Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant Clanton Bennett, otherwise known as Caesar Bennett, appeals from a judgment of conviction entered in the Passaic County Court, Law Division, pursuant to a jury verdict of armed robbery. (N.J.S. 2A:141-1 and N.J.S. 2A:151-5). The sentences imposed were three to four years in State Prison for the offense of robbery and an additional term of one year for being armed when the crime was committed.
On February 9, 1956 the Passaic office of the Beneficial Finance Company of Newark was held up and robbed of $2,009 by a man brandishing a gun. Three employees of the company were eyewitnesses: James J. McCormack, manager; Patricia Hohtanz, a cashier; and Alice M. Gernat,
another cashier. At the trial (September 15, 1960) each of said witnesses identified the defendant as the robber. The two cashiers had previously recognized Bennett in a police lineup and from photographs of the culprit. Bennett testified on his own behalf, denied guilt and offered a defensive alibi, claiming that at the time of the robbery he was in Herman's Bar and Grill in Passaic. Herman Levine, proprietor, was unable to recall the specific day in February 1956 when defendant patronized his bar, but did remember that the defendant had left prior to 3 P.M., the time when the robbery in question had occurred.
The substance of defendant's contentions on appeal is that (1) he was denied a speedy trial, (2) assigned counsel was incompetent, (3) his confession was involuntary and thus inadmissible, (4) the trial court erred in admitting evidence relating to prior identifications, and (5) the additional one-year sentence was illegal.
Points one and two are not supported by the record and need not here be considered further. Upon analyzing the evidence and applicable law, the baselessness of point three becomes apparent. Bennett had attempted an armed robbery of the Family Finance Company in New York. In the course of perpetrating that crime he was captured by a would-be victim and taken to the New York police headquarters. During the course of questioning it was developed that a warrant for Bennett's arrest was outstanding in Passaic County, New Jersey. The police of that county were immediately notified. Defendant claimed that after he confessed to the New York crime the police had beaten, threatened and brutally treated him until he agreed to "give a statement to the Passaic police when they came." Upon the arrival of Detective Zislin and Officer Gelman from Passaic, who were accompanied by witnesses Hohtanz and Gernat, the defendant was identified by the witnesses as the robber of the Beneficial Finance Company on February 9, 1956. He then acknowledged committing the robbery in Passaic and signed a confession. At the same meeting,
Hohtanz and Gernat likewise executed respective statements, which were witnessed by the defendant, identifying him with the New Jersey crime. Defendant admitted that approximately one hour had intervened between the alleged intimidation and abuse by the New York authorities and the time when he gave his written statement to Zislin and Gelman. He declared that no threats or force were used upon him by any of the police authorities from Passaic. It is significant that defendant made no complaints to the New Jersey representatives about the treatment he supposedly received at the hands of the New York police. Even if they did use improper methods, that in itself does not lead to the conclusion that the confession he made to the Passaic officers (an hour later) was not voluntary. The evidence does not indicate any continuing coercive practice; in fact, the New York police were not even present when defendant made the confessional statement in question. See Stroble v. California , 343 U.S. 181, 72 S. Ct. 599, 96 L. Ed. 872 (1952), rehearing denied 343 U.S. 952, 72 S. Ct. 1039, 96 L. Ed. 1353 (1952); Lyons v. Oklahoma , 322 U.S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481 (1944); Annotation, 1 L. Ed. 2 d 1735, 1750-52 (1957). The credible evidence in the record does not reveal conduct fundamentally unfair with respect to the defendant's confession of the New Jersey robbery, and the question of voluntariness was properly submitted to the jury with an appropriate charge as to the applicable law. We find adequate conformity with the safeguarding principles enunciated in State v. Smith , 32 N.J. 501 (1960), cert. denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961); State v. Johnson , 31 N.J. 489 (1960); and State v. Fauntleroy , 36 N.J. 379 (1962).
Defendant argues (point four) that it was prejudicial error for the court to admit evidence by the State's witnesses regarding prior identifications of the defendant. The jury was properly instructed to disregard completely the prior identification testimony of Detective Zislin. No such instructions, however, were given concerning the evidence
proffered by the two female witnesses who, in addition to identifying defendant in open court, testified respecting their identification of him on April 26, 1956 from photographs and in a police lineup. During the course of the trial it was conceded by defense counsel that such evidence "shall remain in the record." It is now argued that the prosecution should not have been permitted to bolster the courtroom identification with improper or inadmissible extrajudicial evidence, and that the defendant was so prejudiced thereby as to constitute "plain error." Statements identifying an accused on a former occasion are not necessarily inadmissible. Although the decisional law of this State has not squarely dealt with this subject, our Supreme Court in State v. Buffa , 31 N.J. 378, 379 (1960), cert. denied 364 U.S. 916, 81 S. Ct. 279, 5 L. Ed. 2 d 228 (1960), in referring to the opinion of this court reported in 51 N.J. Super. 218 (1958), said:
"The last paragraph of the opinion refers to the introduction by the State of testimony showing prior consistent, out of court identification of the defendants by the witness giving identification evidence at the trial. The court suggested that the present trend of judicial authority is to allow such proof and cited the pertinent cases. But it inferred that the New Jersey rule may be to the contrary, citing State v. Landeros , 20 N.J. 69, 72 (1955); State v. D'Ippolito , 22 N.J. 318, 322 (1956), and it held that, in any event, since such testimony was not objected to by experienced counsel and plain error did not appear, reversal was not justified. We agree that there is much persuasive force in the majority rule which sanctions admissibility of such proof when the person who made the earlier out of court identification appears as a witness at the trial of the ...