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State v. Berko

Decided: June 26, 1962.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT BERKO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. ROBERT GUDGER, DEFENDANT-APPELLANT



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

Freund

Defendants Robert Berko and Robert Gudger were indicted on two counts for uttering "false, forged and counterfeited" checks on July 30, 1960, in violation of N.J.S. 2A:109-1, and aiding and abetting each other in so doing, N.J.S. 2A:85-14. They were found guilty after a jury trial and sentenced to a term of two to four years at State Prison on each count, the sentences to run concurrently. They appealed their convictions.

The essential facts developed on the State's case came from four witnesses. Defendants did not testify, nor did they offer testimony of any witnesses.

Dorothy Cizon, a secretary in the Bayway office of the National State Bank in Elizabeth, N.J., testified that she interviewed both defendants when they came to the bank on Friday, July 15, 1960, at 2:25 P.M., to open a checking account. She prepared a new account memo from information given to her by defendants. The memo discloses the account was to be in the name of National Fire Alarm Rental Service (National) of 112 E. 2nd Avenue, Roselle, N.J. It identified James Noonan of 28 Schley Street, Newark, N.J. as president of National, and Gudger as its secretary. The account was opened with a check for $100 drawn on a Maplewood, N.J. bank. Because the account was opened late in the day, that check was not processed until the following Monday, July 18. On July 26 the check for the initial deposit was returned for insufficient funds, leaving the account without a balance.

Miss Cizon testified that Gudger represented himself as being Noonan and signed the signature identification card with Noonan's name. The defendants completed a corporate resolution in her presence with the signatures of Noonan and Gudger affixed as president and secretary of the corporation, respectively, and certified as their "authentic official signatures." (How the resolution could have been completed in this fashion -- with Gudger's and "Noonan's" signatures

-- in the presence of a presumably responsible bank employee is not explained.) The bank prepared a checkbook for the use of National. Printed on the face of the checks were National's name, its address, telephone number, and the word "payroll." The checkbook was held at the bank, where it presumably arrived between July 25 and 28. Miss Cizon was unable to state the exact date when the checkbook was "picked up."

Mary Steinberger, an employee in the credit department of Montgomery Ward in Eatontown, N.J., was the next witness. She testified that on Saturday, July 2, 1960, Gudger came to her with a check made to his order, signed by Berko, and asked if he could have it cashed. She took the check and Gudger's driver's license to Mr. McKenzie, the operating manager of the store, who refused to approve cashing it "because it was a second party check and * * * identification of the signing party was necessary." Gudger then told her the check had been signed by his "boss" who was out in the main part of the store. He left and soon returned with Berko. Defendants were then taken to McKenzie's office.

The following Saturday, July 9, defendants again came to Mrs. Steinberger, this time with two checks to be cashed, and she sent them to McKenzie. She disclaimed knowledge as to whether the checks on either of these dates were cashed.

Defendants returned to the Montgomery Ward store the next Saturday, July 16. McKenzie was on vacation, and Mrs. Steinberger took their checks and identification to Mr. McGee, the auditor, who approved them. Although her testimony is unclear as to what occurred on the following Saturday, July 23, it would appear that defendants may have again cashed checks in her presence that day.

Finally, on Saturday, July 30, defendants brought two National payroll checks to her. These are the alleged forged instruments. Being satisfied with the previous identification of defendants, she approved the checks for payment. Gudger's check was to his order for $129.01; the other

check was to the order of Berko for $127.03. Photographic copies of these checks, marked as exhibits, show that they were signed by "James Noonan," and the amounts ...


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