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State v. Andrial

Decided: July 3, 1985.


On appeal from a Final Judgment of Conviction of the Superior Court of New Jersey, Law Division, Hudson County, whose opinion on one of the matters on appeal is reported at 150 N.J. Super. 198 (Law Div. 1977).

Matthews and Havey.

Per Curiam

Defendant was indicted for atrocious assault and battery, N.J.S.A. 2A:90-1 (count one); assault with intent to rape, N.J.S.A. 2A:90-2 (count two); rape, N.J.S.A. 2A:138-1, (count three); unlawful possession of a dangerous weapon, N.J.S.A. 2A:151-41 (count four) and possession of a dangerous weapon with intent to use it unlawfully, N.J.S.A. 2A:151-56 (count five).

At a Wade hearing held regarding an out-of-court photographic identification of defendant by the victim, a detective testified that he had obtained photographs viewed by the victim, which included photographs of defendant, from the police department's "sex crimes file." The trial judge cautioned the detective that no such reference should be made during his testimony before the jury. During trial, after the victim had testified and made an in-court identification of defendant, the same detective testified that during the out-of-court procedure he showed the victim an envelope containing pictures of

"known sex offenders." A mistrial was granted and, before a new jury was impanelled, defendant moved for a dismissal of the indictment on double-jeopardy grounds, arguing that he was forced to move for a mistrial due to "prosecutorial overreaching." The trial judge denied the motion, concluding that the detective's remarks were unintentional.

During the fourth day of the second jury trial, after most of the State's case, including the victim's testimony, had been presented, defendant failed to appear. The trial judge determined that defendant's absence was voluntary, proceeded with the trial, see R. 3:16, and issued a bench warrant for his arrest. The jury found defendant guilty on all counts.

After merging counts, one, two, four and five with count three, the trial judge sentenced defendant to a State prison term of not less than 29 years nor more than 30 years.

On appeal, defendant raises the following contentions: (1) the trial judge should not have instructed the jury as to flight; (2) testimony regarding defendant's absence from trial should have been excluded; (3) the out-of-court identification of defendant was unduly suggestive; (4) his motion to dismiss the indictment on double-jeopardy grounds should have been granted; (5) he was denied effective assistance of counsel; (6) his sentence was unduly excessive; and (7) the aggregate errors of the trial judge deprived him of a fair trial. We affirm.

The evidence presented at trial permitted the jury to find that the victim, while returning to her car after shopping at a department store in Union City, was accosted by defendant whom she described at the Wade hearing and at trial as a five foot, ten inch Hispanic male with dark curly hair, a dark complexion and mustache, wearing a tan leather jacket, and a dark shirt with orange circles. Defendant pushed the victim to the ground and while holding a five inch razor against her neck, raped her. While on the ground, the victim was able to observe defendant's face since the area was well lighted and his face was only three inches from hers.

Later that night, after reporting the incident, the victim gave a description of defendant to detectives, which was essentially the same description she gave at the Wade hearing and at trial. Two days later, she was shown an array of 85 photographs depicting caucasion, Hispanic and black males from which, according to her testimony at the Wade hearing, she selected three photographs of defendant. When she picked out the first photograph, she informed the detectives that it looked like her assailant except for the fact that the person in the picture had shorter hair and a lighter skin tone than her attacker. She later testified that the lighter skin tone was attributable to the lighting conditions at the time the photograph was taken. When she selected the second photograph of defendant, she informed the detectives that the person depicted looked exactly like her attacker except for the fact that her assailant's hair was longer and more unkempt. She lastly identified the third photograph which she selected as depicting her attacker without his mustache. Five days after the attack, the victim selected defendant out of a line up of eight males. She was also shown at that time a jacket and shirt which had been seized during a search of defendant's apartment which she identified at trial as the jacket and shirt worn by the perpetrator.

When defendant failed to appear on the fourth day of trial, the mother of defendant's girlfriend, Mrs. Intelli, was called to testify outside the jury's presence. She stated that her daughter and defendant left their home at approximately 4:00 a.m. that morning taking all of defendant's belongings without advising her where they were going. By way of stipulation, the parties agreed to permit the judge to read to the jury ...

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