Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
Bassano and two others, Anthony Cuozzo and Anthony Gammaro, Jr., were convicted in the County Court on an indictment which charged conspiracy to obtain moneys by false pretense, N.J.S. 2 A:98-1(f). Bassano appeals.
The pertinent facts are these: On June 17, 1958 Bassano purchased a used 1955 Eldorado Cadillac convertible, serial No. 5562-75210, from one Peter G. Aleveras, a partner in Parkway Auto Sales, East Orange, New Jersey. He insured it with American Fidelity & Casualty Company through Service Plan, Incorporated. The policy contained a theft clause. Shortly thereafter, the automobile developed mechanical trouble so extensive as to make it inoperable. So far as appears from the record, it was never restored to working order.
At about 1:25 A.M. on November 9, 1958 defendant reported to the police of the City of Elizabeth that the car had been stolen. He stated that upon leaving a tavern on Westfield Avenue, Elizabeth, where he had been between the hours of 11 P.M. and 1 A.M., the automobile was missing. The next day William L. Olsen, Claims Supervisor for the Service Plan, Incorporated, received a telephone call from a person who identified himself as Anthony Bassano and reported the theft of the vehicle. Olsen, in the regular course of business, made a written report of the information supplied by the caller. The report, dated November 10, 1958, was received in evidence over the objection of defendant and marked exhibit S-3; it coincided in detail with the identification of the vehicle as set forth in the insurance policy issued to defendant. In short, the report referred to the 1955 Eldorado Cadillac, serial No. 5562-75210, insured under the policy. Olsen testified that he was unable to identify the caller as Bassano and it was upon that ground that the objection to the admission of S-3 was made.
On November 17, 1958 Detectives Mundy and Drop of the Belleville Police were dispatched to a garage at 1 Lake Street, Belleville, where they found defendant Cuozzo and one Daniel Mendola. Also found were parts of a dismantled Cadillac automobile. Cuozzo was taken to the Belleville police headquarters where he stated that he and another man had made arrangements with a third man to take the automobile parts which came from a 1955 Cadillac Eldorado, sell what they could and dispose of the remainder. For this they were to receive $125. He mentioned Gammaro in connection with the transaction. The following day Gammaro appeared at the Belleville police headquarters. Under questioning he said that during the third week of October 1958 (approximately two weeks before the car was reported stolen), he was introduced to a man named "Tony" with whom he agreed to cut up a car and dispose of its parts by sale or otherwise for $125. He went on to say that the same evening he and Cuozzo went with "Tony" to a street off Main Street in East Orange, where "Tony" pointed out a 1955 white Eldorado Cadillac convertible which he and Cuozzo towed to Belleville and subsequently cut up. On the basis of information received from Gammaro the motor and transmission of the car were found in a garage on Delavan Avenue and four tires from the car were found on a vehicle owned by one Eugene Donnelly. At the trial Donnelly testified that he had purchased them from Cuozzo and Gammaro on November 14, 1958.
Both Gammaro and Cuozzo gave detailed written statements to the Belleville police and also to Detectives Harris and Bentley of the East Orange police. These were received in evidence and the jury was instructed that each statement was binding only on the defendant who gave it. The statement of Gammaro contains a recital that he was shown a photograph bearing the legend "East Orange, New Jersey Police Department, 9-10-40," and that he identified its subject as the man "Tony" with whom he had arranged to cut up the Cadillac. At the trial the photograph was identified by Detective Harris as being that of Anthony Bassano and
it was offered in evidence. Defendant objected upon the ground that it was a police photograph. The legend was deleted and the photograph received in evidence without further objection.
Defendant did not take the stand. The prosecutor in his summation commented on this fact in a manner which will be more fully set forth hereinafter.
The sole grounds of appeal urged by defendant are that: (1) the evidence relating to the telephonic report of the alleged theft to Olsen, and his report itself, were hearsay and should not have been received; (2) the statement of Gammaro in which he identified Bassano and recited the legend on the photograph was prejudicial in that it permitted the jury to infer that Bassano had a criminal record; and (3) the prosecutor's comment in summation concerning defendant's failure to testify deprived him of his fundamental right to a fair trial.
The admissibility of Olsen's testimony relating to the telephone call in which the alleged theft loss was reported by one identifying himself as Bassano and the subsequent admission of the written report made by Olsen, which incorporated the essentials of such conversation, rested on different legal principles. Basically, the telephone conversation was offered to prove defendant's state of mind, i.e. , to establish that knowing his automobile had not been stolen, but that he had arranged for its demolition, defendant, with intent to defraud the insurance company, sought to recover under the theft coverage of his insurance policy. See McCormick, Evidence § 228, pp. 465-466 (1954).
On the other hand Olsen's written report was offered under the Uniform Business Records as ...