On appeal from Superior Court, Law Division, Middlesex County.
Michels, Gaynor and A. M. Stein. The opinion of the court was delivered by Gaynor, J.A.D. A. M. Stein, J.s.c., t/a (concurring).
Tried to a jury, defendant was convicted of two counts of attempted murder, contrary to N.J.S.A. 2C:5-1 and 2C:11-3, two counts of aggravated assault, contrary to N.J.S.A. 2C:12-1b(1), and possession of a weapon without a permit, contrary to N.J.S.A. 2C:39-5b. He was acquitted of two counts of possession of a weapon for an unlawful purpose. For sentencing purposes each count of aggravated assault was merged with a count of attempted murder and the State's motion for an extended term was granted. A 40-year aggregate custodial sentence with a 20-year parole disqualifier was imposed consecutive to a sentence then being served by defendant.
On this appeal from his conviction and sentence, defendant advances the following contentions:
I. THE DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION WAS IMPERMISSIBLY INVADED AS A RESULT OF CROSS-EXAMINATION AS TO THE DEFENDANT'S FAILURE TO INFORM THE POLICE OR ANYONE ELSE OF HIS ALIBI DEFENSE UNTIL SHORTLY PRIOR TO TRIAL.
II. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE BY IMPOSING CONSECUTIVE TERMS WITH MAXIMUM PAROLE DISQUALIFIERS.
A complete recitation of the facts giving rise to defendant's indictment and conviction for the cited offenses is not necessary to our consideration of the issues raised on this appeal. It is sufficient to note that the State's proofs permitted the jury to find that on October 30, 1983, "Mischief Night," two officers of the South Amboy Police Department were shot by defendant, masquerading as a cowboy, as one of the officers attempted to arrest defendant on some outstanding bench warrants for traffic
violations. After the shooting, defendant eluded the officers. Several hours later he was found at his brother's apartment in Old Bridge, arrested and transported to police headquarters. At headquarters, when questioned about the events of the evening, defendant indicated he desired to speak to either his girl friend or his mother. However, the police were unable to contact either of them until some time later. With defendant's consent, a neutron activation test was conducted to determine whether defendant had recently fired a weapon. As the officer began to perform the test on defendant's right hand, defendant reportedly said "I shot him with my left." The test was performed on both hands, but the results were inconclusive. Several hours later, defendant allegedly was heard yelling from his cell that he had "blown" two officers away that night and when he got out on bail he would "take care" of the rest of them. Additionally, later on that morning, after being transferred to a county holding cell, a correction officer overheard defendant telling fellow inmates that he had pulled a gun from under his jacket after being stopped by two police officers and began shooting.
A gun subsequently found behind one of the buildings in the apartment complex where defendant was found was determined to be the weapon which had discharged the bullet taken from the shoulder of one of the wounded officers. Some live shells for the gun were also found in the area.
Testifying in his own behalf, defendant stated that while he lived in South Amboy, during the time period in question he also maintained an apartment in Newburgh, New York, where he was employed by Conrail. On Saturday, October 29, he had worked from 4:00 p.m. to midnight, and as he prepared to leave in his van he encountered mechanical difficulties involving overheating and a weak battery. He pulled into the railroad yard to check the trouble and eventually was questioned by one of the railroad policemen. Upon learning that defendant's license had been suspended for a previous drunk driving violation, the police advised him against driving. Accordingly, defendant
slept in the van until approximately 1:30 p.m. on Sunday and traveled by train and bus to his brother's apartment in Old Bridge where he stayed on weekends. After taking a shower, defendant watched some football on TV, then ate supper. He later had a telephone conversation with his girl friend during which he told her that he was not going out that evening. It was also his testimony that he never left the apartment that evening and was unaware of what had occurred until his brother came home at approximately 10:30 p.m. and told him that the police were searching for him in connection with the shooting of two officers. After his arrest, defendant stated he continuously denied shooting any police officers and at trial he denied making any of the statements attributed to him by the police. Specifically, he disavowed ever saying he had shot anyone with his left hand or yelling about blowing away two cops or that he was going to blow away the rest of the police force when he was released on bail. Defendant also denied having acknowledged to any fellow inmates that he had shot two police officers.
In cross-examining defendant concerning his defense of being at his brother's apartment at the time of the crime, the prosecutor focused upon defendant's failure to have disclosed this defense prior to the preparation of a Notice of Alibi on March 8, 1985.*fn1 After having the Notice of Alibi marked for identification*fn2 and establishing that defendant was arrested in October 1983, the prosecutor continued:
Q. How many times did you come to court in 1984? You were arraigned in January, isn't that right? January 11?
A. I don't remember the date.
A. You mean arraignment. I was arraigned October 31st.
Q. Did you tell anybody from the State that it couldn't be you because you spent the night in your brother's apartment?
Q. No one asked. How about when you came to court for the pretrial hearings that were conducted in March and May and July and were you telling anybody from the State it couldn't be me, you got the wrong guy. I spent the night at my brother's apartment?
THE COURT: Any time that you came to court, did you ever tell anybody, either on behalf of the Court or State, that you were at your brother's apartment?
THE WITNESS: What do you mean? Like ...