Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[138 NJSuper Page 227] Edgardo Morales and Walter Pitkewicz were indicted by the grand jury of Passaic County for conspiring to violate the lottery laws of this State, in violation of N.J.S.A. 2A:98-1 and 2A:98-2. In separate two-count indictments they were also charged with possessing lottery "papers, documents, slips and memoranda," in violation
of N.J.S.A. 2A:121-3, and with working for a lottery or lottery policy business, in violation of N.J.S.A. 2A:121-3.
A jury found them guilty as charged and both appealed.*fn1
On his appeal, defendant Morales urges a number of grounds for reversal, the first of which, contrary to R. 2:6-2(e), incorporates two points under one heading, namely, that the trial judge erred in denying his motion for a judgment of acquittal and that the verdict of the jury was against the weight of the evidence.
[The court here reviewed the proof and concluded that acquittal was properly denied and that the verdict was not against the weight of the evidence.]
Defendant contends further that the trial judge erred in (1) not allowing his counsel to call Pitkewicz to the witness stand in the presence of the jury; (2) not allowing his counsel to comment on the fact that Pitkewicz would not testify in behalf of Morales, and (3) in not granting a severance so that the two could be tried separately. We perceive no error in any of these respects.
When the trial commenced, but before the selection of the jury, counsel for Morales made known to the court his intention to call the codefendant as a witness, intimating that his testimony would be "exculpatory to Mr. Morales." When Pitkewicz's attorney stated that his client would avail himself of his constitutional right not to incriminate himself, counsel for Morales responded, "If he takes the Fifth Amendment, then the jury is going to see the comparison, because I'm going to follow by putting Mr. Morales on the stand, and he's going to testify, and there's no problem with him testifying." He added that he would ask the court to compel the witness to testify, and that if the court ruled he had no right to call the witness to the stand, he would ask
that a severance be granted Morales. The severance was denied.
Later, outside the presence of the jury, Pitkewicz was called as a witness in behalf of Morales. Except to give his residence, he refused to answer any other questions "[u]nder the Fifth Amendment," and when asked by the trial judge whether he would answer any questions "with respect to your knowledge of Mr. Morales," he said he would not. The trial judge rejected counsel's request that the witness be compelled to answer and he also refused to require Pitkewicz to assert his privilege against self-incrimination before the jury.
We should emphasize at the outset that the conduct of the voir dire here, the purpose of which was to determine whether Pitkewicz's testimony would be self-incriminating, aside from being unproductive, was wholly inappropriate. A defendant who is on trial in a criminal case cannot be compelled to testify "for the State or for a codefendant or even in his own behalf." State v. Edelman , 19 N.J. Super. 350, 357 (App. Div. 1952). See State v. Browning , 19 N.J. 424, 427 (1955). This was not a situation where a witness, other than a defendant on trial, may be required to take the stand before the jury under oath or affirmation, and, when confronted with specific questions, either answer them or demonstrate a basis for not doing so grounded in a claim of self-incrimination. See State v. Jennings , 126 N.J. Super. 70, 78 (App. Div. 1972), certif. den. 60 N.J. 512 (1972).
The issue before the trial judge was not whether, on the facts here present, Morales was entitled to call his codefendant as a witness before the jury -- he clearly was not -- but whether, not being able to do so, his motion for a severance should have been granted. We observe, initially, that the denial of such motion is a matter that is vested in the sound discretion of the trial judge, the exercise of which, ...