On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Rickey Bishop was indicted by the Passaic County grand jury and charged with the first degree robbery of Jerome Kostus, in violation of the provisions of N.J.S.A. 2C:15-1. Defendant's first trial ended when the jury disagreed upon a verdict and a mistrial was declared. Following a second trial, defendant was convicted by the jury of first degree robbery and was sentenced to the Youth Correctional Institution Complex for an indeterminate term with a 15-year maximum, and assessed a penalty of $25. Defendant appeals.
According to the State's proofs, at about 4 a.m. on June 18, 1980, Kostus was robbed and assaulted by defendant and another man in the entrance of an abandoned building on Broadway, Paterson, New Jersey. On June 17, 1980 Kostus, after finishing work in the afternoon, had taken his girlfriend out for a birthday dinner. After dinner he took her home and then went back to his place of employment in South Hackensack. There he met three employees, including his supervisor Jacobi. Kostus, Jacobi and the two coemployees went in three cars to bars in South Hackensack, Garfield and Passaic. Following the closing of the Passaic bar at 3 a.m. on June 18, Kostus drove Jacobi to Paterson. Kostus parked his car on Broadway, got out of the car and struck up a conversation with defendant and another man. During this time Kostus and the two other men were observed by Paterson Police Officer Wells who was en route to an assignment. Wells thought that he had recognized one of the two men with whom Kostus was speaking.
After a few moments defendant came up behind Kostus, grabbed him by the throat and dragged him into the entrance of the abandoned building. The other man stepped in front of Kostus and said, "I have a knife. Where's your money?" Kostus reached into his front pocket to hand the money over. The man who had threatened Kostus pulled the latter's hand away and took the money himself. He also took Kostus's wallet from his back pocket. Defendant then told his confederate to check
Kostus's shoes and socks for more money, and the confederate removed both from Kostus's feet. Defendant and his confederate threw Kostus onto the ground, tore his vest, kicked him repeatedly in the head, and warned him not to get up. Defendant and his confederate fled. Kostus then got up, picked up his shoes and walked out to the street. At about 4 a.m. Wells and his partner returned to Broadway and saw Kostus walking out of the abandoned building. Kostus told them that he had been robbed and assaulted and gave them a description of defendant as one of his assailants. Later in the day Officer Wells identified defendant from photographs. Kostus later also made a positive identification of defendant. This appeal followed.
Defendant contends that the trial judge erred in permitting Kostus to invoke his Fifth Amendment privilege against self-incrimination in the second trial because he had waived that right by testifying regarding the same privileged matter in the first trial. The judge permitted Kostus to invoke the privilege when defense counsel questioned Kostus concerning his possible procurement of a prostitute on Broadway shortly before he was robbed. Defendant argued that Kostus had admitted an "affiliation" with a prostitute in the first trial and therefore waived his privilege to refuse to answer questions concerning this matter at the second trial.
The rule concerning waiver of a privilege is set forth in Evid.R. 37 (N.J.S.A. 2A:84A-29), which provides:
A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.
A disclosure which is itself privileged or otherwise protected by the common law, statutes or rules of court of this State, or by lawful contract, shall not constitute a waiver under this section. The failure of a witness to claim a right or privilege with respect to 1 question ...