*1 JERSEY, AND PLAINTIFF-APPELLANT STATE OF NEW BORATTO, CROSS-RESPONDENT, DEFEND JOSEPH SILVERMAN, DE ANT-RESPONDENT, MARTIN AND CROSS-APPELLANT. AND FENDANT-RESPONDENT Argued September 1979. June 1978 Decided *4 Fredericks, General, argued Attorney Mr. Albert G. Deputy Attorney J. Gen- Degnan, John cause for appellant {Mr. Whitcomb, B. Mr. attorney; Philip Jersey, of New eral brief). and on the of counsel General, Attorney Deputy cross-appellant cause for L. Cohen Mr. Jack argued Mr. attorneys; Ziegler, and Margolis Greenberg, {Messrs. Dratch, on the brief). N. Stephen for respondent cause argued Mr. Richard Newman Weissbard, Isles, attorneys). and Newman {Messrs. The of the was delivered opinion by and Martin Sil J. Defendants Boratto Joseph Handler, as verman, partners, law attorneys together practicing Jury a for several crimes by Bergen County indicted Grand will, of a of letters out of the probate issuance arising a the estate dece administration of testamentary dent, Boratto was in charged Michael G. DePhillips. one with a document uttering the first count the indictment will of the last and testament falsely purporting in the N. J. 8. A. contrary 2A:109-l(b) decedent from false obtaining money by pretenses count second N. J. A. violation of 8. 2A:111—1. the decedent’s estate third and counts of the fourth charged before a sur falsely deputy with swearing special indictment of the to N. J. contrary will the attestation rogate money pretenses A. obtaining 8. 2A:131-1 and A. N. J. 2A:111—1. violating estate 8. from the decedent’s all charges found guilty by defendants were Di and fines. The Appellate Prison terms and received State decision, 154 reported reversed the convictions vision filed Thereafter peti Boratto, and certification, which opposed tion for *5 Both Silverman filed a cross-petition. petitions granted. The record on 9, discloses that 1973 defendants January filed for with the what probate County Bergen Surrogate was purported be the last and will testament of DePhillips, died The will Boratto, who on December 1973. named who was decedent’s as and June nephew, executor designated aunt, wife and Boratto’s as the sole DePhillips, decedent’s contained an beneficiary; it attestation clause in usual form of bearing names as witnesses. subscribing defendants Silverman swore Allegedly, before the sur- special deputy in that this will had been the decedent his rogate signed by presence had been Letters duly testamentary attested. executor; were issued ap- Boratto as he then appointing himself as for the pointed attorney estate. initially questioned of will was decedent’s authenticity Deer, Boratto’s Carmine decedent’s brother-in-law and Deer,
uncle the will upon examining first marriage. the entire Eebruary March disappointed widow; was left to decedent’s he that de- expected estate cedent would Deer’s provide for wife and His daughter. aroused, Deer the officeof the suspicion County visited Bergen Prosecutor November 1973 early the chain triggered events indictment culminating of defendants.
To substantiate charges, the State offered at trial the following proofs: testimony deputy surrogate to the otf will offering for by defendants; probate testimony two handwriting experts that the on signature the will was forgery; Deer’s testimony his describing con- versations with about decedent providing Deer’s wife and children in the event premature Deer’s death; Boratto’s grand jury testimony which implicated Silverman; evidence that the backer on the will was delivered to defendants after 8, 1973, October the date of will; expert testimony that the fees and taken commissions by defendants were excessive and the testimony various witnesses concerning bank trans- actions of Boratto, defendants’ law firm and the estate. *6 at trial. De- the nor Silverman testified Boratto
Neither expert; testimony handwriting on the fendants relied widow, brother, sister and as witnesses decedent’s they called handwriting familiar decedent’s whom was each of will was De- genuine. on the signature testified the attorney of an as testimony opinion fendants also introduced received in connec- that the fees and commisisons an expert addition, In estate were reasonable. with the tion that decedent who expert opined another handwriting called the will. had signed convictions, held Division, in reversing
The Appellate defendants with charging the indictment counts of that the deficient, 154 false pretenses money by obtaining was in- of reliance 397-399, that evidence Super, at to failed 395-397, judge and that the trial id. at sufficient, element, court id. at 394-395. The on this the jury instruct the so-called “two that while the State satisfied further held trial charge, judge perjury rule concerning witness” rule, id. the function of this jury to the explain failed to determined that certain addition, In court 404-406. at mis- and that evidence, namely testimony concerning Deer’s Boratto excessiveness estate and the management not have been ad- fees, and should was prejudicial of his 393; 399. The also ruled the use Id. court mitted. at Silverman was in- testimony against of Boratto’s grand to and violated Silverman’s confront hearsay right admissible witnesses, 400-401, at and that to prove id. omitted as the individual who of Silverman undertook the identity will before the special swear to the attestation or that Silverman had knowledge that was deputy surrogate will, id. 401—404. who executed the at Accord- not decedent Division reversed of con- ingly, Appellate judgments under money viction of both defendants obtaining the second and fourth counts of charged by pretenses thereon; entered judgments acquittal indictment and it re- of conviction for the judgments versed the utterance of a false under Boratto the first against document count and per- Silverman as in the jury against charged third count re- manded these the trial for a charges new trial. Id. at 406-407. It is our determination that these judgments of Division must to the end that Sil- altered is acquitted verman of both him and charges the con- against victions of Boratto on the him charges against are reversed and the matter remanded for a new trial.
I several We address issues relating first defendant in the count with charged Silverman. third perjury He *7 swore before falsely special deputy in that he surrogate to N. J. S. A. 2A:131-1 he had witnessed de contrary offered for The fourth probate. execute the will count cedent him money by pretenses with from obtaining charged in violation of N. J. S. A. 2A:111-1. DePhillips estate ruled error for Division that was reversible it Appellate Boratto’s jury testimony State to have introduced grand evidence, That in our agree. Silverman. judgment, We against Silverman on case poisoned against the State’s entire fatally a reversal of the convictions. counts mandates both and Boratto’s before the testimony grand contains jury no less five than direct references inculpatory to Silverman: it a law Boratto; Silverman partner identifies as it recites firm, that Silverman shared and profits losses includ- fees received estate; from the Silverman’s ing DePhillips’ appeared as that on the witness signature subscribing will; Boratto to the sur- and, accompanied that Silverman which office executed affidavit formed the rogate’s jury testimony basis of Boratto’s grand count. perjury Silverman, it indirectly, inculpatory was only directly repeated but as Silverman its ref- by incriminated clearly, Silverman, and his law partner, erences to Boratto form in defendants’ the de- discussing dealings plural cedent estate.
514 code his jury testimony against
This
of Boratto’s grand
use
was,
found
properly
fendant
and a vio
evidence
Division,
hearsay
use
impermissible
wit
to confront
lation of
constitutional
right
Silverman’s
An
at 400.
extra
Super,
him. 154
nesses against
un
in a
trial
joint
confession is never admissible
judicial
de
all
a defendant
than the
less
other
aspects implicating
jury.
from the
clarant can be
excised and
effectively
withheld
States,
1620, 20
S.
88 S. Ct.
Bruton
United
391 U.
Gardner,
L. Ed.
N. J. 37
(1969);
2d
(1968);
Barnett,
State v. Young,
53 N. J. 559
(1969);
N. J.
por
no deletion of those
simply
There
tions of
Silver-
grand jury testimony inculpating
Boratto’s
man.
Indeed, not
attempt
was there no
only
purge
Boratto’s grand
of its
content
jury testimony
incriminatory
as against Silverman, there
upon
reliance
express
the State as prosecutor,
court,
and the
as fact-finder.
The jury interrupted its deliberations to
that Bor
request
atto’s grand jury
reread;
this
was ac
testimony
request
commodated by
Moreover,
the court.
Silverman’s
denying
motion for a judgment
count,
of acquittal on the perjury
the trial
judge relied
on Boratto’s
specifically
inculpatory
grand jury statement
signed
“[h]e
[decedent]
[the
and I signed it and my partner,
signed
will]
[Silverman]
it”.
*8
The error oEthe trial court in
of Bor
permitting
use
atto’s grand jury testimony
against
was reversible.
introduction of
the evidence was clearly
of lead
capable
to a
ing
result it
might
otherwise
not have reached.
Simon,
v.
See
N.
191,
State
79
J.
208
State v.
(1979);
78 N.
Stefanelli,
418,
Melvin,
J.
435
State v.
65
(1979);
Macon,
1,
N.
v.
J.
18-19
State
N.
57
(1974);
325 (1971).
thus,
is,
Such error
a
beyond
harmless
reasonable doubt.
States,
Brown v.
U.
223,
United
411
S.
515 705, reh. 824, 17 L.Ed. U. S. 87 S. 2d 18, 386 Ct. California, Ed. 241 1283, Ct. 18 L. 2d (1967). den. 386 U. S. 87 S. for Silverman’s In impugning addition to this ground to counts, respect with on both the State’s convictions proofs insufficient to sustain that charge. perjury patently theory State’s Since, indictment and the according a factual alleged Silverman’s prosecution, perjury for pretenses, basis charge obtaining money the latter falls with former. 2A:131-1, N. J. 8. A. is “will under
Perjury,
ful and
or
under an oath
corrupt
affirming,
false swearing
lawfully
judicial
quasi-
administered in the course of
judicial proceeding, to some
matter material
the issue.”
Sullivan,
State
24
J. 18,
N.
26
see
also,
(1957);
Mullen, 67 N. J. 134
To establish
the State
(1975).
perjury
that
prove
defendant made
affirmation under
must
oath
“in the course of a
the statement was
proceeding,”
false, and that
his
defendant knew that
affirmation was
false.
Knowledge
falsity
prosecution
perjury may
be inferred from
circumstances.
an in
surrounding
Such
ference
may
sources,
derived from several
the objective
itself, a
falsity
lie,
motive to
or facts
to show
tending
gen
erally
defendant knew
his
affirmation was false.
See United States v. Sweig,
Objective falsity proof arises when knowledge actual falsity established and defendant’s awareness of it is in Haines, escapable self-evident. State v. 18 N. J. 550 Harris, State v. (1955); J. L. N. Ct. (Sup. 1944), aff’d 132 L. N. J. & A. see (E. 1945); also, State v. Fuchs, 60 Borrell, N. J. 564 (1972); J. 16 doctrine, That however, is not available this case. As the court below observed respect Silverman’s alleged affirmation it'was decedent, DePhillips, who had signed will, “there is in the nothing nature of the untruth here to support belief that defendant must have known it was untrue.” 154 N. J. Super. at 402.
516 did below, the State the court
Moreover, by out pointed the executed was Silverman who that not adequately prove his name. ETo using individual not another affidavit and af on that the signature testified the expert handwriting probative evidence only of defendant. fidavit that sur testimony special deputy the is the of of identification executed the af who, that Silverman stating rogate, though oath, identify defend after she read him the did not fidavit See other fashion. any individual in court ant as that aff'd b.o. Super. Div.), v. 121 N. J. 64 Draughn, (App. State Moreover, declined pointedly N. J. the 61 515 State are such identification. We have this witness make has there been satisfied under these circumstances himself, an failure of defendant proof of other, third count charged committed the the perjury the indictment. found a further ground
noteWe be must perjury conviction Division Silverman's determination disagree appeals reversed. We the asserted mis error with respect there reversible so-called “two trial witness” judge handling by 154 N. J. at Super, applicable prosecutions. rule to perjury has “two wit accepted never jurisdiction 404-406. Our Bulach, v. Div. (App. rule. State ness” State, v. 43 N. L. 640 A. 1881). &(E. Zabriskie 1950); Rather, is that where proof followed here principle witness, testimony single consists of of a it is perjury there be evidence of necessary corroborating falsity E. v. g., Caporale, matter sworn to the defendant. State Cattaneo, v. 123 N. J. Super. N. J. 373 State (1954); Bulach, 1973); Div. State v. supra; (App. Lupton, ease, 102 N. J. L. 530 In such a 1926). Ct. oath (Sup. “proof strong supported by of a witness must cor single of such circumstances character as roborating clearly turn overcome oath of the scale and the defendant and the legal his innocence.” State Caporale, supra, 16 presumption Bulach, N. J. at 376 original); (emphasis supra *10 State, N. 111; 10 J. Zabriskie v. Super, supra at at 647. is court, instance, for in the whether It first determine to Bulach, v. evidence is sufficient. State corroborating legally 111; at v. supra, supra, State 102 Lupton, State, N. J. L. 536; at Gordon v. N. L. 611 (E. & A. case, In such a 1886). where a has only witness single to falsity testified a prosecution, perjury the better practice is to instruct as to requirement of cor Bulach, roboration a conviction. See State v. supra; 7 Wigmore, 2042, Evidence 365-367 pp. rev. (Chadbourn § 1978). case,
In this however, there witnesses, several both expert lay persons, testified as who to the falsity of the matter with to which respect Silverman allegedly swore. There was as well. evidence No corroborating special instruction with to the respect evidence perjury called for in these The jury circumstances. it was instructed must conclude beyond any reasonable doubt that perjury oc curred order to return a verdict on that guilty charge. Hence, the judge’s general trial instructions to the jury to witnesses, assessing credibility criticized below because was coupled with failure to “two did not rule, witness” v. constitute error. See State Cattaneo, supra.
We is conclude therefore that Silverman entitled a reversal of his convictions for and false pretenses. perjury These reversals, based evidential upon insufficiency, serve to bar a retrial on Burks of double v. United grounds jeopardy. States, 2141, 1, 437 U. 98 S. Ct. 2d 1 S. L. Ed. (1978); Greene Massey, 437 U. S. 98 Ct. 2d S. L. Ed. 15 (1978); Lynch, 79 N. J. 327 (1979); cf. 78 N. J. 309 Tropea, Accordingly, stands of all acquitted charges.
II He, We turn to the Boratto. with Silverman, case against crime money by charged obtaining pre- the statute A. 2A:lll —1. Under tenses J. 8. contrary with intent who, person knowingly designedly, or “[a]ny money, any prop- cheat or defraud obtains any person, other benefit, thing other advantage erty, security, gain, statements, representations, value means of false promises, of a misdemeanor.” The tokens, or pretenses, guilty writings on this Division, to reversed conviction repeat, agree While we count and entered judgment acquittal. reversed, we have concluded to be conviction ought this charge. that there should be new trial on *11 it, raised before issue was not Although the specifically rule counts of undertook to that the Division the false money by pretenses the indictment for obtaining count, to the according insufficient. The vice of the second below, to whom repre- court failed to the specify was it of sentation "that he executor of estate was [Boratto] was made or that any- deceased Michael DePhillips” G. in the belief that it was one relied the representation upon 397, N. and also that failed true, 154 J. it Super. representation there was reliance any upon allegedly will "uttered surrogate made to the special deputy Id. G. the true will of Michael DePhillips.” was probate at 397-398. true, observed,
It is as the lower court in false pre clarity tense eases is expression extremely State important. Lamoreaux, v. N. 204, 29 207 Super. J. aff’d (App. Div.), 16 N. J. 167 (1954). Nevertheless, the lodestar of determin sufficiency of an indictment is a "de ing gives whether Id.; fendant notice what he must prepare to defend.” Borrell, v. v. supra; Lefante, 505, State State 12 N. J. 509 v. 90, 511 State 128 N. J. 92 (1953); Spano, Super. (App. 1973), 64 566 Div. aff’d J. v. John P. (1974); N. State Co., N. Callaghan 1961); 70 J. 585 Super. Div. United (Law Radowitz, States v. F. 2d 1974). 507 109 Cir. (3 test of an indictment is whether document in adequacy reasonably understandable communicates to the de language ingredients fendant factual essential the offense. State
519 Low, Silverstein, 203, 41 N. 207 State v. 18 J. (1963); Malone, N. J. 179 13 N. J. 510 Super. State v. (1955); 16 383 Div. Div.), 1951). aff’d N. J. (Law Super. (App. In addition, an indictment in order specificity required is a to avoid which defendant twice prosecution puts a substitution trial jeopardy jury and to preclude of an consider did not fact offense which the grand LaFera, 75, 81 35 charge. (1961); at Spano, supra, 92.
The court below concluded that the State’s theory crime, reflected both in the indictment its proofs, flawed because it to be appeared the "estate” of the decedent to which defendants’ were made and representations that it "estate” which relied these upon representa tions in moneys paying as fees legal to defendants. The ‘estate,’ reasoned that "an only of the assets and consisting decedent, liabilities of being, neither natural or [sic] 33 G. J. person, artificial S. Executors and Administrators Geib, 3e; Behnke v. 650 647, C. Md. Supp. (D. F. § Estate, Tanner v. 1959); Best’s 2d P. Cal. App. 2d Ct. (D. App. 1940), competent to [not] achieve condition of the mind such ‘reliance’ [which could only its through fiduciary representative. Since occur] *12 Boratto he occupied that could not have acted in position innocent reliance upon which he had misrepresentation himself Super. made.” 154 N. J. at 396. court knowingly The found the consequently indictment and defec proofs fatally tive in their presentation of the crucial elements of mis representation and reliance. of conception
This the State’s case stems from tenden- tious stilted and of the reading indictment as well as a strained perception the evidence. We do not agree with the lower that the is to be indictment understood as that implying misrepresentations were made to a solely construct, theoretical estate, the it that was the only which estate relied the upon misrepresentations. The second in court alleges distinct and unambiguous that one language 520 misrepresenta- knowing was false his pretenses
of Boratto’s will which he surrogate tion to deputy the special unmis- also true. It discloses was was offering prohate con- Boratto by made pretense false takably that another by had designated he been sisted of representation his It is estate. aswill the executor of the the decedent in that made to was also misrepresentation this latter obvious that as clear just surrogate. It special deputy both these relied on necessarily surrogate special deputy the will and admitted accepted she since misrepresentations, testamentary letters and she issued a true will to probate as named by he was the person in the belief that to Boratto executor. in the will as decedent might particular To the extent it that the thought that Boratto the executor in named misrepresentation, was will, in made to the or bene way some “estate” its such an special addition ficiary, deputy surrogate, indictment, in the if not surplusage, clearly allegation an essential element in out the crime of false spelling notion of reliance estate upon mis pretenses. which, stress, we is not stated the indict representation, as a matter ment, of common sense conveys message — — which its was the actually beneficiary it was the estate or, false pretenses put ultimate victim defendant’s vehicle which accurately, more he through wrongfully This from the moneys. obtained does not detract adequacy as an criminality. representation A false ele need not be directed pretenses ment of crime of victim his communicated to the intended or entail reliance Aronson, v. 44 N. E. it. Commonwealth 312 Mass. upon Robinson, v. 1942); 23 Mich. People 2d Jud. Ct. (Sup. also, N. W. See App. 1970). 2d App. (Ct. State, 187 2d 74 Ct. App. 1966); So. Dist. (Fla. Valassakis 1883). R. v. 15 Cox C. 268 B. Cf. State Taylor, (Q. C. Zwillman, 1970), certif. den. (App. Div. 57 N. J. 603 Ealse made to representations an official which result a third ultimately relied upon
521
of value
con-
person giving np something
to defendant may
See,
stitute the crime of false
e.
pretenses.
v.
g., State
39
J.
264
Crowley,
N.
L.
Ct.
(Sup.
1877); Commonwealth
103,
170
49 N.
Mulrey,
Mass.
E. 91
1898)
Ct.
(Sup.
(Holmes, J.);
Lynn,
State v.
3 Pennewill
A.
51
878
(Del. Ct. Gen. Sess. 1901);
also,
see
Johnson v.
People,
Colo. 283,
The indictment, even read if is include the assertion the estate “relied” certain of upon defendant’s false statements, did not in context misstate distort essential facts the crime. indict constituting Though the ment was inartful in this respect, misleading. it was We therefore with disagree the court below that the indictment the crime of false charging pretenses was defective or the State’s which tracked the proofs indictment were insufficient. the in
The Division also concluded that convey struction of the was not sufficient to trial court of the element reliance jury proper understanding Re charged the factual the crime case. context of this of ob liance, course, an essential element the offense e. taining pretenses. Lem property g., See State v. ken, Div. (App. 1974); State Zwillman, supra. did not clearly jury that it was doubt, to determine required beyond reasonable convict, order the false representations or pretenses someone, upon by relied defend leading ultimately to Zwillman, obtaining While money. ant’s supra. Cf. a proper part on the of the the cor understanding as to rect law to be applied might well be from gleaned the court’s
entire instructions on element of reliance charge, explicit would, in have the matter. dispelled any doubt
We conclude of jury’s that conviction Boratto on false cannot stand. money by pretenses of obtaining a this count There is to be remand and retrial of remand, In such it would be appropriate indictment. light to out more spell for the trial court to amend the indictment deputy surrogate upon the reliance of explicitly special ultimate result Boratto with the the false representations 3:7-4; R. from the estate. that he wrongfully money obtained Lemken, 323; at supra, Super. see State Co., at 588- v. John 70 N. Callaghan supra, P. retrial of this 593. Also it is be that upon anticipated explain adequately count instructions to the will the evidence adduced. the element of reliance in the context of Ill The conviction Division in Boratto’s Appellate reversing for document the first count uttering charged on of the that be a new trial indictment ruled there should decision calls We concur result. Out charge. error, which will for discussion of several other claims of in the retrial of both the trial court helpful guiding of the Boratto. charges against
The below with respect most criticism of trial telling its of the overall fairness relates in evidence admission testimony of Carmine Deer. Deer learn- upon testified that will, ing the existence of the he was of the suspicious will’s even before he decedent’s authenticity, purported saw on it. signature After the will was Deer probated, requested his attorney to obtain a will. copy Upon examining that document, Deer concluded decedent’s signature was not he further genuine; consequently, pursued investi- gation through County Also, Prosecutor’s Office. Bergen to Deer according decedent that he had would represented take care of Deer’s wife and children in the of Deer’s event Deer Nevertheless, undisputed demise. premature will or decedent’s never specifically discussed decedent family. other for Deer’s decedent provision by extensive Division ruled that Deer’s decedent that Deer’s would be cared testimony family not come within the "state of mind” to the exception did rule, Evid. R. it was not hearsay actually because 63(12), of a probative analy intent. We with that testamentary agree *15 sis of the may evidence. Statements and conduct of a testator be admissible if in of of mind probative executing his state Lehner, his will and Estate of his estate. In re disposing of 70 N. J. 434 Here, statements at the beneficent .(1976), tributed to nexus had, best, decedent Deer by ambiguous at to the disposition time, of his no according will or estate. At to Deer, did decedent mention his testimentary or allude to intentions. There be was an insufficient connection simply tween decedent’s conversations Deer and de general cedent’s state of mind of his estate. Compare disposing In re Div. Spiegelglass, 1958); Super. (App. Woll v. 104 N. Dugas, Div. 1969) (Ch. (dictum).
In the prejudicial of this assessing testimony upon impact the of trial, fairness defendant’s it cannot overstressed that evidence the case to the of will forgery directed was sharply contraverted and Both hardly overwhelming. sides forth brought opposing experts, witnesses, as well as lay on the of authenticity the signature on the will. One cannot conclude the Deer had no influence in testimony bringing to a which by otherwise impelled result Simon, State v. evidence of overwhelming guilt. supra, Melvin, v. Stefanelli, supra; supra. Hence the im- admission proper of this into testimony evidence constitutes additional for grounds the reversal of the of convictions Boratto on the counts of well as as forgery pretenses should, and of course, result in its preclusion as evidence in a retrial of these charges. of- evidence Boratto that further contended
It com- fees and of reasonableness fered below as to the to the relating as defendant, as well taken missions matters, unduly prejudicial of estate mishandling alleged an at- State called The inadmissible. have been and should reasonableness to the length as who at testified torney great pro- in probate commissions executors’ attorneys’ fees voluntary, as as well statutory, lie referred to the ceedings. taken to be the factors commissions and for executor’s basis in- fees, attorney’s reasonable into account determining estate, identity of the and nature of the cluding size involved, unusual of the executor, aspects amount work also Other work and the of the witnesses expertise attorney. well financial as numerous trans- testified these matters estate, of the defendants’ actions the bank accounts involving de- law firm on the part Boratto to show motive from fendants off fees the estate. drawing excessive that, under Evid. B. Division held value of the evidence probative concerning the misman affairs of agement decedent’s estate and receipt fees unreasonably and commissions was large outweighed by its Those prejudicial impact. proofs, concerning “highly *16 ** * technical have data to the might suggested the jury of flavor rampant criminality respects other than those for which on he was trial.” J. at 399. It N. was the conclusion of the that, although court dis appeals the e., puted i. motive, evidence tended prove that defendants moved by the of prospect commissions fees would for compensate overdrafts in law the firm’s and Borat * * “* to’s personal bank accounts it would have been enough merely to demonstrate that these substantial payments were made.” 154 actually Super. at 399.
There is much to commend the views of the appellate on this issue. cannot, however, We evi- agree that the dence so adduced with to this respect facet of the criminal prosecution constituted a mistaken of exercise the trial court’s discretion a reversal of requiring the conviction. The proof of estate, of the including receipt of Boratto’s handling to normal contrary practice funds at times unreasonably large or firm’s bank accounts were over and when his personal drawn, his for fraudu of financial motive probative logical relationship lent That motive bears plot. e. United States See,
commission of
criminal scheme.
g.,
Pichnarcik,
v.
427 F.
United
Lyda
2d
Cir. 1970);
(9
States,
788,
321 F. 2d
1963);
Cir.
(9
compare
Orecchio,
Waller,
16 N. J. 125
United
Cf.
States
468 F.
2d 327
Cir.
cert. den. 410 U. S.
93 S.
1972),
(5
Ct.
Plainly, disputed of the accused for and above its direct relevance to the guilt it contained instances mis- pretenses; and false forgery than for which he on conduct defendant other by But, trial. these to establish obviously, proofs tended just case, financial the State’s motive important part tension, the fraudulent scheme. The trial perceived judge this considerations, exercised his discretion weighed competing to admit the evidence and determining defensed the pos- sibility by untoward prejudice giving limiting instruction that reasonableness defendants’ fees was not an issue ease and could be considered only in connection with Further, defendants’ motive. he kept jury’s inquiry in proper perspective by emphasizing central, factual issue resolved was whether the will was forged. conclude, We therefore on issue, this particular that there was no mistaken exercise of discretion the trial a reversal of the judge requiring convictions. We see fit to add, however, that on the retrial of the this charges deter- mination should not be taken to occlude a different or con- trary discretionary ruling the trial court in the context of a new trial should this similar evidence be proffered.
IV For the reasons given, the judgments conviction of de- *17 fendant Silverman are reversed and judgments of acquittal Boratto defendant of conviction judgments The
ordered. The ordered. charges both on a trial and new are reversed in part accordingly Division are of the Appellate judgments modified. in reversed, part and affirmed, in part in dissenting part). in and part Sullivan, (concurring re- majority opinion much of the so I am accord and defendant Boratto of conviction verses judgments However, while charges. him both a on new trial orders evi- prejudicial and incompetent highly I also that agree I Silverman, must defendant admitted against dence was his only must holding the majority from dissent of acquittal but that should judgments conviction set aside his favor. be entered in was whether Michael G-.DePhillips
The basic issue at trial testament, last will and actually purported executed his Boratto and Silverman law later admitted probate. and had will as witnesses. partners attesting signed (De- death, DePhillips’ was Boratto’s After Silver- Phillips uncle.) man on appeared surrogate’s office of the probate will and made affidavit that had will been executed accordance with J. 8. A. 3A-.3-2 and that he saw the decedent will. DePhillips The sign perjury based this against on affidavit.
In Silverman’s ordering acquittal, majority reasoned even there was evidence that the though DePhillips sig- nature on will was no forgery, there Sil- proof that verman knew the person signing was not Mr. DePhillips. also held that there majority lack of proof trial, Silverman, defendant on had executed the affidavit in the office and not surrogate’s another individual using name. I his disagree, would not allow defendant, a mem- State, ber of bar of this to have an acquittal as a matter on of law what I consider to be such fragile tenuous grounds.
The special who deputy surrogate appeared as State’s wit- that, on the ness testified probate of the will, DePhillips *18 her as a witness “Martin E. before appeared Silverman” requirements will and an affidavit that the prove the executed of N. J. S. A. 3A:3-2 saw had met and that he been decedent A jury reasonably will. could DePhillips sign infer that she was E. to defendant Martin Sil- referring verman present then in court defending against out of perjury arising the execution of the very affidavit question.
It was defendant undisputed Silverman that was mem- ber of the bar of this State and a former law partner of his co-defendant Boratto. Boratto and Silverman had signed will as DePhillips attesting Indeed, witnesses. the backer of that law firm was attached to the will when it was offered The probate. “Martin E. Silverman” who executed the affidavit in the office he surrogate’s swore was one the two witnesses to the DePhillips will. matter of identity, therefore, was sufficiently established the State.
toAs proof knowledge Silverman’s the alleged falsity, there was expert evidence that the DePhillips signature on the will awas forgery. noted, As Silverman swore in the affidavit filed probate on the of the will that he had seen the decedent DePhillips the will. sign Based on the fore- jury had going, basis adequate for finding Silverman of having executed a guilty false affidavit, it found if DePhillips signature to be a forgery.
I with the agree majority the “two-witness” rule is State, law of this and perjury can be established testimony one witness if supported by cor- strong circumstances. Instead of roborating I would acquittal, order retried on both charges. and as to Silverman reversal For and acquittal reversal Hughes and Boratto —Chief Justice and remandment Pashman, Clifford, Mountain, Schreiber Justices Handler —6. as to both remandment
For reversal defendants —Jus- tice Sullivan —1.