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State v. Gray

Decided: April 18, 1975.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
WINFRED GRAY, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Clifford and Judge Kolovsky. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

Winfred Gray, defendant herein, and a codefendant Clarence Collins were convicted of having robbed Albert Silver of his wallet at knifepoint on December 15, 1972 (armed robbery under N.J.S.A. 2A:141-1 and 2A:151-5). Gray appealed from the judgment of conviction (Collins did not appeal) and the Appellate Division, in an unreported opinion, reversed Gray's conviction. The Appellate Division held that the trial court had unduly restricted defense counsel who, during the cross-examination of Herman Moreano, a State witness, had sought to impeach his credibility.

Moreano was involved in the same criminal episode, having been the driver of the getaway car used by Gray and Collins. He had been apprehended shortly after the robbery and had been indicted for robbery.*fn1 Ultimately, he agreed to cooperate with the State, pleaded guilty to the charge of robbery and was awaiting sentence at the time he testified as a State's witness at defendant's trial.

On cross-examination of Moreano, defense counsel brought out that Moreano had been indicted only for robbery, whereas Gray and Collins were being charged with robbery while armed. However, when counsel sought to question Moreano as to "whether or not he knows how much time he's saved

already as to not being indicted for the armed part," the trial court ruled that the reason Moreano did not face an armed robbery count "was outside the scope of this trial," and it excluded such evidence under Evid. R. 4.

The Appellate Division held that counsel should have been permitted to bring out on cross-examination of Moreano the difference in the manner of indictment between him and defendants in order to be able to demonstrate that the witness may have received consideration for his testimony. It held that the error had sufficient possibility of affecting the result to require reversal. This Court granted certification on the State's petition. 66 N.J. 331 (1974).

We conclude that the trial court's ruling was erroneous but that defendant was not prejudiced thereby, for the reason that it was clearly established that Moreano could have had an ulterior motive in testifying as he did since he admitted that he hoped for a better sentence because he was helping the State. (He had not yet been sentenced on his plea to the charge of robbery.)

We recognize that testimony of an accomplice favorable to the State is to be carefully scrutinized and assessed in the context of possible interest. State v. Spruill, 16 N.J. 73, 80 (1954). In the instant case Moreano's testimony identifying defendant Gray as one of his confederates was an integral part of the State's case. His credibility and possible motive to fabricate were, therefore, relevant considerations which defense counsel properly explored. It was shown that Moreano had been indicted for robbery, had pleaded guilty and was awaiting sentence at the time he testified. He denied that he had been promised anything in return for his testimony, but acknowledged that he hoped for "some kind of better sentence" because he was helping the State.

In summation, counsel for Gray hammered at the credibility of Moreano's story charging that the robbery actually had been committed by two other friends of Moreano whom

he was trying to protect. He said that Moreano was the one who had the most to gain by cooperating with the police because "he's the one they had." On two occasions during summation counsel for defendant reminded the jury that "Moreano was only charged with robbery."

The only thing that defense counsel was not permitted to develop was the lesser sentence exposure Moreano had. However, as heretofore noted, the jury had been effectively reminded that Moreano was only charged with robbery while Gray and Collins were on trial for robbery while armed. We think the amount of lesser sentence exposure should have been allowed; but, in the circumstances of this case, such proof would ...


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