On appeal from the Superior Court, Law Division, Passaic County.
R.s. Cohen, Ashbey and A.m. Stein. The opinion of the court was delivered by R.s. Cohen, J.A.D. A.m. Stein, J.A.D., concurring.
Defendant Jose Silva was indicted on two counts charging armed robbery, two counts of possession of a weapon with intent to use it unlawfully, and one count of possession of a weapon without a permit. The trial judge dismissed the last count, and the jury found defendant guilty on the other four. Defendant was sentenced for the armed robberies to concurrent custodial terms of fifteen years, with seven-year mandatory minimums, and for the weapons possession counts to two seven-year custodial terms with three-year mandatory minimums, concurrent with each other and with the armed robbery sentences.
On his appeal, defendant makes the following arguments:
I. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CHALLENGE DEFENDANT'S ALIBI WITNESS ON THE BASIS OF PRETRIAL SILENCE.
A. The Court Erred in Permitting the State to Infer Recent Fabrication Based on the Alibi Witness's Pretrial Silence.
B. The Trial Court Erred in Failing to Instruct the Jury that the Defendant's Alibi Witness Had No Duty or Obligations to Come Forward With Exculpatory Information (Not Raised Below).
II. DETECTIVE JENKINS' TESTIMONY DENIED THE DEFENDANT A FAIR TRIAL.
A. The Trial Court Erred in Permitting Detective Jenkins to Testify on the Issue of Defendant's Appearance at the Time of Arrest.
B. The Trial Court Erred in Denying Defendant's Motion For a Mistrial.
C. Detective Jenkins' Hearsay Testimony Impermissibly Bolstered the Victim's Testimony (Not Raised Below).
III. THE TRIAL COURT ERRONEOUSLY ISSUED CONCURRENT SENTENCES ON COUNTS THAT SHOULD HAVE BEEN MERGED.
IV. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT.
V. THE PROSECUTOR'S CLOSING REMARKS WERE PREJUDICIAL AND CONSTITUTE REVERSIBLE ERROR.
A. During Summation the Prosecutor Improperly Bolstered the Credibility of Detective Jenkins.
B. The Prosecutor's Comments on the Paucity of Evidence in the State's Case Were Unfairly Suggestive and Prejudicial.
With the exception of Point I, we conclude that defendant's arguments are all clearly without merit. R. 2:11-3(e)(2). Point I, however, requires reversal of the convictions and a remand for retrial.
Defendant and his sister both testified that, on the evening in question, they were together with the sister's husband, first at home and later out to dinner. In cross-examination of the sister, the State established that she had never come forward to the police or the prosecutor's office to support defendant's innocence by revealing that she was with defendant at the relevant time. In summation, the State argued that the jury should consider that the sister did not come in to tell the police her story. Defendant asked the judge to charge the jury that the sister had no obligation to go to the police with her information. The judge agreed to so charge, but failed to do so. The defense did not call the omission to his attention.
Defendant argues that it is improper to discredit an alibi witness for failure to come forward to the authorities with exculpatory information, and that it is certainly improper to discredit an alibi witness for failure to volunteer exculpatory information after defendant files an alibi notice containing the witness's name and address.*fn1 Here defendant filed a notice of
alibi close to five months after his arrest, and close to one ...