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State v. Derocco

Decided: January 5, 1959.


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


[53 NJSuper Page 317] Defendant was found guilty by a jury under an indictment charging him with obtaining money under false pretenses (N.J.S. 2 A:111-1) from the First National Bank of South Amboy by knowingly and falsely representing that he was the owner of a 1956 Chevrolet convertible, thereby obtaining a loan of $1,265 on the security

of the automobile. He appeals from the judgment of conviction.

Defendant had been in the used car business from 1948 to 1953, and at the time of the loan was building some houses in Matawan, N.J. The bank's loan officer testified that defendant had been to see him about financing his building project and was referred to the Federal Housing Administration office in Newark. He returned a few days later, on October 25, 1956, and after discussing his mortgage financing problem, told the bank officer that he had recently purchased a 1956 Chevrolet for cash and thereby stripped himself of working funds. He inquired about a possible loan to meet unpaid bills. A $1,265 monthly installment loan was agreed upon, to be secured by the automobile. Defendant did not have a New Jersey certificate of ownership with him, but returned several hours later and produced one. The loan was then completed, defendant executing a note and a chattel mortgage covering the Chevrolet. In accordance with the Motor Vehicle Act, he also executed a statement of encumbrance showing the bank as mortgagee. The bank officer testified that no payment had ever been made on the note, and the bank's attempts to locate defendant had been unsuccessful.

The State's main witness was Russell Ewer, defendant's friend and neighbor for some four years. Ewer testified that he was in financial difficulties in July 1956 and discussed the matter with defendant, who outlined a scheme for getting money by obtaining a false automobile registration in New Jersey and borrowing money against the car. This required getting the serial number, make, model and other information about an automobile, and then going to South Carolina where a motor vehicle registration could be obtained merely by executing a sworn application setting out the name and address of the alleged owner, the date the car was acquired and a description of the car. Ewer testified that he obtained the necessary data from the registration certificate of a person he knew at Fort Dix, N.J., who owned a new 1956 Chevrolet convertible. He and defendant

went to South Carolina where, on July 25, 1956, Ewer executed the necessary application form and obtained a motor vehicle registration. The two immediately returned to New Jersey. Thereafter Ewer, accompanied by defendant, applied for and obtained a New Jersey certificate of ownership on the basis of the South Carolina registration.

Ewer testified that he twice tried to borrow money on the strength of the certificate of ownership. He was unsuccessful and informed defendant he was abandoning the scheme. The next time he saw defendant was October 25, 1956. On that occasion defendant asked Ewer if he still had the certificate and, finding that he did, asked that he sign it over to him since he might have some use for it. Ewer then executed the assignment on the reverse side of the certificate, thereby transferring ownership to defendant.

Ewer did not see defendant again until January or early February 1958, when the latter came to his home and discussed the impending criminal trial. Defendant complained about Ewer having told a state trooper that he never owned the car. He inquired of Ewer whether the trooper had led him on and made him say things he did not want to say; pointed out that the trooper had no warrant; and finally said: "I'm not going to be found guilty," and "If necessary, I'll say that I got the money and gave it to you."

The State then rested. Defendant moved for judgment of acquittal. The motion was denied.

Defendant's story was that about October 23, 1956 Ewer told him he was in financial trouble; that he had recently purchased a 1956 Chevrolet convertible but had been unsuccessful in obtaining a loan on it; and that Ewer suggested he would endorse the certificate of ownership over to him so that defendant could then borrow money for Ewer with the car as security. A day or two later defendant told Ewer he could get a loan for him, whereupon Ewer assigned the certificate of ownership to him and he went to the First National Bank of South Amboy and arranged for the loan. He denied having gone to South Carolina with Ewer, but

admitted that earlier in 1956 he had twice been in Columbia, S.C., the place where the motor vehicle registration was issued. He denied that he had intended to cheat the bank.

The following ensued on defendant's cross-examination:

"Q. Mr. DeRocco, do you know State Police Officer Clinton Pagano? A. I know him to see.

Q. Did you ever see him before today or yesterday? A. Certainly.

Q. When did you first see him, Mr. DeRocco? A. In Union County Jail. I would say it was February of 1957, perhaps, March. Don't hold me to the month. Time goes very slowly in jail.

Q. He talked with you about the charge and the indictment that we are trying at the present time, is that right? A. That's correct.

Q. And did you give him a statement? A. I did not.

Q. Did you tell him what you told this jury today? A. He ...

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