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State v. Kropke

Decided: March 30, 1973.

STATE OF NEW JERSEY, PLAINTIFF,
v.
FRED J. KROPKE, ANNA M. FLYNN, MARIE C. BAUCH, DAVID STRAUS, FLORENCE DELANEY, FRANK A. CASADONTE, BERNHARD MILLER, ESTHER GOTTESMAN, RAYMOND F. GABRIEL, CELESTE A. SMITH, ALFRED E. DWORZANSKI, JOHN PERRY AND JOSEPH HAYES, DEFENDANTS



Botter, J.s.c.

Botter

[123 NJSuper Page 414] This is a motion by defendant Esther Gottesman, pursuant to R. 3:15-2(b), to sever her trial from that of codefendants named in the same indictment. Her contention of improper joinder with codefendants is governed

by R. 3:7-7. She also contends that such joinder has a potential for undue prejudice. See R. 3:15-2.

Count 10 of a 12-count indictment charges that defendant, between June 1970 and March 1971, knowingly and wilfully obtained over $2,000 from the County of Hudson to which she was not entitled because she rendered no services to the county "sufficient to entitle" her to said monies. Count 10 also charges that Fred J. Kropke, while holding the position of chief of the Hudson County Police Department, did obtain and did counsel, aid and assist Esther Gottesman in obtaining said monies, contrary to N.J.S.A. 2A:135-3 and N.J.S.A. 2A:85-14. Each count of the indictment charges the same offenses with respect to 11 other defendants, and all charges are the same except for the dates and dollar amounts.

Based upon grand jury minutes, the State asserts that all defendants were listed as employees of the Hudson County Police Department and were on payroll records certified by defendant Kropke. The State contends that department records list three defendants as part-time employees and the remaining nine as full-time employees. Defendants held various Civil Service titles, such as traffic safety coordinator, building service worker, garage attendant, etc. Defendant Gottesman was listed as a clerk. The State contends that seven of the defendants, including Gottesman, held "no-show" jobs, in that they performed no services for the Hudson County Police Department. The State will seek to prove that the remaining defendants performed minimal services for the department, not commensurate with the salary received.

Allegedly, each defendant signed county personnel application forms (described as "CS-6" forms), and defendant Kropke countersigned such forms. These were filed with the appropriate officials, so that the county treasurer's office did in fact issue county payroll checks every two weeks to the defendants during various periods of time. Testimony before the grand jury indicates that while some defendants picked

up their pay checks personally, others received theirs either by mail or from one of Kropke's assistants or from Kropke himself.

The State has made no showing on this motion, after being given the opportunity, that there will be any proof of conspiracy or collaboration between defendant Gottesman and any other codefendant, except Kropke. From statements of her attorney, it appears that Mrs. Gottesman's husband had performed services for the Hudson County Police Department for many years before his death. However, there has been no showing that Mrs. Gottesman knew any of the other defendants, other than Kropke, or was aware that they were receiving money from the county.

R. 3:7-7 provides as follows:

Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. * * * Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

This rule has not been interpreted in any reported decision in this State in a case comparable to the one at hand. In State v. Manny , 26 N.J. 362 (1958), defendants were separately indicted in connection with three transactions, each involving extortion of money from bidders on three municipal contracts. The court held that even though the separate indictments did not charge joint participation, they could still be consolidated for trial where the bills of particulars alleged concerted action in the commission of the crimes. The court noted that the "identity of the acts or transactions" may appear from a comparison of the charges in the ...


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