State v. Sims

• Decision Date: 16 July 1974
• Citation: 322 A.2d 809,65 N.J. 359
• Parties: , 95 A.L.R.3d 583 STATE of New Jersey, Plaintiff-Appellant, v. Curtis SIMS and Ronald Ward, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 359

65 N.J. 359

322 A.2d 809, 95 A.L.R.3d 583

STATE of New Jersey, Plaintiff-Appellant, v. Curtis SIMS and Ronald Ward, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Feb. 4, 1974.

Decided July 16, 1974.

Martin F. Siegal, Asst. Prosecutor of Essex County, for plaintiff-appellant (Joseph P. Lordi, Prosecutor of Essex County, attorney; R. Benjamin Cohen, Asst. Prosecutor and Martin F. Siegal, of counsel and on the brief).

Robert Westreich, Asst. Deputy Public Defender, for defendants-respondents (Stanley C. Van Ness, Public Defender, attorney; Robert Westreich, of counsel and on the brief).

The opinion of the Court was delivered by

CLIFFORD, J.

This case calls upon the Court to clarify the law in New Jersey with respect to when the State may appeal the grant of a new trial to a criminal defendant. It thus requires reexamination of the standard set forth in dictum in State v. LaFera, 42 N.J. 97, 104, 199 A.2d 630 (1964) which would permit a State to seek leave to appeal only if the trial court's grant of a new trial were based on a question arising outside or collateral to the record. Were that standard adhered to, the new trial awarded to defendants here would not be appealable.

We conclude that there is no continuing logic to the distinction made in LaFera between new trials based on errors outside the record on the one hand, and new trials based on errors of law on the record or factual errors on the other. We therefore enlarge the dictum of LaFera and hold that the State may seek leave to appeal from any new trial order in a criminal case. ¹

Defendants Curtis Sims and Ronald Ward were each indicted and tried before a jury for possession of lottery slips on September 16, 1971, in violation of N.J.S.A. 2A:121--3(b), and for working for a lottery on the same day, contrary to N.J.S.A. 2A:121--3(a). The jury found the defendants not guilty on the possession charge, but guilty of working for a lottery. Believing that evidence which had been introduced as to police surveillances prior to September 16, 1971 was admissible to show the element of knowledge on the part of defendants as to possession, but not as to 'working for,' the trial judge ordered a new trial since, he reasoned, the remaining evidence was insufficient to support the conviction rendered. In addition, he believed that as a matter of law the verdicts were inconsistent.

Leave to appeal was granted to the State by the Appellate Division which thereafter denied a motion by defendants to dismiss the State's appeal. While the matter was pending unheard in the Appellate Division, this Court granted the State's motion for certification, 63 N.J. 561, 310 A.2d 476 (1973), pursuant to R. 2:12--2, at the same time denying another defense motion for dismissal of the appeal.

The facts leading to defendants' convictions are as follows: Suspecting that gambling operations were being carried on out of Minnie's Luncheonette in Newark, the police department conducted surveillances of the premises on five days in 1971--August 28, September 11, September 13, September 14, and September 16, the last date being the date charged in the indictment. The surveillance operation was carried on primarily through binoculars from an abandoned building about 50 yards from the luncheonette. Some observations were also made by a plainclothes man on the street and from a police car parked about 30 yards away. During the five days the officers assigned to the investigation noticed numbers of people who would park their cars near the restaurant, enter, and leave after a few minutes without having anything to eat. Several of them handed small white objects to Sims or Ward. Occasionally the defendants would approach vehicles pulling up the store and receive white and green objects from the drivers.

On August 28, Detective Arthur Williams entered the luncheonette to have a cup of coffee and overheard Ward tell a woman that they were not 'doing business' because 'Joe Joe Walters was busted yesterday or the day before * * *.' On September 11 he saw Ward write down notations and accept money from several people who entered the store but did not order anything to eat. Among these people was a known lottery writer. On September 13 and 14, during two hour surveillances on each day, Detective Williams observed that Sims was approached by five or six people every fifteen minutes and exchanged currency and white pieces of paper with them.

On September 16, the date charged in the indictment, Detective Michael Minovich observed Sims approach more than a half dozen people on the street and accept from them papers and green objects believed to be money. Ward was seen engaged in a similar transaction with a known lottery writer. Soon thereafter the police raided the luncheonette, finding a package of lottery paraphernalia in the stove and a pad of white slips on the counter. Sims and Ward, on the premises at the time, were arrested. Detective Minovich, however, could not state with certainty that the objects exchanged that day were lottery bets, nor was Sims seen writing anything on that day. No lottery slips were found in Sims' or Ward's actual possession.

Although the trial judge believed that the evidence was 'very thin,' he rejected motions by defendants for a judgment of acquittal made both at the conclusion of the State's case and at the end of the trial. He instructed the jury that it could consider the evidence of the prior surveillances, as follows:

* * * The indictment charges the commission of these offenses on September the 16, 1971. You will recall during the course of the trial that I admitted certain evidence on other dates

Under our law, since (possession of lottery slips) is a crime in which knowledge is an element, that is admissible and relevant to the issue as to whether or not the possession of the slips of September 16th, 1971, was a knowing possession.

Now, I must emphasize and repeat to you that was the sole and the limited purpose for which I permitted that evidence to go in * * *

Now the defendants are also charged in the second count in the indictment with the crime of knowingly working for a lottery * * *

Now before the defendant or defendants can be found guilty on this count, the State must prove these elements:

2. That he knew that the business was a lottery business * * *

His instruction was based on the case of State v. Gattling, 95 N.J.Super. 103, 230 A.2d 157 (App.Div.1967), certif. den., 50 N.J. 91, 232 A.2d 152 (1967), which had held admissible evidence of prior surveillances to demonstrate that the defendant had knowledge of the fact that the slips he possessed were lottery slips. Although the trial judge here did not specifically instruct the jury that the prior surveillance evidence was admissible on the 'working for' charge, the jury might easily have deduced as much, since it was instructed that knowledge was an element of that offense also.

However, in granting the motion for the new trial, the trial court made it very clear that he did not believe prior surveillance evidence was admissible on the 'working for' charge, and therefore not only was the evidence insufficient to convict on this charge but the two verdicts were inconsistent. The inconsistency arose, he believed, since, omitting the evidence of the prior surveillances, the only evidence remaining to show 'working for' was the possible constructive possession which defendants had of the lottery paraphernalia. However, the defendants were found innocent of possession.

In granting a new trial on this basis the trial judge was clearly in error. The question is whether the State should be able to rectify that mistake of law through this appeal or whether the erroneous order for a new trial must stand.

Until this Court's decision in State v. LaFera, Supra, New Jersey had no definitive statement of the law on the right of the State to appeal in a criminal case. Although a few cases reflected the general rule that the State could not appeal from a new trial order, State v. Haines, 20 N.J. 438, 447, 120 A.2d 118 (1956); State v. Smith, 21 N.J. 326, 332--333, 121 A.2d 729 (1956), in several instances appeals by the State from a trial court action vacating a judgment and ordering a new trial were entertained, State v. Rosania, 33 N.J. 267, 163 A.2d 139 (1960), cert. den. 365 U.S. 864, 81 S.Ct. 828, 5 L.Ed.2d 826 (1961); State v. Levitt, 36 N.J. 266, 176 A.2d 465 (1961).

In LaFera the defendants were convicted of a conspiracy to rig bids on a public project. They were awarded a new trial because a juror was biased and had prejudged the case. The State was granted leave to appeal. Before the appeal was argued in the Appellate Division, this Court granted certification to review both the propriety of the granting of a new trial and the defendants' original convictions. The Court, per Chief Justice Weintraub, concluded that (1) the State should be able to seek leave to appeal from a new trial order based on matters collateral to the record; (2) in this case, the premature judgment of one juror did not warrant a new trial, and (3) the evidence presented was not sufficient to establish a conspiracy. Therefore the convictions were reversed with a direction to enter judgments of acquittal.

In deciding that the State should be free to seek leave to appeal in a situation such as that posed by LaFera, Chief Justice Weintraub utilized an historical analysis. He observed that '(a)lthough the State could not appeal from an order granting a conventional motion for a new trial, it could appeal from a judgment in a Habeas corpus proceeding.' The reason was that 'habeas corpus was regarded as a separate civil proceeding rather than a step in the criminal cause and hence the State could seek review as in any other civil matter.' 42 N.J. at 101, 199 A.2d at 633. Realizing, however, that the distinction between a motion for a new trial and a proceeding in Habeas corpus had been ...