Lynch, Larner and Fulop. The opinion of the court was delivered by Larner, J.A.D.
[138 NJSuper Page 581] Defendant was convicted of breaking and entry with intent to rape (N.J.S.A. 2A:94-1) and the substantive crime of rape (N.J.S.A. 2A:138-1), and
sentenced to two consecutive indeterminate terms at the Youth Reception and Correction Center.
The appeal from this conviction raises two issues: (1) admissibility of an out-of-court voice identification of defendant and (2) excessiveness of sentence.
Although there have been no New Jersey decisions dealing specifically with the application of the law involving visual identification to voice identification, we have no hesitancy in holding that the constitutional safeguards established by the Supreme Court with respect to visual identification are equally applicable to identification of a voice through auditory senses. As to visual identification, see Neil v. Biggers , 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The hazards as to the trustworthiness of eye witness identification are even more apparent where the identification is by voice alone. Inbau, Moenssens & Vitillo, Scientific Police Investigation 136 (1972). Therefore, it is incumbent upon a trial judge to conduct a voir dire proceeding in order to determine whether the out-of-court voice identification was "so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Neil v. Biggers, supra , 409 U.S. at 197, 93 S. Ct. at 381, 34 L. Ed. 2d at 410. See also Evid. R. 63(1)(c). If it was, the admission of the identification testimony constitutes a denial of due process. Neil v. Biggers, supra; Stovall v. Denno , 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).
The mere fact that the identification is by voice alone does not automatically interdict admissibility. Roper v. Beto , 454 F.2d 499 (5 Cir. 1972). Testimony by a witness that he recognized a defendant by his voice is generally admissible provided that the witness has an adequate basis for comparison of defendant's voice with the voice which he identifies as that of the accused. Annotation, "Identification of an accused by his voice", 70 A.L.R. 2d 995 (1960).
The trial judge did conduct a voir dire hearing and concluded in effect that under the totality of the circumstances relating to the identification there was sufficient degree of reliability to permit its admission in evidence, with its weight to be evaluated by the jury with all the other evidence in the case.
With this background of the controlling legal principles we turn to a review of the operative facts in evidence relating to the identification of defendant by the victim.
Mrs. Coltre was asleep in bed in her home around 7 A.M. on December 7, 1972 when she was awakened by a man's voice and the sensation of something placed over her head. Her head was covered by a piece of clothing so that she could not see the intruder. Through force and threats she was compelled to submit to intercourse with him. He remained in the room for half an hour, carrying on a running conversation on many subjects during the entire period before, during and after the sexual attack.
On the same day, upon interrogation by the police the victim stated that she did not see the assailant so as to identify him visually, but that she could identify his voice if she heard it again. She described the voice which she heard during the half-hour period as that of a negro male, "very calm and soft spoken."
As a result of police investigation defendant was brought to police headquarters for questioning on the very next day. Mrs. Coltre was contacted by telephone and requested to go to the police station. She was told that the police had a possible suspect in custody ...