Matthews, Seidman and Horn. The opinion of the court was delivered by Horn, J.A.D.
Defendant Peter LiButti appeals his conviction of conspiracy (N.J.S.A. 2A:98-1 and 2) and arson (N.J.S.A. 2A:89-2) following a trial before a jury. A codefendant, August Napolitano, was acquitted on all counts.
On May 16, 1974 the Essex County grand jury indicted defendant along with Frank Basto and Robert Martin, charging that between July 7 and August 10, 1972 in the City of Newark (Essex County) and the City of Hoboken (Hudson County) said parties conspired among themselves and Gerard Charles Festa (unindicted) to burn a building at 301 Jackson Street, Hoboken, New Jersey. A second count charged the same defendants with having committed arson by burning said building. Basto pled guilty to the indictment. Charges against Martin were dismissed as part of a plea agreement involving other charges against him.
On May 1, 1975 an Essex County grand jury returned an indictment charging August Napolitano with being a conspirator in the same conspiracy related in the first indictment naming LiButti, with committing the same arson and in addition with defrauding insurance companies. On May 8, 1975 the indictments were consolidated for trial. As stated, Napolitano was acquitted of all charges contained in the indictment pertaining to him. LiButti was convicted of the conspiracy and arson.
Appellant cites three alleged errors: (1) the trial judge erred in failing to grant a change of venue to Hudson County; (2) he erred in denying the motion to disqualify himself, and (3) the verdict was against the weight of the evidence and a result of passion, mistake, partiality, prejudice and compromise. Under (2) defendant argues that during the trial the judge made statements and rulings which prejudiced defendant and resulted in an unfair trial. In addition, he permitted the prosecuting attorney, over objection, to perform a demonstration during summation which was not alone improper but also highly prejudicial
and in violation of defendant's constitutional right to confrontation and to cross-examination. We agree and reverse.
In view of our determination on this point, although we need not consider any of the other points raised, we will only add that we find no persuasive basis to hold that the judge should have disqualified himself. We will comment hereinafter as to the venue.
Festa, a witness for the State, had testified as to how the arson was perpetrated -- that the several parties charged with the crimes poured gasoline, lacquer and paint thinner out of ten five-gallon containers all over the interior of the liquor store which was set on fire, and that all containers were the same size and shape. On cross-examination by LiButti's attorney a plastic container (later introduced in evidence by him as an exhibit) was identified by Festa as appearing to be the same as those used except that the one identified appeared to be more rectangular. He then demonstrated how the gasoline was poured from the containers.
A state expert in the investigation of suspicious fires testified that no plastic containers or remnants of those which had been used were ever found. Later defendants presented an expert who testified in their defense for the purpose of showing the unlikelihood of defendants having poured the flammable liquids under the circumstances charged by the State. This was sought to be achieved by showing the time it would take to pour the contents of each container as described and demonstrated by Festa. The expert opined:
They would never have lived to succeed to put all that around because in the process of applying it, it takes you a minimum of three minutes to pour and empty that size of container. I have them and used them. It takes you, sloshing it around five to ten minutes to do it because you're only letting it go out on the forward end of the throw and the rest of the time you're not spilling it.
The State produced no expert or other person to directly counter the testimony of defendants' expert (Von Ludwig) on this point. Instead, during his summation ...