[120 NJSuper Page 178] The four defendants named above were charged with conspiracy to obtain money under false pretenses and the defendants Yormark and Perwin in addition were charged with obtaining money by false pretenses. After a protracted trial the defendants, on January 8, 1971, were found guilty of the various charges by a jury and thereafter each of the defendants was sentenced to a custodial term in the County Penitentiary and fined.
Following the entry of judgment the defendants appealed to the Appellate Division of the Superior Court which affirmed the various convictions.
Three of said defendants filed a petition for certification to the New Jersey Supreme Court which denied the same.
On February 2, 1972 the defendants applied for a stay of sentence to permit them to apply to the Supreme Court of the United States. This stay was granted until March 20, 1972. On March 6, 1972 an application for a stay of sentence was made to said Court which application was denied on March 15, 1972.
On March 17, 1972 a motion was made to this court for a new trial on the ground of newly discovered evidence alleging that the verdict of the jury had been improperly influenced as set forth in an affidavit attached to the notice of motion.
Thereafter this court took testimony on many days and heard the arguments of counsel. Counsel have also submitted briefs which have been considered.
The defendants herein have presented evidence from which this court concludes that after all parties had announced to the court they rested and during the summation an overnight recess was taken. The next morning one of the jurors conferred with the trial judge and advised him that an attempt had been made to have the wife of said juror intercede with said juror on behalf of one of the defendants. Thereafter said juror was interrogated in open court, outside the presence of the other jurors. The juror stated he would not be prejudiced thereby. The defendants moved to dismiss the juror. The trial judge denied said motions and permitted the juror to remain as a member of said jury but admonished him not to disclose the alleged incident to the remaining jury members. After the completion of the summations and charge of the court a jury of 12 was selected pursuant to R. 1:8-2(c) and the juror in question was chosen as one of the 12 to decide the issues in said case.
On this motion the defendants contend that during the deliberations of said jury the juror in direct violation of the court's admonition disclosed to some or all of the other jurors that an attempt had been made to influence him. They argue that this misconduct on the part of the juror is capable of tainting the verdict and that said verdict should be set aside. In support of this contention the defendants cite as authority several decisions of this State as well as the federal courts and the Supreme Court of the United States. Among these decisions are State v. Kociolek , 20 N.J. 92 (1955); State v. Levitt , 36 N.J. 266 (1961); State v. La Fera , 42 N.J. 97 (1964); Remmer v. United States , 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954); Stone v. United States , 113 F.2d 70 (6 Cir. 1970); United States v. Rakes , 74 F. Supp. 645 (E.D. Va. 1947).
The State, in opposing said motion, does not deny that the alleged misconduct of the juror might have improperly influenced his fellow jurors but argues that the alleged misconduct of the juror was not only improperly instigated by the alleged misconduct of the defendants but was thereafter "discovered" by the continued allegedly improper conduct of the defendants. The State argues that the defendants violated a rule promulgated by the Supreme Court of New Jersey and for that reason no evidence of taint, if it existed, should be permitted to be used by such a defendant to attain that which he would have attained if his first alleged act of misconduct had been successful.
R. 1:16 of the Rules of General Application entitled Miscellaneous Limitations on Attorneys and Parties reads in section 1:
Except by leave of court granted upon good cause shown, no attorney or party shall himself or through any investigator or other person acting for him interview, examine or question any grand or petit juror with respect to ...