On appeal from Superior Court of New Jersey, Law Division, Essex County.
Petrella, Dreier and Baime. The opinion of the court was delivered by Baime, J.A.D.
[224 NJSuper Page 356] Following a jury trial, defendant was found guilty of second degree burglary (N.J.S.A. 2C:18-2), first degree robbery (N.J.S.A. 2C:15-1) and aggravated assault (N.J.S.A. 2C:12-1(b)(1)). At sentencing, the trial court merged the aggravated assault offense into the robbery conviction and imposed consecutive custodial terms, aggregating 22 years. As part of the sentences
imposed, the court directed that defendant serve ten years without parole eligibility. In addition, defendant was fined $300 and ordered to pay penalties totaling $50 to the Violent Crimes Compensation Board.
On appeal, defendant asserts that (1) the trial court incorrectly denied his motion for a judgment of acquittal at the close of the prosecution's case, (2) the prosecutor exceeded the bounds of fair comment in his summation and (3) the sentences imposed were manifestly excessive and unduly punitive. In his pro se supplemental brief, defendant urges additionally that (1) the verdict was against the weight of the evidence and (2) irrelevant and prejudicial testimony was improperly admitted.
We need not recount the facts at length. The record discloses that at approximately 2:00 a.m. on September 4, 1984, Ms. Jane Trimmer, who resided in a second floor apartment at 13 Branford Place, Irvington, was awakened by a man standing over her who was attempting to stuff a sock in her mouth. While attempting to stifle her screams, the intruder struck Ms. Trimmer, cutting her face and knee. After a brief struggle, the man turned and fled. Because it was extremely dark in the bedroom, Ms. Trimmer was unable to see her assailant's face. According to the victim, she merely observed his silhouette in the light emanating from the street. Approximately $100 in cash was taken.
The ensuing police investigation revealed that the intruder had gained entrance to the apartment by cutting through the balcony screen door. Circumstantial evidence revealed that the perpetrator had climbed an outside column, hoisted himself up onto a flagpole holder, which was more or less parallel to the ground, and from there had stepped onto the balcony of the victim's apartment. The flagpole was bent and further investigation revealed "smudges" on the western side of the front entrance column approximately five and one-half feet from the ground. The police theorized that the perpetrator had placed his hand around the column in attempting to hoist himself onto
the flagpole holder. Impressions of the fingerprints were taken and sent to the Federal Bureau of Investigation for analysis. At trial, a fingerprint expert testified that the impressions conclusively matched the left ring finger of defendant. Evidence was presented that defendant never resided at the apartment complex.
Following the conclusion of the State's case, the trial court denied defendant's motion for a judgment of acquittal, concluding that a jury could find the accused guilty beyond a reasonable doubt on the evidence presented. Defendant neither testified nor presented any witnesses in his behalf. As we have noted, the jury found defendant guilty on all counts.
We first consider defendant's argument that the trial court erred by denying his motion for a judgment of acquittal. Although phrased in a variety of ways, defendant's contention is predicated upon the thesis that a conviction can rest solely on fingerprint evidence only where the State has proven beyond a reasonable doubt the fingerprints could not have been impressed at a time other than when the offense was committed. Defendant claims that the State was bound to negate every hypothesis except that of guilt. It is urged that to countenance a conviction here would be to hold that anyone who touches anything which is discovered later at the scene of a crime may be found guilty.
The extent to which a conviction may hinge upon fingerprint evidence is a novel question in New Jersey.*fn1 There is no dearth of reported opinions in other jurisdictions, however. Although the issue has received somewhat uneven treatment, it is generally ...