On appeal from Superior Court of New Jersey, Law Division, Camden County.
Furman, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals after a bench trial from a conviction of three counts of first degree robbery (N.J.S.A. 2C:15-1); two counts of second degree robbery (N.J.S.A. 2C:15-1), and two counts of kidnapping (N.J.S.A. 2C:13-1), contained within a 25 count indictment growing out of five separate events during a two and one-half month period between June 5 and August 25, 1982. The indictments concerning the last of these five incidents, the 21st through the 25th counts (regarding the burglary/theft/kidnapping offenses committed against Bertha Steussey) were severed and tried separately prior to the trial of the case before us. Defendant was there convicted by a jury and sentenced to a term of 30 years with a 15-year parole disqualifier. That conviction is the subject of a separate appeal pending before this court.
After defendant was convicted of the three counts of first degree robbery and four counts of second degree robbery growing out of the four remaining incidents, the trial judge merged into these convictions for the purpose of sentencing the remaining counts of which he was convicted, namely, four counts of second degree burglary, N.J.S.A. 2C:18-2; one count of conspiracy to commit burglary, N.J.S.A. 2C:5-2; two additional robbery counts of the same victims on alternative theories; and two downgraded assault convictions. The judge further convicted defendant of two of the three remaining kidnapping counts, N.J.S.A. 2C:13-1, and a third kidnapping count downgraded to criminal restraint. He imposed consecutive 15-year terms with five year parole disqualifiers on each of the three first degree robbery counts, a 20-year term with a 10-year parole disqualifier to run consecutively to the robbery
terms for one of the kidnapping counts, and a similar concurrent term for the other. Concurrent seven-year terms were imposed for the two second degree robberies. The aggregate sentence was 65 years with a 25-year period of parole ineligibility, consecutive to the sentence already imposed for the Stuessey incident. Defendant thus faces a total imprisonment after the two trials arising from this indictment of 95 years with a 40-year parole disqualifier. The sentence was imposed prior to the decisions of the Supreme Court in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. den. sub. nom. Yarbough v. New Jersey, U.S. , 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and State v. Kruse, 105 N.J. 354 (1987). At the time of these crimes defendant was 24 years old and had no criminal or juvenile record.
The four incidents pertaining to this appeal followed a similar pattern. After surveilling the premises to determine the habits of the occupants, three or four individuals forcibly entered premises occupied by one or two elderly residents, overpowered them by physical force and the use of a gun, and then burglarized the house. In two of the incidents the victims were bound and gagged during the commission of the crime and then left in that state by the fleeing robbers. One of the victims was able to free himself 10 minutes after the robbers left; neither of the other confined victims indicated his or her length of confinement nor their mental state. The victims were unable to identify defendant, and, in fact, did not testify, based upon a stipulation by defendant that the victims' statements could be entered in evidence in lieu of their appearances.
The only evidence identifying defendant as one of the robbers were earlier statements of a codefendant, Michael James. James and Anthony Dobson had entered retraxit pleas concerning the Steussey incident in return for a grant of immunity under which they were to implicate defendant in the other four incidents. Dobson later refused to testify even after a grant of immunity.
When James was called as a witness for the State he claimed to be unable to recall the incidents themselves, or to recall whether the earlier statements had been truthful when made or even the fact of making them. He did, however, remember appearing before the judge when he made his retraxit statements. His response to almost every question concerning the earlier statements when they were used for impeachment purposes was "I may have [made the statement]. I don't recall . . .," or the like. James' earlier statements implicated defendant in each of the criminal incidents and were corroborated in all respects other than the identification of defendant by the victims' statements. Although afforded the opportunity to cross-examine James, defendant initially declined. The trial judge specifically found that James' lapse of memory was "not genuine" and ruled that his testimony was "admissible as substantive evidence," citing federal and other out-of-state authority.*fn1 Defendant then recalled James for cross-examination. The witness expressed his belief that "these questions will affect the outcome of my appeal," and again indicated a general failure to recollect various facts and events.
Defendant has raised six points on this appeal.
The trial court violated Evid.R. 63(1)(a) by admitting Michael James' prior statements into evidence.
The trial court violated defendant's right to confront the witnesses against him by admitting Michael James' prior statements into evidence.
The trial court violated Rule 3:18-1 and defendant's right to due process of law by denying defendant's motions for judgments acquitting him of all of the charges in the indictment.
The trial court committed reversible error by denying defendant's motion to dismiss the indictment for failure to accord him a speedy trial.
Defendant was entitled to judgments acquitting him of the two convictions of Kidnapping as a matter ...