Matthews, Seidman and Horn.
Defendants were each found guilty after a 2 1/2-week jury trial of three counts of an Essex County Indictment which charged them each with conspiracy to break and enter and conspiracy to commit larceny (N.J.S.A. 2A:98-1); entering with intent to steal (N.J.S.A. 2A:94-1), and larceny of goods the value of which exceeded $500 (N.J.S.A. 2A:119-2). The trial judge sentenced Bisaccia to an aggregate five to seven years, and Corsaro and Stefanelli to an aggregate seven to nine years on the three charges.
Defendants have filed an elaborate brief on appeal, raising numerous arguments for reversal which we treat seriatim.
A brief statement of the facts is necessary for an understanding of the various arguments raised by defendants on this appeal.
The evidence adduced by the State established that one Cicala, as the result of knowledge obtained by him, informed one Festa that a house in North Newark owned by the Brunos would probably be a good place to burglarize because of the probable existence of items of wealth therein. Cicala stated that he knew Festa to be a professional burglar, and it was his hope that if Festa was successful in burglarizing the Bruno home, he would receive a cut in any proceeds. About two weeks after speaking to Festa, Cicala was informed by Festa that the job could not be successful because of the existence of a burglar alarm in the house. That was the end of Cicala's activities with respect to any burglary, and he never received any proceeds of the burglary that ultimately ensued.
Festa testified as to his conversation with Cicala and corroborated the fact that Cicala had nothing further to do with the conspiracy or entry once he had informed him of the existence of the burglar alarm. However, Festa, after checking the house, contacted Stefanelli and one Sperduto about the Bruno house. Subsequently, the State contends, Corsaro, Bisaccia, Sperduto and Stefanelli, bypassed the burglar alarm and entered the Bruno home and stole various items, the value of which exceeded $500. It was through the cooperation of Festa with the State that the three defendants and Sperduto were apprehended. As indicated, Festa testified at trial and was, for all intents and purposes, the State's "star" witness.
The Admission of the Testimony of Cicala with Respect to the Conspiracy
Defendants first contend that the trial judge improperly permitted the testimony of Cicala to be admitted against them. The trial judge relied on Evid. R. 63(9), which permits a statement to be admitted against a party if that statement was made while the party and the declarant were participating
in a plan to commit a crime and the statement was made in furtherance of that plan. The State denies that it used this rule as the basis for admission. Rather, it contends that the testimony of Cicala was admissible because he was a coconspirator. We have some doubt as to both the relevancy and the competency of the testimony of Cicala considering the proofs of the State as adduced.
Cicala's conversation with Festa with respect to the Bruno house and its contents took place during June 1971. The conversation between Festa and him with respect to the burglar alarm took place not more than two weeks thereafter. It is undisputed that there were no conversations between Cicala and Festa, or Cicala and any of the defendants between June 1971 and August 1972. The indictment under which these defendants were charged alleged that a conspiracy existed among the parties "between on or about the 15th day of July 1972 and on or about the 1st day of September 1972." Although the indictment was later amended to have a commencement date of the conspiracy in June 1971 (an amendment about which we have grave doubt) the proofs adduced by the State do not tie Cicala to the three ...