On appeal from Superior Court, Law Division, Morris County.
Petrella, Long and D'Annunzio.
Defendants Emilio Rodriquez and Adam Christopher Mayo were indicted, along with Al Politi, on charges relating to the kidnapping of one Anthony DePasque, Sr., who had been the father-in-law of codefendant Al Politi. A jury convicted Rodriquez and Politi of first degree kidnapping; assault; aggravated assault with a weapon; terroristic threats; possession of a weapon for an unlawful purpose; and conspiracy to commit kidnapping. Mayo was convicted of conspiracy to kidnap.
The Judge denied defendants' motions for a new trial. He then merged the convictions of Rodriquez and Politi for conspiracy to commit kidnapping into their respective convictions for first degree kidnapping.*fn1 Rodriquez was sentenced on January 4, 1991, to thirty years in prison, ten years without parole eligibility on the conviction for first degree kidnapping. In addition, the Judge imposed concurrent sentences of six months for the conviction for simple assault; eighteen months without parole eligibility for the conviction of aggravated assault with a weapon; four years for terroristic threats; and seven years, three years without parole eligibility, for the conviction of possession of a weapon for an unlawful purpose.
The Judge sentenced Mayo "to a term appropriate to a crime of one degree lower" (N.J.S.A. 2C:44-1f(2)) on his conviction for second degree conspiracy to kidnap, and imposed a four-year term in prison, with credit for 282 days spent in custody. On March 22,
1991, the Judge granted Mayo's motion for reconsideration of sentence and resentenced him to five years of probation and released him from confinement.*fn2 Fines and Violent Crimes Compensation Board penalties were assessed.
Defendants Rodriquez and Mayo have appealed and we now consolidate those appeals for purposes of this opinion.
Rodriquez raises the following issues on his appeal:
I. The trial court erred in denying defendant's motion for a Wade*fn3 hearing.
II. R. 3:13-2 violates defendant's right to confrontation and cross-examination on its face as applied in this case and is contrary to the intended purpose of the rule.
A. New Jersey Court Rule 3:13-2 is overbroad infringing on defendant's right to confront and cross-examine witnesses and to a fair trial as protected by the Sixth Amendment and article I, paragraph 10 of New Jersey's constitution.
B. The court rule as applied violates defendant's rights to confrontation as protected by the state and federal constitutions.
C. The court rule was incorrectly applied so as to violate defendant's rights to confrontation and as protected by the state and federal constitutions.
III. The court erred when it admitted evidence for which the State could not establish chain of custody and logical relevance.
IV. The trial court improperly denied defendant's motion for a mistrial after the prosecutor's inflammatory comment.
V. The trial court erred when it refused to exclude defendant's record of prior convictions pursuant to Sands.*fn4
VI. The trial court erred when it denied defendant's motion for a new trial because the verdict was against the weight of the evidence.
Mayo raises the following issues on his appeal:
I. It was error for the trial court to admit the impermissively suggestive out of court and tainted in court identifications of defendant-appellant without the necessary pretrial Wade hearing.
II. It was error for the trial court to deny defendant-appellant Mayo's and codefendant Rodriquez's joint motion for mistrial after exposure of police photographic arrays to the jury without proper authentication.
III. It was prejudicial error for the trial court to admit as evidence the fact that the police obtained a search warrant of defendant-appellant's apartment.
IV. It was error for the trial court to deny defendant-appellant's motion for mistrial after the State had elicited highly prejudicial testimony from Detective Ogden regarding past alleged threats from codefendant to victim.
V. It was error for the trial court to deny defendant-appellant's request for a continuance of the trial to complete the uninterrupted cross-examination of the alleged victim.
VI. It was error for the trial court to allow the continuation of defendant-appellant's cross-examination of the alleged victim to be videotaped outside the courtroom and the ...