This is a motion by the defendant to dismiss Indictments Nos. 156-55, 159-55 and 160-55 on the grounds that they are deficient, that during the deliberations of the grand jury which returned the indictments an unauthorized person was present, and that the indictments were found and returned as a result of malice, bias, passion and prejudice.
"Grand Jury, Who May Be Present
The prosecuting attorney, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer may be present while the grand jury is in session, but no person other than the jurors, and the prosecuting attorney may be present while the grand jury is deliberating or voting. Upon request of the grand jury, the prosecuting attorney shall leave the jury room. The clerk shall, when requested by the grand jury, attend its sessions, but shall not attend its deliberative sessions." (Emphasis supplied.)
The original Rule 2:4-5, effective September 15, 1948, consisted of two paragraphs: paragraph (b) of that rule was deleted on November 10, 1949. Paragraph (a) of that rule was amended on September 9, 1953 to provide that the clerk of the grand jury does not have a right to attend the sessions of the grand jury as he formerly did, but the amendment provides that the grand jury may request the clerk to attend its sessions but he cannot attend the deliberative sessions. 1 N.J. Practice 421 -- Author's Comment to R.R. 3:3-6.
This rule is patterned after Rule 6(d) of the Federal Rules of Criminal Procedure , 18 U.S.C.A. , which was adopted February 8, 1946 and became effective March 21, 1946.
The affidavit of Esther N. Dilger, one of the grand jurors, recites:
"On the day the final deliberations of the Grand Jury took place * * * Mrs. Vi Gormley, * * * was present in the Grand Jury Room while the Grand Jury * * * was deliberating * * *."
The affidavit of Michael Greengrass, another grand juror, recites:
"Mrs. Gormley was present while testimony was being taken, while the Grand Jury deliberated on whether to return an indictment * * *."
Mrs. Gormley was a stenographer attached to the prosecutor's office, who had been previously appointed assistant clerk to the grand jury by an order of the assignment judge of Passaic County.
The answering affidavit of Mrs. Gormley does not unequivocally deny the above assertions but says:
"I was present at the time when the vote was taken on the indictments voted in the matter. I recall that no deliberations took place on this case at that time * * *."
It should be noted that the affidavits of Catherine Wooley and Messrs. Pfeil and Richardson, other members of the grand jury, offered by the State do not deny that Mrs. Gormley was present in the grand jury room during the deliberations; nor has the State offered any proof, other than the affidavit of Mrs. Gormley, that she was not present in the grand jury room during the deliberations.
It must, therefore, be found as a fact that Mrs. Gormley was present during the ...