On appeal from Superior Court of New Jersey, Law Division, Salem County.
McElroy and Dreier. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from a conviction on three counts of armed robbery in violation of N.J.S.A. 2C:15-1. He was sentenced to three concurrent terms of 20 years each, with a 10 year parole ineligibility and assessed a $75 penalty payable to the Violent Crimes Compensation Board. We have determined that the conviction must be reversed and the matter retried.
On February 18, 1981, three men wearing stocking masks and armed with what appeared to be silver .25 caliber handguns robbed Fast Eddie's, a restaurant in Penns Grove, New Jersey, as well as each of the two employees of the restaurant. The robbery occurred at approximately 7 p.m. A detective sergeant responded to the police call after the robbery and arrived at the restaurant between 7:15 and 7:30 p.m.
One of the employees claimed that one of the robbers was defendant, who the day before had applied for a job at the restaurant. Both employees agreed that the robber in question wore gray pants. One remembered that his stocking mask was dark, with the eyes, nose and mouth cut out; the other claimed the mask was a light color without any cutouts and added that the individual wore white sneakers.*fn1 Both witnesses, however, agreed that they could see the robber's features through the mask and, on the day after the robbery, identified defendant from a photographic array. In fact, one of the witnesses, while giving a formal statement to the detective after identifying
defendant's photograph, recognized defendant walking down the hall of the municipal building. Both witnesses further identified defendant at trial. In addition, the witnesses identified at trial a pair of gray pants and a pair of white sneakers, produced pursuant to a search warrant executed at defendant's home, as the ones worn by the robber.
Defendant testified that at the time of the robbery he was with his mother at a high school wrestling match in which his brother was wrestling. He claimed that he was at the high school from 6:30 p.m. to 9:30 p.m. and, in support of his story, presented six alibi witnesses who placed him at the high school at various times during that period.
The central issue in this case was the identity of the robber. This issue placed defendant's alibi witnesses in sharp disagreement with the State's witnesses' identification of defendant.
With regard to what defendant was wearing on the night in question, four of the alibi witnesses remembered his pants as being either dark blue or black; the others could not recall the color. Defendant himself claims to have been wearing black pants, black shoes and a short jacket. Although the alibi witnesses placed defendant at the wrestling match at different times during the evening, it is possible that defendant could have left, met with confederates, held up the restaurant and returned to the wrestling match. Given the very definite recollection by the alibi witnesses of the color of defendant's trousers, he also would have had to change his clothes before and after the robbery. He claims that the gray pants seized pursuant to the search warrant had been put in a bag for the Salvation Army and had not been worn since he did painting and chemical cleaning work for a local manufacturer years ago. He doubted that they would still fit him. He further claimed that the high-topped sneakers that were seized were not his, but were the property of his younger brother. Defendant
contended that he cannot wear such sneakers because they irritate his ankles.
Defendant had planned to call his mother as his second alibi witness at the start of the third day of the trial. His mother, however, in violation of a sequestration order issued at the commencement of the trial, had sat in court at the end of the previous day during the testimony of the first alibi witness. Defense counsel brought this to the attention of the court on the morning of the third day, claiming that Mrs. Horton unintentionally had violated the order out of concern about her son, and that counsel had not realized she was in court until the end of the day. The judge initially stated "I have no problem if the Prosecutor doesn't." The prosecutor, however, asserted that he had a problem and objected to Mrs. Horton's being called as a witness. Defense counsel stated that he would leave the matter up to the court, and the judge stated:
I don't think it is a question of intention. I'm satisfied that the woman did not do it intentionally, but she may have inadvertently heard something that could maybe subconsciously hinder her testimony. So, for that reason I am ...