Kolovsky, Fritz, and Crane. The opinion of the court was delivered by Fritz, J.A.D. Kolovsky, P.J.A.D. (dissenting).
Appellant, with another, was convicted by a jury of assault with an offensive weapon (N.J.S.A. 2A: 90-3) and possession of a firearm without a permit (N.J.S.A. 2A:151-41, subd. a). He was sentenced to a two to four-year term on the former charge, and to a consecutive one to three-year term on the latter.
Here he urges as grounds for reversal that (1) the sentence was manifestly excessive, (2) the two charges are fractionalizations of one offense, and (3) "the trial court committed reversible error by allowing the prosecutor to show the defendant failed to make an exculpatory statement to the police."
We find the first two assertions to be without merit. While the sentence is substantial, it is within statutory limits, and we cannot say we are persuaded that there was a mistaken exercise of discretion by the sentencing judge. State v. Tyson, 43 N.J. 411, cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965). Nor do we agree that the offenses charged constitute a fractionalization within the doctrine enunciated in State v. Jones, 94 N.J. Super. 137 (App. Div. 1967), as defendant contends. In Jones defendant was charged with robbery while armed with a knife, and with unlawful
possession of the knife. Conviction of the latter charge required the State to prove unlawful use or an intent to use the knife unlawfully against another (N.J.S.A. 2A:151-56). The court there held that since proof of the robbery was necessary to prove both the robbery and the necessary ingredient of unlawful use or attempt so to use in the possession statute, there was a merger of offenses and only one crime could be charged. 94 N.J. Super. at 140. In the matter before us the prohibition of the possession statute is violated by mere possession without a permit (subject to certain exceptions not here applicable). Conviction on the possession charge could be had without proof of the assault, and proof of the illegality of possession was not necessary for the assault charge. See State v. Leibowitz, 22 N.J. 102 (1956).
The third ground set forth above is meritorious and warrants reversal.
Defendant, who had no prior criminal record, elected to testify on his own behalf. His testimony was elicited through an interpreter. On direct examination he admitted that on the night of the crime he had a gun with him which, he claimed, he had just bought from someone whose name he did not know, but who was going to Puerto Rico and needed to dispose of the gun. Defendant said, "He cried in necessity to me." Defendant testified that he intended to take the gun home and keep it. But he and the codefendant stopped at "the Frank Club" where, defendant testified, there was a man who had "his head down at the counter * * * two or three minutes later he said somebody robbed me." Defendant and his friend went outside, "maybe to call the police," but were detained on the sidewalk and arrested. It is significant that nowhere in his direct testimony did defendant testify, either directly or indirectly, that he had told the police anything with respect to the events in question. Nor was any such information volunteered on cross-examination prior to the question and unsuccessful defense objection which is here challenged.
We observe at this point that while nothing of significance was developed in the State's case in chief with regard to any statement (or absence thereof) of Morales at police headquarters after his apprehension, credible evidence in the record in testimony from a police officer demonstrates that Morales had been advised of his right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On cross-examination by the assistant prosecutor defendant was asked if, when he went to the police station, he talked to "Spanish Detective Villabobos." An affirmative response elicited the further question: "Did you tell him that you had bought that gun from a man who was in necessity and wanted to go to Puerto Rico to see his sick mother?" An immediate and timely objection followed, and was overruled. We think this was error.
The right of an accused to remain silent after Miranda warnings cannot be diminished by a concern that such silence may be used against him, or, put otherwise, may be utilized to compel his forever remaining silent. State v. Griffin, 120 N.J. Super. 13 (App. Div. 1972), certif. den. 62 N.J. 73 (1972). We held this was so with respect to later exculpatory statements. We see no reason why the rule should not be the same a fortiori where the subsequent statement is, as here, inculpatory. The considerations of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), and State v. Kimbrough, 109 N.J. Super. 57 (App. Div. 1970), were distinguished in State v. Griffin, supra, and the distinction applies here as well. Additionally, it does not appear that Miranda warnings were given in either Harris or Kimbrough. Cf. State v. Burt, 107 N.J. Super. 390 (App. Div. 1969), aff'd o.b. 59 N.J. 156 (1971), cert. den. 404 U.S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972). The essential inconsistency, said in Harris, supra, to justify the admission of "traditional truth-testing devices" in a challenge to credibility on the basis "of confrontation with prior inconsistent utterances," is absent when silence can be reasonably
explained as consequent to Miranda warnings. Without the inconsistency, even relevance disappears.
The dissent, relying particularly on Harris v. New York, supra, disclaims error on the basis that, "Once defendant had testified that he had told the police his story about the purchase of the gun, the State had the right to attack defendant's credibility * * *." We subscribe to this proposition as a general statement, and have no doubt that had defendant so testified prior to the impugned inquiry on cross-examination, such a determination would be eminently sound. But under the circumstances here present, the conclusion begs the issue: it was the compulsion secured by the erroneous overruling of the objection which produced defendant's only testimony as to what he had told the police.
We are satisfied that the obligation imposed upon a testifying defendant by Harris "to speak truthfully and accurately" (401 U.S. at 226, 91 S. Ct. 643) was not intended to create an obligation to speak where none exists and in defeasance of Miranda. State v. Griffin, supra.
The dissent further justifies the result -- and distinguishes Griffin -- by noting that defendant did not testify, in answer to the objectionable question, that he remained silent. The dissent notes, correctly, that defendant's testimony was that he had told his story to the police. This rationalization makes the availability of the constitutional protection depend on the answer given, rather than the propriety of the inquiry. In this context at least, such an approach completely emasculates the Fifth Amendment protection, for if the testimony of an accused as to prior silence or speech differs from evidence which the State produces, there is no error under the dissent's rationale, and if he testifies conformably the error is harmless. It is ...