Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.
[112 NJSuper Page 524] Defendant appeals from a judgment of conviction for atrocious assault and battery in violation
of N.J.S.A. 2A:90-1. He was sentenced to State Prison for not less than five nor more than seven years.
A summary of the essential facts testified to by the victim, Joseph Lancellotti, follows: He was employed as a patrolman by the Lehigh Valley Railroad. Shortly after midnight, on June 9, 1968, while inspecting freight cars in the Newark railroad yard he saw two men stacking boxes in a freight car in an area partially illuminated by floodlights. He approached them with a lighted flashlight in one hand and a revolver in the other. He identified himself and ordered the two men to step down. Within seconds thereafter he was struck from behind with a hard object causing him to drop the flashlight. He was then kicked and severely beaten with a lead pipe and dragged across the ground causing injury to his chest, legs and side. Before losing consciousness he fired all the bullets in his gun, and threw it away when he heard one of the attackers say "Dixon, get his gun and kill him." He was of the opinion that four men participated in the attack.
The following day he made a written report to his employer setting forth what had transpired but describing only one of his attackers (admittedly, not the defendant). At about the same time he gave an oral statement of the occurrence to the police and the other railroad patrolmen together with a description of the four attackers. In his court testimony, which was not too clear, he described them thusly -- one was "five seven, five eight, approximately 40 years old wearing a white T-shirt. I've described too as being large negro males. * * * and the other being approximately six feet tall, wearing a T-shirt, short hair and a mustache." The last described person was presumably the defendant. Over a period of about seven months he viewed approximately 200 photos, and looked at about 15 men who had been arrested on railroad property for breaking and entering, but was unable to make an identification.
On January 4, 1969 the victim was informed by another railroad employee, John Pugh, that he had just arrested a
trespasser who resembled the description of one of the attackers. Pugh told him the trespasser was abusive and had tried to attack him. Pugh testified he described the trespasser to the victim as being a light skinned "colored" male, with a mustache, with very close knit hair, and big in size.
The victim went to police headquarters and identified defendant who was then in a cell with two other black men. One of the men was short and in handcuffs, the other was tall and thin with a conspicuous scar running from his forehead to his cheek. Admittedly, the defendant was then under arrest and in police custody for trespassing, and under suspicion for attacking the victim about seven months ago; he was not represented by counsel, or advised of his right to counsel.
The victim testified that his identification of defendant was based on seeing him by the freight car and observing him while being beaten and dragged. This version of what had transpired differed from the report made to his employer wherein he stated "* * * I identified myself as a police officer and told the men inside the car they were under arrest and to come out of the car slowly. The two men in the car immediately raised their hands in the air, turned around with their backs to me and began to climb out of the car. The first one out of the car turned around and faced me when he reached the ground and I saw he was a male negro, 5'7" or 5'8" in height, approximately 175 pounds, about 40 years of age, wearing a white T-shirt * * *." We note again that the only described attacker in the report was not the defendant.
The pivotal testimony concerned defendant's identification. The victim, without objection by defendant, made an in-court identification of defendant as being one of his attackers. When asked on direct examination about the confrontation at police headquarters the defendant objected contending it was improper under United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and the companion
cases. The transcript reveals the following colloquy out of ...