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State v. Costa

Decided: March 5, 1970.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ALBERT W. COSTA AND PHILIP E. SOLIMENE, DEFENDANTS



Crane, A.j.s.c.

Crane

Defendants have been indicted for breaking and entering the dwelling house of one Paul Whitehead and stealing therefrom $34,751.75 in assorted coins, four pieces of luggage and two pieces of jewelry. Defense counsel have moved to dismiss the indictment upon the ground that it was returned without adequate evidence having been presented to the grand jury.

The transcript of the testimony before the grand jury was made available to defense counsel as the result of pretrial discovery proceedings. (Cf. State v. Graziani , 60 N.J. Super. 1 (App. Div. 1959), where such testimony was not available in accordance with the rules then prevailing.) It reveals that only one witness testified before that body, namely Lieutenant Vincent J. Mangiafico of the Hawthorne Police Department. A brief extract from his testimony will demonstrate its nature.

Q. Lt. Mangiafico, you're a member of the Hawthorne Police Department?

A. Yes, sir, I am.

Q. And did you participate in the investigation there leading to these charges against Albert W. Costa and Philip E. Solimene?

A. Yes, sir.

Q. Will you give us the benefit of the police investigation in this matter?

A. Yes. The day of the offense was on a Friday, February 28, 1969 at approximately 3:58 P.M. The offense took place at Mr. and Mrs. Paul Whitehead of 18 Wagner Place of Hawthorne, New Jersey. Upon arriving at the scene there I spoke to the victim, Mr. Whitehead, and made an observation of the entire premises. Three or four rooms had been ransacked. And from the preliminary investigation, Mr. Whitehead stated that his entire coin collection had been taken. Also, he also took inventory that there were several pieces of luggage missing and several pieces of jewelry. His inventory was

not complete for several days. However, he did present an inventory which amounted to the market value of these rare coins which were gold, silver and other coins were $34,751.75. The face value of the coins were $1,976.24.

As we proceeded with the investigation at that time, we started to canvass the neighborhood and we spoke to one witness, a Betty Mitchell of 5 Midland Avenue and she stated to us that she did observe a white male, dark hair, wearing black gloves standing at the rear door of the Whitehead residence at approximately 1 P.M. that day. She couldn't give us any other description. However, we did check around the block from Mr. Whitehead. We spoke to a Jane -- Joan Iseman of 22 Wagner Place. She stated she was on her way home from school and she did pass the Whitehead house at approximately 2:45. There she saw standing at the rear door what she described as a white male, approximately 25 to 30 years old, 5' 9", stock-built and she described him as having a thick neck or like an athlete or a fullback. He had red hair. He had a three length quarter coat [sic] and he had black gloves. She stated that she could identify the subject if she saw him again. This was all on the initial date.

On March 14, Miss Marlene Brockheiser of 334 Diamond Bridge Avenue came forth on her own. She came to Headquarters. She thought it was important that she give testimony to what she saw on that particular day. She stated she was in her backyard attending to her child when she observed a white male about 30 years old, 5'8", about a hundred sixty-five pounds, black hair, wearing a sport jacket. She stated the subject was carrying two green suitcases, which were described as the type suitcases taken from the Whitehead's house. In her own terminology she said appeared to be very heavy and she felt sorry for the man, because his face was burned. However, she stated she can identify the subject. At 5:30 that same day on Tuesday I contacted Patrolman Jack Lombardi of the Pompton Lake Police Department. He agreed to come down and make a composite of each one of the suspects. Sketches were made as a result of ...


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