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State v. Gallicchio

Decided: May 24, 1965.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY GALLICCHIO, JR., DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.

Schettino

[44 NJ Page 543] Defendant, Jerry Gallicchio, Jr., indicted and tried for murder, was found guilty of manslaughter. His direct appeal to this Court followed. R.R. 1:2-1(c).

At approximately 10:00-10:30 P.M., October 7, 1962, Jeffrey Alas, Richard Nayduch, and three others returned to Newark after an automobile trip to New York. Nayduch, desirous of repaying a $15 debt to defendant, had his companions stop at Gallicchio's home. While Nayduch went inside, the others waited in the car.

Gallicchio was home alone. Nayduch entered Gallicchio's apartment, which was on the first floor, and remained inside for about 20 minutes. As he was about to leave, Alas who had decided to go inside, rang the bell. At this point Gallicchio told Nayduch to tell Alas and the others to stay away "because I didn't want no trouble with my wife. When I wasn't home people were coming there, looking for me, and it was annoying to her." Nayduch left the apartment and went down the hall to the front door where he met Alas and gave Alas defendant's message. Alas disregarded defendant's order and entered Gallicchio's apartment. Nayduch followed him in. Gallicchio and Alas had an argument and a fight followed.

Gallicchio testified that Alas came at him with a knife, he pulled Alas' wrist and arm and both of them fell to the floor. After struggling for a couple of minutes he was able to free himself. Thereupon Alas got up, with knife in hand and blood on his body and said: "I will get you for this" and walked out. After Alas departed, Nayduch helped Gallicchio clean the blood-spattered apartment.

The other three occupants of the car saw Alas make his way out of the apartment house and stumble into the car. They took him to Martland Medical Center.

On October 11, 1962 Gallicchio was arrested and charged with assault and battery. While at police headquarters, he was interrogated as to the reason for the knifing. He stated "What would you do if somebody was fooling around with your wife?"

Alas died on October 12, 1962 as a result of hemorrhaging due to a wound from a knife which entered the upper right side of the abdomen, directed downward and backward from

right to left to a depth of five inches, perforating the left lobe of the liver. There were three other knife wounds. Both his right and left arms were cut and he sustained a wound one and one-half inches deep in the back of the left chest.

The charge against Gallicchio was thereafter changed to murder.

I.

Defendant contends that the trial court improperly permitted the use of neutralization. By neutralization is meant the erasure or cancellation of unexpected harmful testimony by a showing -- either by cross-examination or by other witnesses -- that the witness has made a statement in conflict with his present testimony. Where a party calls a witness who, to the surprise of the proponent, testifies in conflict with a previous statement, and to the harm of the proponent's case, the proponent is permitted to utilize the previous statement "to neutralize" the witness's harmful testimony. State v. Cooper, 10 N.J. 532 (1952); State v. Caccavale, 58 N.J. Super. 560 (App. Div. ...


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