Decided: December 22, 1980.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT FARLOW, ALSO REFERRED TO AS ROBERT F. FARLOW, DEFENDANT-APPELLANT
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Bischoff, Milmed and Francis. The opinion of the court was delivered by Milmed, J.A.D.
[176 NJSuper Page 549]
Tried to a jury, defendant was found guilty of murder in the first degree, while armed, and possession of a revolver in violation of N.J.S.A. 2A:151-41(a). His motion for a judgment of acquittal, or, in the alternative, for a new trial, was denied. On the conviction for murder in the first degree he was sentenced to the State Prison for life. On the conviction for being armed at the time of the murder he was sentenced to the same institution for a consecutive term of nine to ten years. And, on the conviction for possession of a revolver without the requisite permit he was sentenced to the same institution for a concurrent term of six to seven years. This appeal followed.
Defendant's contentions on the appeal, as set forth in the brief submitted on his behalf, are the following:
POINT I The trial court erred in denying defendant's motion to dismiss the indictment on jurisdictional grounds.
POINT II The trial court erred in refusing to enter an acquittal as to first-degree murder at the close of the State's case.
POINT III The trial court erred in failing to exclude defendant's prior conviction from the evidence (not raised below) and in refusing to permit explanation of the nature and circumstances of the prior offense.
POINT IV The comments of the prosecutor on summation were both prejudicial and outside the evidence, and denied defendant a fair trial.
POINT V The imposition of consecutive sentences was improper.
We have considered these contentions and the arguments advanced in support of them in our review of the record submitted on the appeal. We find the issues raised by defendant to be clearly without merit. R. 2:11-3(e)(2). His motion for a judgment of acquittal, or, in the alternative, for a new trial, was properly denied. We add the following observations regarding defendant's pre-trial motion to dismiss the first two counts of the indictment, viz. , the counts charging him with: (1) murder, and (2) while armed.
The indictment (# 1721-75) which was returned by a Camden County Grand Jury charged in the first count that:
On or about the 31st day of May, 1976 in the City of Gloucester in the County of Camden aforesaid, and within the jurisdiction of this Court, ROBERT F.
[176 NJSuper Page 550]
FARLOW did unlawfully, feloniously and with malice aforethought, kill and murder Anthony Mele contrary to the provisions of the form of the Statute in such case made and provided, and against the peace of this State, the Government and dignity of the same.
The second count, as amended, charged defendant with being armed with a revolver at the time (N.J.S.A. 2A:151-5).
In support of defendant's motion to dismiss these two counts, counsel argued that it would be demonstrated that: defendant shot and wounded the victim, Anthony Mele, in Philadelphia at about 9 p.m. on the night of May 31, 1976; he transported Mele "to the location in Gloucester City, where the body was found"; at about 10:30 p.m. on May 31, 1976, as he was driving his vehicle back towards Philadelphia, he was involved in an automobile accident on the New Jersey side of the Walt Whitman Bridge; "the police were called to the scene," defendant was arrested, and a weapon was found in his vehicle; the victim, Mele, "was taken to the hospital in New Jersey, where he was treated and he expired at the hospital sometime in the early morning hours of the following day, June 1, 1976"; and "[t]hat was in Camden County." This description of the events was stipulated to by the State "solely for the purpose of [the] motion" to dismiss the indictment.
The trial judge denied the motion primarily on the authority of Rule 3:14-1(d) and State v. Lang , 108 N.J.L. 98 (E. & A. 1931). We agree with that ruling. In Lang , Justice Parker, speaking for a unanimous Court of Errors and Appeals, observed, in essence, that under Section 60 of the Criminal Procedure act then in effect (Comp.Stat., pp. 1839-1840), if the victim died in this State of a fatal blow inflicted in New York the assailants could properly be indicted and tried for the murder here, in the county where the death occurred. He noted that
An offense shall be prosecuted in the county in which it was committed, except that
(d) Whenever a person dies within the jurisdiction of this State as a result of an offense committed outside the jurisdiction of this State, or dies outside the jurisdiction of this State as a result of an offense committed within the jurisdiction of this State, the prosecution shall be had in the county in which the death occurred or the offense was committed.
It is accordingly apparent that the pertinent provisions of Section 60 of the former Criminal Procedure act, relied on by the Court in State v. Lang, supra , have been revived with full force by the Supreme Court, pursuant to its constitutional rule-making authority, in Rule 3:14-1(d). The Rule has no less impact or vitality than its predecessor statute, viz. , Section 60 of the Criminal Procedure act (Comp.Stat., pp. 1839-1840) as revised in R.S. 2:184-3.*fn2 We accordingly find no relevance whatever in defendant's suggestion that "the statutory underpinnings of State v. Lang did not obtain as of May 31, 1976, nor had they since 1951."
Defendant's reliance on State v. McDowney , 49 N.J. 471 (1967) is misplaced.*fn3 There, the actual site of the victim's death
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was not determined. However, since "[a]ffidavits introduced by the State placed both the body and the bloody car in New Jersey," (at 475) the dismissal of the indictment by the Law Division was held to be error, the Supreme Court noting that "[s]uch circumstantial evidence as the presence of the body within the State has been held sufficient to allow the drawing of an inference that the crime was committed at that place." Id. Here, the result of the shooting and wounding of the victim, i.e. , the ultimate death of Mele, an essential element of the crime of murder charged in the indictment, unquestionably occurred in this State. Thus, the indictment, which properly alleged that the killing occurred in Gloucester City in Camden County, was clearly sufficient on its face. State v. McDowney, supra , 49 N.J. at 474. Defendant's motion to dismiss Counts 1 and 2 of that indictment was properly denied.
The judgment of conviction and sentence under review are affirmed.