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State v. Gross

Decided: March 11, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY GROSS, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Essex County.

Pressler, Gaulkin and Baime. The opinion of the court was delivered by Gaulkin, J.A.D. Pressler, P.J.A.D., concurring in part and dissenting in part.

Gaulkin

Defendant was found guilty by a jury of murder (N.J.S.A. 2C:11-3a(3)), first-degree robbery (N.J.S.A. 2C:15-1) and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a). He was sentenced on the murder conviction to a 25 year custodial term with 12 1/2 years of parole ineligibility and on the weapon possession conviction to a consecutive 10 year term with 5 years of parole ineligibility; the armed robbery conviction was merged into the murder conviction. On this appeal from the judgment, defendant urges:

POINT I.

Pursuant to Rule 8(1) of the Rules of Evidence -- preliminary inquiry by judge -- court erred in not making a ruling as to whether a statement was admissible or not.

POINT II.

Court by admitting prior written statement of Clifford Plant violated Rule 63(1) -- previous statements of witnesses.

POINT III.

The court, in its charge to the jury, failed to advise jury that guilty plea of co-defendant should not deny defendant on trial the right to have his guilt or innocence determined by evidence presented against him, not by what has happened with regard to criminal prosecution against someone else.

POINT IV.

In the interest of justice, the Appellate Court should notice the plain error of permitting the sworn written statement of Clifford Plant to be admitted into evidence especially in the face of considerable conflicting testimony on the part of other State's witnesses.

POINT V.

The statement of Clifford Plant should not have been admitted because it was not made "in circumstances establishing its reliability."

POINT VI.

The court committed reversible error in failing to admit the statement of Reginald James, a co-defendant, as exceptions to the hearsay rule as being against the penal interest of the declarant at the time they were made.

We find the contentions made in Points III and VI to be clearly without merit. R. 2:11-3(e)(2). Our consideration of the remaining issues requires a full exposition of the facts.

I.

The convictions arise out of a January 7, 1981 incident in which two or more persons forcibly entered the Newark apartment of Thomas Pinkney, killed Pinkney and robbed Alfred Boatwright and Andre Loney.

Both Boatwright and Loney testified at trial. Boatwright said that he, Loney and Pinkney were in the apartment when a knock came at the door. Loney opened the door and two men came in with a .22 calibre rifle, saying "back up or freeze or something." Pinkney, who was sitting in a chair, "jumped up and came toward them" when "the shot went off." The intruders then told Boatwright and Loney to "get on the floor and empty out our pockets." After taking money from Boatwright, the men left. Boatwright testified that one of the men was masked and that the other, who shot Pinkney, was "[l]ight skinned and he had either green or brown eyes." Boatwright initially said that because he was "high"*fn1 he was unable to identify the masked man. On cross-examination, however, Boatwright acknowledged that he believed that person to be

Reginald James, a friend with whom he had spent time earlier that day.

Loney gave a somewhat different description of the occurrence. Loney, who also acknowledged being "high" although not "spaced out," said that he had opened the door to let Boatwright in the room. As he started to close the door, two men burst through, both wearing ski masks, one carrying a sawed-off shotgun and one with a .22 calibre rifle. Loney started "scuffling" with the two men. Suddenly "another third party kicked the door," the door "flew open" and Loney "got another rifle aimed at me." The third person, who was not masked, fired his rifle at Loney, but the "bullet and the shell just rejected out from the side. . . ." At that point Pinkney got up, "comes around . . . [a]nd, boom, he got shot in the stomach." Although Loney had apparently made no pretrial identification of defendant, at trial he said he was "positive" that defendant was "the guy that didn't have the mask on that shot my buddy."

The State also called Clifford Plant, who had earlier pleaded guilty to complicity in the murder of Pinkney. At a hearing outside the presence of the jury, he was confronted with his plea agreement that, in return for a recommendation that he would not serve more than 20 years in prison, he would testify truthfully and in accordance with his January 21, 1981 statement at any trial of the other participants. Plant said that "there is something wrong" with that recitation of the plea agreement because he "was only supposed to have been testifying against one person, that was another co-defendant of mine, not against Anthony Gross." Asked about his January 21 statement, Plant acknowledged that he had gone to the police station with his father, had been given his Miranda warnings and had signed and sworn to the truth of the statement. However, he testified that ...


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