Matthews, Fritz and Botter. The opinion of the court was delivered by Botter, J.A.D. Fritz, J.A.D. (dissenting).
These are consolidated appeals from convictions of defendants Gaines and Powers in a jury trial for the crimes of (a) carrying a firearm in a motor vehicle (N.J.S.A. 2A:151-41) and (b) possession of a silencer (N.J.S.A. 2A:151-14). Both defendants were charged with possession of an H.&R. revolver (first count), a 7.65-mm. Baretta automatic pistol (second count) and the silencer device (fourth count). Defendant Gaines alone was charged with possession of an Iver Johnson revolver (fifth count). Defendants were also charged, in the third count, with altering or obliterating the serial number of the Baretta automatic, but this count was dismissed by the trial judge at the close of the State's case. Defendant Gaines was sentenced to concurrent terms of three to five years in State Prison on each of the four convictions. Defendant Powers was sentenced to concurrent terms of three to five years in State Prison on each of his three convictions. Another defendant, Albert Lee Phillips, was charged with the same crimes in the first four counts of the indictment, but he did not appear for trial. A warrant for his arrest was issued and his case was severed.
On April 10, 1973 defendants Powers and Gaines were in a car driven by codefendant Phillips which was stopped by State Trooper Sinopoli on the New Jersey Turnpike. Beneath a towel on the rear floor of the car the trooper found a loaded .22-caliber H.&R. revolver, a 7.65-mm. Baretta
automatic handgun, with its serial number obliterated, and a silencer in a case. Another loaded revolver was found in the pocket of a jacket worn by Gaines. Gaines had been seated in the right front seat and Powers in the rear. The parties stipulated that the guns were operable and that the device was a silencer within the meaning of the statute.
Gaines testified that the three men met at a tavern in Brooklyn and agreed to leave later that night for a trip to North Carolina, with Gaines intending to continue on to Florida by a commercial airline. The three separated, met again at Gaines' house after midnight, made a stop in the Bronx and continued on to the New Jersey Turnpike. After being stopped by Trooper Sinopoli, Powers, according to Gaines, passed a gun to Gaines and told him to "ditch it." Gaines placed the gun in his pocket. Gaines denied having prior knowledge of the presence of the guns and silencer in the car. Gaines testified that only his overnight bag and a paper bag containing his working shoes and dress shoes were in the trunk of the car. Defendant Gaines had known Phillips for ten years and Powers for two.
After the appeal was filed it was discovered that a transcript of one trial day, October 4, 1973, could not be obtained because the official court s of that date were missing. Therefore, as in State v. Smith , 84 N.J. Super. 452 (App. Div. 1964), certif. den. 43 N.J. 270 (1964), this court remanded the matter to the trial judge for reconstruction of the record of that date. By letter dated May 16, 1974 the trial judge submitted a statement certifying the record of the proceedings on October 4. The State's case had been completed on the previous day, October 3, 1973. On October 4 the judge dismissed the third count, defendant Gaines testified, a character witness testified for Gaines, all parties rested, and the judge denied defendants' motions to dismiss the remaining counts. The procedure employed by the trial judge in establishing the record of those proceedings is as described in his May 16, 1974 letter as follows:
Upon receipt of the Order, each defendant and the Prosecutor were directed to submit a statement of the substance of the proceedings heard on Thursday, October 4, 1973. All counsel exchanged proposed statements. Upon receipt, I reviewed my trial notes with each of the attorneys and all trial notes are substantially the same. The significant points of difference are noted herein. Thereafter, a hearing was held in open court in the presence of the defendants who had an opportunity to contribute their recollections of what was had. After consideration of the statements of the attorneys, the statements of the parties and my own recollection together with the official records I hereby certify the following to be an accurate and complete statement of the proceedings held in this court on Thursday, October 4, 1973. The only significant difference being the phraseology of a certain statement made by Mr. Phillips, a co-defendant, whose trial was severed because he had failed to appear for trial.
During the trial Officer Sinopoli testified on cross-examination that he interrogated codefendant Phillips at the police station in the presence of defendants Gaines and Powers as well as other police officers. He testified on voir dire , on cross-examination by the attorney for Powers, as follows:
Q He did say to you at least these words, that Mr. Powers had nothing, didn't know about the guns? A Right. As we were taking off the handcuffs to be brought to jail, he said, wait a minute, Powers there, he don't know nothing about it, or something like that.
Q Did he say anything about Mr. Gaines? A No. I don't believe he said anything about Mr. Gaines.
THE COURT: Did you ever talk to Mr. Phillips again?
THE WITNESS: Well, right after that I asked him another question. I said, are the guns yours, whose are the guns?
THE COURT: What did he say to that?
THE WITNESS: I don't know. They were in the car. He said they were in the car.
THE COURT: That is what he said, I don't know, they were in the car?
THE WITNESS: I don't know, they were in the car. But, oh. Powers here, I forget how he worded it --
THE COURT: That's it. That's the total conversation you had with Phillips about Powers's involvement?
THE WITNESS: No. I had asked him earlier, I asked him, them all, after advising them of their rights, whose guns, who owns the guns? Nobody said anything. I asked, you know, who owns the
car, who owns this, who owns that, and I got no response until, I guess, a few hours later when --
THE COURT: All right. You may step down and step out.
On cross-examination by Gaines' attorney Officer Sinopoli testified:
Q Did Phillips indicate that the gun which was in the possession of Mr. Gaines, did he indicate that that was his gun and did he describe it to you? A I recall now as a result -- I had found the two guns initially. Then Mr. Phillips said, I asked him if there was anything else in the car when he was in someone else's car ...