Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
John B. Cronin appeals from judgments of conviction on four indictments which were consolidated for trial. Frank E. Renner, a co-defendant in three of the indictments, and Industrial Hardware, Inc. (Hardware), a co-defendant in a fourth indictment, do not appeal their convictions. Paul E. Vance, a co-defendant in three of the indictments, was not tried; he had pleaded guilty to two of them prior to trial and testified for the State after his case on the remaining indictment was severed. Cronin seeks reversal on three grounds, alleging that the trial court committed error in (1) denying his request for a copy of Vance's grand jury testimony, (2) consolidating for trial all four indictments, and (3) refusing to acquit him of the offenses charged in indictments Nos. 649 and 650.
Indictment No. 649 charges that on October 5, 1957 Renner, while an officer of Hardware, made false entries in four certain sales invoices of Hardware with intent to defraud Daniel J. Cronin, Inc. (hereinafter DJ), Standard Accident Insurance Company (Standard), and Union County Trust Company (Bank), in violation of N.J.S. 2A:111-9, and that Cronin and Vance aided, abetted, procured and willfully caused Renner to commit the offense, in violation of N.J.S. 2A:85-14 and 2A:111-9.
Indictment No. 650 is in ten counts, each of which, like No. 649, charges Renner with making false entries in certain invoices of Hardware on specific dates (between May 2 and August 26, 1957) with intent to defraud DJ, Standard and Bank, and that Cronin aided, abetted, procured and willfully caused Renner to commit the offenses, all in violation of the statutes mentioned in No. 649.
Indictment No. 651 is in two counts. The first charged that on May 8, 1957 Vance and Cronin knowingly and designedly represented and pretended to the Board of Trustees
of the Newark College of Engineering (Engineering) that R.A. Kendall Company (Kendall) was a subcontractor or materialman of DJ, which held a general contract for the construction of a building for Engineering and was entitled to receive $7,435 out of monies then owed by Engineering to DJ, whereas Vance and Cronin knew that Kendall was not a subcontractor or materialman of DJ but a fictitious firm not entitled to receive any monies; and that by means of such false pretenses (Engineering relying upon the truth thereof and being deceived thereby) they unlawfully obtained $7,435 from Engineering with intent to cheat and defraud, in violation of N.J.S. 2A:111-1. The second count is identical with the first, except that Vance and Cronin were charged with having obtained $11,385 from Engineering on June 13, 1957 through the use of another fictitious subcontractor or materialman, Edward C. O'Brien (O'Brien).
Indictment No. 648, in one count, charged Cronin, Renner, Hardware and Vance with conspiracy. It alleged that Cronin was an officer of DJ between July 1, 1955 and August 30, 1959; that Vance was employed by DJ from October 25, 1956 to September 29, 1958; that Renner was an officer of Hardware and two other named companies; that as of January 26, 1956 DJ held construction contracts with the Board of Education of Garfield, N.J., for a new high school building, with the Essex County Board of Freeholders for a building at Overbrook Hospital, and with the Board of Trustees of the Essex County Parental School (Parental School) for an addition and alterations to the Essex Youth House, upon which contracts, as well as others of DJ, Standard had issued performance bonds; and that DJ assigned those contracts to Bank as collateral security for the repayment of loans it had made to DJ. The indictment further alleged that DJ thereafter obtained construction contracts from the Board of Education of East Paterson, N.J. (East Paterson) for a new high school, from Engineering for a building, and from Our Lady of Sorrows Church for the construction of an addition to the church school, and that Standard issued performance
bonds on the East Paterson and Engineering contracts, but not on the church contract. Further, that having obtained these three contracts, DJ applied to Bank for a loan of $300,000, which would be in addition to its existing indebtedness to Bank of $703,000; that following negotiations, DJ, Standard and Bank entered into an agreement on July 19, 1956 which provided for an additional credit by Bank to DJ in the form of a revolving fund up to $375,000, with Standard guaranteeing repayment, the additional funds being for the purpose of assisting DJ in completing its pending building contracts; and that under this agreement funds could be drawn upon Bank alone for the payment of DJ's obligations arising out of the construction contracts on which Standard had issued performance bonds. DJ agreed to deposit in a special account with Bank all proceeds received from property owners from whom it held construction contracts secured by Standard, and DJ further agreed to assign any profits resulting from the construction of the church building not bonded by Standard. The funds so deposited were to be used in the first instance to pay DJ's obligations arising under the contracts guaranteed by Standard.
Indictment No. 648 then charged as follows:
1. Between July 1, 1955 and November 30, 1959 Cronin, Renner, Hardware and Vance conspired to cheat and defraud DJ, Standard and Bank by means of Renner, for himself and on behalf of Hardware, making and presenting to DJ for payment false and fraudulent sales invoices which included material, supplies, tools and equipment not sold or delivered to DJ at its construction sites or its yard, and by means of Cronin and Vance causing these invoices to be paid by DJ, Standard and Bank, with the intent on the part of the four defendants to defraud DJ, Standard and Bank.
2. The four defendants further conspired, with intent to cheat and defraud, to obtain money from DJ, Engineering, East Paterson and Parental School by falsely representing to them that Hardware, as a materialman of DJ, was entitled to payment out of monies owed by Engineering, East Paterson and Parental School to DJ for labor and materials in connection with the construction of their respective buildings, knowing that Hardware was not so entitled, or was entitled to lesser sums.
3. Cronin and Vance, with intent to cheat and defraud, conspired to obtain money from Engineering and East Paterson by falsely
representing to them and DJ that O'Brien and Kendall were subcontractors of DJ and therefore entitled to receive monies owed by Engineering and East Paterson to DJ for labor and materials in connection with their construction contracts; whereas Cronin and Vance knew that O'Brien and Kendall were fictitious and not entitled to any monies from Engineering and East Paterson.
The indictment then sets forth 15 overt acts allegedly performed in execution of the conspiracy.
At the close of the State's case the prosecution withdrew the fifth count of indictment No. 650, and it was dismissed. The remaining charges were submitted to the jury, which found Cronin, Hardware and Renner guilty of the respective charges made against them.
Cronin was sentenced to pay fines of $1,000 on indictment No. 648, $1,000 on the first count of No. 650, and $1,000 on each of the two counts of No. 651 -- a total of $4,000. Imposition of sentence was suspended on No. 649, and on all the remaining counts of No. 650. Concurrent penitentiary sentences of six months each were also imposed on No. 648 and the first count of No. 651, but were suspended.
Vance, who had pleaded guilty to two of the indictments, was the State's principal witness against Cronin. We have no doubt that his testimony weighed heavily against Cronin on indictments Nos. 649 and 650, and those parts of No. 648 involving the false sales invoices. And although there was other testimony pointing to Cronin's guilt in connection with the Kendall and O'Brien transactions referred to in indictments Nos. 648 and 651, here, too, it was Vance's testimony which gave the jury the detailed background of those fictitious transactions.
Vance had testified before the grand jury, and his testimony had been stenographically reported. Since he was a key witness, his possible impeachment on the basis of what he had said under oath before the grand jury was of obvious importance to Cronin. Accordingly, at the conclusion of Vance's
direct testimony Cronin's attorney made application for a copy of Vance's grand jury testimony. Before acting on the motion, the trial judge inquired of Vance whether he had seen or used the transcript before testifying, and his answer was "no." There ensued a colloquy between the judge and the prosecuting attorney regarding State v. DiModica, 73 N.J. Super. 1 (App. Div. 1962), then on review before our Supreme Court but not yet decided. The judge proceeded to deny Cronin's motion on the basis of the Appellate Division's decision in that case, stating it had not been demonstrated that there was a particular need for the transcript, and there was no proof that Vance had used the transcript in preparing for his appearance as a witness at the trial. We hold this to have been reversible error.
In State v. Mucci, 25 N.J. 423 (1957), the court found prejudice and reversible error in the trial court's refusal to allow defendant to inspect and use on cross-examination the grand jury testimony of witnesses who had refreshed their recollection by reading and discussing that testimony before testifying at the trial. In State v. Hunt, 25 N.J. 514 (1958), a murder case, a detective testified as to conversations with defendant. He had made notes of those conversations and read them before appearing on the witness stand, but did not testify directly from them during the trial. The trial court's refusal to allow defense counsel to examine the notes and use them in cross-examination of the detective was held reversible error.
Defendant in State v. Moffa, 36 N.J. 219 (1961), affirming 64 N.J. Super. 69 (Law Div. 1960), was accused of suborning a witness to testify falsely before the grand jury. The trial judge granted his motion for pretrial inspection of the balance of that witness' testimony. The State obtained leave to appeal. Citing instances of reversals of convictions for refusal to make grand jury testimony available to a defendant, the Supreme Court pointed out that "it has long been our rule ...