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State v. Cottone

Decided: October 27, 1958.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM COTTONE, DEFENDANT-APPELLANT



Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant was tried and convicted in the Essex County Court for the crime of robbery, upon an indictment charging that on October 27, 1955, in West Orange, N.J., he did "forcibly take from the person of Jacquelynn Davis, one safe of the value of $25.00, money to the value of $2,400.00, jewelry of the value of $43,935.00, in all of the value of $46,366.00, the goods and chattels of Harry Cohen, by violence and putting the said Jacquelynn Davis in fear," contrary to N.J.S. 2 A:141-1. The trial consumed five full days. Defendant was sentenced to State Prison for a term of six to eight years.

Defendant now appeals the judgment of conviction, claiming that (1) the State failed to prove a robbery under N.J.S. 2 A:141-1; (2) the trial court erroneously substituted its will and judgment for that of the jury in violation of defendant's right to trial by jury; (3) the trial court erroneously refused to grant a mistrial because of the publication of a certain newspaper article; (4) defendant was denied a public trial; (5) the court's charge was erroneous; (6) defendant was denied the right to be confronted by witnesses against him; and (7) the court erred in permitting the State to allude to his prior convictions.

The State's case rested mainly on the testimony of Mrs. Davis, a maid in the Cohen household, who had begun work for the Cohens only four days before the robbery. On October 27, 1955 she was alone in the Cohen home when

a man appeared at the kitchen door at about 1 P.M., carrying a package. From his appearance she thought he was a deliveryman, and she described in detail how he was dressed. After entering the kitchen, the man pulled out a gun and said, "This is a holdup." Mrs. Davis was only a foot and a half or two feet away from him. He ordered her to lie on the floor, face down. (At this point in her testimony, Mrs. Davis stepped from the witness stand and identified defendant as the man in question.) A minute or so later two other men entered the kitchen, walked past her and went directly upstairs. Mrs. Davis became a little hysterical, and asked for a glass of water. She said she rose from the floor and got as far as the foyer, where she drank the water one of the men gave her. Defendant then escorted her down the basement steps and made her lie on a couch in the recreation room, tied and gagged her, and put a sheet over her head. While on the couch she heard thumping sounds and footsteps overhead. She then heard voices outside coming from the direction of the driveway, and the sound of a car being driven into the garage. She heard an automobile leave at about 2 P.M.; the noises from the garage ceased. Mrs. Davis managed to free herself from her bonds and phoned the police.

Mr. Cohen testified that upon his return home in midafternoon he found his bedroom ransacked, the closet door ripped open, and the safe gone. He described the missing property. Other State's witnesses, who had been in the neighborhood at the time of the robbery, corroborated the time element but did not identify the robbers. Finally, the three West Orange police officers who arrested defendant at his home in New York City testified as to his statements when they questioned him concerning his whereabouts on the day of the robbery. The first was Detective-Sergeant Palardy who said defendant had told him that he was "hanging around his house all day long"; that "in the afternoon he was around his home most of the time," and that he had a date to meet two Brooklyn narcotics detectives at 4 P.M. When Palardy asked him for their names defendant

replied, "I am not going to tell you any more. You can beat me up or throw me down the sewer. That is all I am going to say." Palardy's testimony was substantially corroborated by the other two officers. All three remained unshaken on cross-examination, when defense counsel suggested that defendant might actually have said that he had been in the "vicinity of his home." It appears from the record that after his arrest and the holding of hearings, defendant was extradited to the State of New Jersey.

The sole defense was alibi, testified to by seven witnesses who had a fairly close acquaintance with defendant. All said that defendant was in a certain restaurant in lower Manhattan from sometime before 1 P.M. until after 2 P.M. on the day in question. Included among these witnesses were three attorneys, an accountant, and the restaurant owner himself. Their recollection of who was in the restaurant and what the several persons present were doing during the busy lunch hour was unusually detailed. They were all certain of the day and time, and their stories were quite consistent.

We shall consider the points in the order of their presentation.

I.

Defendant argues that the State failed to prove a robbery within the meaning of N.J.S. 2 A:141-1 because it did not establish that the property, located in the upstairs bedroom closet, was taken from the person of Mrs. Davis, or that it was in her presence and in her custody, citing State v. Lyons , 70 N.J.L. 635, 645 (E. & A. 1904). He claims that robbery is distinguished from other crimes by the use of violence to deprive a person of possession of property that is directly under his supervision, care, control and custody; and if the property is not in the presence and custody of the threatened individual, there can be no robbery. No such issue was raised at the trial; the issue there was not whether the crime of robbery had been committed, but solely whether or not it had been committed by defendant. Indeed, defense

counsel on his opening said, "I cannot quarrel with the suggestion that it [the robbery] took place as a matter of fact."

At common law the crime of robbery was defined as the felonious or forcible taking of the property of another from his person or presence, against his will, by violence or putting him in fear. 2 East, Pleas of the Crown, c. 16, § 124, p. 707 (1806); 2 Wharton, Criminal Law (12 th ed. 1932), § 1083, p. 1376. Our statute is declaratory of the common law.

It is settled that the requirements of the statute are satisfied if the property is taken from an agent or employee of the owner. State v. Lyons , above. And it is equally well settled, and here undisputed, that the property need not have been in actual physical contact with the person from whom it was taken. 46 Am. Jur., Robbery , § 7, p. 142 (1943); 77 C.J.S., Robbery , § 9, p. 454 (1952). The question defendant presents is whether the employee or agent must have been given custody of the specific property itself, or whether it is enough that Mrs. Davis was given general responsibility of keeping close watch and guard over the Cohen household in the absence of the owners.

There can be no question here that Mrs. Davis, as servant and sole occupant of the Cohen home, was in charge of everything contained therein against anyone except the Cohen family. She clearly would have been remiss in her duties had she had the power to prevent a robbery and not done so. Violence to her person, or the threat thereof, was necessary to the removal of the property from her presence. We speak of "presence" because the robbery undoubtedly took place in her presence, in the sense that she saw the two men go upstairs, later heard the thumping of the safe on the steps, and then heard the voices outside and the car when it was brought into the garage and when it was driven away -- all this while she was helpless and in fear of her physical safety.

There is enough here to satisfy the definition in Lyons. See, also, the text in 77 C.J.S. and 46 Am. Jur. , cited

above; also 2 Wharton, op. cit. , § 553, pp. 253-255, where it was said that

"The general rule is that it is essential, in order to constitute robbery, that the property in question be taken from the person of another, or from his possession or his presence. An actual physical removal of the property from the person of the victim is not required, and it is sufficient if the property be taken from the presence of the victim. An object is deemed within the presence of a person when it is within his area of control.

The preposition 'from,' as used in defining the offense, does not convey the idea of contact or propinquity of the person and property, nor that the property is in the actual or immediate presence of the person. Hence the offense may be committed when the property, though not in the immediate presence of the owner, is under ...


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