Pressler, Long and Landau. The opinion of the Court was delivered by Long, J.A.D. Landau, J.A.D., concurring.
After a jury trial, defendant Cleveland Sutton was convicted of third-degree possession of stolen property contrary to N.J.S.A. 2C:20-7. He was sentenced to a custodial term of three years with a recommendation by the trial judge that the sentence be served at the Youth Reception and Correction Center. The judge also imposed an appropriate Violent Crimes Compensation Board penalty. Defendant appeals, claiming that the following trial errors warrant reversal:
THE COURT ABUSED ITS DISCRETION IN TELLING THE JURY THAT THE DEFENDANT FILED A LATE NOTICE OF ALIBI FOR WITNESS HENRY BROWN.
THE COURT ERRED UNDER THE FACTS OF THE INSTANT CASE IN CHARGING THE LESSER INCLUDED OFFENSE OF RECEIVING STOLEN PROPERTY.
We have carefully reviewed this record in light of the claims advanced and have concluded that the trial judge's instruction on the lateness of defendant's notice of alibi was improper. For this reason the conviction must be reversed.
The facts in the case are as follows: In the early morning hours of July 23, 1986, Horace Smith agreed to drive his uncle from Hillside to Newark. When the pair reached the area of Avon Avenue and 15th Street in Newark, the uncle alighted to visit a friend while Smith remained in the car. He was then approached by a man with a gun who demanded money. The man ordered Smith out of the car at which point he was joined by three other men, one of whom took Smith's wallet. Smith's keys were also taken and the three men who had joined the gunman drove away in Smith's car with the man who had taken Smith's wallet in the driver's seat. The gunman then ran away. After notifying the police, an officer and Smith drove around the neighborhood and in fifteen or twenty minutes found the gunman who told them where they might find the car. They came upon Smith's car with defendant behind the wheel approximately three to four hours after it was taken. Smith identified defendant as one of the three individuals who had taken his car, but not the driver.
Defendant was arrested and charged with first degree robbery. He filed a timely notice of alibi for one witness, Keith Patterson. Five days before trial, on September 24, 1987, defense counsel advised the prosecutor that he intended to present Henry Brown, a bartender at Nancy's Lounge, the establishment in front of which defendant had been arrested, as a fact witness. Subsequently, on September 28, one day before the trial began, defense counsel orally advised the prosecutor
that he intended to present Brown as a second alibi witness. The following day, defendant executed and filed a formal written notice of alibi naming Brown. At that time, the prosecutor indicated that he would seek a "late alibi" charge as to Brown. During the trial, in order to avoid the problem of the so-called "late alibi" charge, defense counsel attempted to limit Brown's testimony to fact evidence and to withdraw the notice of alibi. The State objected and the trial judge ruled that Brown could not be withdrawn as an alibi witness and that it was likely that the "late alibi" charge would be given.
At trial, Patterson testified that on the evening of July 22, 1986 and into the early morning hours of the day of the crime he was with defendant at various locations and ultimately at Nancy's Lounge in Newark. Both were drinking when a young black man came into the bar and asked for a jump start for his car. According to Patterson, defendant left the bar in order to assist the man. Patterson followed them out. He observed the defendant and the young man push an old gray Camaro from the intersection of 20th Street and 16th Avenue, Newark. Patterson retrieved defendant's car from around the corner and moved it into position for the jump start. Defendant gave the car a jump start. Patterson then drove defendant's car back to where it had been parked. When he returned, he observed the police pull up and arrest defendant. The witness also observed the young black male run away as the police approached. Patterson testified that the man with the police ...