The single question involved in this appeal is whether the trial judge erred in denying defendant's request to present an alibi defense because of his failure to comply with R. 3:11-1.
On June 24, 1974 defendant was arraigned and entered a plea of not guilty to the charge of armed robbery. On the same day the State demanded a bill of particulars of defendant under R. 3:11-1, which reads in pertinent part as follows:
If a defendant intends to rely in any way on an alibi, he shall, on written demand of the prosecuting attorney and within 10 days thereafter, furnish a written bill of particulars, signed by him, stating the specific place or places at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi. * * *
Thereafter, by letter dated November 5, 1974, the attorney then representing defendant advised the prosecutor of defendant's intention to rely on the defense of alibi, listed the places he could have been at the time of the commission of the crime and submitted the names of three people he asserted would corroborate the alibi.
On April 28, 1975, almost six months after the notice of alibi was submitted to the Prosecutor's Office, the trial commenced. Immediately after the jury selection, the prosecutor moved to strike the alibi defense because of the aforementioned late notice pursuant to R. 3:11-1 and R. 3:11-2. The latter rule provides:
If such bill of particulars is not furnished as required, the court may refuse to allow the party in default to present witnesses at trial as to defendant's absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment as the interest of justice requires.
The judge granted the State's motion because of late notice. Later on during the first day of trial, defendant requested the judge to reconsider its earlier ruling with respect to the defense of alibi. After considerable colloquy the judge denied the request stating defendant's notice to the prosecutor was untimely and that the interest of justice would not be promoted by any delay of the trial while an appropriate investigation was made by the prosecutor's office.
In asserting the defense of alibi a defendant is alleging he was elsewhere at the time the crime was committed and therefore could not commit it. If predicated upon credible testimony, few defenses have greater potential for creating a reasonable doubt as to defendant's guilt in the minds of the jury. To strip a defendant of such a defense is an extremely severe sanction. In State v. Baldwin , 47 N.J. 379 (1966), cert. den. 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966), the late Chief Justice Weintraub, in discussing alibi stated:
The salutary purpose of the rule is obvious. An eleventh hour claim of alibi made in the course of trial disables the State from properly investigating the validity of the claim. Under such circumstances we do not question the court's authority to deny the defense. However, in the instant case, the State had almost six months notice of the defense. Not by the furthest stretch of the imagination can we discern the State being disadvantaged.
The language of R. 3:11-2, "or make such other order or grant such adjournment as the interest of justice requires," recognizes that the suppression of the defense may not be the most ...