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State v. Gleitsmann

Decided: March 6, 1959.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CHRIS GLEITSMANN, DEFENDANT-RESPONDENT



Price, Hall and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.

Price

The State appeals from an order of the Hudson County Court dated June 11, 1958 dismissing the second count of an indictment returned by the Hudson County Grand Jury. It also appeals from a further order of the said Hudson County Court dated June 17, 1958 denying the State's motion to vacate the prior order and reinstate the second count and dismiss the first count of the indictment.

Defendant is a captain in the police department of West New York and in charge of its detective bureau. The grand jury returned an indictment in two counts which, because of its importance in the instant proceeding, is quoted at length. The first count was as follows:

"Chris Gleitsmann, on or about the twenty-sixth and twenty-seventh days of October, 1956, in the town of West New York, in the County of Hudson aforesaid and within the jurisdiction of this Court, the said Chris Gleitsmann being then and there a public officer, to wit, a duly appointed and qualified member of the police department of the town of West New York, then and there assigned as a captain in the detective bureau of the police department of the town of West New York, thereby having the public duty of refraining from using and causing to be used any equipment, facilities and vehicles of the town of West New York for any business other than the official police business of the police department of the town of West New York, and having the public duty of refraining from using such equipment, facilities, and vehicles for his own personal and private affairs, he, the said Chris Gleitsmann did unlawfully and willfully in violation of aforesaid duties, on or about October 26th, 1956, place a phone call at the expense of the town of West New York from a phone in the West New York police station to a place in the County of Broome in the State of New York concerning an appointment to be arranged in the State of New York regarding business other than the official police business of the police department of the town of West New York, and did on or about October twenty-seventh, 1956, use and cause to be used an official police car of the town of West New York; and cause the said car to be driven from the town of West New York to a place in said Broome County in the State of New York and thence back to the town of West New York, to convey him, the said Chris Gleitsmann with regard to business other than the official police business of the police department of the town of West New York, and with regard to the personal and private affairs of the said Chris Gleitsmann, contrary to the provisions of N.J.S. 2A:85-1 and against the peace of this State, the Government and dignity of the same."

The second count repeated the preliminary information contained in the first count, but then alleged that defendant had a "public duty" to refrain from using or causing to be used any equipment etc. of the Town of West New York, "for any improper and illegal purposes" and that in violation of this duty defendant committed the following acts:

"* * * placed a phone call at the expense of the town of West New York from a phone in the West New York police station to a place in the County of Broome, in the State of New York, and spoke to a police official of the State of New York regarding an appointment which was arranged in the State of New York, and the said Chris Gleitsmann did, on or about the twenty-seventh day of October, 1956, as a result of such appointment, use and cause to be used an official police car of the town of West New York, and cause the said car to be driven from the town of West New York to a place in said Broome County in the State of New York to convey him to said place in the State of New York for an improper and illegal purpose whereby he, the said Chris Gleitsmann, on or about the twenty-seventh day of October, 1956, did exhibit his badge as a police officer of the town of West New York, did inform police officials and personnel of the State of New York that he was sent there by the Director of Public Safety of the Town of West New York, and thereupon did improperly and illegally intercede in behalf of one Carmine Galente, a person with a criminal record, with police officials and personnel of the State of New York to induce them to aid the said Carmine Galente to avoid a jail sentence by reason of charges then and there pending against the said Carmine Galente in the Courts of the State of New York, and he, the said Chris Gleitsmann did then and there offer an improper and illegal cash consideration and bribe to such police officials and personnel towards the end that the said Carmine Galente would avoid a jail sentence on such charges, after all of which the said Chris Gleitsmann did cause said police car of the town of West New York to be driven back to the town of West New York, contrary to the provisions of N.J.S. 2 A:85-1, and against the peace of this State, the Government and dignity of the same."

After the indictment had been returned defendant moved for a bill or particulars which was furnished by the State and which defined the private business, referred to in the first count, as the intercession on behalf of Galente referred to in the second count. Defendant then moved to dismiss the indictment on the sole ground "that the indictment does not charge a crime."

Our examination of the record incontrovertibly reveals that at the hearing on May 15, 1958 defendant's argument in support of his motion was based solely on the ground that neither count charged a crime, and the State's initial answer thereto was consequently levelled solely against the correctness of the defendant's contention. It was during the State's argument in answer to that of the defendant that the court suddenly asked "why there are two counts in the indictment," and "what is the difference in the legal effect of these two counts in the indictment?" In the course of the ensuing colloquy between the court and the Deputy Attorney General the court said: "The gravamen of the charge here is that he used West New York's official property for his own personal purpose. Whether that personal purpose was in itself a legal or illegal purpose as I look at it from this point I see no distinction * * *." After further argument the trial court finally ruled:

"* * * I am constrained to believe that the First Count in this indictment is a valid legal count and I will deny the motion to dismiss it.

I am also satisfied that the Second Count of the indictment states the same alleged crime as is stated in the First Count. It is repetitious, it is surplusage and should be dismissed, and I grant the motion to dismiss the Second Count."

The Deputy Attorney General asked "leave to move to amend or to join both counts into one count stating he went there for a private, improper and illegal purpose * * *." To this defendant's counsel (who had theretofore taken no part in the discussion precipitated by the trial ...


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