Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D. Labrecque, J.A.D. (concurring in result).
Defendant appeals from a judgment of conviction of armed robbery. He was sentenced to the New Jersey State Prison for a minimum of 12 years and a maximum of 15 years for violation of N.J.S.A. 2A:141-1 and to a consecutive term of a minimum of 8 years and a maximum of 10 years for violation of N.J.S.A. 2A:151-5. Both sentences were made consecutive to a term that was being served by defendant in the Federal Penitentiary in Atlanta, Georgia.
Separate indictments were handed down by the grand jury against defendant, John Clyde Carr, Jr. and Dorian Mitchell Nichols charging each of them in the same language with a robbery while armed "from the person of Daniel D'Alonzo money of the Beneficial Finance to the amount and value of $505" on December 5, 1968 in the Township of Pennsville. The indictment against defendant was filed June 19, 1969.
At the time of the indictment and for some time before defendant was in the custody of federal authorities in Atlanta, Georgia.
On June 16, July 25, August 13, August 22 and August 28, 1969 letters were received from defendant requesting a speedy trial. On August 15 an application for the assignment of counsel was sent to defendant which was returned completed on August 25. On August 29 an attorney was designated by the office of the Public Defender to represent Anderson. On November 24 it was brought to that attorney's attention that he had also been designated to represent Dorian Nichols, who had indicated that he was going to plead guilty. Since that would create a conflict, X., Esq., was on December 4, 1969 designated by the office of the Public Defender as defendant's trial counsel. On the following day X. filed his appearance and wrote defendant advising him that the trial was scheduled for January 12, 1970 and asking him to forward "any and all information that you may have in reference to this case." X. first interviewed Anderson on January 12, 1970, the day of the trial.
At the opening of the trial the prosecutor moved to consolidate the trial of the indictments against Anderson and Carr. At that time X. objected, stating that "I did not know of the involvement of -- the alleged involvement of Mr. Carr or anyone else." He further advised the court that it was only within the last 20 minutes that he had seen the prosecutor's file.
Immediately thereafter and after the court had sent for the jury, X. said "I have just been advised by my client that he has never entered a plea to this indictment." When the indictment was read, X. stated that defendant did not wish to enter a plea on the grounds "that he has been deprived of his constitutional rights by his not being advised to the right to make a plea prior to this time. He was represented by counsel through the Public Defender's office in Camden. Counsel never advised him of the fact that he had a right for a pretrial discovery, that he had the right to the Grand Jury minutes, he was never brought up here for a plea to the indictment and so forth." Thereupon the court entered a plea of not guilty and immediately proceeded with the trial. No motion for an adjournment of the trial was made.
Daniel D'Alonzo testified that on December 5, 1968 at approximately 6:55 P.M. Carr entered the office of Beneficial Finance Company seeking a loan, giving a false name. Shortly after D'Alonzo began to interview Carr, a man entered the office and handed D'Alonzo a handwritten note stating that this was a hold-up, to put all the money in a brown paper bag and not to be difficult. The man was armed with a shotgun. Following a hearing on the admissibility of an incourt identification, D'Alonzo identified defendant as being the man who came into the office and demanded the money.
The State called as a witness Dorian Nichols, who was then in custody on another armed robbery charge. He had pleaded guilty to the December 5, 1968 robbery the day before he testified. He said that he with defendant and Carr had gone in Carr's automobile to Pennsville for the purpose
of carrying out a hold-up. Defendant had a sawed-off shotgun in his possession. They decided upon the loan company. After stopping the automobile Carr went into the loan company first. Thereafter Anderson entered. The money was divided three ways at the home of Anderson's sister. He was shown the note that D'Alonzo had been handed and said he had seen that note in the automobile. In fact, he had given Anderson the paper on which to write the note. He admitted that Anderson had a picture of himself and Nichols' wife. He denied that when he saw the picture he said that some day he was going to get Anderson. He admitted, however, that he did say that when he, Nichols, was arrested for this robbery.
Lt. Earl Minnor testified that a note and a paper bag which the robber had brought to the Beneficial Finance Company office to hold the money were turned over to the Federal Bureau of Investigation for fingerprints. He had in court with him two reports from the FBI. One report said that the note contained seven latent fingerprints, none of which were similar to Anderson's. A second report said that one of the latent fingerprints was Nichols'. He had failed to bring to court with him a report of the FBI of a comparison of Anderson's handwriting with the handwriting on the note.
Lt. Minnor testified concerning an oral statement made by Carr on March 14, 1969 shortly after his arrest based upon specific questions put to him. In that statement Carr said that he had no business with Beneficial Finance Company but had been there on two occasions. On the first occasion he used his correct name. Carr refused to say whether he had used his correct name on the second occasion. On both occasions there was somebody in his automobile with him, but he would not say who. Carr refused to say whether any of the other persons in his automobile had also entered Beneficial Finance. He said that he knew Anderson, but he would not say whether Anderson was in the automobile on December 5, 1968. He said that he knew Nichols. At that
point in the statement Carr refused to answer any further questions. X. made no objection to the admission of this statement nor any request for instructions to the jury as to its use.
Neither defendant nor Carr introduced any evidence.
Defendant argues that (1) the in-court identification by D'Alonzo was improper because it was based on a prior illegal out-of-court identification: (a) defendant was denied the right to assistance of counsel at the time of the pretrial identification confrontation, (b) the pretrial identification procedures denied defendant the right to due process, (2) defendant was denied his constitutional right to confrontation of witnesses because an out-of-court statement by a co-defendant was admitted on the State's case without effective deletion of all references to defendant (not raised below), and (3) defendant, who had first seen his trial attorney the day of the trial, should not have been forced to go to trial and the action of the trial court in making him do so denied him the effective assistance of counsel.
At the voir dire hearing before the in-court identification it was developed that on the night of the robbery D'Alonzo was unable to identify a photograph of Anderson from 25 to 30 photographs which were shown to him. Shortly thereafter Anderson's photograph alone was again shown to D'Alonzo. At that time he said that the photograph resembled the robber, but he was not able to make a positive identification from the photograph. On June 19, 1969 the investigating officer took D'Alonzo to the federal court in the Post Office Building in Camden for the specific purpose of seeing Anderson who was there for a plea. D'Alonzo testified that in the courtroom there were 10 to 15 defendants sitting in the jury box, some of whom were Blacks (Anderson
is a Black) and some of whom were approximately the same height as Anderson. D'Alonzo said he recognized Anderson as the robber as soon as he saw him sitting in the jury box before such time as Anderson's name was called in the courtroom. Notwithstanding, D'Alonzo was still in the ...