the proceeds of a deal referred to as the Catherine Gardens or Swagger-Heinige transaction, or (3) "whatever else was left over" from past illegal payments to Heinige after distributions had been made to municipal officials in prior years

Van Wettering and Haussmann contended that they had no knowledge of and played no part in the Swagger-Heinige transaction. That deal, they asserted, involved a completely separate conspiracy between defendant Simon and Heinige and three other individuals and therefore any payment by Heinige of monies derived from that transaction could not be deemed an overt act in furtherance of any conspiracy in which Van Wettering and Haussmann might have participated. This contention posed an intricate statute of limitations problem. Since the only overt act alleged to have occurred within the period of limitations was the payment by Heinige to various individuals in December 1969, if the source of such payment was the Swagger-Heinige transaction and that transaction was not part of the conspiracy with which defendants were charged, the conspiracy, and possibly the substantive charges against defendants, would be time-barred.

The trial judge sought to simplify the jury's consideration of these issues. The court informed all counsel at the close of the State's case of his proposal to employ a "bifurcate(d)" verdict procedure when the trial was at end. The judge explained that he would first submit to the jury special interrogatories dealing with the issues raised by the statute of limitations and then, if the jurors, through their answers to the interrogatories, determined that there occurred within the period of limitations an overt act in furtherance of a criminal conspiracy involving defendants, he would submit the case to the jury for deliberations upon a general verdict. Following this explanation, counsel for Simon characterized the proposed procedure "very fair", counsel for Van Wettering remarked that he did not "have any problem with that", and counsel for Haussmann said nothing.

After the defense had rested, the trial judge exhibited to counsel the special interrogatories which he proposed to submit to the jury. Those interrogatories read as follows:


I. Do you find unanimously and beyond a reasonable doubt

[398 A.2d 864] (a) that a distribution of money was made to any or all of the defendants, namely, ROBERT SIMON, ROBERT VAN WETTERING and FRANK P. HAUSSMANN, by FRED HEINIGE in or around December, 1969.

(b) that a distribution of money was made to any co-conspirators by FRED HEINIGE in or around December, 1969, apart from the Swagger-Heinige transaction.

YES ______ NO ______

II. Do you find unanimously and beyond a reasonable doubt that the Heinige, Swagger, Stocek, Gorleski, Simon partnership was a separate and distinct transaction rather than part of the overall alleged conspiracies charging the defendants, namely, ROBERT SIMON, ROBERT VAN WETTERING and FRANK P. HAUSSMANN, with illegal receipt of money and misconduct in office, assuming for the purpose of this determination that such conspiracies were in fact committed.

YES ______ NO ______

III. Do you find unanimously and beyond a reasonable doubt that a distribution of money was made to any or all of the defendants, namely, ROBERT SIMON, ROBERT VAN WETTERING and FRANK P. HAUSSMANN, or to any or all of the alleged co-conspirators, namely, EDWARD GORLESKI, RUSSEL STOCEK and JERRY VOZEH, by FRED HEINIGE in or around December, 1969, with regard to the Swagger-Heinige transaction.

YES ______ NO ______

Counsel for Simon and Van Wettering voiced no objection to the interrogatories. Counsel for Haussmann expressed reservations as to the wording of the second interrogatory, indicating that the phraseology of the question might be prejudicial to his client. He asserted that since the jury had to assume that a conspiracy existed in order to frame a response, the jury might be hopelessly confused by the need to assume in its subsequent general verdict deliberations that

no conspiracy existed. The judge nevertheless submitted the special interrogatories to the jury, with only brief instructions covering the crime of conspiracy, the statute of limitations, the presumption of innocence, the burden of proof and proof beyond a reasonable doubt. He gave no definition of an overt act nor any explanation of the general principles governing the function and deliberations of the jury in a criminal case. After four hours of deliberation, the jury returned, answering "yes" to each question. Counsel for Haussmann then moved for a mistrial because of the prejudicial impact of the second interrogatory, which motion was denied

The judge proceeded to instruct the jury as to the remaining elements of the various offenses. After reviewing the charges in the indictment, he instructed the jurors to disregard all evidence relating to the Swagger-Heinige transaction, since they had already found that it was part of a separate conspiracy not involving the defendants. Further, he stated that the jury could no longer assume the existence of any conspiracy in which these defendants had participated. After five and one-half hours of deliberation, the jury returned verdicts of guilty on all counts.

Motions to set aside the verdicts and to grant defendants new trials because of various alleged trial errors were denied. The Appellate Division in affirming defendants' convictions was of the view that any errors committed by the trial judge were harmless beyond a reasonable doubt. We granted the petitions for certification filed by Van Wettering and Haussmann; Simon did not file a petition. 75 N.J. 588, 384 A.2d 818 (1977). Certification, however, was "limited to the issue of the (propriety of) the 'bifurcation' of the trial through the use of special...

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    ......256, 260, 263 n.4, 112 A.3d 834 (General Statutes § 53-396 [b] requires special verdict in racketeering prosecution), cert. granted, 317 Conn. 903, A.3d (2015).          13. For a cogent discussion of why interrogatories should not be used in most criminal cases, see State v. Simon , 79 N.J. 191, 199-200, 398 A.2d 861 (1979); id., 204 ("special interrogatories as a tool in criminal trials are not condoned, and their use [is] discouraged"); United States v. Spock , 416 F.2d 165, 181 (1st Cir. 1969) ("[t]o ask the jury special questions might be said to infringe on its power ......
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