On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Petrella and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from his convictions of burglary (N.J.S.A. 2C:18-2) upon which he was sentenced to a five-year term with a two-and-one-half year period of parole ineligibility, attempted burglary (N.J.S.A. 2C:5-1 and 2C:18-2) upon which he was sentenced to a consecutive term*fn1 of five years with a two-and-one-half year period of parole ineligibility, and theft (N.J.S.A. 2C:20-3) upon which he was sentenced to a concurrent term of three years. Appropriate penalties payable to the Violent Crimes Compensation Board were also imposed. We reverse and remand for a new trial.
On July 18, 1985 at approximately 1:30 p.m., the victim returned to his condominium in Mahwah, where he came upon defendant and another "working on" his neighbor's door with a large screwdriver. When the victim appeared, defendant and the other man left the scene. In his condominium the victim discovered his gold watch, several gold chains, a penknife and a pearl tie clip missing. When the police responded to his call, they discovered the victim's apartment door had a pry mark on the deadlock and two or three pry marks on the lock mechanism, indicating the door had been pried away from the jamb to be opened. Examination of the next-door neighbor's door, where the victim had observed defendant with a screwdriver,
had two similar pry marks on it. The victim gave the police a full description of defendant, including his disheveled appearance with shabby, dirty, unkempt clothes.
On July 31, 1985, a Mahwah police officer arrested defendant on another charge. Because he was aware of the burglary and the description given by the victim, he prepared a photographic lineup. The victim picked defendant's photograph, but requested that he have an opportunity to hear defendant talk and see his mannerisms in order to be absolutely sure. As a result, a physical lineup was conducted on August 2, at which the victim again identified defendant.
At trial, defendant, who has an extensive criminal record, did not testify. However, he presented the testimony of his mother that she had been with him in Jersey City until he boarded a bus for Hackensack at 11:55 a.m. Defendant also presented his probation officer who testified that defendant had been at her office on that day from 2:00 or 2:15 p.m. until approximately 5:00 p.m. She also described defendant as being unshaven, needing a bath, and looking like he had been drinking.
During the course of the trial, a series of photographs comprising the photographic lineup including a photograph of defendant were received into evidence. The photograph of defendant was a mug shot which on the reverse side contained the following information: