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State v. Gallicchio

Decided: March 18, 1968.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICHOLAS GALLICCHIO, DEFENDANT-APPELLANT



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

Schettino

[51 NJ Page 315] Defendant appeals as of right under former R.R. 1:2-1(c) from a conviction of second degree murder and a sentence of 25-30 years. Defendant was indicted

under the short-form murder indictment charging him with killing a probationary policeman on October 16, 1965.

Defendant contends that there was error at various stages of the trial and that these errors, either singly or cumulatively, were prejudicial. State v. Orecchio, 16 N.J. 125 (1954). He therefore seeks reversal of his conviction and a new trial. His "defense" is alibi, i.e., that he was not at the scene of the shooting at the time it took place.

The facts are as follows. About 12:00 noon on October 16, 1965, the decedent was a passenger in a car driven by a friend, Geramy Spampinato. While driving along Tuxedo Parkway in Newark, they noticed a man standing beside a white Valiant automobile. At the next intersection, while they were stopped, the same white car came up behind them; the driver stopped quickly and the brakes squealed. At a succeeding intersection, the Valiant was still behind them and, at a third intersection, the Valiant bumped Spampinato's car while it was halted for a red light.

The decedent got out of the car and directed the driver of the Valiant to back up. The driver then pulled back to the side of the road. Spampinato turned the corner to find a parking space. Within a minute or two he heard a noise like a shot, ran back to the corner, and saw the Valiant speed off and his friend fall. Spampinato testified that he recognized the car as the Valiant which they had passed shortly before; the driver was the defendant, the man who had been standing beside it. Other lay witnesses testified that they saw a white Valiant being driven by defendant about that time. Two policemen also testified that they had seen a white Valiant in areas nearby the shooting locale; each separately saw a white Valiant and each identified defendant as the driver.

Subsequent to the shooting, defendant was observed in the Reservoir Tavern; a white Valiant was parked across the street from the tavern. Police searched the tavern premises, and a gun was found in the men's room. (Defendant contends that the first search of the men's room revealed no

gun). Later ballistic tests proved this to be the murder weapon.

An uncle of the defendant was a member of the Newark Police Department. In testifying for the State he stated that he had participated in a search of the general area after the shooting. He noticed a white Valiant outside the Reservoir Tavern and saw his nephew, the defendant, inside the tavern. He noted that the description of the slayer generally fitted defendant.

The uncle went to police headquarters and, thereafter, he and another policeman, Detective Paul Whitehead, were directed to pick up defendant. They located him at another bar, arrested him, and drove him to police headquarters. When they arrived in front of the headquarters building, Detective Whitehead noticed defendant throw something out the car window. The uncle got out of the car and picked up the object -- a set of car keys which fitted the Valiant.

As stated above, defendant's case consisted of alibi. Although defendant did not testify, he produced witnesses who testified that he was, at the time of the crime, elsewhere in the City of Newark. Moreover, he contended both that the description of the murderer given by the witnesses did not fit him, and that over-zealous police activity had produced erroneous identifications.

I

Defendant contends that the trial court erred when it denied a pretrial motion to suppress the use of defendant's prior criminal conviction. (He had been convicted and sentenced to a jail term in 1964 on a charge of atrocious assault and battery). He states that the denial of the motion impelled him not to take the stand.

Defendant submits that because this conviction was for a somewhat similar crime of violence it should have been suppressed. The claim is that the use of the prior conviction would have created a capacity for prejudice far ...


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