Kolovsky, Matthews and Crahay. Crahay, J.A.D., dissenting.
Defendant was indicted together with one George Kramer by a Mercer County Grand Jury in a three-count indictment charging (1) conspiracy to commit misconduct in office (N.J.S.A. 2A:98-1 and 2); (2) misconduct in office (N.J.S.A. 2A:85-1 and 14); and (3) extortion (N.J.S.A. 2A:105-1 and N.J.S.A. 2A:85-14). The trial commenced on April 20, 1972 and concluded on April 27, 1972. On April 25, 1972, the prosecutor moved to dismiss the charges against Kramer, and for an order compelling Kramer's testimony under our immunity statute. Both motions were granted. A subsequent motion for a mistrial based on these rulings was denied.
The trial thereafter proceeded against defendant alone, with Kramer testifying on behalf of the State. The jury, after deliberation, found defendant guilty of the first and second charges and acquitted him of the third charge -- extortion. Defendant was thereafter sentenced to two concurrent one to three year sentences in State Prison, Trenton, with all but 12 months of the sentences suspended, the court directing that defendant serve a custodial term of 12 months in the Mercer County Work House.
Defendant first argues on appeal that the verdicts were against the weight of the evidence. However, as he subsequently recognized and acknowledged in his reply brief, his argument was based on the erroneous assumption that State v. Donohue, 2 N.J. 381 (1949) still controlled our law applicable to circumstantial evidence. See State v. Mayberry, et al., 52 N.J. 413 (1968), cert. den. 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
Defendant next argues that the severance of his codefendant in mid-trial and the subsequent grant of immunity was so prejudicial that a mistrial should have been declared by the trial judge. It is defendant's theory that the prosecutor knew all along that certain statements given by Kramer would be inadmissible at the trial. We find that the record fails to support the theory of defendant which presupposes that plaintiff unfairly used Kramer in an attempt
to influence the jury. There is no other showing of prejudice. In addition, we note that the trial judge emphasized during his charge that there was no significance to be drawn by the jurors from the dismissal of the charges against Kramer and, further, that the granting of immunity did not lend weight to Kramer's credibility. Compare State v. Provoid, 110 N.J. Super. 547 (App. Div. 1970).
Defendant also contends that he was prejudiced by the failure of the trial judge to have the reading of certain testimony completed before the jurors resumed deliberations. After deliberating for several hours the jury raised two questions:
(1) Did this indictment come from the complaint made by Saperstein?
(2) Did Kramer and Saperstein both agree to the meeting in September?
The trial judge properly termed the answer to the first question immaterial. In answering the second question, the judge properly told the jurors that it would be improper for him to give them his recollection. The foreman then stated:
Your Honor, I feel it is advisable if we can hear the testimony again of the two witnesses.
At this point, the testimony of Saperstein was reread. The physical act of reading was performed by the court reporter who sat in the witness box and read from his notes. No other court reporter was present at the time to take down what he read. During the reading, the jurors' dinner arrived, and at the conclusion of the reading of Saperstein's testimony the jurors were informed by the trial judge that dinner was waiting for them. At that point, the foreman and possibly several of the jurors indicatel to the court that they had heard all that they had wanted to hear. Unfortunately, this colloquy between the foreman and the trial judge took place
while the court reporter was sitting in the witness box, with the result that it was not taken down as part of the record. No objecion was thereafter made by either side.
At the original argument in this case we were led to believe that the jurors were permitted to retire for dinner after the conclusion of the reading of the Saperstein testimony but with the expectation by the parties that the reading of Kramer's testimony would be conducted after dinner. For some reason unexplained on the record, we believed the failure to read Kramer's testimony was overlooked. We noted in our original opinion that "The record does not disclose that any objection was made either before or after the verdict by defendant; nor was the failure to read Kramer's testimony raised as a ground on the motion for a new trial."
After our original opinion and the dissenting opinion of our brother Crahay were filed, we received a letter from Judge Schoch who tried the case below, advising us of the facts surrounding the reading of the testimony, as we have outlined them above. Counsel were provided with copies of Judge Schoch's letter and given the opportunity to present their views thereon in writing. We thereafter permitted reargument of this issue. We have concluded that the facts as set forth in Judge Schoch's letter, and as incorporated in this opinion, accurately set forth what actually occurred during the rereading of the testimony, even accepting as true the statement by defendant's trial counsel with respect to what defendant now urges is a critical aspect of the case, that his counsel's "present recollection * * * is not sufficiently adequate to permit [him] to either affirm or disavow the narrative thereof set forth by Judge Schoch therein."
The rules governing the reading of testimony at the jury's request are set forth in State v. Wolf, 44 N.J. 176, 185-186 (1965). See also, State v. Wilkerson, 60 N.J. 452, 460 (1972). The rule simply stated provides that the grant of such a request is in the discretion of the trial judge, but that the judge should readily accede when the jurors request to hear testimony read, absent some unusual circumstances.
Here, Judge Schoch did accede to the jurors' request. The reading was not completed because the jurors requested that it be terminated, even though all of the testimony originally requested to be read had not been read. We find nothing in Wolf or Wilkerson, above, which requires a trial judge to continue the reading of testimony commenced at the jurors' request after the jurors asked that the reading be terminated, particularly where, as here, defendant offered no objection and did not ask that the reading be continued and thus acquiesced in the jurors' request that it be terminated. Defendant may not fairly now seek to recall his acquiescence in the jurors' request. The failure to read Kramer's testimony to the jurors affords no basis or justification for reversal.
Apposite is what the court said in State v. Macon, 57 N.J. 325, 333-334 (1971):
Defendant's last two arguments, that the prosecuting witness should have been forced to produce his income tax returns from 1966 to 1971 "to show what triggered this whole thing was an investigation by Internal Revenue Service," and that the use of a tape recording during defendant's cross-examination of a conversation of an interview between
defendant and the prosecutor, taped without his knowledge, we find to be without merit. With respect to the first of these arguments, we agree with the State that the Internal Revenue investigation in no manner figured in the prosecution, and that the basis asserted was not stated at trial. As to the second, the use of the tape was proper during cross-examination. Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The wire tapping statute is inapplicable. State v. Vizzini, 115 N.J. Super. 97 (App. Div. 1971).
The judgments of conviction are affirmed.