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State v. Demarco

Decided: September 25, 1962.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH DEMARCO, DEFENDANT-APPELLANT



Price, Sullivan and Mintz. The opinion of the court was delivered by Price, S.j.a.d.

Price

[76 NJSuper Page 319] Defendant was convicted of assault with intent to commit rape (N.J.S. 2A:90-2). His conviction was based on the verdict of a jury in the County Court. The sole ground on which defendant seeks reversal of the conviction is based on remarks during summation by an assistant prosecutor (other than the attorney who appeared for the State on the argument of this appeal). No objection to the remarks was made at trial by defendant's then attorney. However, it is claimed by defendant's present attorney that the remarks were so prejudicial as to constitute plain error (R.R. 1:5-1(a), 2:5), warranting reversal of his conviction.

The proofs on behalf of the State were that at about 2:30 A.M. on May 16, 1961, the complaining witness, a young woman en route to her home, had stopped for refreshments at a diner following a visit at the home of a friend. She had driven to the diner in an automobile which she had parked on the adjacent public highway. The doors of the automobile were not locked. She testified that, after partaking of food she left the diner and, after driving the car a short distance towards her home, she was seized by defendant who had concealed himself on the floor in the rear of the car. She further testified that she was pricked by a knife held by defendant on the right side of her neck; that he ripped the back of her dress, addressed an obscene remark to her and seized her breast. She saw his face in the mirror. She stepped on the accelerator, swung the car to the right, flung open the car door and "threw" herself out of the car onto the street. She testified that the next thing she knew she was being given medication by a doctor at the police station.

A witness on behalf of the State, who was operating an automobile at a considerable distance behind the car of the complaining witness and in the same direction, testified that he saw "a figure come up from back of the car"; that the "figure * * * looked like a man"; that the car veered from the highway and hit a parking meter. He further testified that he saw somebody come out of the car and that on approaching the vehicle he found the complaining witness on the street in an hysterical condition. Another motorist arrived and the police were summoned. The witness later identified defendant as a person he had seen in the diner at the time the complaining witness was there.

The police officer who arrived at the scene described the hysterical condition of the complaining witness. The police found a cap on the floor of the car and a knife on the rear seat of the vehicle. Possessed of a description of the alleged assailant the police conducted an investigation at the diner and as a result thereof arrested defendant who resided in the

neighborhood. Defendant admitted the ownership of the cap and the possession of the knife on the night in question, but denied assaulting the complaining witness. At trial he admitted that he had been with her in the car at the time of the alleged assault but testified that he had met her outside of the diner and at his suggestion they had agreed to drive to a tavern in a neighboring town; that as they started he occupied the righthand side of the front seat of the car; that he thought the complaining witness was partially intoxicated; that she drove the car at such an excessive rate of speed that it swayed on the highway; that, concerned for his own safety, he applied his left foot to the brake and as the car slowed down he jumped out and ran away. He further testified that on entering the car with the complaining witness he had no intention of assaulting her physically and that he did not do so; that his intention was to steal a fur piece which she was wearing, and possibly some of her money, during the period he planned to be with her.

The record reveals that defendant had a criminal record. The first reference thereto was made by defendant's counsel during the selection of the jury. He next alluded to it in his opening statement to the jury in the following manner:

"In the voir dire when I questioned you as prospective jurors I suppose I have asked you to do something which some of us may feel it is almost humanly impossible to do, and that is to put aside any prejudices you may have, especially against this man. It will be brought out during the trial that the defendant did serve time in a prison for attempted rape, which is the same charge with which he is confronted here today. I think that the State will bring it out. I think that the State will harp on it. The State will seek a conviction merely on that basis because the facts as we know them are quite different than those related by the Prosecutor."

During the presentation of testimony reference to defendant's prior incarceration in prison was made both by defendant and by his counsel. It was also emphasized by defendant's counsel in summation in urging the jury not to convict defendant on "the basis of a prior conviction or convictions."

During the trial defendant had been interrogated on cross-examination as follows:

"Q. So if they only were interested or if you only thought that they [the police] were interested in knowing your whereabouts, why did you think it was necessary to give ...


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