Opposition Brief — Fields v. New Jersey

October 24. (T6.137-13). In the afternoon they were at his father’s

home where he borrowed a coat from Sugar Henry. Fields put on

a coat which belonged to Melvin Hines. (T6.139-2).

They left the house at about 9:00 P.M. wearing the coats and

went to Dwight Street and Jackson Avenue. (T6.142-1). They each

had a pistol and a stocking. There they briefly watched the L & M

Delicatessen and decided to rob it. He explained how they stood

in the doorway and put the stockings over their faces, took out

their guns, and entered the store. (T6.142-5). Once inside they

announced the holdup, and Fields went behind the counter to the

register. While Fields was getting the money, Hines stood by the

door with his gun drawn. Fields’ gun was not loaded, but Hines”

zun had five bullets in the chamber. (He kept it on an unloaded

chamber to avoid accidental injury).

lines testified that, as he was standing there, someone sud-

denly rushed at him with what at a glance he thought was a knife.

(T6.142-19). He pulled the trigger once, the gun clicking at the

empty chamber, and then fired two shots into the man who

stumbled back. He turned quickly to go out, holding the door for

Fields. Fields leaped the counter and knocked the man Hines had

shot to the ground. They both fled up Dwight Street to a friend's

house where they left the coats. (T6.143-10). They split up the

money and then, hearing sirens throughout the neighborhood.

the two men hid in a cellar where they also secreted the guns.

(T6.1 43-18).

After about half an hour Fields left and went to Simp’s Tavern.

Hines waited another half an hour, went to his father’s house and

then went home. On February 18, 1971, after he was arrested

Hines gave a confession to Detective Robert Worthy of the Jersey

City Police Department. (T6.164-12).

Detective Worthy was among a number of police officers who

testified for the State. He testified that he became involved in the

investigation when he was contacted by an informer on October

29 and given a 7.65 German automatic hand gun (identified as the

weapon used by defendant). (T7.68-16). The following day. he

was led by the informer’s information to a cellar where he also

recovered both coats in evidence.

On February 13, 1971, the detective arrested Thomas Hines

and, based upon his confession, on March | arrested defendant.

a a ee

Defendant gave a voluntary statement admitting his participation

in the crime along with Thomas Hines.!-

The two coats and the gun were admitted into evidence as well

as a button found at the scene which matched a button missing

from the coat worn by Hines.

Four medical experts testified on behalf of the State: Dr. Fred

Sachs. Dr. Asher Yaguda. Dr. John Bedrick, and Dr. Edwin

Albano. Each of these witnesses opined that Faival Zaczepinski

had died as a result of serum hepatitis which stemmed from the

transfusions administered on and after October 24. 1970. (T5.22-

19: 15.53-18: 17.27-3: T10.10-6).

Dr. Joseph Bellamy testified for defendant. He indicated that,

based upon the facts as revealed. he could not exclude the

possibility of infectious hepatitis developing from an in-

dependent source between the time of the transfusions and the

victim's death. (TT9.178-17).

Defendant took the stand in his own defense. He contended

that on the date of the robbery he was at his grandmother's house

watching television. (T19.1). He had been with Hines earlier at

Simp’ Tavern but had left his company at about 7:00 P.M. His

alibi was corroborated by the testimony of Mrs. Anna Smith. his

evrandmother. (112.8-2).

On December 23. 1971 the jury returned a verdict of guilty of

felony murder. Petitioner Fields was subsequently sentenced to

life imprisonment at the New Jersey State Prison. timely Notice

of Appeal was filed to the Superior Court of New Jersey. Ap-

pellate Division and on September 6. 1973 that court affirmed the

judgment of conviction and sentence imposed thereon. See

Appendix \. infra. Fields then petitioned to the Supreme Court of

New Jersey for writ of certification. but the Court denied the

petition on November !7) b9T3. (Pal.

On or about March 1. 1971 Petitioner moved before this Court

for leave to proceed in forma pauperis, and his pro se Petition for

Certiorari was docketed on March 8 1974.

Peter to police testimony concerning defendant's confession a

voir dire was held. Defendant took the stand and contended that

the statement had been beaten out of him. The trial court found

the statement voluntary and admissible.

alin

REASONS FOR DENYING THE WRIT

POINT I

THE TRIAL COL RT PROPERLY

DENIED DEFENDANT'S MOTION

FOR JUDGMENT OF ACQLITTAL.

Petitioner asserts that the trial court erroneously denied his

Motion for Judgment of Acquittal, alleging that the State's

proofs at trial failed to established the casual relationship bet-

ween the victim's wounds suffered during the armed robbery and

his subsequent death from hepatitis. He asserts (without at-

tempting to support the argument) that this issue presents an

important question of federal law which should be reviewed by

this Court. The respondent, State of New Jersey, respectfully

submits that it met its burden of proof and that the trial court

properly denied the defense Motion for Judgment of Acquittal in

accordance with New Jersey law. Moreover. since petitioner fails

to raise a federal question of substance and there are no special or

important reasons for granting certiorari raised by this issue, it is

submitted that the petitioner has not presented an_ issue

cognizable on writ of certiorari as specified in R.19 of the

Supreme Court Rules.

It is elementary law in New Jersey that the trial court, in

determining the merits of a motion for judgment of acquittal

pursuant to Rule 3:18-1, must determine whether, considering

the State's evidence in its entirety. and giving the State the benefit

of all favorable testimony, as well as all of the inferences that can

be reasonably drawn therefrom, a jury could find defendant

guilty of the crime charged beyond a reasonable doubt. See State

vr. Reyes, 50 N\.J. 454. 458-59, 236 1.2d. 385 (1967): State rv.

Coleman, 46 \.J. 16, 45, 214 A.2d. 393 (1965), cert. denied 383

U.S. 950 (1966): State v. Fiorello, 36 NJ. 80, 174 4.2d. 900

(1961), cert. denied 368 U.S. 82 (1962). This rule of law is

identical to the procedure followed by the federal courts. Rule 29

of the Federal Rules of Criminal Procedure. See, e.g., U nited

States v. Vallory, 460 F.2d. 243 (10th Cir. 1972). cert. den. 409

U.S. 870 (1972): Lanited States rv. Moler, 460 F.2d. 1273 (9th Cir.

1972): Goff v. United States, 446 F.2d. 623 (10h Cir. 1971):

Brandom ¢. United States, 431 F. 2d. 1391 (7th Cir. 1970), cert.

2 8 teen ee. to

den. 400 U.S. 1022 (1971). If the evidence. when weighed most

favorably from the Government's point of view, is sufficient to

sustain a conviction, the verdict must be affirmed. See Glasser r.

United States, 315 U.S. 60 (1942) and Weiler rv. United States, 323

U.S. 606 (1945). Only when the record contains no evidence,

regardless of how it is weighed, from which the jury could find

guilt beyond a reasonable doubt, may an appellate court overturn

the verdict. Brandom v. l nited States, supra at 1400.

Contrary to petitioner's contention, the conclusion reached by

the jury in this case was not the result of mere speculation. It

rested on firm medical opinion and substantive facts. Faival

Zaczepinski was shot in the abdomen during the course of a

robbery on October 24, 1970. He was rushed to the hospital where

it was necessary to perform surgery and administer 20 separate

units of blood which were necessary for his survival. (T5.8-25).

He remained in the hospital until November 15. On January 4, he

returned to his doctor with a malady the doctor initially

diagnosed as neurological. (T5.11.8). Thus Dr. Sachs sent him to

Dr. Valergakis. At that time the hepatitis was not apparent and

there was no jaundice. ) et. within four days when the neurologist

observed defendant, th hepatitis was so well settled that jaundice

was immediately evident. Within another few days, Faival Zac-

zepinski was dead from liver deterioration caused by hepatitis.

An understanding of the nature of the disease hepatitis is

necessary to evalute the proofs. (See T5.45-1). Hepatitis is of two

general classes: toxic hepatitis and viral hepatitis. The former is

caused by various poisons or drugs and is non-communicable.

Viral hepatitis is caused by a virus and is divided into two

categories: infectious and serum hepatitis. Infectious has an

incubation period of four to six weeks and is xenerally tran-

smitted orally. Serum hepatitis. which has an incubation period

of from six weeks to eight months, is transmitted only by the

introduction of the virus into the blood stream. The disease is so

virulent that the introduction of 1/ 10.000 of a cc of Virus-bearing

plasma into the blood is sufficient to cause infection. See

senerally. State rv. Weiner, WL VJ. 21, 23, 42. 194 41.2d. 467

(1963).

Faced with the extremely fulminant nature of the disease

which resulted in the instant fatality, there was little difficulty in

diagnosing it as serum viral hepatitis. (T5.54-1). The fact that the

incubation period of serum hepatitis corresponds with the period

of time between the transfusions and the appearance of symp-

toms confirms and reinforces that diagnosis. (T5.49-12).

Moreover, as testified to by Dr. Albano, infectious hepatitis is an

extreme rarity in persons of decedent's age. Added to this is the

fact that serum viral hepatitis can be contracted only through

direct introduction into the blood stream. Indeed, there is an

improportionate risk of such virus being contained in blood

utilized in transfusions. (T5.14-10).

As noted in the Counter-Statement of the Case, four medical

experts testified at trial on behalf of the State, and each of these

witnesses opined that the victim died as a result of serum

hepatitis contracted from the transfusions administered on

October 24, 1970. (T5.22-19; T5.53-18; T7.27-3: T10.10.6). Such

medical testimony is more than sufficient to permit the issue to

go to the jury. Cf. People v. Arnold, 89 Ill. App. 2d. 185, 232

N.E.2d. 483 ( App.Ct. 1967). See also Mason vr. Comm. 423 S.W.2d.

532 (Ay. 1968). Comm. v. Webb, 296 A.2d. 734 (Penn. 1972):

Comm. v. Maroney, 415 Pa. 553, 204 4.2d. 459 (1964); Comm. v.

Chester, 410 Pa. 45. 188 4.2d. 323 (1963): Antwine v. State, 486

SW. 2d. 578 (Tex. Ct. Crim. App. 1972): State v. Little, 358 P.2d.

120 (Hash. 1961).

Moreover, there is no reasonable hypothesis arising from the

facts consistent with defendant's innocence. It was not necessary

for the State to disprove every other conceivable source for the

disease: the proper issue was simply whether the evidence,

viewed in it entirety including the legitimate inferences

therefrom. was sufficient to enable the jury to find the State's

charge was established beyond a reasonable doubt. State v.

Mayberry, 52 \.J. 413, 436, 245 4.2d. 481 (1968), cert. denied 393

U.S. 1043 (1969). See Holland v. United States, 348 U.S. 121

(1954): United States rv. Brown, 436 F.2d. 702 (%h Cir. 1970):

McFarland v. United States, 273 F.2d. 417 (Sth Cir. 1960). The

theory, as advanced by the State, is logically inferrable from the

facts and the medical opinion postulated by the four doctors who

testified for the State and is supported by reason and the sub-

stantive facts. In light of such factors, the court made no error in

denying the defendant's motion for judgment of acquittal.

POINT II

THE SENTENCING SCHEME OF N.J.S.A

24:113-3 AND 113-4 IS CONSTITUTIONAL

Prior to the decisions in United States v. Jackson, 390 U.S. 370

(1968) and Funicello v. New Jersey, 403 U.S. 876 (1971). punish-

ment for conviction of murder in New Jersey was governed en-

lirely by statute.2 Under New Jersey's statutory scheme of capital

punishment, a defendant who wished to avoid the possibility of a

sentence of death could, with the permission of court, enter a plea

of non cult to the indictment and be subject to a sentence of either

life imprisonment (the penalty for murder in the first degree) or

2. This prosecutorial scheme is set out in V.J.S. 4. 24:113-3 and

ZA: TL3- t:

2A:113-3. “In no case shall the plea of guilty be

received upon any indictment for murder. and if. upon

arraignment, such plea is offered. it) shall be

disregarded, and the plea of not guilty entered. and a

jury. duly impaneled. shall try the case.

“Nothing therein contained shall prevent the accused

from pleading non cult or nolo contendere to the in-

dictment: the sentence to be imposed, if such plea be

accepted, shall be cither imprisonment for life or the

same as that imposed upon a conviction of murder in

the second degree.”

ZA: TI3-b “Every person convicted of murder in the

first degree, his aiders. abettors, counselors and

procurers, shall suffer death unless the jury shall by its

verdict, and as a part thereof. upon and after the

consideration of all the evidence, recommend life

imprisonment, in which case this and no greater

punishment shall be imposed.

“kyery person convicted of murder in the second

degree shall suffer imprisonment for not more than 30

years.”

Ps atc tse me cet AR Sp Ot Lt

SAY | ee

imprisonment up to thirty years (the penalty for murder in the

second degree). Thus, just as in Jackson, the prior statute

mandated different treatment as public policy.

In State rv. Funicello, 60 \.J. 60, 286 4.2d 55 (1972), the New

Jersey Supreme Court held that. in light of the memorandum

decision in Funicello v. New Jersey, supra, it must be concluded

that the New Jersey statute violated constitutional provisions as

interpreted in Jackson. Consequently. the New Jersey court set

aside the death penalty in Funicello but retained the remainder

of the statutory scheme, resentencing Funicello and the other

appellants to life imprisonment, nunc pro tunc, as of the date the

death sentence was initially imposed. The court also stated,

“A life sentence heretofore imposed upon a jury's

recommendation or upon the State’s waiver of the

death peanlty is unaffected. See Robinson rv. United

States, 394 F.2d 823 (6 Cir. 1968). cert. denied, 393 U.S.

1057. 89 S. Ct. 698, 21 L. Ed. 2d 698 (1969): Parker v.

l nited States, 400 F.2D. 248 (9 Cir. 1968), cert. denied

393 U.S. 1097. 89S. Ct. 892. 21 L. Ed. 2d 789 (1969).

“Neither a non rult plea nor a judgment heretofore

entered upon it will be impaired by our action today.

As to any claim of involuntariness in the plea, the

voverning principles are set forth in Brady v. United

i nited States, 397 U.S. 742.90 8. Ct. 1463.25 L. Ed. 2d 7A7

(1970): Parker vr. North Carolina, 397 U.S. 790, 90'S.

Ct. 1458. 25 L. Ed. 2d 785 (1970): North Carolina v.

tiford, 400 U.S. 25, 91S. Ct. 160. 27 L. Ed. 2d 162

(1970).

All pending and future indictments for murder shall

be prosecuted on the basis that upon a jury's verdict of

murder in the first degree. the penalty shall be life

imprisonment. Pleas to an indictment for murder shall

continue to be governed by \.J.S.4. 2A:113-3.° (60

\.jJ. at 68).

atin

Oa wt tebe + Ao 2 RE ae eens,

In the instant case, petitioner contends that the sentencing

scheme embodied in \.J.S..1. 24: 113-3 and 113-4 still imposes an

unconstitutional penalty on a defendant for asserting his right to

xo to trial, even in the absence of the death penalty. He observes

that a person who pleads non cult to a short form indictment

under the general murder statute can be sentenced under either

the first or second degree punishment provisions of the statutes

while a defendant who goes to trial under such a charge and i+

found guilty by a jury of first degree murder must be sentencec

to a mandatory term of life imprisonment. He concludes that a

judge sentencing a defendant who pleads non rult to a murder

charge has the “discretion” to sentence him as a second degree

offender to a lesser term of punishment. Analogizing this

situation to Jackson and Funicello, petitioner argues that this

“inequitable” sentencing scheme places a premium on the right

to a jury trial and has a chilling effect on the exercise of that

constitutional right. In) essence, defendant is complaining

because his codefendant entered into a plea bargain and received

a lesser sentence.

The State of New Jersey submits that petitioner's argument

ignores the fact that a defendant pleading non rult to the short

form indictment may also be sentenced as a first degree offender

to life imprisonment. Under the statutory scheme, the judge

merely assumes the function of the jury in a case where the

pleading of defendant waives a jury trial, and the judge makes a

factual determination of the degree of the offense. The statute

does not make this determination discretionary, but it does sub-

stitute the judge for the jury in the function of determining the

degree of guilt. This traditional function of the fact finder per-

mits the assessment of mitigating factors and the introduction of

leniency in the appropriate case. In essence. then, the statute does

not mandate different treatment as was the case with the death

penalty under the federal kidnapping act or under the former

New Jersey law. Now. a defendant charged with murder faces the

same alternatives whether he pleads non rult or demands a jury

trial. In the former instance it is the judge who must determine

whether the facts as presented mandate a first or second degree

determination.°? If a defendant chooses to go to trial he merely

exercises his right to have the jury determine guilt or innocence

and then whether the facts mandate a finding of first or second

degree or alleviation to manslaughter. A defendant is in no way

penalized for exercising his right to a jury trial since the alter-

natives remain essentially the same. Accord, State v. Land, 124

V.J. Super. 303 (1973): State v. Hubbard, 123 N.J. Super.

345, 303 1.2d 87 (1973), certif. denied 63 N.J. 325 (1973).

Whether he is convicted by jury or by judge after plea, once the

degree of guilt is determined he is subject to the same con-

siderations: if it is first degree murder he receives a mandatory

life sentence: if it is second degree murder, he is treated as an

individual and sentenced accordingly. New Jersey deals with

each second degree offender as we reach him, taking into con-

sideration mitigating factors.

Petitioner's reliance on United States v. Jackson, supra, is

misplaced. In Jackson this Court invalidated the federal kid-

napping act. emphasizing the fact that “defendant's assertion of

the right to jury trial may cost him his life, for the federal statute

authorizes the jury - and only the jury - to return a verdict of

death.” 390 U.S. at 572. As noted, what distinguishes the situation

in this case is that petitioner faced the same possible sentencing

results whether he pled guilty or went to trial. Furthermore, it is

implicit in the reasoning of the Court in Jackson that the sanction

of execution is sui generis. Constitutional doctrines forbidding

the use of execution as an encouragement for guilty pleas need

not apply to cases where only differing periods of imprisonment

are at stake. For example, this Court has repeatedly recognized

that an otherwise valid plea is not involuntary because induced

by the defendant's desire to limit the possible maximum penalty

to less than that authorized if there is a jury trial. Parker v. North

3. The sentencing judge has before him the transcript

of the plea hearing in which the court satisfies itself

there is a factual basis for the plea and a copy of the

presentence report, often including the police reports

and defendant's prior criminal record.

—12—

Sen ees ee en 2 TP RE AOS DESO Im

Carolina, 397 U.S. 790, 795 (1970): Brady v. United States, 397

U.S. 742, 752 (1970)4 And unlike the death penalty dealt with in

Jackson, leniency in the custodial punishment scheme permitted

in connection with a plea’ bargain neither coerces nor

“needlessly” encourages guilty pleas.

Petitioner's rationale, if taken to its logical extreme, would

end plea bargaining altogether. Yet it is implicit from the

decision of this court in Jackson that such a proposal would have

» “cruel impact upon those defendants who would greatly prefer

not to contest their guilt” and “would rob the criminal process of

much of its flexibility.” 390 U.S. at 584. The disposition of

4 As this Court observed in Brady v. l nited States, supra:

“Insofar as the voluntariness of his plea is concerned,

there is litthe to differentiate Brady from (1) the

defendant, in a jurisdiction where the judge and jury

have the same range of sentencing power, who pleads

guilty because his lawyer advises him that the judge

will very probably be more lenient than the jury: (2)

the defendant, in a jurisdiction where the judge alone

has sentencing power, who is advised by counsel that

the judge is normally more lenient with defendants

who plead guilty than with those who go to trial: (3) the

defendant who is permitted by prosecutor and judge to

plead guilty to a lesser offense included in the offense

charged: and (4) the defendant who pleads guilty to

certain counts with the understanding that other

charges will be dropped. In each of these situations, as

in Brady’s case, the defendant might never plead guilty

absent the possibility or certainty that the plea will

result in a lesser penalty than the sentence that could

be imposed after a trial and a verdict of guilty. We

decline to hold, however, that a guilty plea is com-

pelled and invalid under the Fifth Amendment

whenever motivated by the defendant's desire to accept

the certainty or probability of a lesser penalty rather

than face a wider range of possibilities exterding from

acquittal to conviction and a higher penalty authorized

by law for the crime charged.” (397 U.S. at 752).

atin

criminal charges by agreement between the prosecutor and the

accused, sometimes loosely called “plea bargaining.” is an

essential component of the administration of justice. Properly

administered, it is to be encouraged. Santabello rv. New York, 404

U.S. 257, 260 (1971): Brown v. Beto, 377 F.2D 950, 956 (Sth Cir.

1967). This Court in Brady vr. l nited States, supra, enumerated

some of the advantages to both the State and the defendant in

permitting plea bargaining and precluding the possibility of the

maximum penalty authorized by law:

“For a defendant who sees slight possibility of

acquittal. the advantages of pleading guilty and

limiting the probable penalty are obvious — his ex-

posure is reduced, the correctional processes can

begin immediately, and the practical burdens of a trial

are eliminated. For the State there are also advantages

— the more promptly imposed punishment after an

admission of guilt may more effectively attain the

objectives of punishment: and with the avoidance of

trial, scarce judicial and prosecutorial resources are

conserved for those cases in which there is a sub-

stantial issue of the defendant's guilt or in which there

is substantial doubt that the State can attain its burden

of proof.” 377 U.S. at 752.

It is clear that guilty pleas are not constitutionally forbidden,

and as is amply demonstrated in the discussion above, the Fifth

and Sixth Amendments do not reach so far as to preclude

prosecutors from consenting to a guilty plea tendered by a co-

defendant for a lesser included offense under the indictment. See

Newman v. Lnited States, 382 F.2d 479 (D.C. Cir. 1967). On the

contrary, as the Circuit Court observed in Newman, it is not

necessary that every offender be treated alike for such a concept

would negate discretion. The prosecutor (and presumably the

judge accepting the guilty plea and sentencing the co-defendant)

“is expected to exercise discretion and common sense

to the end that if. for example. one is a young first

offender and the other older. with a criminal record, or

one played a lesser and the other a dominant role, one

—14-—

CEA NATE IERIE RB AAS Loe

the instigator and the other a follower, the prosecutor

can and should take such factors [and others] into

account; no court has any jurisdiction to inquire into

or review his decision.” Id. at 482.

For the foregoing reasons, it is respectfully submitted that the

sentencing scheme of N.J.S.4. 2A:113-3 and 113-4 is con-

stitutional and that petitioner's contentions are devoid of merit.

CONCLUSION

For all the foregoing reasons, respondent, State of New Jersey,

respectfully prays that the writ of certiorari sought in the above

named petition pending before this Court not issue.

Respectfully submitted,

WILLIAM F. HYLAND

ATTORNEY GENERAL OF NEW JERSEY

BY:

Richard W. Berg

Deputy Attorney General

Richard W. Berg

Deputy Attorney General

Division of Criminal

Of Counsel and on the Brief

atSa

AP ROP OE, nets * + NST OES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-1226-71

STATE OF NEW JERSEY,

Plaintiff-Respondent,

.

ABRAHAM FIELDS,

Defendant-Appellant.

Argued August 20, 1973 — Decided Sept. 6, ‘73

Before Judges Collester, Kolovsky and Carton.

On appeal from the Hudson County Court.

Mr. James K. Smith, Jr., Assistant Deputy Public

Defender, argued the cause for appellant (Mr. Stanley

(. Van Ness, Public Defender, attorney).

Mr. John J. Hughes, Assistant Prosecutor, argued the

cause for respondent (Mr. Geoffrey Gaulkin, Hudson

County Prosecutor, attorney).

PER CURIAM

Defendant Abraham Fields and Thomas Hines were jointly

indicted for the murder of Faival Zaczepinski. Thereafter Hines

pleaded non vult to the indictment and testified as a State's

witness at Field's trial. Fields was found guilty by a jury of

murder in the first degree and sentenced to life imprisonment.

This appeal followed.

The State's case against defendant was based on the theory of a

felony murder. The State’s proofs showed that on October 24,

1970 at approximately 9:30 P.M. two black men wearing grey

stocking masks committed an armed robbery of a delicatessen

store in Jersey City. During the course of the robbery one of the

men shot Faival Zaczepinski, one of the employees of the store.

-la—

Zaczepinski was taken to a hospital suffering from two

gunshot wounds in his abdomen. It was necessary to give the

victim blood transfusions before emergency surgery could be

undertaken. During his stay at the hospital Zaczepinski received

16 pints of blood. Due to his precarious condition the bullets

were never removed. He remained in the hospital until November

15, 1970 when he was released. In early January 1971 Zaczepinski

developed symptoms which were diagnosed as hepatitis and he

was rehospitalized. He died on January 8, 1971.

During the course of their investigation of the homicide police

received information which led to the discovery of the handguns

used in the robbery as well as the jackets worn by the robbers.

Hines and defendant were arrested and confessions were ob-

tained fr «m cach of them. Both stated that Hines shot the victim

while defendant was taking money from the cash register.

Defendant first contends his motion for an acquittal should

have been granted because the State failed to prove beyond a

reasonable doubt that Zaczepinski’s death was caused by blood

transfusions administered in an attempt to save his life. He

argues the victim's hepatitis may have resulted from either an

infection or a stab wound he received 20 days before the

shooting. We find no merit to this contention. The test on a

motion for acquittal is whether the State's evidence in its entirety.

direct or circumstantial, giving the State the benefit of all its

favorable testimony as well as all of the favorable inferences

which reasonably could be drawn therefrom, is sufficient for a

reasonable jury to find the accused guilty of the charge beyond a

reasonable doubt. State r. Reyes, 50 NJ. 454, 459 (1967). Here

the State's medical proofs were more than sufficient to warrant a

finding that Zaczepinski died from serum hepatitis resulting

from the blood transfusions necessitated by the gunshot wounds.

It was net incumbent on the State to exclude every other

hy pothesis relating to the cause of hepatitis. See State r. Fiorello,

36 \.J. 80, 86-91 (1969). The case of State vr. Weiner, 41 VJ. 21

(1963). on which defendant relies, is factually distinguishable

and inapposite.

Defendant next argues the court erred in ruling that the State

was not required to reveal the identity of the informer who gave

the police the handgun used by defendant during the robbery

and told them where the jackets worn by defendant and Hines

-2a-

could be found. He contended that the informer’s possession of

the gun and knowledge of where the jackets had been hidden

indicated the informer had intimate knowledge of the facts

concerning the crime; that he should have been permitted to

ascertain how and where the informer got the gun, and that the

informer’s testimony would be relevant and helpful to his

defense.

Evidence Rule 36 provides that the identity of an informer

need not be disclosed unless the court finds that the disclosure of

his identity is essential to assure a fair determination of the

issues. The burden of showing the need for such disclosure is on

the defendant. State r. Dolce, 41 NJ. 422. 435-436 (1964). Here

the identification of defendant's gun used during the robbery

and the jackets worn by the robbers was established by Hines and

other witnesses—in fact. defendant identified both the gun and

jackets when he gave his statement to the police. The defense

could offer nothing more than mere speculation of what the

informer might know. See State rv. Oliver, 50 VJ. 39, 42 (1967).

There was no error in the court's ruling.

Defendant also contends the sentencing provisions of \J.S. A.

24:113-3 and # are unconstitutional because he was penalized for

asserting his right to plead not guilty under the Fifth Amendment

and his right to a jury trial under the Sixth Amendment. This

argument has been previously rejected by this court. State rc.

Hubbard, 123 \.J. Super. 345 (App. Div. 1973). certif. den. 63

\.J. 325 (1973): State v. Land, 124 VJ. Super. 303 (App. Div.

19773).

Finally. defendant in a pro se brief claims his sentence should

be modified to be consistent with that imposed upon the co-

defendant Hines who was sentenced toa prison term of 17 “% -20

years. The argument is frivolous. Defendant's sentence to life

imprisonment is mandatory under \J.S.4. 24:113-4. State r.

Hubbard, supra.

The judgment of conviction is affirmed.

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