On appeal from the Superior Court, Appellate Division, whose opinion is reported at 179 N.J. Super. 14 (1981).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler and O'Hern. For reversal -- Justices Schreiber and Pollock. Schreiber, J., dissenting. Justice Pollock joins in this opinion.
Tried to a jury, defendant was convicted, as an accomplice, of assault with intent to rob in violation of N.J.S.A. 2A:90-2, and of aiding and assisting in the escape of the perpetrators, contrary to N.J.S.A. 2A:85-2(a). The trial presented a sharply disputed fact issue as to whether defendant was the driver of the getaway car. She was identified by three prosecution witnesses, two of whom had records of prior convictions for narcotics violations. The trial court, applying State v. Sands, 76 N.J. 127 (1978), refused to allow defendant to impeach the credibility of those two witnesses through the use of their criminal convictions. A divided panel of the Appellate Division reversed and remanded for a new trial, 179 N.J. Super. 14 (1981), with each judge writing separately. The State's appeal is here as of right because of the dissent below. R. 2:2-1(a)(2).
The essential facts are adequately stated in Judge Polow's opinion in the court below as follows:
Three prosecution witnesses, Gloria Larkin, Charles Sutton and Weldon Grady, identified defendant as the driver of the purported getaway vehicle, a gold or yellow Volkswagen, based upon observations from apartment windows at about four o'clock in the morning. On cross-examination Larkin conceded that she was unable to carefully observe the driver of the vehicle but positively identified the car as the vehicle she had seen defendant driving earlier in the day. Grady identified the scarf worn by the driver as similar to the one defendant had worn earlier in the evening. Sutton modified his direct testimony identifying defendant as the driver by his statement on cross-examination that he did not see defendant driving the vehicle although the driver was a young woman. Defendant denied her presence in the vehicle at the time of the offense and produced three corroborative witnesses. The testimony of each, including her mother and
brother, lent varying degrees of support to defendant's claim that she was home in bed when the crime was committed.
Upon the State's application the court excluded the use of prior convictions to attack the credibility of Larkin and Sutton. The trial judge, concluding that State v. Sands, 76 N.J. 127 (1978), vested him with such discretionary authority, ruled that the respective five- and eight-year-old narcotics convictions were too remote and thus inadmissible. Defendant disagreed and argued that the discretion authorized by Sands applies only to a defendant as a witness in a criminal trial and that in any event the trial judge erred in declaring the convictions too remote. She contends that had she been allowed to elicit testimony regarding the two witnesses' prior convictions, their "credibility -- weak as it was -- would have been destroyed in the minds of the jurors." Since the only evidence of her involvement was contained in the testimony of the three prosecution witnesses who identified her as the driver, and since Grady admitted on cross-examination that he "lied" to police in reporting that he had seen nothing, we conclude that if the excluded testimony had been introduced, the jury may have arrived at a result it otherwise might not have reached. [179 N.J. Super. at 17-18.]
It was on this basis that the Appellate Division, satisfied that the prior criminal convictions of Larkin and Sutton should not have been excluded, reversed and remanded for a new trial. We affirm, substantially on the basis of Judge Polow's opinion stating the majority position below, with but slight differences as touched upon here.
N.J.S.A. 2A:81-12 provides that "[f]or the purpose of affecting the credibility of any witness, * * * his conviction of any crime may be shown by examination or otherwise * * *." Under Evid.R. 4, evidence may be excluded if "its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury." Combining the force of these provisions with language from State v. Sands, 76 N.J. at 144 ("* * * whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the ...