Motions for hearing on revocation of bail. Fusco, J.s.c.
This is a motion by the State for a hearing pursuant to R. 2:9-4, to revoke bail pending appeal on two defendants who have since been indicted for offenses similar to the subject matter of their original convictions.
Nino Maccioli was found guilty by a jury on April 28, 1969 of conspiracy to violate lottery laws (Ind. 2224-67), along with 18 other codefendants, and of possession of lottery papers (Ind. 2230-67). He was sentenced on June 11, 1969 to a term of one to two years in State Prison on each count, the terms to run concurrently, and was fined $1,000 on each count. He was allowed bail pending appeal in the sum of $5,000. Geraldino Custode was found guilty by the same jury of the same conspiracy indictment and of possession of lottery slips (Ind. 2233-67). He was sentenced on
the same date to the same term as Maccioli. He was also allowed bail pending appeal in the sum of $5,000.
On May 11, 1970 Maccioli pleaded not guilty to one count of bookmaking (Ind. 2590-69), and Custode pleaded not guilty to one count of maintaining a gambling resort (Ind. 2564-69). The State then moved to revoke their bail pending appeal of the 1969 convictions, under R. 2:9-4, which reads, in part, "A judge or court allowing bail may at any time revoke the order admitting to bail."
In yet another case arising from the same 18-defendant 1969 case in which a defendant admitted to bail pending appeal was indicted for a subsequent similar offense, the Supreme Court has ordered that the trial court conduct a hearing at which it must determine whether there is a basis upon which a jury could reasonably find that defendant was guilty of the subsequent alleged offense or offenses. State v. Sarrechia , (Docket M-159, March 2, 1970). This order followed a determination of the trial court pursuant to R. 2:9-4 that defendant's actions "seriously threatened the safety of the community."
At the outset of the hearing the court announced that the hearing should follow the outline suggested in State v. Obstein , 52 N.J. 516 (1968). The hearing should be in camera unless there is objection by defendant; ex parte affidavits by the state are not admissible if there is objection, and defendant has a right to cross-examination and to confrontation of witnesses. The court, however, would not determine guilt or innocence, would not weigh credibility of witnesses and would not resolve conflicts between exculpatory and inculpatory facts. The fact that defendants were subsequently indicted would not be a sufficient basis on which the court could find that the jury reasonably could find the defendants guilty. At 522-524. In addition, the court would not consider the possible legality of any search or arrest warrants or any methods of surveillance, as these would more properly be the subject matter of formal pretrial motions.
This procedure is challenged by defendants on the grounds that it does not allow for the standards of R. 2:9-4 to be met, that it is contrary to federal case law, that the Obstein standards are inapplicable, and that the court does not have proper jurisdiction.
The State argues that compliance with the Supreme Court order in Sarrechia is compatible with the substance of R. 2:9-4, that the procedure is in accord with controlling case law, and that the court does have proper jurisdiction.
It appears that this type of action has never been litigated in this State in a reported case.
Defendants argue that the determination which must be made by the court on an application for bail pending appeal must also govern on a hearing for revocation after a subsequent conviction: that is, there shall be bail unless it appears the appeal is taken on unsubstantial grounds, or for purposes of delay, or that the ...