Kolovsky, Matthews and Crahay. The opinion of the court was delivered by Kolovsky, P.J.A.D.
Defendant, who had been employed as a guard at the Monmouth County Jail, was brought to trial on September 15, 1971 before Judge Conklin and a jury on a two-count indictment charging that he had, on or about October 30, 1970: (1) stolen three revolvers belonging to the Monmouth County Jail, in violation of N.J.S.A. 2A:119-2, and (2) received such revolvers, knowing them to have been stolen, in violation of N.J.S.A. 2A:139-1. The jury found defendant guilty of receiving stolen property and not guilty of larceny. Defendant's motion for a new trial was denied.
Defendant was sentenced to an indeterminate term to the Youth Correctional Institution Complex, with sentence suspended and probation imposed for a period of two years. The court further ordered him to pay a fine of $200 plus the costs of prosecution, payable during the probation period. (It should be noted that under State v. Mulvaney , 61 N.J. 202 (1972), decided after defendant was sentenced, the court was not authorized to require defendant to pay the costs of prosecution.) Defendant appeals.
Sometime during the weekend of October 30 to November 1, 1970 three revolvers were stolen from the gun room of the Monmouth County Jail. On December 3, 1970 Detective Kubaitis of Wall Township, responding to a report of an armed robbery, apprehended a man answering the description of the robber. The man, John Breeland, who was under the influence of narcotics, was found to be carrying a .38-caliber revolver bearing serial number 424211. According to Kubaitis, a teletype to a national information center revealed no information with respect to the revolver, but the next day, December 4, he talked to Breeland and "he told me that this weapon came from the Monmouth County Jail and he knew the subject who gave it to him but he did not wish to talk to me about this weapon at that particular time." Kubaitis then called the county jail and learned that the weapon was one which had been stolen from the jail.
Almost five months later, on April 28, 1971, Breeland for the first time revealed the name of the person from whom he had allegedly obtained the revolver. In a written statement given that day to prosecutor's Detective Manning he said that he had obtained the revolver from defendant Blue.
The testimony of the State's witnesses other than Breeland indicated only that defendant had the opportunity to enter the gun room and remove revolvers therefrom. Breeland was the principal and critical witness against defendant.
Breeland, who had been in Rahway State Prison since January 1971 following revocation of his prior parole, began his direct testimony with a recital of his formidable prior criminal record and then told of his arrest by Detective Kubaitis. He didn't remember talking to the detective about the weapon which was found on him.
According to Breeland, sometime in the middle of November 1970 defendant Blue, with whom he was acquainted, approached him on the street in Asbury Park, carrying a brown paper bag, and asked whether he was "interested in some pistols." Breeland was interested. He and Blue went around the corner and Blue showed him three pistols, asking $40 apiece for them. Blue told him that the pistols "were taken from the County Jail," where he worked, explaining that "officers go out and take inmates sometimes, sometimes they take them to institutions or hospitals. They take weapons, supposed to be signed out. But it would not be signed out, therefore, they would have to be returned." Breeland was given one revolver and promised to pay $40 for it, a promise which, according to Breeland, "was nothing but empty words" since he capitalized on his "nickel and dime reputation in Asbury Park" which caused people to fear him.
Breeland also testified on direct examination that he had been questioned from time to time by prosecutor's detectives but had not revealed Blue's name until he gave the written statement of April 28, 1971. His direct testimony continued with the following questions and answers:
Q. Let me ask you this: You have already ...