On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Antell, Long and Baime. The opinion of the court was delivered by Baime, J.A.D.
This case presents novel questions concerning the scope of Evid.R. 65. This rule permits introduction of evidence affecting the credibility of a declarant whose out-of-court statement has been admitted under an exception to the hearsay rule. We hold that evidence of the defendant's threats resulting in the declarant's refusal to testify and recant his previously admitted declaration against penal interest may be introduced. We also hold that when impeachment evidence is admitted under Evid.R. 65, the trial court should instruct the jury respecting its limited probative effect.
Defendant appeals from convictions of burglary (N.J.S.A. 2C:18-2) and theft (N.J.S.A. 2C:20-3) for which he received an aggregate sentence of ten years. At trial, defendant admitted into evidence the affidavit of a fellow inmate of the Bergen County Jail in which the affiant confessed that he alone committed the offenses charged in the indictment. On rebuttal, the State was permitted to introduce the inmate's subsequent statement in which he recanted his confession and claimed that he had been coerced by defendant and his cohorts into preparing
the affidavit. In addition, the State was allowed to admit testimony indicating that the inmate refused to testify because he feared retribution at the hands of the defendant.
On appeal, it is argued that the trial court erred by (1) admitting evidence concerning the inmate's expressions of fear that he would be attacked by defendant, (2) failing to instruct the jury pertaining to the limited probative effect of the State's rebuttal testimony, and (3) imposing an illegal sentence on the theft conviction. We find no merit in any of the arguments advanced.
We need not recount the facts at length. In the early evening hours of September 1, 1988, Catherine Gertz's house was burglarized. The burglar entered the house by breaking through a kitchen window. Cash, jewelry and other articles totaling approximately $3,000 in value were taken.
At 10:45 p.m. on the same night, Nicole Andez and her boyfriend were returning to her apartment which was in close proximity to Gertz's residence when their attention was drawn to defendant, who was on foot. According to Andez, their suspicions were immediately aroused because defendant had a VCR under one arm and something "bulky" under the other. When defendant noticed the presence of Andez, he furtively "looked down" and began "walking fast" in the opposite direction. The next morning Andez learned that Gertz's house had been burglarized. Andez telephoned the police and later selected defendant's photograph from an array presented to her. She subsequently identified defendant in a line-up conducted by the Bergen County Sheriff's Department.
Based upon this evidence, the jury found defendant guilty of burglary and theft. Following his convictions, defendant moved for a new trial based on newly discovered evidence. The evidence consisted of an affidavit signed by Paul Giordano, an inmate in the Bergen County Jail. In the affidavit, Giordano
confessed that he had committed the burglary of Gertz's house. Corrections Officer Alfonzie Lee Moore testified that Giordano had asked him to notarize an affidavit which would "clear" another inmate and implicate himself in a crime. Based upon this affidavit and ...