Defendant was convicted of 20 counts charging armed robberies of eight persons and armed assaults with intent to rob two persons, all of which arose out of one holdup at the Tara Bar in Newark on June 20, 1973. The court imposed a combination of consecutive and concurrent sentences to New Jersey State Prison aggregating 25 to 39 years. The appeal challenges alleged trial errors as well as the excessiveness of sentence.
The first point raised by appellant relates to the refusal of the trial judge to permit proffered testimony of a George Albertocki, an investigator of the Public Defender's Office, relating to his conversation with Russell Watson. The latter had been called as a witness by the defense and asked general
questions as to his whereabouts during the night of the offense and whether he knew anything about a holdup at the Tara Bar. The witness refused to answer the significant questions, invoking the privilege against self-incrimination. His refusal was sustained by the court.
Thereafter, at the very end of the trial and prior to summations, defendant's counsel advised the court that he wished to offer the testimony of Albertocki and proceeded to state the tenor of his anticipated testimony in the following language:
Mr. Albertocki wil testify to the fact that Russell Watson admitted to him that he committed the Tara Bar offense along with James Harris, Larry Alston and Robert Peterson. He gave details as to the commission of the offense as to time, place and, other details. He would also testify to the fact that Mr. Watson related to him that it was a Mr. James Harris that went into the bar and ordered a soda and, came out. And then, that the others went in afterwards. That Mr. Harris resembles Mr. Tyrone Allen, the defendant in this case. I would also ask that Mr. Harris be brought up for the purpose of being shown to the jury.
Upon objection of the prosecutor the court ruled that the testimony of Albertocki was inadmissible.
Defendant urges that the hearsay statement of Watson was admissible as a relevant declaration against penal interest under Evid. R. 63(10). We agree with appellant that if the proffered statement through the testimony of Albertocki in fact inculpated Watson in the crime at issue and exculpated Allen, it would have been admissible as an exception to the hearsay rule and as material to the issue of guilt of defendant. Under such circumstances the evidence could not have been excluded on any theory of discretionary power under Evid. R. 4 or otherwise. There would be no room for discretionary exclusion of such exculpatory testimony on any theory of balancing probative value against the factors outlined in Evid. R. 4.
In view of the failure of counsel to present Albertocki as a witness in a voir dire hearing so as to solidify the exact nature of the proffered evidence, we must test its admissibility
from counsel's representation to the court. On that basis we conclude that the out-of-court statement of Watson does not qualify as a relevant declaration against penal interest so as to mandate its admissibility.
The robbery delineated by the evidence was not committed by one felon; it involved three persons. As a consequence, the statement by Watson that he committed the offense does not in itself exculpate defendant Allen. Although that portion of the statement would come within the hearsay exception which we have discussed, it would not be material on the issue of Allen's guilt. The ...