This is a Motion for a new trial pursuant to R. 3:20-1 on the grounds that the verdict was against the weight of the evidence and that there was a manifest denial of justice under the law. Defendant was charged in a four-count Indictment with:
1. Assault with an offensive weapon -- 2A:90-3
2. Illegal possession of a weapon -- 2A:151-41
4. Extortion while armed -- 2A:151-5
The case was tried in the Superior Court, Union County and resulted in a jury verdict of guilty as to simple assault and extortion. Count 2, illegal possession of a weapon, was dismissed on motion of the prosecutor and was not considered by the jury. The defendant was found not guilty on the other counts.
The principal thrust of defendant's argument is that the State knowingly failed to correct false statements made by one of its witnesses by neglecting to bring to the attention of the jury a prior inconsistent and exculpatory statement by said witness, and further, by failing to correct certain statements made by the said witness on cross-examination that were known to the prosecutor to be false.
This is not the typical use of perjured testimony type case where a prosecutor actively or negligently fails to disclose information or prior dealings to defense counsel in an attempt to obtain a conviction. In fact, the record discloses that the prosecutor had made every disclosure required of the State in a criminal case as soon as the information became known to him. This discovery was provided despite the fact that no discovery motion was made pursuant to R. 3:13-3(a), (b) and (c) by defense counsel and no order of discovery was in effect at any time during these proceedings.
A brief review of the pertinent facts discloses that defendant and one Battifarano were originally co-defendants;
however, on the second day of trial Battifarano pled guilty to an assault with an offensive weapon charge. The prosecutor and defense counsel stipulated that sometime immediately prior to this plea, Battifarano, his attorney Mr. Deer, and the prosecutor engaged in plea bargaining at which time Mr. Battifarano gave the prosecutor a statement that "Mr. Cahill did not have a gun while perpetrating the alleged offense." Subsequently, Deer met with defendant and defense counsel and informed them of Battifarano's statement concerning the absence of a gun during the perpetration of the alleged incident. It was during this recess that the prosecutor decided to withdraw the plea bargain offer, stating that he did not believe Mr. Battifarano's story, and he so informed not only Deer, Battifarano's attorney, but also defense counsel herein. The plea offer was subsequently reinstated without its being contingent upon Battifarano testifying in the case as previously stipulated, and Battifarano entered a plea of guilty to the assault with an offensive weapon charge.
On July 2, 1973 Battifarano testified on behalf of the State and on direct examination stated that defendant had used a gun in perpetrating the alleged offense. The prosecutor permitted this statement to rest unchallenged before the jury and did not attempt to correct, dilute or effect the same. He did not attempt or bring to the attention of the witness before the jury the prior inconsistent exculpatory statement. Additionally, certain testimony in the same vein elicited during cross-examination of ...