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State v. Blake

Decided: June 22, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT BLAKE, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Essex County.

King, Brody and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Defendant was indicted together with Wayne Fox and Blaine Ragin on two counts of first degree robbery, in violation of N.J.S.A. 2C:15-1; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b, and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. Fox entered into a plea agreement with the State pursuant to which he testified against defendant and Ragin. A jury convicted defendant of all charges and acquitted Ragin. Defendant's motion for a new trial based upon the State's alleged violation of the discovery rules and the court's sequestration order was denied.

The trial judge merged the conviction for possession of a weapon for an unlawful purpose with the convictions for armed robbery. Defendant was sentenced to concurrent ten year terms, with five years of parole ineligibility, on the robbery

convictions and to a consecutive three year term for possession of a handgun without a permit.*fn1

On appeal, defendant makes the following arguments:

POINT I: BY ADDRESSING "QUESTIONS" TO THE DEFENDANT DURING CROSS-EXAMINATION CONCERNING THE DEFENDANT'S PURPORTED CONFESSION TO MRS. FOX, QUESTIONS WHICH THE PROSECUTOR DID NOT THEN BELIEVE WOULD OR COULD BE SUPPORTED BY MRS. FOX TESTIMONY, THE PROSECUTOR COMMITTED SO GROSS AN IMPROPRIETY AS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL.

POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING MRS. FOX TO TESTIFY DESPITE THE PROSECUTOR'S BREACH OF HIS DUTY TO DISCLOSE PURSUANT TO R. 3:13-3(a)(2) AND (b).

POINT III: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING MRS. FOX TO TESTIFY DESPITE THE VIOLATION OF HIS ORDER OF SEQUESTRATION.

POINT IV: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING GEORGE JOHNSON TO TESTIFY DESPITE THE PROSECUTOR'S BREACH OF HIS DUTY TO DISCLOSE PURSUANT TO R. 3:13-3(a)(7).

POINT V: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING OFFICER DAVIS TO TESTIFY DESPITE THE BREACH OF HIS DUTY TO DISCLOSE PURSUANT TO R. 3:13-3(a)(2).

POINT VI: THE PROSECUTOR'S STATEMENT TO THE JURY IN THE COURSE OF SUMMATION THAT THE DEFENDANT HAD NOT PRODUCED "ONE WITNESS WHO SAID HE WAS NOT IN THE PARK," CHARACTERIZED BY THE TRIAL JUDGE AS "FAIR COMMENT," WAS MISCONDUCT WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

We conclude that the prosecutor violated his discovery obligations under R. 3:13-3(a)(2) and (7) by ...


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