On appeal from the Superior Court, Law Division, Essex County.
Furman and Cohen. The opinion of the court was delivered by Furman, P.J.A.D.
Defendant was convicted of second degree sexual assault, N.J.S.A. 2C:14-2, following a three day jury trial. He was sentenced to a ten year term of imprisonment with a four year term of parole ineligibility. On appeal he raises several issues of trial error and, also, challenges as excessive his parole ineligibility term. We hold that defendant is entitled to a reversal of his conviction and sentence and remand for a new trial on the single issue of error in the exclusion of his profered alibi witnesses.
The victim Angela Bundy reported to the police that she was assaulted and raped in a public park in Montclair shortly before midnight on June 2, 1982. She made no identification of her assailant. Her description was a general one, fitting defendant or any other short black man of medium build in his twenties.
Approximately a month later, Angela Bundy went to a July Fourth picnic with Derrick Ellis. Accompanying them were
Derrick's sister Catherine and defendant, to whom Angela Bundy was introduced. Her testimony at trial was that she recognized defendant as her assailant and so informed Derrick Ellis by writing and passing a note to him. That day the foursome were together for 13 hours, at the picnic, at a concert in the Meadowlands and later at the Ellis home. After defendant left, Angela Bundy and Derrick Ellis went to the police station. Angela Bundy informed an officer that she had identified defendant, naming him, as the man who had raped her. A subsequent State Police laboratory report concluded that hair fragments taken from the victim's pubic combings after her report of a rape did not "compare" with defendant's "pubic hair control."
During more than two years between indictment and trial, the State served a written demand for an alibi bill of particulars, pursuant to R. 3:11-1. Defendant's attorney, who had been substituted for another attorney, responded out-of-time on April 1, 1985, but the alibi bill of particulars was unsigned. Subsequently, a signed alibi bill of particulars was served on April 29, 1985. The trial started on May 1, 1985.
Defendant's alibi bill of particulars specified:
1. The specific place at which I was at the time of the offense alleged against me was North Carolina.
2. The name and address of the witness upon whom I intend to rely to establish such alibi:
a. Myself, residing at 69 Wolff Place, First Floor, Hillside, New Jersey.
b. Joyce and James McDaniels, residing at 2161 Baywood Road, Lot 6, Fayetteville, North ...