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State v. Furguson

Decided: January 22, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED FURGUSON, JR., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Michels, Petrella and Baime. The opinion of the Court was delivered by Michels, P.J.A.D.

Michels

[198 NJSuper Page 398] Tried to a jury, defendant Fred Furguson, Jr., was convicted of first degree robbery in violation of N.J.S.A. 2C:15-1. He was sentenced to the custody of the Commissioner of the Department of Corrections for a 10-year term with a 3 1/2 year period of parole ineligibility pursuant to the provisions of the Graves Act, N.J.S.A. 2C:43-6(c), and assessed a penalty of $50, payable to the Violent Crimes Compensation Board. Defendant appeals.

Defendant seeks a reversal of his conviction and the dismissal of his indictment with prejudice or, alternatively, the reversal of his conviction and a remand for a new trial, or a modification of his sentence by vacating the parole disqualifier on the following grounds set forth in his brief:

POINT I: THE TRIAL COURT'S REFUSAL TO GRANT EVEN A ONE-DAY ADJOURNMENT OF DEFENDANT'S TRIAL, WHERE DEFENDANT AND HIS RETAINED ATTORNEY HAD BEEN BOTH TAKEN BY SURPRISE BY THE TRIAL DATE, AND DEFENDANT, PREVIOUSLY INDIGENT, INCARCERATED, AND REPRESENTED BY THE PUBLIC DEFENDER HAD ACTED EXPEDITIOUSLY IN RETAINING PRIVATE COUNSEL UPON HIS RECEIPT OF SETTLEMENT PROCEEDS FROM AN UNRELATED CIVIL ACTION, WAS A VIOLATION OF DEFENDANT'S RIGHT TO COUNSEL.

POINT II: THE PROSECUTOR'S DELIBERATE MISCONDUCT AND HIS MISSTATEMENTS OF LAW AND FACT DENIED DEFENDANT A FAIR TRIAL.

(a) Prosecutor's deliberate misconduct in eliciting disclosure to the jury of the source of defendant's mugshot and the repeated suggestion that defendant was involved in some kind of criminal "incident" while allegedly in Bambergers, all against the express instructions of the trial judge, denied defendant a fair trial.

(b) Prosecutor's misstatement of the law concerning defendant's right to a fair pre-trial identification procedure; his expression of "prosecutor's expertise" in closing argument, couched in the form of "advice" as to what the jury should have been looking for in defendant's facial expression to determine his credibility; his repeatedly asking defendant's brother why he did not go to the authorities and tell them that defendant was innocent; and his misstatement of critical grand jury testimony relating to defendant's alibi defense denied defendant a fair trial. .

POINT III: POLICE INVOLVEMENT IN ANNA MASTROIANNI'S PRE-TRIAL IDENTIFICATION OF DEFENDANT WAS SO IMPERMISSIBLY SUGGESTIVE AS TO MAKE HER IDENTIFICATION UNRELIABLE, AND IT SHOULD HAVE BEEN EXCLUDED; AND HER IN-COURT IDENTIFICATION LIKEWISE SHOULD HAVE BEEN EXCLUDED AS TAINTED AND LACKING AN INDEPENDENT BASIS.

POINT IV: THE PRETRIAL IDENTIFICATION PROCEDURES INVOLVING JAMES BURKE'S IDENTIFICATION OF DEFENDANT WERE IMPERMISSIBLY SUGGESTIVE AND TAINTED HIS IN-COURT IDENTIFICATION; AND FAILURE TO ADEQUATELY PRESERVE DISPLAY S-3ID PENDING TRIAL SHOULD HAVE PRECLUDED ITS USE AT TRIAL.

POINT V: THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO QUESTION DEFENDANT ON CROSS-EXAMINATION AS TO WHETHER HE OWNED A GUN HOLSTER, THE QUESTION BEING

HIGHLY PREJUDICIAL AND OF NO PROBATIVE VALUE UNDER THE FACTS OF THIS CASE.

POINT VI: INTRODUCING INTO EVIDENCE THE MUGSHOT PHOTOGRAPHIC DISPLAY (S-1), WHICH INCLUDED DEFENDANT'S PHOTOGRAPH (S-1A), WAS REVERSIBLE ERROR AS THE MUGSHOTS WERE UTTERLY LACKING IN PROBATIVE VALUE IN THIS CASE, AND WERE INADMISSIBLE EVIDENCE OF OTHER CRIMES.

POINT VII: THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO TESTIFY AS TO HOW THE POLICE HAD ACQUIRED ONE OF THE MUGSHOTS OF HIM, AND THAT THE CHARGES RELATED TO THAT MUGSHOT HAD BEEN DISMISSED, WAS REVERSIBLE ERROR UNDER THE CIRCUMSTANCES OF THIS CASE.

POINT VIII: THE PROSECUTOR'S IMPROPER ATTEMPTS TO INFLUENCE THE GRAND JURY BY OFFERING HIS OWN APPRAISAL OF THE CREDIBILITY OF DEFENDANT'S ALIBI WITNESSES AND THE PROSECUTOR'S MISSTATEMENTS OF ...


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