On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Pressler, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was convicted by a jury of armed robbery, in violation of N.J.S.A. 2C:15-1, second degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1), third degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2), and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court merged the aggravated assault and weapons convictions into the armed robbery conviction and sentenced defendant to a 20 year term of imprisonment with 7 years of ineligibility for parole.
Defendant's convictions were based on his participation with two others in an armed robbery of a flower shop in New Brunswick. The only person present when the crime was committed was the manager, Marjorie Mason. According to Ms. Mason, one perpetrator, whom she identified as defendant, came up behind her, put his arm around her neck and a gun to her head, and said "this was a stick up." After she opened the cash register, the robber identified as defendant demanded that Ms. Mason give him her jewelry. When she refused, he pointed the gun in her face, and when she pushed the gun away, it fired into the ceiling. She then struggled with the robber, who hit her twice in the face with the butt of the gun.
The prosecution's case rested almost entirely on Ms. Mason's identification of defendant as the perpetrator with the handgun. Ms. Mason identified defendant from an array of photographs shortly after the crime and in person during trial.
The defense was based primarily upon the results of a polygraph test taken by defendant. This test was administered by Lieutenant Zimmerman of the Middlesex County Prosecutor's office pursuant to an agreement between defendant and the prosecutor's office that the results would be admissible at trial. Lieutenant Zimmerman testified that defendant was being truthful when he stated during the polygraph test that he
was not involved in the holdup.*fn1
Defendant testified in his own defense that he was at home in Somerset at the time the crime was committed. His testimony was corroborated by his mother and his girlfriend.
On appeal defendant makes the following arguments:
POINT I: THE TRIAL COURT'S CHARGE ON POLYGRAPH EVIDENCE DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE PRESUMPTION OF INNOCENCE, SHIFTED THE BURDEN OF PROOF AS TO HIS GUILT FROM THE STATE TO THE DEFENSE, DEPRIVED HIM OF A FAIR TRIAL AND, IN ADDITION, WAS CLEARLY CONTRARY TO THE LAW OF NEW JERSEY GOVERNING THE WEIGHT AND EFFECT TO BE ACCORDED BY A JURY TO POLYGRAPH EVIDENCE FAVORABLE TO A DEFENDANT .
POINT II: THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO GIVE THE JURY THE MODEL CHARGE ON IDENTIFICATION TESTIMONY.
We conclude that the trial court's charge with respect to the results of the polygraph test incorrectly indicated to the jury that defendant had a burden to present sufficient evidence of his ...