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State v. Barone

Decided: December 8, 1976.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RALPH BARONE & SONS, A NEW JERSEY CORPORATION, JOSEPH R. DELUCA, MICHAEL LAMORGESE & SON, INC., A NEW JERSEY CORPORATION; MICHAEL LAMORGESE, JR., MILLINGTON NURSERIES, INC., A NEW JERSEY CORPORATION, IRVING BURACK, DEFENDANTS-RESPONDENTS. STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, V. RALPH BARONE & SONS, A NEW JERSEY CORPORATION, JOSEPH R. DELUCA, ALISON CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, ARNOLD CRISCITIELLO, DEFENDANTS-RESPONDENTS



Carton, Kole and Larner. The opinion of the court was delivered by Kole, J.A.D.

Kole

[146 NJSuper Page 3] The trial judge struck and dismissed counts IV, VIII and XII of Indictment No. 875-73 and count IV of Indictment No. 876-73. As to both indictments it also struck paragraphs alleging certain criminal acts as part of conspiracies that were charged: Indictment No. 875-73, paragraphs D and E of counts I and IX and C and D of count V; and Indictment No. 876-73, paragraphs D

and E of count I. The judge further refused to dismiss the indictments on constitutional grounds.

The State was granted leave to appeal. Defendants' motions for such leave were denied.

The stricken substantive charges allege substantially that defendants did "knowingly and unlawfully utter as true a false bid or bids and affidavits of non-collusion * * * to the City of Trenton" pertaining to named public projects involving the improvement of certain areas in the city. It further alleges that they did so with intent to defraud, in violation of N.J.S.A. 2A:109-1(b) and 2A:85-14.*fn1

The trial judge held that N.J.S.A. 2A:109-1(b) related to forged documents and not to documents containing false or fraudulent statements. Since there was no question but that the bids and affidavits were genuine and not forgeries, the counts were stricken.

We agree with the judge's determination, and hence affirm as to the striking and dismissal of the substantive counts in each indictment.

N.J.S.A. 2A:109-1 provides:

Any person who, with intent to prejudice, injure, damage or defraud any other person:

a. Falsely makes, alters, forges or counterfeits any record or other authentic matter of a public nature or character, or any printed or written instrument or indorsement, acceptance, transfer or assignment thereof; or

b. Utters or publishes as true, any such false, altered, forged or counterfeited matter, knowing the same to be false, altered, forged or counterfeited --

Is guilty of a high misdemeanor.

The construction thus given to the statute accords with existing law. See State v. Berko , 75 N.J. Super. 283, 290 (App. Div. 1962); State v. Ruggiero , 43 N.J. Super. 156, 159 (App. Div. 1956), aff'd 25 N.J. 292 (1957); United States ...


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