Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
Early in the afternoon on August 30, 1989, Elnora Daye informed the Jersey City police that she was the victim of an armed robbery in her home at approximately 11:30 p.m. on August 29, 1989. She provided the police with a signed statement which included the following facts.
Hearing noise and the breaking of glass while in a second floor bedroom of her home, she went into her daughter's room and took her daughter to the second floor landing. A stairway light controlled by a switch on the first floor was turned on, and she observed two men on the first floor at the foot of the stairway. One man climbed the stair and under direction of the second man, pulled a gun and held it to the side of her head. The second man, still on the first floor and later identified as defendant Benny Hogan, ordered Daye to "give up what you got." After that statement was repeated, Daye indicated that her possessions were in her bedroom. Defendant climbed the stairs, entered her bedroom, and then both men left her home. She discovered that $290 and credit cards were removed from her pocketbook.
Her statement also included the following rendition of an event which occurred earlier that day before she reported the robbery to the police:
ANSWER: I was coming out of 8 Erie Street. I got out of my car in front of my house. I noticed one of the guys who robbed me. I went to a man I knew who just got out of prison and the man knew him. So we went up to him and asked him questions about the incident.
The guy who knew him asked him about the incident. He then started talking. He said why are you looking at me like that.
I said because I remember those marks on your face. You were the one who came to my house.
He then said, no, I did not.
I said I remember the car you were in. It was in my backyard. I pulled out a piece of paper with the license plate on it. He then said I ain't going to deny that this is the car. I loaned it to my cousin. If I knew my cousin was going to stick up you people, I would not have let him use the car.
Additionally, the statement indicated that she was shown a photograph of defendant and asked:
QUESTION: Is this the man that was in your house and robbed you?
Based solely on that statement, the matter was presented to the grand jury. The only State's witness was Detective Charles Sutaris, who read the entire transcribed statement of his questions and Daye's answers, signed by Daye. Based upon that presentation, defendant was indicted for burglary and robbery. *fn1
On May 10, 1990, Daye visited the public Defender's Office. She provided a Public defender with a statement which was tape recorded and included, in part, the following colloquy:
MR. MASK: Explain why you came to this office today.
MS. DAYE: Because I was under a lot of pressure and a lot of things that were said aren't true.
MR. MASK: When you say you were under pressure can you explain how and why you named the person Benny Hogan as the suspect at that time?
MS. DAYE: Yes, I can. Because everybody was telling me about Benny, saying the type of person he was, what he was capable of doing so it made me scared.
MR. MASK: When you say that you heard from people does that mean to say, does that mean that at the time your home was burglarized and that you were robbed you did not see Benny Hogan in your house at that time?
MR. MASK: You saw I believe you said an automobile, is that correct?
MR. MASK: Where was the automobile?
MS. DAYE: On Union Street.
MR. MASK: And it was only after you had conversations with other people did they tell you that it must have been Benny Hogan that you told the police that's who it was?
MR. MASK: And when you went to the police station were you given the opportunity to selected [sic] among a group of photographs?
MR. MASK: What did they do when they asked you to look at a photograph?
MS. DAYE: They gave me a book and they had the page with Benny's picture on it with another picture and they said is this ...