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State v. Portock

Decided: November 20, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JACK PORTOCK, ET ALS., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

King, O'Brien and Scalera. The opinion of the court was delivered by King, P.J.A.D.

King

In this case the State appeals by leave granted from a dismissal of certain counts of this multi-count indictment following the prosecutor's opening statements. R. 2:3-1(b)(1). Since we cannot analytically distinguish this case in any way from State v. Lynch, 79 N.J. 327 (1979), we affirm the ruling of the Law Division judge because the Federal and State Double Jeopardy clauses bar any further prosecution. Id. at 340.

This is the procedural background. On May 17, 1984 a state grand jury returned an indictment charging Jack Portock, Peter Bellizzie, Ebb Grover, Anthony Grover, Frank Kenny, Martin Stone, Nancy Desposito, Diane Shedlock, Joseph Brew and Benny Langford with: (1) conspiracy, contrary to N.J.S.A. 2C:5-2 (Count One) and (2) unlawful interception of an oral communication of another, contrary to N.J.S.A. 2A:156A-3(a) and complicity, contrary to N.J.S.A. 2C:2-6 (Count Two). Additionally, Portock was charged with four counts of procurement of persons to unlawfully intercept oral communications, contrary to N.J.S.A. 2A:156A-3(a) (Counts Three through Six).

On May 31, 1985 a judge other than the trial judge denied defendants' motions to dismiss the indictment due to insufficient evidence. A trial jury was sworn on August 5, 1985. That same day the prosecutor and defense counsel for Jack Portock and Anthony Grover gave opening statements before the jury. Counsel for Martin Stone moved to dismiss the indictment against him on the basis that the prosecutor's opening was insufficient. All other defense counsel joined in the motion. Prior to ruling, the trial judge requested the remaining defense counsel to present their opening statements before the jury.

On August 6, 1985 the judge granted defendants' Stone, Shedlock and Grover's motions to dismiss the indictment, granted defendant Portock's motion to dismiss the indictment as to Counts Four and Five, but denied the motion as to the remaining counts, and denied defendants' Kenny and Desposito's motions. He also denied the State's motion for a stay of the trial, but recessed until August 12, 1985.

The State moved for leave to take an interlocutory appeal. This motion was granted on August 9, 1985. In the order granting the State's motion, we stayed the trial proceedings and ordered that the jury not be officially discharged but the trial be adjourned without date. On August 12, 1985 the trial judge advised the jury that the trial would be adjourned without date.

Defendant Kenny moved for leave to appeal the denial of his motion to have the indictment dismissed. That motion was denied on August 9, 1985. Kenny then moved before the New Jersey Supreme Court for leave to appeal. Leave was denied on September 20, 1985. Jack Portock moved for leave to cross-appeal from the trial judge's denial of his motion to dismiss count three of the indictment; leave was denied on September 20, 1985.

This is the factual background from which the dismissals following the opening emanated. On August 5, 1985 when the

Deputy Attorney General made his opening statement to the jury, he told them that the defendants, members of the plain-clothes security unit at the Bally Park Place Hotel/Casino in Atlantic City, had conspired to intercept the oral communications of an occupant of one of the guest rooms and had, in fact, done so. As noted, following the prosecutor's opening, counsel for defendants Portock and Grover opened before the jury. After their openings, counsel for defendant Stone moved to dismiss the indictment, alleging that the prosecutor's opening was deficient as it did not allege willfulness, purpose or intent on Stone's part, nor how he was involved in the conspiracy. All other defense counsel joined in the motion. Before ruling, the trial judge requested the remaining defense counsel to open to the jury.

On August 6, 1985 the trial judge determined that R. 1:7-1(a) simply requires the State in a criminal action to make an opening statement but that there were no requirements as to what the opening should state. Noting that there was no New Jersey criminal case on point, the judge cited a civil case for the proposition that a civil complaint may be dismissed where the opening establishes that no cause of action exists. See Manzi v. Zuckerman, 157 N.J. Super. 63, 66 (App.Div.1978). The judge then determined that there was a requirement that a cause of action be set forth in the State's opening in a criminal case, and that the State's opening must show the judge that there would be proofs which, if believed, could result in a jury having something to consider in determining guilt.

After argument, the judge set forth some possible responses to a deficient opening. He decided against declaring a mistrial because of potential double jeopardy questions. He also decided against denying all the motions on the merits because he felt there were serious deficiencies in the State's opening statement. But he refused to allow the State to reopen to cure the alleged deficiencies. In addition, he considered the "complicated" nature of the offense charged, and the considerable expense of private counsel for the defendants. As noted, he then

dismissed the indictment with respect to defendants Stone, Grover and Shedlock, dismissed two counts against defendant Portock, denied a motion to dismiss count three against defendant Portock, and denied the motions to dismiss the indictment with respect to defendants Desposito and Kenny.

I

In hearing defendants' motion to dismiss the indictments because of deficiencies in the State's opening, the judge undertook the task of defining what the law demands of a prosecutor's opening remarks. After noting that R. 1:7-1(a) merely requires the prosecutor to open in a criminal action and concluding there was no case law on point, the judge decided that there were two requirements for an opening statement in a criminal case. First, the prosecutor must set forth a cause of action and, second, the opening "must be such that the court can see in the statements made that there will be proofs that, if believed, could result in a jury having something at least to consider as to whether he be guilty or not guilty."

The judge was correct that R. 1:7-1(a) is silent as to what constitutes a proper opening. However, there is authority on point. State v. Lynch, 79 N.J. 327 (1979), directly addresses the issue. In Lynch, our Supreme Court held that although the trial judge had abused his discretion in entering a judgment of acquittal on the basis of the State's opening remarks, the State's appeal was barred by double jeopardy principles. In his opening, the prosecutor there had failed to allege a factual component of the crime which the judge wrongly believed was required by statute. In response to the motion to dismiss after his opening, the prosecutor proffered the testimony of a witness whom defendant asserted had not been disclosed by discovery. Rather than allowing the State to reopen, or ordering a brief continuance to permit further discovery, or granting a mistrial, the judge limited the State's proofs to what had been set forth in the prosecutor's opening. He then in anticipation

of a motion to dismiss at the end of the State's case, concluded that the State's available proofs would be insufficient to establish the charges in the indictment and ruled that the defendant would be entitled to an acquittal at the close of the State's case. Rather than proceed with a "charade," the judge then dismissed the indictment and entered a judgment of acquittal. The State appealed. We ruled 2-1 that the State's appeal and any retrial were precluded by the doctrine of double jeopardy. State v. Lynch, 155 N.J. Super. 431 (App.Div.1978). The dissenting judge reasoned that the trial court's judgment was not an acquittal because no evidence had been ...


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