On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Dreier and Deighan. The opinion of the court was delivered by Deighan, J.A.D.
Defendant appeals from a jury conviction of armed robbery in violation of N.J.S.A. 2C:15-1, unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-1b and N.J.S.A. 2C:58-4, and possession of a handgun for unlawful purposes in violation of N.J.S.A. 2C:39-4a. He was sentenced to the Youth Correctional Institute Complex for an indeterminate term, not to exceed 20 years, for the armed robbery conviction and a concurrent indeterminate term, not to exceed five years for the unlawful possession of a handgun.*fn1 The conviction for possession of the weapon for an unlawful purpose was merged with the armed robbery conviction. A Violent Crimes Compensation Board penalty of $300 was imposed.
On December 26, 1980 at approximately 5:15 p.m. an armed robbery was perpetrated at Fulton Hardware in Jersey City, New Jersey. The owner, Michael Totaro and an employee, Michael Howell, were present when four or five men entered the store. One of the men approached Howell and subsequently, at gunpoint, ordered him to lie face down on the floor.
At about the same time one of the other men approached Totaro who was standing behind the counter near the cash register. A scuffle followed and Totaro was shot in the shoulder. However, Totaro managed to take out his own gun and wound one of the robbers, later identified as Jeffrey Benjamin. All of the other robbers fled. The police arrived at the scene at approximately 5:30 p.m. and Totaro and Benjamin were taken to a hospital. Howell was taken to the police station where he gave a statement and identified the defendant from a group of eight photographs.
Meanwhile, as the result of a conversation with Jeffrey Benjamin, the wounded assailant, Officer Gallagher, together with Detective Deleva went to defendant's apartment. Defendant's mother answered the door and defendant was in his bedroom which did not have a separate door. Officer Deleva informed Mrs. Douglas that her son was a possible suspect in
the armed robbery and asked defendant, who was in bed, to get dressed and requested both defendant and his mother to accompany him to the police station. They complied and went to the police station with the officer.
When they arrived at the police station, Officer Deleva learned that the witness Howell identified defendant in a photographic line up. On this basis he arrested the defendant and requested Mrs. Douglas to sign a consent order to search her apartment. She complied and Detective Gallagher and Officer Deleva, together with Mrs. Douglas, returned to the apartment.
Upon their arrival at the apartment, the officers went directly to defendant's bedroom to start their search. Ultimately, a 22 caliber revolver was found in the bedroom on the floor under defendant's bed. There were two spent cartridges and two live rounds of ammunition in the revolver.
The day after the robbery Detective Logan went to the hospital and obtained a written statement from the victim, Totaro. Additionally, the officer had Totaro view an array of eight photographs. Totaro selected defendant's photograph from the array and identified him as one of the assailants.
Prior to trial defendant moved to suppress the revolver as evidence. At that hearing Officer Deleva testified that when Mrs. Douglas agreed to sign the consent to search form, he advised her of her right not to sign the form and then permitted her to read the form. He testified that Mrs. Douglas indicated she understood the form and then signed it in the officer's presence. Officer Deleva also stated that defendant witnessed the procedure and in fact gave his verbal consent to the search.
Defendant testified at the suppression hearing and denied that he was asked to consent to the search. He further stated that although his mother was requested to sign the consent, she refused. He examined the consent form and insisted that the
signature was a forgery.*fn2 At the conclusion of the hearing Judge Grossi denied the motion to suppress and ruled that the revolver may be admitted into evidence.
At trial, the victim, Totaro testified to the circumstances surrounding the robbery as related above. The witness Howell also testified but was unable to identify defendant as one of the robbers. He testified that he recognized defendant's picture at the out-of-court identification because he had previously seen defendant in the store but he could not remember whether defendant was in the store on the date of the robbery nor could Howell make an in-court identification of defendant.
At trial, Officer Gallagher testified that although his name appeared as a witness on the consent form he could not recall whether he was present when Mrs. Douglas signed her name. He did recall, however, that Mrs. Douglas gave her oral consent. He also testified that he heard defendant tell his mother not to give her consent.
The bullet which struck Totaro was surgically removed and preserved as evidence. At trial, a ballistics expert testified that the removed bullet had been fired from defendant's revolver.
On appeal defendant contends that:
POINT I DISCLOSURE TO THE JURY OF INCULPATORY INFORMATION SUPPLIED BY A CO-DEFENDANT WHEN THE CO-DEFENDANT DID NOT TESTIFY, VIOLATED THE HEARSAY RULE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION (Partially raised below).
POINT II THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE DENIED DEFENDANT'S MOTION TO SUPPRESS.
A. The State Failed To Prove That Mrs. Douglas Had The Authority To Consent To the Search of The Defendant's ...