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State v. Volpone

Decided: June 21, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE VOLPONE, DEFENDANT-APPELLANT



Fritz, Ard and Pressler.

Per Curiam

Tried to a jury, defendant was convicted of atrocious assault and battery (N.J.S.A. 2A:90-1) and sentenced to an indeterminate term with a maximum of seven years.

He appeals, asserting that (1) he was denied his right to call a witness in his own defense as a result of the trial judge's refusal to permit a participant, a previously adjudicated delinquent for the same offense, to testify in his behalf, and (2) he was denied his right to due process in a fair trial by the judge's refusal to admit evidence obtained by law enforcement authorities during the investigation of the offense, which evidence was both material and relevant.

A brief review of the facts is necessary. The State adduced proof that on June 27, 1974 a fight occurred among a number of young men in Jersey City. Testimony indicated that defendant took two baseball bats out of the trunk of his car, giving one to J.A., a juvenile, and keeping one for himself. They then attacked the victim, striking him several times with the baseball bats and inflicting severe head injuries.

Defendant testified that, although in the neighborhood, he was several blocks away in front of a candy store at the time of the assault. He denied having any baseball bats or participating in any manner other than to give the juvenile and others a ride in his car when they appeared at the candy store. He further testified he had no knowledge of anyone being beaten with a baseball bat.

The prime issue is whether the trial court erred in denying defendant's request to have the juvenile J.A. testify on his behalf because defendant failed to comply with the notice of alibi rule, R. 3:11-1.

Admittedly, defendant never gave the prosecutor any bill of particulars claiming an alibi defense before trial. On September 24, 1975, the first day of trial, defense did give the prosecutor a written statement by the juvenile dated August 13, 1974. J.A. had been tried as a juvenile and adjudicated a delinquent for the baseball bat offense sometime between October and December 1974. The statement denied that defendant was present during the altercation and completely exculpated him from any participation in the crime. A week later, on October 2, 1975, the prosecutor advised the judge that he would object to defendant calling the juvenile as a witness because defendant had failed to comply with R. 3:11-1, which requires notice of an alibi defense to be given the State. Defendant argued that the juvenile's testimony could not be classified or characterized as alibi testimony. The judge, however, ruled that the testimony did constitute an alibi and precluded the juvenile from being a witness for the defense.

We disagree. 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. Although testimony alleging that a defendant was not at the scene of the crime inferentially suggests defendant was elsewhere, it is not the type of testimony contemplated by our alibi rule.

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:

In a case of this nature, it is the State's burden to prove defendant's physical presence at the scene of the crime at the time it was committed. Proof offered by the defense that defendant was not at the scene of the crime does not disadvantage the State. The State fully appreciates from its initial investigation the necessity of placing defendant at the scene of the crime. The State, however, is disadvantaged when the defense offers proof that defendant was not at place "A", the scene of the crime, but rather at place "B" at the time. Under these circumstances, the State is entitled to advance knowledge of the claim in order to investigate and attempt to disprove this allegation as part of its main case. Where the presence of defendant at the scene of the crime is essential to show its commission by him, the ...


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