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State v. Tassiello

Decided: May 14, 1962.


Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.


This is an appeal from judgments of conviction entered in the Bergen County Court on jury verdicts. The defendants were indicted for breaking and entering with intent to steal (N.J.S. 2 A:94-1), and also for conspiracy to commit that crime (N.J.S. 2 A:98-1). All three defendants were found guilty of the conspiracy charge; Tassiello and Hagan were also found guilty on the breaking and entering indictment; Hayes was acquitted of this charge.

Defendants attack the convictions upon the grounds that (1) the State failed to make out a prima facie case of guilt of the offenses charged; (2) the court erred in failing to exclude from the evidence two confessions of the defendant Hayes, and (3) the cross-examination of Hayes concerning prior convictions of crime was improper and prejudicial.


The test on a motion of a defendant for a judgment of acquittal is whether there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn. State v. Rogers , 19 N.J. 218, 231-232 (1955); State v. Picciotti , 12 N.J. 205 (1953); State v. Bricker , 99 N.J.L. 521 (E. & A. 1924). In a circumstantial evidence case the inquiry is whether the evidence is of sufficient quality to convince a jury beyond reasonable doubt of the defendant's guilt. State v. Dancyger , 29 N.J. 76, 84 (1959). Therefore, the question before the trial court at the close of the State's case was whether the evidence viewed in its entirety and giving the State the benefit of all legitimate inferences therefrom, was such that the jury could properly find beyond a reasonable doubt that the defendants were guilty of the crimes charged. Id.

The State offered the following evidence: On September 8, 1960, at about 11 P.M., the defendants became patrons of Seidel's Restaurant and took seats at the bar. They were served beer by the bartender, Robert Davies; according to Davies, "they didn't drink very fast. Let's say about four beers in an hour." At about 2 A.M. they left. Davies closed the establishment at that time and "walked right out behind them." He locked up everything, put out all of the lights except one, and as he walked out, snapped the lock on the front door. He saw the three men drive off in an automobile.

At about 2:10 A.M. Officer Richard J. Stoltenburg, a member of the Ridgefield Police Department, while operating a patrol car on his tour of duty noticed a man, who proved to be Tassiello, enter the side door of the restaurant. The officer immediately backed his car into an adjacent parking lot, got out and tried the side door. It was locked. Stoltenburg then went to the rear of the premises where he found another man, later identified as the defendant James Hayes, sitting on a pail. In response to a query

by the officer, Hayes explained that he was answering a call of nature. The officer observed that the pail was a mop pail, that Hayes' trousers were up, and that he was merely sitting on the pail. He placed Hayes under arrest, brought him back to the police car and handcuffed him to a door of the car. He then radioed police headquarters for assistance. In response, Patrolman Vincent P. Amicosante joined Stoltenburg at the scene. Amicosante then guarded the front door of the premises while Stoltenburg knocked on the side door. Presently, Stoltenburg went to the front door, which was also locked, and both officers "banged" on the door, identifying themselves and demanding that the person or persons within open the door. Hagan finally came to the door and opened it. Stoltenburg pulled him out and "frisked" him. Stoltenburg then entered the premises and found Tassiello "slouched down" in a booth in a crouched position. He placed him under arrest. Stoltenburg then walked the three men to police headquarters, which was a short distance away, leaving Amicosante at the restaurant. Later, Stoltenburg returned to the scene, relieved Amicosante, who went back on patrol, and then conducted a preliminary investigation.

His examination of the premises revealed that a window was open in the men's room. On further investigation he found an automobile about one block north of the premises which was registered in Hayes' name.

The State offered no evidence from which it could be inferred that the defendants or any of them had committed a theft while in the restaurant premises.

The thesis offered by defendants in support of their contention that the foregoing proofs were insufficient to support the indictments is that no legitimate inference of a "breaking" could be drawn therefrom, and that there was absent evidence that Hagan and Tassiello entered the premises with intent to steal. As to the first point, it is noted that the statute interdicts both breaking and entering, and entering without breaking, provided that felonious

intent is present. Thus, the gist of the crime is the evil intent to steal rather than the particular means by which it is perpetrated. Similarly, the gist of the offense of conspiracy is the unlawful confederation and not necessarily the overt acts designed to carry it into effect. State v. Vanderhave , 47 N.J. Super. 483 (App. Div. 1957), affirmed 27 N.J. 313 (1958).

More often than not intent is determined by the appraisal of human actions in light of the circumstances in which they take place. Disregarding completely statements later given by the defendants to the police concerning the occurrences described in the State's proofs, it is clear to us that the composite of the State's proofs required jury determination of the issues presented. Plainly, the inferences to be drawn from the evidence that the defendants returned to the locked and darkened restaurant within minutes after they had left it, and, knowing it to be unattended, then entered it by breaking or otherwise, are inconsistent with lawful conduct. When there was added to this the fact that one man was stationed outside while another entered an open door which had been previously locked, it became legitimately inferable in support of both charges that the role of the former was that of a lookout and that the latter man was admitted by someone already in the building. When, finally, the open window is considered and it is noted that the men inside behind locked doors did not readily respond to the demands of the police that they be admitted, and that upon entering the premises the police found one of them attempting to hide himself from their view, a picture emerges from the totality of proofs which completely justified denial of the motion for acquittal at the end of the State's case.


As the trial of the case developed, the admissibility of statements given to the police by the defendants, with particular

reference to the circumstances in which they were given, became a bitterly contested issue; and when the case was finally presented to the jury, the summations of respective counsel were devoted almost entirely to a discussion of this issue. Tersely stated, it was contended by the defendants that the statements were coerced by the brutality of the arresting officers Stoltenburg and Amicosante, and others. This was categorically denied by both Stoltenburg and Amicosante.

A brief resume of the procedure taken by the trial court and of the testimony on this subject additional to the vigorous denials by the officers follows: In the course of the State's case Officer Edward F. Gallagher, assistant in charge of the records and identification bureau of the Ridgefield Police Department, was called as a witness by the State. He testified that on September 9 starting at about 7:30 A.M. he interviewed, successively, Hayes, Hagan and Tassiello at the police headquarters. This apparently was undertaken at the commencement of his tour of duty for the day and he had had no contact with the men during the prior hours in which they were in custody. The purpose of his testimony was to lay the foundation for admitting into evidence an alleged confession taken by him in ...

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