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State v. McKiver

Decided: March 25, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH MCKIVER, A/K/A DAVID RAHIM, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Hudson County.

Antell, J. H. Coleman and Simpson. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

After a trial by jury defendant was convicted of attempted theft by extortion, N.J.S.A. 2C:20-5 and 2C:5-1. He was sentenced to a term of twelve years in New Jersey State Prison and now appeals.

On the afternoon of August 20, 1980 the driver of another vehicle signalled Edward Frielinghaus to stop his car and then approached Frielinghaus on foot. Frielinghaus rolled down his window and the stranger demanded payment of $10,000 for jewelry he said he had delivered to Frielinghaus. When Frielinghaus answered that he knew nothing of this, the man said he had a gun which he partially displayed and again warned Frielinghaus he would have to pay $10,000.

Frielinghaus then drove on to his yacht club in South Kearny, arriving at about 5:00 p.m. He worked on the pump of his boat until around 11:00 p.m. when he was visited by another stranger. The intruder announced that unless the $10,000 was paid he would kill Frielinghaus, his daughter and three grandchildren. In one hand he carried a white envelope initialed "J.D.," which he referred to as a "contract"; in the other, he held a gun. Frielinghaus was told to meet his visitor the following day at Stegment Street and Ocean Avenue in Jersey City at 2:00 p.m. with the money.

Frielinghaus reported the incidents to the police. Pursuant to an arrangement, he appeared at the designated time and place while the police took up a surveillance in the immediate area. At 2:00 p.m. a third person whom Frielinghaus had not seen previously, defendant herein, arrived. He knocked on Frielinghaus' car window and entered the vehicle. Frielinghaus described the encounter as follows:

Well, he showed me this white envelope again. This fellow did. I never saw him before, but he showed me this envelope. We have the contract. Do you have the $10,000? I said to him no, I don't have no $10,000. He said well, we have to go through with the contract. He was getting out of the car and that is when the detectives grabbed him.

The white envelope bearing the initials J.D. was taken from defendant at the scene and was positively identified by Frielinghaus as the one shown to him and described as a contract at the yacht club the previous night.

We first consider defendant's contention that there was insufficient independent evidence of a conspiracy between defendant and Frielinghaus' first two visitors to authorize introduction of the latter's out-of-court declarations. Principal reliance is placed upon Evid.R. 63 which provides:

Evidence of a statement offered to prove the truth of the matter stated which is made other than by a witness while testifying at the hearing is hearsay evidence and is inadmissible except as provided in Rules 63(1) through 63(32).

The following exception appears in Evid.R. 63(9):

A statement which would be admissible if made by the declarant at the hearing is admissible against a party if . . . (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil ...


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