Decided: January 5, 1967.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCISCO GAINER, DEFENDANT-APPELLANT
On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[48 NJ Page 377]
The judgment is affirmed substantially for the reasons expressed in the majority opinion of the Appellate Division, 93 N.J. Super. 258.
It is not contended that defendant's trial counsel was inept or incompetent when he advised the court that he had no objection to the admission in evidence of the unsigned statement given by Gainer to the police. Nor would the record support any such contention. The plain conclusion to be drawn from the circumstances is that defendant's attorney wanted the statement to go into evidence. No matter how it had been obtained from Gainer, it provided support for the only defense of any real substance he had against the strong direct testimonial and circumstantial case against him.
At the trial Gainer's principal defense was that although he had known of the planned robbery, and was in fact present during the first abortive attempt, he objected to the plan, and so advised his confederates, before the actual attempt to consummate the robbery was put into execution. That was the substance of his testimony at the trial. The statement to the police provided some confirmation of that defense, and undoubtedly it seemed like good trial tactics to defense counsel to offer no objection to its receipt in evidence, and in fact, to state affirmatively that he had no objection to its admission. Moreover, counsel used the statement in his summation to the jury to buttress his argument that Gainer was being truthful when he testified he had not consented to the criminal undertaking and did not participate in the actual attempt to perpetrate it.