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State v. Tirone

Decided: July 17, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWARD TIRONE, DEFENDANT-APPELLANT



Fritz, Lynch and Trautwein.

Per Curiam

Defendant was indicted for assault with intent to rape, in violation of N.J.S.A. 2A:90-2, and rape, in violation of N.J.S.A. 2A:138-1. He was tried by a jury and found guilty of rape. The sentence imposed was a term of 10 to 15 years.

Amongst the alleged errors raised by defendant in this appeal with which we deal first are:

1. The admission into testimony of a "fresh complaint" made by the victim to her brother Larry Sanzari, defendant contending that the doctrine underlying such testimony is no longer a valid exception to the hearsay evidence rule.

2. The trial court should have charged the jury on the limited use of "fresh complaint" testimony as required by Evidence Rule 6.

3. The court improperly restricted cross-examination of a police sergeant on the contents of the original complaint of the victim and his testimony before the grand jury.

Review of the testimony at the trial discloses that the victim met defendant casually on her coffee break outside her place of work and accepted a date to meet him after work that evening. The date was kept and the two embarked on a tour of several bars after dining, ending up for coffee

at a diner. Thereafter, the victim drove defendant to his home in her car and alleged that the rape was committed in her automobile after a good-night kiss. She testified she reached her home about 2 A.M. and later called her brother Larry Sanzari between 9 and 10 A.M., telling his wife of the incident. Larry Sanzari testified thereafter that his sister, the victim, told him that she had been raped.

We conceive that the "fresh complaint" doctrine is still a viable exception to the hearsay rule, State v. Balles , 47 N.J. 331 (1966), cert. den. 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967); State v. Gambutti , 36 N.J. Super. 219 (App. Div. 1955). Accordingly, we doubt that under Evidence Rule 20 the use of "fresh complaint" testimony is limited to meeting a charge of recent fabrication, but even were it otherwise, a close reading of defendant's cross-examination of the victim discloses at the very least an attempt by innuendo, in the form of the questions propounded, to make that very charge. Accordingly, we find no error on this score.

Insofar as defendant claims error on the admission of Larry Sanzari's testimony of the victim's complaint to him as not being "fresh" because of the lapse of some seven to eight hours between the happening of the alleged rape and the complaint, we again find no merit. Delay in making the complaint may lessen the value and weight thereof but does not effect its competency. State v. Balles, supra; State v. Schaeffer , 87 N.J.L. 663 (E. & A. 1915).

We next consider the contention of error referrable to an absence in the charge of the limited use of "fresh complaint" testimony. This question was not raised below either by a requested charge or an objection after the charge, so we must consider it under the guidelines of "plain error." We are persuaded that this omission had the clear capacity to bring about an unjust result. R. 2:10-2. A "fresh complaint" was employed by the State to bolster the credibility ...


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