Carton, Seidman and Goldmann. The opinion of the Court was delivered by Seidman, J.A.D.
[125 NJSuper Page 212] Defendant, after a trial to a jury, was convicted on an indictment charging embezzlement and sentenced to a suspended term of 3 to 5 years in State Prison and fined $1000 payable at the rate of $25 per week. He appeals, contending (1) the trial court abused its discretion in not granting a continuance, (2) the trial court erred in denying his motion for a judgment of acquittal, (3) the prosecutor's comments in summation constituted plain error, and (4) the jury instruction in part constituted plain error.
The request for a continuance, which the trial judge denied, was actually to place the case on the inactive list because of the illness of one Frank Culver, claimed to be a material witness in defendant's behalf.
Culver, who was also indicted for his involvement in the events leading to the charge against defendant, suffered a heart attack during his own earlier trial, and a mistrial was declared. Defendant asserts that because of an allegedly exculpatory statement made by Culver, the latter's testimony was essential to his defense. From available medical information, including the results of a court-ordered examination, Culver's condition is concededly such that testifying in court or by deposition could be fatal. Moreover, it appears that Culver's counsel would not permit him to give testimony in any manner since the charges against his client were still open.
The granting of a continuance is a matter exclusively within the province and sound discretion of the trial judge, and should not be upset unless it appears from the record that the defendant suffered manifest wrong or injury. State v. Zied, 116 N.J.L. 234, 239 (E. & A. 1935); State v. Tulenko, 133 N.J.L. 385, 391 (E. & A. 1945); State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965). In the particular circumstances of this case, we perceive no abuse of discretion by the trial court. Moreover, aside from the probability that Culver would never be able to testify or, if he was able to, that he would claim his privilege against self-incrimination, our review of the record discloses that the exculpatory effect of the proposed testimony, in the light of defendant's own testimony at the trial, would have been minimal at best.
Also without merit are defendant's contentions that the prosecutor improperly and prejudicially commented in his
summation on the non-production of a potential witness for the defense, and that the trial court's charge on the issue of credibility was misleading and prejudicial.
No objection to the prosecutor's comment was voiced at the time, but defendant now seeks to invoke the plain error rule, arguing that the comment possessed a clear capacity to bring about an unjust result. We note, however, that it was defense counsel who advised the court of his intention to produce the witness. The witness was not called and the omission was not explained. In these circumstances we do not believe the comment was improper or prejudicial. State v. Clawans, 38 N.J. 162, 171-172 (1962), on which defendant relies, is factually distinguishable.
There was no objection to the portion of the charge complained of; but, in any event, the court's remark that "the basic question is whether the complaining witnesses for the State are telling the truth or whether the defendant is telling the truth" was not improper in the context of the ...