Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D. Conford, S.j.a.d. (dissenting).
[90 NJSuper Page 107] Defendant was charged in a three-count indictment with selling a narcotic drug, to wit, heroin on December 7, December 8 and December 12, all in 1962, contrary to the provisions of N.J.S.A. 24:18-4 and N.J.S.A. 24:18-47. He was tried before a jury in the Passaic County Court. The trial judge dismissed the first count, covering the alleged sale on December 7, at the end of the State's case for lack of evidence. The jury found defendant guilty on the second and third counts, covering the sales on December 8 and December 12. Defendant appeals from the judgment of conviction and advances six grounds for reversal.
Defendant claims that his privilege against self-incrimination under the Fifth Amendment of the United States Constitution, now recognized as applicable to trials in state courts pursuant to the due process clause of the Fourteenth Amendment, was denied him because he found it necessary to take the stand and admit a prior related conviction rather than refuse to testify and allow comment thereon.
Our Supreme Court recently had occasion to consider a similar contention in State v. Garvin, 44 N.J. 268 (1965), in the light of Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964), and found it legally insufficient as a basis for reversal of conviction. We find the Garvin decision dispositive of this contention. See, too, State v. Brown, 41 N.J. 590, 591 (1964), certiorari den. 377 U.S. 981, 84 S. Ct. 1888, 12 L. Ed. 2 d 749 (1964).
Defendant asserts that the trial court committed prejudicial error in refusing to allow into evidence certain conversations defendant and his witnesses had with one Tony Piccolo at the time the alleged illicit sale of narcotics took place on December 8.
Piccolo, a former narcotics user, was assisting the police in their efforts to arrest the sellers of narcotics. Louis Grossi was an investigator for the State police and utilized the services of Piccolo, who evidently knew how and where to reach people in the trade in the Passaic County area. On December 8, 1962 Grossi and Piccolo drove to defendant's home in Paterson. Piccolo was dead at the time of trial, but Grossi testified as to the events that followed. Piccolo blew the car horn and was answered by a voice from the third floor of the building. Piccolo referred to the person as "Tal." Piccolo then went into the house with money provided by Grossi for the purchase of narcotics. A few moments later Piccolo returned to the front porch with the defendant. Grossi joined them,
discussed price with the defendant and gave Piccolo additional money for the defendant. Piccolo and the defendant then went into the hallway where Grossi saw Piccolo receive, in return for the money, three envelopes. It is not disputed that these envelopes contained heroin, although defendant denied that this incident occurred.
For the sake of clarity, we note at this point that the December 12 incident did not occur at defendant's home. According to Grossi, he again met Piccolo in Paterson on December 12 and they proceeded to the Paradise Club. Piccolo entered alone and shortly thereafter reappeared at the doorway with the defendant, who asked Grossi how many bags he wanted. Grossi indicated two and gave Piccolo the money therefor. Within sight of Grossi, according to his testimony, defendant gave Piccolo the envelopes in exchange for the money given by Piccolo to defendant. It is undisputed that these envelopes also contained heroin. But here again defendant testified that no such event ever took place.
The excluded conversations related, therefore, only to the December 8 incident when, admittedly, Piccolo entered defendant's house in Paterson. Defendant's attorney asked permission of the trial judge to make an offer of proof but permission to do so was refused on the ground:
"Mr. Piccolo has not testified, therefore the question is not to contradict or affect the credibility of Mr. Piccolo."
Thus, the trial record does not disclose what the alleged conversations were. Nor does the brief on appeal apprise us as to the nature of the conversations, or how defendant was prejudiced by their exclusion. Inquiry at oral argument as to what the proffer of proof would have been, if allowed, or how defendant could have been aided by any such testimony as to conversations in defendant's upstairs apartment, when the sale allegedly took place downstairs in the hallway, produced an "I don't know" response from defendant's attorney.
Thus, the basis for a reversal on this ground has not been established. The trial judge should have permitted the proffer
of proof to be spread on the record. R.R. 3:7-8; R.R. 4:44-3. His failure to do so was error. But, absent a showing of prejudice to defendant, the error does not warrant a reversal of the conviction.
Whitfield Slade, a friend of defendant, testified that he was in defendant's apartment on the night of December 8 when Piccolo entered, stayed for a few minutes and then left. Slade said that he accompanied Piccolo to the ground floor where they parted, Slade proceeding to the basement and Piccolo out the front door. Slade observed no one else in the area. Slade stated that defendant did not leave his apartment when he and Piccolo left together. In this respect, Slade's story was corroborated by his girl friend and by defendant's wife, who were also in the apartment at the time. This testimony, to the extent that it was at variance with that of State police officer Grossi, presented an issue of fact and an evaluation of credibility, within the special province of the jury and obviously resolved against defendant and his friendly witnesses.
An analogous situation presented itself with reference to the alleged sale on December 12. Officer Grossi's testimony was sufficient, if believed by the jury, to establish that the sale by defendant took place. Defendant admitted that he was in the Paradise Club for several hours on December 12 and saw Piccolo coming into the club on that date, that Piccolo spoke generally to a group in which he was standing, but he denied going out the door with him or selling any narcotics. George Booker, another acquaintance of defendant, testified to being in the Paradise Club on that occasion and seeing both defendant and Piccolo there, but he stated that Piccolo had no conversation with defendant, except that defendant was in a group. Booker also alleged that defendant did not go out the door with Piccolo, but another fellow named Jerome did. It was for the jury to resolve the conflicting versions as to what happened in and about the Paradise Club on December 12. There was substantial evidence to support its verdict.
Defendant's next contention is that the trial court committed reversible error in refusing to allow his attorney to offer proof that he "did not have criminal inclinations of selling narcotics to Piccolo."
Defendant testified on direct examination that he never had occasion to purchase narcotics in Paterson. His attorney then asked him:
"When you purchased narcotics in New York, did Anthony Piccolo ...