On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody and Dreier. The opinion of the court was delivered by Brody, J.A.D.
Defendant was convicted of second-degree robbery. N.J.S.A. 2C:15-1(a)(1). The State presented evidence from which the jury could have found that defendant and his two accomplices descended on their victim in broad daylight as he was walking along the sidewalk on his way to the Newark train station. Defendant beat the man to the ground while the others emptied his pockets and took his wrist watch. About 40 minutes later, while the police were driving the victim and an eyewitness through the downtown neighborhood where the crime had occurred, the witnesses spotted defendant on the sidewalk holding the victim's watch in his hand. The police thereupon arrested him. The trial judge imposed a 10-year term of imprisonment, 5 years to be served before parole eligibility. Defendant contends that his conviction should be reversed because the assistant prosecutor improperly suggested to the jury that they draw an unfavorable inference against him for failing to produce witnesses to corroborate his testimony. Alternatively, defendant argues that we must reduce the term of imprisonment because the judge did not follow the statutory sentencing guidelines.
A prosecuting attorney may ask a jury to draw an adverse inference from a defendant's failure to call a witness only if the trial judge first has found, out of the presence of the jury, that the witness is within the defendant's power to produce and that the witness's "testimony would [be] superior to that already utilized in respect to the fact to be proved." State v. Carter, 91 N.J. 86, 127 (1982). See State v. Hickman, 204 N.J. Super. 409, 414 (App.Div.1985). Even though the witness may also be available to the State, the adverse inference may nevertheless be drawn against the defendant if he "has superior knowledge of the identity of [the] witness or of what testimony might be expected. . . ." Carter, 91 N.J. at 127-128.
Defendant testified that five minutes before he was arrested he had purchased the victim's watch on the street for "$10.00 --
$15.00." When, on cross-examination, he testified that a "few" people had witnessed the sale, the assistant prosecutor asked whether he had asked any of the witnesses to confirm his story in the presence of the arresting officer. Defendant replied that he had made no such inquiry because he was "quite sure everybody would have minded their own business" and he "didn't take the opportunity to find out." Asked whether it had crossed his mind to ask the witnesses for confirmation, defendant replied, "It could have."
Defendant further testified that while he did not know the seller's identity, he knew his appearance and was "sure" that the seller was often on the street corner where he had purchased the watch from him. He acknowledged that he "might" have a friend who knows the seller, but he had never asked anybody to help him identify or find the person who had sold him the watch. At that point the assistant prosecutor asked, "Do you think if he [defendant's friend] was here today that would clear all this up?" Defendant's attorney objected to the question and the objection was sustained. The questioning proceeded with no further comment on this point.
After the attorneys had finished questioning defendant, the judge asked him why he had not put on the watch before he was arrested. Defendant responded, "It was just in my hand. I was talking to a female." He was asked no further questions.
In his summation, the assistant prosecutor commented upon the foregoing portions of defendant's testimony as follows:
Now, look at the testimony of the defendant himself. We asked him:
"Where did you get the watch?"
"Oh, I just got it. I bought it from ...