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State v. Pollack

Decided: July 7, 1964.


For reversal -- Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- Chief Justice Weintraub, and Justice Hall. The opinion of the court was delivered by Haneman, J.


At the consolidated trial of six indictments, each charging the defendant Milton Pollack with uttering a worthless check in violation of the provisions of N.J.S. 2A:111-15, Pollack was convicted on each indictment. He was fined $500 and sentenced to one year in State Prison for each conviction, the sentences to run consecutively. The Appellate Division affirmed in an unreported opinion and we granted defendant's petition for certification. 41 N.J. 127 (1963).

In the Appellate Division and on this review only one issue is presented for decision, viz., whether it was reversible error for the trial court to have excluded certain evidence regarding prior transactions between the complaining witness and the defendant.

The basic facts are uncomplicated. Mrs. Betty Perrotta and her mother, Mrs. Theresa Lamberti, the complaining witnesses, testified that on January 3, 1961, the defendant delivered six checks to them in settlement of promissory note obligations, the notes being returned to him at that time. Each check was drawn on the Amalgamated Bank of New York in the amount of $4,500, dated January 3, 1961, and signed by defendant. Three checks were payable to Mrs. Perrotta and three to Mrs. Lamberti. On the following day Mrs. Perrotta deposited the checks in various banks for collection but they were subsequently returned for lack of sufficient funds. Mrs. Perrotta's husband and brother corroborated the testimony that delivery of the checks was made on January 3, 1961.

The defendant had told Mrs. Perrotta and her mother that he was engaged in importing sweaters. Mrs. Perrotta and Mrs. Lamberti then "loaned" him $9,500 and $9,000

respectively and received in return promissory notes and promises of handsome "profits" for the use of the money. The total face amount of the checks referred to in the indictment was $27,000. Mrs. Perrotta testified that the checks were in part payment of defendant's above obligations, the total amount to be repaid being approximately $40,000.

Defendant testified that the checks were postdated, that he had delivered them on the 28th of December 1960, and that Mrs. Perrotta agreed to deposit one check a week, as she had done on previous occasions.

In the cross-examination of Mrs. Perrotta and Mrs. Lamberti defense counsel made numerous attempts to elicit testimony regarding prior transactions between the parties. The prosecutor's objections to any questions not specifically directed to the transactions involving the six checks in question were consistently sustained by the trial court. In the Appellate Division defendant argued that the above exclusionary rulings constituted prejudicial error, contending that such evidence would have disclosed a "habit or custom" of issuing postdated checks in payment of loans from which a strong inference would arise that such practice was observed in the situation covered by the indictments, thereby negating the necessary intent to defraud. The Appellate Division was of the opinion that the controverted questions advanced at trial concerned matters apparently remote and of doubtful relevance, and that the trial court had not abused its discretion in excluding them.

The main problem raised is the proper scope of cross-examination. Under the theory that postdated checks are not within the reach of N.J.S. 2A:111-15, State v. Barone, 98 N.J.L. 9, 12 (Sup. Ct. 1922), cf. State v. Turetsky, 78 N.J. Super. 203, 212 (App. Div. 1963), the key factual issue was the date of delivery of the checks. Mrs. Perrotta, the primary complaining witness, testified that defendant had delivered the checks to her on the same day they were dated, and that there was no arrangement as to a sequence in which they were to be deposited. She admitted, however,

that she had advanced money to defendant as far back as 1959 which he had partially repaid.

Mrs. Lamberti, who testified through an interpreter, also placed the date of delivery as January 3, 1961, and said that she instructed her daughter to deposit the checks for her. She admitted on cross-examination that defendant had returned other money advanced by her prior to the checks in question, and said that the difference between the $9,000 given to defendant ...

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