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State v. Ascolese

Decided: February 9, 1960.


Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.


Defendant, Felix Carmel Ascolese appeals from a judgment of conviction for the crime of grand larceny, N.J.S. 2 A:119-2.

The basis for this appeal is an error which allegedly arose during the State's cross-examination of defendant. Due to the fact that the notebook containing the official stenographic record of defendant's testimony on cross-examination has been lost by the court reporter, the prosecutor and defendant's attorney, pursuant to R.R. 1:6-3, 2:6 and with the approval of the trial judge, have agreed to a statement in lieu of the lost testimony.

Defendant was indicted by the grand jury of Hudson County for having stolen and carried away "39 brass elevator parts, of the value of $129.09, and twenty-one pieces [of] brass molding of the value of $206.85, in all of the value of $335.94, the property of Otis Elevator Co., Inc., a corporation, contrary to the provisions of N.J.S. 2 A:119-2 * * *." Defendant pleaded not guilty. Having taken the stand on his own behalf at his trial, defendant was asked on cross-examination whether he had signed a written application for employment with the Otis Elevator Company (Otis). He replied that he had. He was then asked where he had been employed before he began work for Otis and he answered, "At Westinghouse Company in Jersey City." When asked whether he had disclosed the fact of this prior employment in his application to Otis, he stated that he had not. The prosecutor then asked defendant why he had left the employment of Westinghouse and he replied that he had been discharged. When defendant was asked why he had been discharged, his counsel objected that the question was improper for any purpose. The objection was overruled, however, and defendant was required to answer. He answered that he had been discharged for having stolen certain brass elevator parts, the property of Westinghouse, similar in material and structure to the parts that he was charged with stealing from Otis.

Both sides rested at the end of the second day of trial. On the succeeding day, before summation and the court's charge to the jury, the court granted defendant's motion to reopen in order to entertain two motions -- (1) for a mistrial based on the ground of improper cross-examination, and (2) for the striking from the record of all testimony relating to the reason for defendant's Westinghouse discharge, based on the same ground. Both motions were denied.

Prior to the court's charge to the jury, defendant's counsel submitted seven written requests for charge. The court refused to charge, either exactly or in substance, the sixth requested charge, which reads:

"The Court further charges that you are not to consider to any extent, or be influenced in your consideration of the evidence in respect to the guilt of the defendant, by his testimony on cross-examination concerning his having stolen from Westinghouse Company during his employment with said company, certain materials similar to the materials with the theft of which he is here charged."

The jury found that defendant was guilty as charged and he appeals to this court.

It is a well-established general rule that the State cannot prove that a defendant committed other crimes, although of a like nature to that of which he stands charged, for the purpose of showing that he would be likely to commit the crime charged. State v. Raymond , 53 N.J.L. 260 (Sup. Ct. 1891); State v. Nagy , 27 N.J. Super. 1 (App. Div. 1953); State v. Marchand , 31 N.J. 223 (1959); 12 Rutgers L. Rev. 4, 9 (1957).

"The motivating policies are said to be to avoid confusion, unfair surprise and prejudice. 1 Wigmore, Evidence , (3 d ed. 1940), section 194. It is thought that proof of a previous crime will distract the jury, leading them to forego an independent analysis of the evidence and to rely merely on the tendency they possess in common with most people of saying 'once a thief -- always a thief.' * * *" State v. Nagy, supra , 27 N.J. Super. , at page 11.

There are a number of exceptions to this general rule, however, and evidence of other criminal acts has been held admissible in this State when offered in order to establish identity, opportunity, motive, plan, system, intent, knowledge; State v. ...

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