For reversal and reinstatement -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. Opposed -- None. The opinion of the Court was delivered by Clifford, J. Pashman, J. (concurring and dissenting in part). Pashman, J., concurs in result.
[65 NJ Page 362] This case calls upon the Court to clarify the law in New Jersey with respect to when the State may appeal the grant of a new trial to a criminal defendant. It thus requires reexamination of the standard set forth in dictum in State v. LaFera, 42 N.J. 97, 104 (1964) which would permit a State to seek leave to appeal only if the trial court's grant of a new trial were based on a question arising outside or collateral to the record. Were that standard adhered to, the new trial awarded to defendants here would not be appealable.
We conclude that there is no continuing logic to the distinction made in LaFera between new trials based on errors outside the record on the one hand, and new trials based on errors of law on the record or factual errors on the other. We therefore enlarge the dictum of LaFera and hold that the State may seek leave to appeal from any new trial order in a criminal case.*fn1
Defendants Curtis Sims and Ronald Ward were each indicted and tried before a jury for possession of lottery slips on September 16, 1971, in violation of N.J.S.A. 2A:121-3(b), and for working for a lottery on the same day, contrary to N.J.S.A. 2A:121-3(a). The jury found the defendants not guilty on the possession charge, but guilty of working for a lottery. Believing that evidence which had been introduced as to police surveillances prior to September 16, 1971 was admissible to show the element of knowledge on the part of defendants as to possession, but not as to "working for," the trial judge ordered a new trial since, he reasoned, the remaining evidence was insufficient to support the conviction rendered. In addition, he believed that as a matter of law the verdicts were inconsistent.
Leave to appeal was granted to the State by the Appellate Division which thereafter denied a motion by defendants to dismiss the State's appeal. While the matter was pending unheard in the Appellate Division, this Court granted the State's motion for certification, 63 N.J. 561 (1973), pursuant to R. 2:12-2, at the same time denying another defense motion for dismissal of the appeal.
The facts leading to defendants' convictions are as follows: Suspecting that gambling operations were being carried on out of Minnie's Luncheonette in Newark, the police department conducted surveillances of the premises on five
days in 1971 -- August 28, September 11, September 13, September 14, and September 16, the last date being the date charged in the indictment. The surveillance operation was carried on primarily through binoculars from an abandoned building about 50 yards from the luncheonette. Some observations were also made by a plainclothes man on the street and from a police car parked about 30 yards away. During the five days the officers assigned to the investigation noticed numbers of people who would park their cars near the restaurant, enter, and leave after a few minutes without having anything to eat. Several of them handed small white objects to Sims or Ward. Occasionally the defendants would approach vehicles pulling up to the store and receive white and green objects from the drivers.
On August 28, Detective Arthur Williams entered the luncheonette to have a cup of coffee and overheard Ward tell a woman that they were not "doing business" because "Joe Joe Walters was busted yesterday or the day before * * *." On September 11 he saw Ward write down notations and accept money from several people who entered the store but did not order anything to eat. Among these people was a known lottery writer. On September 13 and 14, during two hour surveillances on each day, Detective Williams observed that Sims was approached by five or six people every fifteen minutes and exchanged currency and white pieces of paper with them.
On September 16, the date charged in the indictment, Detective Michael Minovich observed Sims approach more than a half dozen people on the street and accept from them papers and green objects believed to be money. Ward was seen engaged in a similar transaction with a known lottery writer. Soon thereafter the police raided the luncheonette, finding a package of lottery paraphernalia in the stove and a pad of white slips on the counter. Sims and Ward, on the premises at the time, were arrested. Detective Minovich, however, could not state with certainty that the objects exchanged
that day were lottery bets, nor was Sims seen writing anything on that day. No lottery slips were found in Sims' or Ward's actual possession.
Although the trial judge believed that the evidence was "very thin," he rejected motions by defendants for a judgment of acquittal made both at the conclusion of the State's case and at the end of the trial. He instructed the jury that it could consider the evidence of the prior surveillances, as follows:
Under our law, since [possession of lottery slips] is a crime in which knowledge is an element, that is admissible and relevant to the issue as to whether or not the possession of the slips on September 16th, 1971, was a knowing possession.
Now, I must emphasize and repeat to you that was the sole and the limited purpose for which I permitted that evidence to go in * * *
Now the defendants are also charged in the second count in the indictment with the crime of knowingly working for a lottery * * *
Now before the defendant or defendants can be found guilty on this count, the State must prove these elements:
2. That he knew that the business was a lottery business * * *
His instruction was based on the case of State v. Gattling, 95 N.J. Super. 103 (App. Div. 1967), certif. den., 50 N.J. 91 (1967), which had held admissible evidence of prior surveillances to demonstrate that the defendant had knowledge of the fact that the slips he possessed were lottery slips. Although the trial judge here did not specifically instruct the jury that the prior surveillance evidence was admissible on the "working for" charge, the ...