On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
King, Brody and Landau. The opinion of the court was delivered by Brody, J.A.D.
[260 NJSuper Page 593] Following a jury trial defendant was convicted of second-degree conspiracy to rob, a violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1. The issue at trial was whether defendant, who was present at the scene of the robbery, participated in it with two other men who committed the crime. Although finding him guilty of conspiracy, the jury acquitted defendant of the robbery and of the lesser included offense of theft from the
person. The trial Judge imposed a seven-year prison sentence. We reverse the conviction because in his summation the assistant prosecutor improperly argued to the jury that defendant, who did not testify, demonstrated his guilt by failing to report the robbery.
The State's evidence was presented primarily through the victim's testimony. He testified that he was employed as a cook for the same Atlantic City hotel and casino that employed defendant as a security officer. The two men did not know each other, however, until they met on the night of the robbery. The victim finished work that night at 11:15 p.m. and walked toward a bus terminal to take the 12:40 a.m. bus home. Along the way he purchased a six-pack of beer, which he began to drink while seated on a park bench across from the terminal. Defendant happened by and the two struck up a conversation. The victim offered defendant some beer and they spent about an hour talking and drinking. During the conversation, defendant told the victim where he worked, showing him his employee identification badge.
When the beer ran out, the men walked to the tavern where the victim had bought the six-pack. They had another beer at the tavern, which the victim paid for. After they finished drinking at the tavern, the victim bought a twelve-pack of beer and the two returned to the park for more conversation and drinking. While they were "shooting the breeze," defendant asked for some money and the victim gave him eight dollars and change so as "not to be bothered with [him] any more." A while later, two men approached the bench. They talked with defendant out of the victim's hearing for about twenty to thirty minutes while standing eight to ten feet away from the bench. The victim was later unable to give the police any description of the two men and they were never identified.
Defendant's request for money and the presence of the other two men made the victim apprehensive so he decided to leave. He testified that by then he had drunk "about a six pack." As
he was leaving, one of the three men, the victim did not know who, grabbed him from behind and knocked him to the ground. One of the three men, the victim did not know who, then removed his wallet from his back pocket. The victim testified that he saw defendant holding the wallet as he and the other two men ran toward Pitney Village, a nearby housing complex. The victim got up and chased them, but as he caught up with defendant at the complex the other two men beat him into unconsciousness. The victim was treated at a hospital and then released.
On redirect examination, the victim added that when he reached the housing complex, he saw defendant take money out of the wallet and count it. When he asked defendant to return the money, defendant said, "[I]f you don't shut up, I'm gonna hit you and that's it."
Defendant and the victim missed work later that day. The hotel and casino's records show that defendant called in sick. Both men returned to work the following day.
During his summation the assistant prosecutor argued:
[Defendant's attorney] talked about -- a lot about what makes sense, what doesn't make sense. Well, he conceded to you, in his summation, that [defendant] was there; that [defendant] saw this robbery happen. Doesn't dispute that. [Defendant's attorney] says his client, the Defendant, was not involved. Well, if [defendant] is any kind of a security guard, any kind of friend, when he goes to work the next day, isn't he going to tell somebody in the Security Department what happened? If [the victim] wasn't able to give a description of those two people, [defendant], who spends more time with them, up close and personally chatting with them and talking to him, if you accept [the victim's] ...