Halpern, Crahay and Ackerman.
Following a four-week trial on a 14-count indictment a jury returned a verdict of guilty against defendant of (1) conspiracy to commit arson (N.J.S.A. 2A:98-1 and 2A:98-2); (2) arson of a building other than a dwelling house (N.J.S.A. 2A:89-2); (3) burning a building with intent to defraud an insurance company (N.J.S.A. 2A:89-3); (4) manslaughter; (5) possession of a switchblade knife (N.J.S.A. 2A:151-62), and (6) giving false information with respect to a crime (N.J.S.A. 2A:148-22.1).*fn1 Two remaining counts were dismissed by the trial judge. Defendant's motion for a new trial was denied.
Defendant was sentenced to New Jersey State Prison for two to three years for conspiracy, five to seven years for arson, five to seven years for defrauding an insurance company, and eight to ten years for manslaughter. These sentences were to be served concurrently. Additionally, defendant was sentenced to two consecutive one to two-year terms for possession of a switchblade and for giving false information to the police. The sentences aggregated 10 to 14 years.
Before setting out defendant's points of appeal and our disposition of them we will detail so much of the factual record we deem to be illuminative.
A fire heavily damaged the Zoo Tavern in Carteret, Middlesex County, on September 28, 1971. Two deaths resulted from it.
On September 7, 1971 -- three weeks before the fire -- defendant, a fire adjuster, was engaged by Louis Tzatzos and his wife Joan, the proprietor of the Zoo, to adjust
another fire which had damaged its basement. On the night of September 27, 1971 defendant, his wife, Joseph D'Orsi and Joanne Sandonato, an indicated coconspirator, dined together. Following dinner defendant drove his wife home and then took D'Orsi and Miss Sandonato to their apartment in Avenel. Miss Sandonato testified that she and D'Orsi entered the apartment at midnight. Approximately 15 minutes later, D'Orsi, who did not own an automobile, left the apartment.
Richard Alexander, a Woodbridge police officer who was conducting a surveillance of D'Orsi's apartment, testified that sometime between 11 and midnight he observed two men drive off in defendant's black Cadillac. Shortly after midnight three witnesses saw D'Orsi and Louis Tzatzos in the Sports Rest Tavern in Carteret. The proprietor, Hank D'Orsi, testified that his brother Joseph D'Orsi and Louis Tzatzos conferred in a back room and departed together between 2:30 and 3:00. At approximately 2:50 a Carteret police officer discovered the fire at the Zoo. Louis Tzatzos was found dead in the men's room and Joseph D'Orsi, his clothes ablaze, was discovered approximately 60 feet from the rear of the structure. D'Orsi died later in the hospital. Later that morning an investigation by the Middlesex County Prosecutor's Office revealed that (1) there was a strong odor of gasoline behind the Zoo's bar; (2) the rear door of the tavern was found some distance from the structure; (3) a neighbor had heard a dull explosion, and (4) a juke box in the tavern had been placed in such a way as to limit access through the front door.
There was testimony that at 3:20 defendant phoned Joanne Sandonato and told her to meet him at her father, John Sandonato's house, and that defendant appeared at the Sandonato residence at 4. His lower back and legs were burned and part of his pants were "welded" to his calf. Defendant exclaimed, "Joe's dead. Lou's dead." John Sandonato then drove defendant to Middlesex General Hospital. On the way defendant asked Sandonato to tell hospital personnel
that he had burned himself accidentally at a barbecue in the Sandonato backyard. Sandonato refused and defendant entered the hospital alone.
Andrea Dite, a nurse on duty in the hospital emergency room, testified that defendant stated he "was putting his car in the garage. Two men grabbed him, put a bag over him, took him away, burned him with something." Defendant, according to Dite, said that the two unknown assailants left him on Route 1 where a passerby stopped and drove him to the hospital. Defendant was removed to the intensive care unit. Andrea Dite retrieved a switchblade knife from his pants pocket after his clothes had been ...