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State v. Cito

Decided: October 30, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PAUL CITO, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, whose opinion is published at 196 N.J. Super. 220.

O'Brien, Skillman and Landau. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

[213 NJSuper Page 298] Defendant appeals from his conviction of third degree burglary (N.J.S.A. 2C:18-2) and third degree theft (N.J.S.A. 2C:20-3), upon which he was sentenced to consecutive extended terms of ten years with a five-year period of parole ineligibility, for an aggregate term of 20 years with a ten-year period of parole ineligibility. We affirm the convictions but correct the sentence.

Articles stolen from a burglarized house on January 17, 1982 were seized from defendant's home after two searches pursuant to warrant. A screwdriver, determined by an expert to be the tool used to gain entrance to the burglarized residence, and a shoe, which matched footprints in the snow around the home, were also seized. We reversed an order suppressing this evidence, and the Supreme Court denied leave to appeal.

At his trial, defendant appeared pro se with the assistance of a public defender assigned for that purpose. Although defendant did not testify, in his opening, examination of witnesses and summation, he relied on alibi and contended that the items found in his home were being held by him for one John McGuire (McGuire).

Called as a defense witness at a Rule 8 hearing, McGuire pled the Fifth Amendment. Thereafter the trial judge refused defendant's request to have McGuire appear before the jury and assert his Fifth Amendment privilege. The trial judge also refused to judicially grant use immunity to McGuire to enable him to testify as a defense witness. Additionally, the trial judge refused defendant's request for public funds to be used for the transportation of two out-of-state witnesses whom he claimed to be indigent.

Defendant appeals from these rulings and advances the following legal arguments:

POINT I -- THE TRIAL JUDGE ERRED IN REFUSING TO PERMIT DEFENDANT TO CALL BEFORE THE JURY A WITNESS WHO WOULD INVOKE HIS FIFTH AMENDMENT RIGHT TO BE FREE FROM SELFINCRIMINATION; THIS DENIAL VIOLATED DEFENDANT'S RIGHT TO CALL WITNESSES IN HIS DEFENSE IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.

POINT II -- THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO HAVE IMMUNITY CONFERRED ON JOHN McGUIRE WHO REFUSED TO TESTIFY ON DEFENDANT'S BEHALF ON THE GROUNDS THAT HIS TESTIMONY COULD INCRIMINATE HIM, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.

POINT III -- THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S REQUEST FOR FUNDS TO BRING HIS ALIBI WITNESSES TO NEW JERSEY IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV -- THE IMPOSITION OF TWO CONSECUTIVE EXTENDED TERM SENTENCES BY THE SENTENCES [ sic ] JUDGE UPON THE DEFENDANT REPRESENTS AN ILLEGAL SENTENCE: THE DEFENDANT'S SENTENCE, THEREFORE, MUST BE VACATED.

The oral decision of the trial judge not to permit McGuire to invoke his privilege against self incrimination in the presence of the jury was reduced to a written opinion and published. See State v. Cito, 196 N.J. Super. 220 (Law Div.1984). We have recently addressed this issue in a case decided after the trial here under review. In State v. Nunez, 209 N.J. Super. 127 (App.Div.1986), we concluded that a defendant may not call a witness to testify before the jury whom he knows, or after a Rule 8 hearing ascertains, will claim his Fifth Amendment privilege. In reaching that conclusion, we relied upon Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), cert. den. 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971), and State v. Karlein, 197 N.J. Super. 451 (Law Div.1984). The Nunez ...


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