On appeal from Essex County Court.
Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.
Defendant was convicted of robbery (N.J.S.A. 2A:141-1) in a jury trial. In an earlier trial the jury could not agree upon a verdict. Defendant was sentenced to State Prison for a term of five to seven years.
On this appeal defendant contends: (a) the prosecutor's remarks in summation were prejudicial and the trial judge failed to deal properly with that conduct, and (b) the cross-examination of defendant on his prior convictions improperly exceeded the permissible use of the evidence. We agree with these contentions and reverse.
There was ample evidence tending to support defendant's conviction, but the transgressions of the prosecutor warrant our stern condemnation and the reversal of this conviction in an effort to stem prosecutorial misconduct. Improper conduct of prosecutors is becoming "much too prevalent." State v. Farrell , 61 N.J. 99, 104 (1972); State v. Spano , 64 N.J. 566, 568 (1974). It must be deterred. See State v. DiPaglia , 64 N.J. 288, 298 (1974) (Clifford, J., dissenting); State v. Thornton , 38 N.J. 380, 400 (1962), cert. den. 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963).
There was evidence to show that a Carl Swanson was assaulted and robbed by two men near Bamberger's Department Store in Newark. When the two miscreants fled they were pursued by a motorist, Samuel Griffin, who captured defendant. The victim had also joined in the pursuit of his attackers. However, defendant's accomplice escaped. Defendant
struggled to escape until the police arrived and he gave a false name to the arresting officer, but a search failed to disclose any of the victim's property in defendant's possession.
Defendant testified in his own behalf. He claimed that he was sitting on a porch fixing a nail in his shoe when Griffin ran past him, ran up a stairway as if he were looking for someone, came back to defendant, looked at him, and then "grabbed" and "punched" him. A struggle ensued but defendant could not free himself from Griffin's grasp. The victim, Mr. Swanson, arrived and then the police. Defendant admitted giving the police a false name.
On cross-examination the prosecuting attorney referred to defendant's testimony that he was walking home because he didn't have carfare. He asked defendant if defendant robbed Mr. Swanson because he had no money and needed some "to make it through the next couple of days." Defendant resisted this charge by saying he had been working and was getting paid the next day, but the prosecutor pressed defendant about his lack of funds. We refer to this on our own motion because it is generally improper to use a defendant's poverty to establish a criminal motive. State v. Mathis , 47 N.J. 455, 469-472 (1966); cf. State v. Copeland , 94 N.J. Super. 196, 201-202 (App. Div. 1967). Moreover, this line of questioning relates to another impropriety to which defendant objected, namely, the prosecutor's reference to defendant's recent release from jail, thereby again suggesting that defendant committed the robbery because he was in need of funds or, at least, was a "bad man" with a penchant for crime.
The prosecuting attorney went on to cross-examine defendant about a prior conviction and 60-day jail sentence for larceny. This was admitted by defendant. The prosecutor then explored the dates when defendant was sent to jail and when he was released. This culminated in a final question by the prosecutor:
Q. As a matter of fact, sir, you were only out of jail a few days when you robbed Mr. ...