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State v. Dimodica

Decided: March 12, 1962.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT DIMODICA, DEFENDANT-APPELLANT



Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

Defendant was indicted for robbery (first count) while armed (second count).

After trial by jury he was convicted on both counts. He appeals, charging that the record of his trial is replete with prejudicial error.

On September 6, 1958, shortly after closing hours, Donald W. Griffith, Anthony C. Belenski and Mel Byers, employees of the Good Deal Supermarket in West Orange, were held up and robbed by an armed man who made off with several thousand dollars of the store's receipts.

Defendant was not connected with the robbery for about a year and a half, when, as a result of information received by the West Orange Police, Griffith and Belenski went to

State Prison on April 6, 1960, and after seeing defendant in a lineup, identified him as the robber.

At the trial Griffith, Belenski and Byers positively identified defendant as the armed man who had robbed them on September 6, 1958. Defendant's defense was that of alibi. Thus, the basic issue submitted to the jury was whether or not defendant was the robber. As heretofore noted, the jury found defendant guilty.

During the course of the trial, after the direct examination of Griffith, the State's first witness, had been completed, counsel for defendant moved to exclude the State's other two identification witnesses from the courtroom during the cross-examination of Griffith. The trial court denied the application, and defendant charges that this ruling constitutes prejudicial error.

Ordinarily, in a criminal cause, a motion to exclude the State's witnesses from the courtroom prior to their actually testifying should be granted. State v. Williams , 29 N.J. 27, 46 (1960). However, the granting or denial of such a motion is for the sound discretion of the trial judge under the circumstances of the particular case. State v. Williams, supra; State v. Barts , 132 N.J.L. 74 (Sup. Ct. 1944) affirmed on opinion below 132 N.J.L. 420 (E. & A. 1945). Here, defendant's motion was not made until after the direct examination of Griffith had been completed, and was limited to excluding the other two identification witnesses during the cross-examination of Griffith. Under these circumstances the reasons underlying exclusion no longer existed to any substantial degree. Kaufman v. U.S. , 163 F.2d 404 (6 Cir. 1947); People v. Winchester , 352 Ill. 237, 185 N.E. 580 (Sup. Ct. 1933). Further, defendant's argument is purely theoretical since the record does not show that there was anything brought out on cross-examination which served to "educate" the subsequent witnesses. State v. McLeod , 131 Mont. 478, 311 P. 2 d 400 (Sup. Ct. 1957). Because of this no abuse of discretion or prejudice to defendant has been shown.

Defendant also charges that the trial court erred in denying defendant's motion for access to the grand jury testimony of State's witness Griffith for the purpose of cross-examining such witness at trial. This point grew out of the following trial incident. Counsel for defendant, during his cross-examination of State's witness Griffith, applied "for a transcript of the grand jury minutes of this witness" on the ground that the "defendant is entitled to the benefit of any contradictions or inconsistencies in this man's testimony as possible [ sic ] revealed by his grand jury testimony." The prosecutor resisted the application on its merits and also had this to say:

"If your honor please, there is an additional problem in a great many of these cases in that we do not take a stenographic transcript. I don't know if ...


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