On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Furman, Trautwein and Gaulkin. The opinion of the court was delivered by Trautwein, J.A.D.
[187 NJSuper Page 116] This joint appeal raises questions, as to defendant Donato Cantalupo, concerning the propriety of the trial judge's refusal
to order the Public Defender to provide transportation for alleged alibi witnesses from Florida to New Jersey and whether the destruction of a codefendant's taped statement deprived defendant of a fair trial. Issues raised as to codefendant Patrick Leonard Cantalupo concern contentions that the jury verdict was against the weight of the evidence, error in the trial judge's charge relating to defendant's flight, and excessiveness of sentence.
Defendants Donato and Patrick Leonard Cantalupo were indicted for breaking and entering with intent to steal, contrary to N.J.S.A. 2A:94-1 (count I); stealing goods in excess of $200, contrary to N.J.S.A. 2A:119-2 (count II); theft of credit cards, contrary to N.J.S.A. 2A:111-42 (count III) and unlawful possession of credit cards, contrary to N.J.S.A. 2A:111-42 (count IV).
At the end of the State's case counts III and IV charging theft of credit cards and possession of credit cards were dismissed. Count II was amended to charge larceny of goods valued at less than $200. The jury then found defendants guilty of counts I and II.
After defendants' motions for new trials were denied, each was sentenced to a prison term of five to seven years for breaking and entering with intent to steal and a concurrent six months jail term for stealing.
Both defendants declined to take the stand. The State's evidence showed that on March 23, 1979, after a dinner in New York with his date, Maryann Ryan Pierce (Pierce),*fn1 Joseph Furst (Furst) and Pierce met defendants Patrick Leonard Cantalupo (Pat), Pat's wife Victoria (Vicki) and Donato Cantalupo (Donato). Eventually the five individuals drove to New Jersey and spent the night at Pat's house. The following afternoon the five were driving through a residential area in Watchung, New Jersey, in Vicki's maroon BMW automobile when Furst suggested "doing a burglary." After Vicki checked to see that no one [187 NJSuper Page 118] was home at the house selected for the burglary, Furst and Pat got out of the car and went to the back of the house located on Anderson Road in Watchung. Furst and Pat entered the home after breaking a back window, but upon hearing the sound of a television the two made a hasty retreat but not without first taking a briefcase, a purse and some $40 in cash. While Furst and Pat were in the house, Donato drove around the neighborhood with Vicki and Pierce. Following their retreat Furst and Pat broke open the briefcase. Inside was a cassette recorder. Thereafter they entered the waiting BMW automobile and departed. While the burglary was being committed, Watchung Police Detective Michael Scott noticed an unfamiliar car proceeding from the cul-de-sac on Anderson Road. He noted that it was a maroon two-door BMW containing three occupants. Shortly after this observation Detective Scott saw the BMW again but this time it was carrying five occupants. His suspicions aroused, Scott began to follow the car. He activated his headlights and red flashing light, signalling the BMW to pull over. The driver of the BMW did not heed the signals but instead sped away on Route 22, traveling at 72 m.p.h. The BMW went through a number of intersections before being diverted into a parking lot by a police roadblock. A patrol car summoned by Scott joined the chase. This car and Scott's then cut off the BMW as it attempted to exit the parking lot. Three males then jumped from the BMW and ran in different directions. Scott saw the BMW begin to move toward an exit and ordered it to stop. The car continued to move until Scott drew his gun and arrested its occupants, Pierce and Vicki. Patrolman Robert Reilly left his car and pursued the fleeing men. He caught Furst at gunpoint. Pat and Donato escaped. During the chase Detective Scott had seen two objects thrown from the BMW. He radioed to have them picked up and they were subsequently identified as a purse and a tape cassette. Furst, Pierce and Vicki were then taken to the Watchung Police Station. On March 26, 1979 Detective Scott interviewed Pierce after reading her the Miranda warnings, and taped her account of the events described above. Upon concluding her story
Pierce complained, on tape, that she had received poor treatment from the Watchung Police. Scott then took another statement from Pierce which, according to the proofs, was identical to the first, but included a concession that she had been fairly treated by the police. The first taped conversation was either lost, destroyed or wiped out due to inadvertence. On March 27, 1979 Pat was arrested at the Watchung Police Station while inquiring into the release of the BMW. Donato was subsequently arrested as well.
On November 10, 1980 a bench warrant was issued for the arrest of Pat inasmuch as he had failed to appear for trial of the pending indictment. At that time another warrant had been issued for Pat's arrest stemming from an unrelated parole violation. As a result of these warrants, the police in Largo, Florida, were contacted. Pat's brother Lenny owned a pawn shop in Largo and on January 6, 1981 a police officer saw Pat in his brother's shop. The officer chased Pat and with the aid of another officer finally apprehended him in a hallway of the pawn shop. Pat waived extradition to New Jersey and was jointly tried with his brother Donato. This appeal followed.
Donato first contends that he was denied his right to effective assistance of counsel when the Public Defender refused to transport his alibi witnesses to New Jersey from Florida and that, in this connection, the trial judge erred in ...