[137 NJSuper Page 168] This is a motion to dismiss the indictment wherein the question before the court appears to be one of first impression. Simply stated, does due process require the dismissal of an indictment where certain documentary evidence claimed to be essential to the defense was utilized by defendants in a prior civil proceeding in the Superior Court and inexplicably lost while in the custody and possession of that court or the clerk of the Surrogate's Court? Defendants make no allegation of negligence or misconduct on the
part of the prosecutor. A detailed statement of facts is indispensable to the proper resolution of this motion.
In May 1972 "The Matter of the Probate of the Alleged Will of James H. Lewis, James Hamilton Lewis and J. Hamilton Lewis, Deceased," was heard in the Superior Court of Union County, Probate Division. The will had been admitted to probate on May 5, 1971 by the Union County Surrogate, but decedent's son and daughter subsequently filed an order to show cause seeking to have the probate set aside on the ground that the signature on the will was a forgery. Defendant Agnes Lewis, the administratrix of the estate and proponent in the probate proceeding, was also named sole beneficiary. Defendants Constance Cappeto, decedent's sister-in-law, and Atley Cappeto, her son, were the subscribing witnesses to the will.
During the course of the Superior Court action each side presented expert testimony as to the authenticity of the signature, both Cappetos testifying that the will was genuine. Additionally, approximately 15 exhibits were introduced on behalf of the proponent and utilized by her to compare favorably with the questioned signature and to effectively cross-examine objectors' experts. All of these documents, along with the original will, have inexplicably vanished. Exhaustive efforts to locate them were made to no avail.
Approximately two years subsequent to the probate proceeding the present six-count indictment was returned against defendants by the Union County grand jury. Count one charges all defendants with conspiring to commit perjury, to utter forged instruments and to obtain money and property by false pretenses. Count two charges all defendants with attempting to obtain money and property by false pretenses. Count three charges Agnes Lewis and Constance Cappeto with uttering a forged instrument, to wit, a deputy card. Count four charges Agnes Lewis and Constance Cappeto
with uttering a forged instrument, to wit, the purported last will and testament of James H. Lewis. Counts five and six charge Constance and Atley Cappeto with perjury, respectively. The above charges, except for count three concerning the deputy card, are in varying degrees related to the authenticity of the alleged signature of James H. Lewis on the purported will. It is this relationship which forms the nexus between the probate proceeding and this indictment. Defendants now move to dismiss the entire indictment on the aforementioned grounds.
Initially, there was some confusion in attempting to explicitly identify those documents used by the proponent (one of the defendants) and now missing. However, I am satisfied after a review of the transcript of the probate matter and the testimony received on this motion that the following documents admitted into evidence were lost and cannot be located:
Six checks designated 691 (P-8), 704 (P-9), 732 (P-10), 924 (P-11), 930 (P-12), and 745 (P-18)
Letter dated April 1, 1971 (P-4)
Letter dated February 12, 1971 (P-5)
Release of mortgage (P-6)
Original contract of sale (P-13)
Photographic collages (P-14 to 17).
The principle that a conviction violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution where it has been obtained through suppression of evidence favorable to the accused has been announced in a long line of Supreme Court decisions, the most familiar of which is Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2 d 215 (1963). Defendants properly cite Brady for the proposition that it is the duty of the State to disclose ...