On appeal from Superior Court, Law Division, Union County, including issue on the decision at 204 N.J. Super. 559.
Defendant Oleg Driker was convicted by a jury of second degree burglary and first degree robbery. He was sentenced to 15 years in prison for the robbery conviction, four years without parole eligibility, and to a concurrent seven year term for the burglary. Violent Crimes Compensation Board penalties aggregating $275 were assessed.
On this appeal defendant raises the following arguments:
1) The court erred in admitting the video taped deposition of the victim.
(a) The failure to establish any conditions prior to playing the tape prejudiced defendant.
(b) The procedure used by the court below in admitting the video taped deposition of the victim at trial did not adequately safeguard defendant's Sixth Amendment right to confrontation.
2) Any inference that defendant had an obligation to produce a witness at trial under the facts of this case violated defendant's right to remain silent and diluted the State's burden of proof. (Not raised below.)
3) The sentence imposed is manifestly excessive.
The facts disclose that on June 7, 1984 a man, wearing a black ski mask, a plaid shirt and a multicolored hat, entered the apartment of the elderly victim and demanded gold from him in what appeared to be a Russian accent. The perpetrator held a knife, or a long letter opener to the victim's throat, taped his mouth shut with what turned out to be duct tape, struck the victim several times and threatened to put a pillow over his head. He also tied the victim's hands and legs with a telephone cord.
When the police arrived they discovered that the apartment had been ransacked. Various items of jewelry and personal effects valued in excess of $1,600 were stolen. Palm prints were obtained from the jewelry cabinet and one useable fingerprint was found on the duct tape used to gag the victim. As a result of discussions with family members, defendant's name was given as a suspect, and the police obtained his fingerprints. Driker's fingerprints matched those found in the apartment on the jewelry cabinet and the duct tape.
Prior to trial a videotaped deposition of the victim was taken at the hospital where he was convalescing because of illness. At the time of this deposition the victim was in bed and had various tubes attached to his body. A hearing was held with respect to the admissibility of the videotaped deposition. Judge Menza determined in a published opinion, State v. Driker, 204 N.J. Super. 558, 561 (Law Div.1984), that the victim's deposition was admissible at trial because it was authorized by court rules; it ...