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State v. Gelb

Decided: September 25, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RANDY LEE GELB, DEFENDANT-APPELLANT



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

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

Michels

[212 NJSuper Page 583] Tried to a jury, defendant Randy Lee Gelb was convicted of (1) aggravated manslaughter, a crime of the first degree, in violation of N.J.S.A. 2C:11-4a (Count One); (2) aggravated assault, a crime of the second degree, in violation of N.J.S.A. 2C:12-1b(1) (Count Two); (3) criminal mischief, a crime of the third degree, in violation of N.J.S.A. 2C:17-3a(2) (Count Three) and (4) recklessly causing widespread injury or damage, a crime

of the third degree, in violation of N.J.S.A. 2C:17-2b (Count Four). The trial court sentenced defendant to an indeterminate term, not to exceed five years, at the Youth Reception and Correction Center at Yardville for the aggravated manslaughter (Count One) and to three additional indeterminate terms for the other convictions (Counts Two, Three and Four), which terms were to be served concurrently with the sentence imposed for his conviction for aggravated manslaughter. The trial court also imposed penalties totaling $100, payable to the Violent Crimes Compensation Board. Defendant appeals.

Defendant seeks a reversal of his convictions and a new trial on the following grounds set forth in his brief:

I. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT ANY ENCOURAGING COMMENTS UTTERED BY APPELLANT MUST HAVE BEEN MADE PRIOR TO THE IRREVERSIBLE ACCOMPLISHMENT OF THE ACT IN ORDER TO RENDER HIM LIABLE AS AN ACCOMPLICE.

II. THE STATEMENT OF JULY 8, 1982 WAS INVOLUNTARILY COERCED AND TAINTED BY STATEMENTS MADE PRIOR TO THE INVOCATION OF MIRANDA RIGHTS. THEREFORE THE DENIAL OF THE MOTION TO SUPPRESS THAT STATEMENT WAS ERRONEOUS.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2).

However, some further comment is necessary with respect to defendant's claim in Point I, infra, that the trial court committed reversible error by refusing to instruct the jury that if he "performed some act designed to aid, abet or incite the commission of [a] crime subsequent to the actual and irreversible lifting of the switch, it would be impossible for him to have participated in the offenses set forth in the indictment." The thrust of defendant's argument is that he could not aid or abet a completed act, and therefore the jury should have been instructed that "criminal intent, absent active and effective participation with influence over the outcome of the events, is an insufficient basis for [a finding of accomplice] liability." In defendant's view, the absence of such an instruction was erroneous

and denied him a fair trial. We disagree and affirm defendant's convictions.

As a result of a train derailment which occurred in the Borough of Fair Lawn, New Jersey, on July 7, 1982, defendant, together with Peter Wade (Wade) and Peter Benton (Benton), was indicted by the Bergen County Grand Jury and charged with aggravated manslaughter, aggravated assault, criminal mischief and recklessly causing widespread injury or damage to the property of Conrail and the property of A. Zerega and Sons. Wade and Benton subsequently entered into plea agreements with the State. Defendant, however, denied guilt and stood trial.

The proofs at trial established that during the summer of 1982, defendant and a group of his friends were in the habit of "hanging out" along the Conrail railroad tracks which ran behind defendant's house in Fair Lawn. In late June, the group moved the location of their meeting spot to an area near a railroad switch, which was located alongside the tracks. This switch was designed to change the tracks so that a train could be directed from the main line track to an industrial siding track running alongside the A. Zerega and Sons pasta factory. When the handle on this switch was moved, it would activate a red signal light located approximately twenty-five feet from the intersection of the railroad tracks and Morlot Avenue. Facing north, the signal light alerted trains coming from that direction that the switch was opened; however, the signal light was not visible from the switch area.

On Monday evening, July 5, 1982, defendant, Kevin Held (Held), Benton, Wade and George Yannitsadis (Yannitsadis) met at their usual "hang out" near the railroad switch. Held was angry on that night, and, at some point during the evening, he began striking the lock on the switch with a railroad spike in order to break it. After the lock was dislodged, Held moved the switch from its original position. In turn, defendant and Wade also moved the switch. By "testing" the switch in this

manner, the boys ascertained that the switch controlled the tracks and direction in which a train would go.

During the course of this activity, it was mentioned that, when the switch was thrown, an oncoming train would leave the main track and be transferred to the siding track which ran alongside the factory buildings. It was defendant's recollection that during this conversation, on Monday, July 5, 1982, he mentioned to his companions that there was a signal light on the tracks, near the Morlot Avenue intersection, which he believed had "something to do with the switch." Defendant further testified that, during the remainder of the evening, the boys did not have any discussions regarding future plans to throw the switch.

Defendant next returned to the area of the railroad tracks near the switch during the early evening hours on Wednesday, July 7, 1982. He met Held there and they were later joined by Wade, Benton and Yannitsadis. Shortly thereafter, Stuart Shapiro (Shapiro) and David Herstein (Herstein) also joined the group. At approximately 7:40 p.m., defendant, Shapiro and Benton left the area to purchase beer at a local liquor store. Upon their return, the group consumed at least five six-packs of beer in the area around the switch and smoked marijuana.

It was defendant's testimony that he did not go to meet his friends on Wednesday night with any intentions regarding the railroad switch. Furthermore, he did not recall any conversation about throwing the switch during the evening of July 7, 1982. However, Herstein testified that during the evening he heard a conversation between defendant and Benton about the fact that the switch lock had been broken on Monday night. During this conversation, Benton told defendant and Herstein that "they [were] going to switch the tracks."

At approximately 8:40 p.m., defendant and Herstein left the area to go to defendant's house to pick up a stereo tape. Wade recalled that defendant returned fifteen to twenty minutes before the train ...


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