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State v. Wade

Decided: October 19, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MACK WADE, DEFENDANT-APPELLANT



Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

Defendant was found guilty by a jury of robbery, N.J.S.A. 2A:141-1. He was sentenced to be confined in the New Jersey State Reformatory for Males, Youth Reception and Correction Center at Yardville, for an indeterminate term. Defendant appeals from the judgment of conviction.

Before considering the several grounds advanced for a reversal, we summarize the factual background as demonstrated by the trial testimony.

On January 12, 1970, about 4 P.M., Ada Wilkes was walking in the road up Buffalo Avenue, in Paterson, the sidewalks being covered with ice and snow. She was on her way home, after having mailed a letter. She was facing the traffic when a car sped by her with two Negro occupants. It was a dark blue car with a black vinyl top bearing New York license plates. When she came to the intersection of Buffalo and Raritan Avenues, it stopped very abruptly. "The door opened and one of these negro fellows got out, left the door open. The driver of the car remained in the car. He kept racing the engine."

The fellow who left the car walked toward Mrs. Wilkes, brushed her arm, "his eyes just pierced me." She immediately became suspicious. He asked her if she knew where a Nutley Street was and, though she replied "no," he kept asking the question two or three times while he kept looking at her and at her purse. He then "flipped" her in the air. He punched her in her right breast, knocked her to the ground, fractured two ribs and caused other painful injuries. After having seized Mrs. Wilkes' purse, the assailant leaped

to the open door of and entered the waiting and engine-roaring car, which then sped away.

Mrs. Wilkes was able to identify her assailant and did so at detective headquarters a very short while after the police caught up with the get-away car near the scene of the robbery. She also identified her purse which the police had found on the floor in the front of the car when they arrested the two Negroes -- the actual robber of Mrs. Wilkes and the defendant who was then driving the car. She was not able to identify defendant as the driver of the car who had kept its engine running and roaring at the scene of the robbery.

At the time of the robbery, Officers Torres and Robinson of the Paterson Police Department were on plain clothes duty in the vicinity of the incident in an unmarked car. After receiving a call over the car radio giving a description of the automobile used in the robbery and the details of the "mugging," they observed nearby a Pontiac matching the description of the automobile, with New York license plates and two Negro male occupants. This was about a five-minute drive away from the scene of the robbery. Police Officer Torres identified defendant Wade in court as the driver of this car. Defendant was asked at the point of stoppage by the police for driver's license and registration first and could not produce either. A purse, later identified by Mrs. Wilkes at headquarters and at trial as the one taken from her, was seen by the police on the floor in the front of the car on the passenger side. Defendant and the passenger were thereupon arrested and brought to headquarters. The purse was there turned over to Detective Zdanis.

Officer Robinson corroborated the testimony of Officer Torres as to receiving the dispatch over the radio, observing the car with New York license plates and two Negro male occupants, following the car, stopped by a red light, approaching it, seeing defendant in the driver's seat (identified in court as the driver), seeing the purse in the front of the car on the floor (also identified in court), forcing the car

door open, which defendant had tried to lock and which Robinson opened by force, handcuffing the men and then bringing them to headquarters.

Robinson testified, out of the presence of the jury, that "at the scene of apprehension" he personally advised defendant as to his rights and also advised him at headquarters. The advice was that defendant "had the right to remain silent * * * anything he said would be and could be held against him in a court of law. If he didn't have an attorney we would supply one to him." Robinson stated that defendant said at the scene that he understood his rights and nothing else "until he got to headquarters." There, Detective Zdanis advised defendant similarly as to his rights in Robinson's presence and defendant stated he understood his rights and would accept being interrogated. Robinson did not hear the interrogation.

Officer Torres testified out of the presence of the jury that, on the way to headquarters, defendant "said that he was driving the car. He didn't hit the lady, it was his buddy who did it." The trial judge found specifically that defendant was not properly advised of his rights at the scene of the arrest for want of completeness and excluded all admissions made prior to the complete recital of his rights at police headquarters, where his rights were fully read to defendant ...


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