State v. De Stasio
| Decision Date | 01 May 1967 |
| Docket Number | No. A--76,A--76 |
| Citation | 229 A.2d 636,49 N.J. 247 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Frank DE STASIO, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Michael A. Querques and Harvey Weissbard, Orange, for appellant (Harvey Weissbard, Orange, of counsel, querques & Isles, Orange, attorneys).
Brendan T. Byrne, Essex County Pros., for respondent (Barry H. Evenchick, Asst. County Pros., of counsel and on the brief).
The opinion of the court was delivered by
A jury convicted defendant of bookmaking in violation of N.J.S. 2A:112--3, N.J.S.A. He was sentenced to a term of one to two years and fined $1,000. We certified his appeal to the Appellate Division before it was argued there.
The first question is whether defendant's privilege of silence under the Fifth Amendment was violated by the prosecutor's opening statement to the jury.
In the Voir dire examination of the jurors, counsel for defendant inquired as to whether greater credit would be given a policeman's testimony 'as opposed to an ordinary man who would get up there and who would not be a policeman,' and when a juror, upon further inquiry of him, said he would not, counsel for defendant echoed the juror by saying 'you would tend to weigh their testimony the same way in your own mind.' Obviously responding to this line of inquiry, the prosecutor, in his opening to the jury, said:
Counsel for defendant moved at side bar for a mistrial on the ground that the quoted statement harbored the potential of an adverse comment if defendant should later decide not to testify. In fact defendant did not testify. Nor did he produce any witnesses.
It is evident that the prosecutor had no thought of anticipating defendant's decision not to testify. The prosecutor simply reacted to the defense inquiry of the jurors. The trial court denied the motion for a mistrial and instructed the jury at once, quoting the prosecutor's statement without embellishment and saying in part:
We gather that defense counsel withdrew the motion for mistrial after it was denied, explaining that 'I was not really sure that the jury may have heard it or it sank in,' and adding, although not by way of an objection, that he thought it would have been better if the trial court had said nothing to the jury.
We see no substance to the complaint. We think the defense was unduly sensitive to what the prosecutor said. In any event, if the jury understood the prosecutor's statement in that vein, the court's instruction was tantamount to a charge that no inference could be drawn from a defendant's failure to testify.
Lawyers seem unable to agree upon whether a trial court should say something with respect to a defendant's failure to testify. Some trial judges ask the defendant to state his wish. We have rejected a claim that it was 'plain error' not to instruct a jury, on the court's own motion, that no inference may be drawn. State v. Aviles, 49 N.J. 192, 229 A.2d 514 (1967). In the present case, counsel for defendant seemingly holds another view of jury psychology, although he does not urge it was error for the trial court to speak on the topic. We see no error in either course, at least in the absence of a request by a defendant. Surely the Constitution does not stoop to choose between those competing views of jury behavior. In any event, we see no possible harm. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Feb. 20, 1967)
Defendant says there should have been a directed verdict of acquittal because, in his words,
Defendant contends State v. Morano, 134 N.J.L. 295, 299, 47 A.2d 419 (E. & A. 1946), supports his position. This is too literal a reading of that opinion. The statute, N.J.S. 2A:112--3, N.J.S.A., speaks of a person who 'makes or takes what is commonly known as a book.' The offense resides in the gambling aspect of the bookmaker's operation, rather than in the method whereby he keeps track of the wagers. It makes no difference whether the bets are committed to paper or to memory, and hence it is not necessary to prove a tangible record was made.
The minimum jail sentence imposed upon defendant is the statutory minimum for the crime, N.J.S. 2A:112--3, N.J.S.A., but defendant nonetheless contends the sentencing procedure was illegal.
First he complains that he was sentenced by a judge other than the one before whom he was tried. This was done pursuant to an administrative directive issued by our Court under its plenary responsibility for the administration of all courts in the State, N.J. Const., Art. VI, § II, 3. The directive is stated in a memorandum from the Administrative Director to the Assignment Judges which reads:
'The Supreme Court is of the view that it is essential for the fair and effective administration of criminal justice that judges in imposing sentences adhere to the same general policy in cases which may involve syndicated crime. Unfortunately, in gambling cases efforts to achieve such uniformity, even within the same county, have not been successful when sentences have been imposed by whatever judge happens to be sitting at the time. Accordingly, the Supreme Court considers it necessary to require that the Assignment Judge in each county either personally handle all sentencing in gambling cases or designate a particular judge to impose sentence in all such cases, even though the case may have been tried or the plea taken before another judge.
The Supreme Court will appreciate your advising the judges and the prosecutors in your county or counties of this policy and requests that you keep me advised as to who will handle sentences in gambling cases in each of your counties.'
As the directive itself suggests, we adopted this approach to the problem of syndicated gambling because years of experience convinced us that the public interest required it.
Uniformity of treatment is an ideal of law enforcement. 'That different judges sentence differently is, and always has been, a major and justified complaint against the courts.' Report by the President's Commission on Law Enforcement and Administration of Justice, 'The Challenge of Crime in a Free Society' (Feb. 1967), p. 145. We have held judicial seminars in the hope that an exchange of views might lead to more uniformity in sentencing. Discussions between the sentencing judge and the probation department tend to assist in this direction. No doubt trial judges consult with one another in difficult cases to benefit from the experiences of each other, and this too can serve to reduce disparity in treatment. See Levin, 'Towards a More Enlightened Sentencing Procedure,' 45 Neb.L.Rev. 499 (1966). To the same end a dozen States have provided for appellate review of sentences, Report by the President's Commission, supra, p. 145, and we have considered such a program. Advocates of the indeterminate sentence find in such sentences a promise of uniformity of treatment.
Syndicated gambling is an area within which uniformity can be approached. Unlike most crimes, the factual picture is itself quite uniform. A bookmaker is a bookmaker and a runner is a runner. The details of the criminal event are pretty much the same. The demeanor of the defendant on the stand, if he takes it, ordinarily is not critical. The feel of one case is pretty much the feel of most others. The presentence report sums up the crime and the offender.
Even the circumstances of the individual offenders are more constant than in the case of most other crimes. By and large the defendants who are caught are not vicious and do not menace society in other respects, but they are the hired help of the syndicate without which it could not operate. The difficulty has been that some judges cannot see beyond the individual they are sentencing. If such a judge imposes nothing more painful than a fine, his view is almost certain to become the rule of the county in which he sits. This is so because defendants will wait for that judge, if they can, and plead guilty before him. Moreover, a soft judge can make a sensible one seem harsh and severe, and hence, unhappily, judges tend to abide by the performance of the most unrealistic among them. In other words, the very uniformity of both the offense and the situation of the offenders tends to make disparate treatment unmistakable and thereby to label judges with respect to their attitude toward these offenses.
For these reasons, we decided as a matter of administrative policy to have all sentencing in these matters handled by a single judge in each county.
Defendant says this procedure violates R.R. 3:7--4(c) which provides for sentencing by another judge if the trial judge is unable to conclude the cause by reason of termination of office, absence, death, sickness, or other disability. This rule was adopted to deal with the contingencies just stated. Cf. Annotation, 83 A.L.R.2d 1032, 1041 (1962); 24 C.J.S. Criminal Law § 1561, pp. 393--394; Moore, Federal Practice (2d ed. C...
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