On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Fritz, Bischoff and Morgan. Morgan, J.A.D. (concurring).
[169 NJSuper Page 526] Defendant was charged in eight indictments with a variety of crimes encompassing receiving stolen property (N.J.S.A. 2A:139-1), breaking and entering with intent to steal (N.J.S.A. 2A:94-1), larceny (N.J.S.A. 2A:119-2), transferring firearms without being licensed (N.J.S.A. 2A:151-32) and possession of a firearm after conviction of a (particular) crime (N.J.S.A. 2A:151-8). It would serve no purpose here to detail at length the complex procedural history of these indictments. Suffice it to say that five of the indictments and certain counts of the other indictments were dismissed for one reason or another and
they are not a matter of concern here. Our attention is centered on the trials, nonjury and jury, of certain counts of the remaining three indictments. These trials were four in number, one indictment having been bifurcated. Defendant was convicted in each, appealed from these convictions and the four appeals have been consolidated. They are before us now.
Defendant was first tried in May 1976 on counts 11 and 12 of Indictment 292-75 charging him with illegally breaking and entering the house of one Lillian Phifer and stealing property of the value of $7,120 therefrom. A jury found him guilty on both counts. He was sentenced to concurrent terms of five to seven years in State Prison on each count.
He was next brought to trial in October 1976 on Indictment 291-75. All counts except 7 and 12 were dismissed. These counts, which originally charged receiving stolen goods of a value over $200 under N.J.S.A. 2A:139-1, were downgraded to charges of receiving under the value of $200, in violation of N.J.S.A. 2A:170-41.1. A bench trial followed. Defendant was convicted, sentenced to six months in the Cumberland County Jail consecutive to sentences then being served, and fined $500, the two counts being said to "merge for purpose of sentence."
Indictment 815-75 charged three different crimes in nine counts. Counts 1, 4, 6 and 8 charged transfer of a firearm without a license. Count 3 charged receiving stolen goods. Counts 2, 5, 7 and 9 charged possession of a firearm by one convicted of one of the crimes enumerated in N.J.S.A. 2A:151-5 (N.J.S.A. 2A:151-8). In a trial commencing in late November 1976 defendant was tried on Counts 1, 3, 4, 6 and 8. A jury found him guilty on all the illegal transfer counts but not guilty of receiving. Ultimately he was sentenced to one to three years in State Prison on each of the four counts, the terms to run consecutively to each other and consecutively to any term defendant was then serving.
Trial on the remaining counts of Indictment 815-75, all four of which charged possession of a firearm by one convicted
of a crime enumerated in N.J.S.A. 2A:151-5, commenced before a jury after the convictions on the other counts of the indictment as above. Defendant was convicted on all four counts. He was sentenced on each count to consecutive one- to three-year State prison terms. These were also made consecutive to any other sentences being served.
On this appeal, defendant urges:
POINT I The evidence presented to the Grand Jury was
insufficient to support an indictment, therefore
the convictions obtained must be overturned.
POINT II The court committed error in denying the mo-
tion to dismiss Indictment No. 291-75.
POINT III The introduction of evidence concerning untried
charges was error in that the prejudicial effect
far outweighed any possible probative value as
to credibility, and generally, untried ...