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State v. Murphy

Decided: November 16, 1964.


Leonard, Conklin and Pashman. The opinion of the court was delivered by Pashman, J.s.c. (temporarily assigned).


[85 NJSuper Page 394] Defendant urges three grounds for reversal of his conviction, by the Essex County Court sitting without a jury, of a violation of N.J.S. 2A:119-2 (stealing personal property of a value less than $200). First, he contends that the evidence used to convict him was obtained through an unlawful and unconstitutional search and seizure. Secondly, he argues for reversal because of several alleged trial errors affecting his substantial rights. No objection was made at the trial to these alleged errors; defendant asks this court to consider them as "plain errors." See R.R. 1:5-1 made applicable to this court by R.R. 2:5. Finally, defendant alleges that his constitutional rights were violated because the trial judge commented that he took into consideration the fact that neither defendant nor a codefendant testified and that he must assume they were unable to deny the inculpatory testimony adduced against them.

Defendant was found guilty on three of four indictments for shoplifting from various stores in Essex County. On October 5, 1961 defendant and two other men, Peter McLaughlin and Frank Scerbo, entered a radio and television store in Caldwell. Scerbo inquired about a refrigerator while the other two browsed. The store manager became suspicious and telephoned a friend to ask if these were the three men who had been in the friend's store. After presumably receiving an affirmative answer, the manager then asked his friend to call the police. The three men left shortly thereafter. After they had left, the manager noticed that a radio was missing from a shelf. He then called the police and told a Sergeant Sullivan that "there definitely was a radio missing."

Meanwhile, Officer Cosgrove was dispatched to the store, having been told that three men were suspected of shoplifting. When he arrived the officer stopped defendant, McLaughlin and Scerbo as they were pulling away in a white Cadillac. Detective Sergeant Penkowski had also been told to proceed to the television store because there were three shoplifters on the premises. En route he received a second call from Sergeant Sullivan. The totality of the testimony shows that while on his way to the store Sergeant Penkowski was told that a radio was missing. When Sergeant Penkowski arrived, Officer Cosgrove was checking McLaughlin's driver's license and registration. Sergeant Penkowski looked in the back window of the car and saw a white radio on the floor and a tan briefcase with a radio protruding from it. He took the radio from the briefcase and someone at the television store identified it as the missing radio.

The three men were taken to headquarters and the car was searched. A tape recorder, an adding machine and other radios were found in the trunk of the car. The adding machine was identified as one taken from a third store. There was positive identification that defendant, Scerbo and McLaughlin were present in these two stores on the day they were arrested. McLaughlin admitted stealing the items but

said the defendant Murphy and Scerbo had no part in the thefts.

The prosecutor contends that defendant's failure to move to suppress the evidence within 30 days after the initial plea was entered constitutes a waiver of any right to object to the admissibility of evidence on the grounds of unlawful search and seizure. This is the substance of R.R. 3:2A-6(a). The rule also provides that the 30-day provision may be enlarged for good cause shown. Further,

"* * * The motion shall be determined before trial. A motion may be entertained at trial only if the court finds the defendant could not reasonably have made the motion prior to the trial."

Defendant says that he did not move to suppress prior to trial because Scerbo had made a similar motion which was denied. This reason is frivolous and does not constitute "good cause." The failure of defendant to move, prior to trial, to suppress the evidence constituted a waiver of any objection to the admission of the evidence. See State v. Ferraro , 81 N.J. Super. 213 (Cty. Ct. 1963).

But even assuming that there was no waiver, the proofs clearly show that the evidence was not unlawfully seized. A search and seizure without a search warrant may be conducted as an incident to a lawful arrest. Henry v. United States , 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2 d 134 (1959); State v. Doyle , 42 N.J. 334 (1964); State v. Smith , 37 N.J. 481 (1962), certiorari denied 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2 d 1055 (1962); State v. Griffin , 84 N.J. Super. 508 (App. Div. 1964).

Defendant contends that there were insufficient grounds for the arrest. He further contends that the crime he was charged with was a misdemeanor, thereby precluding his arrest without a warrant unless the crime was committed in the presence of a police officer. The latter argument was rejected in State v. Doyle, supra , where the court said:

"Misdemeanors under the crimes act which are punishable by imprisonment for more than a year in state ...

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