On appeal from Superior Court of New Jersey, Law Division, Union County.
Approved for Publication December 2, 1996.
Before Judges Keefe and Conley. The opinion of the court was delivered by Conley, J. A. D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by CONLEY, J. A. D.
During defendant's first jury trial, it was discovered that a police report containing references to other offenses in which defendant was a suspect had been sent to the jury during its deliberations along with the properly admitted evidence. Defendant's motion for a mistrial was granted. Thereafter, defendant was convicted by a second jury of first-degree robbery, N.J.S.A. 2C:15-1 (count one) and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two). Count two was merged into count one, and a twenty-year custodial term with a ten-year parole disqualifier was imposed, along with the necessary Violent Crimes Compensation Board penalties.
On appeal, defendant raises the following contentions:
POINT I. THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING TO DETERMINE WHETHER THE MISTRIAL IN THE FIRST TRIAL WAS CAUSED BY STATE ACTION IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL PROTECTION AGAINST TWICE BEING PLACED IN JEOPARDY.
POINT II. THE DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL GUARANTEED UNDER THE STATE AND FEDERAL CONSTITUTIONS.
POINT III. THE TRIAL JUDGE VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE BY DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO PRESENT THE ALIBI TESTIMONY OF HIS MOTHER.
POINT IV. THE TESTIMONY OF OFFICER BRENNAN WHEREIN HE STATED THAT HE BELIEVED THAT MR. HALEY WAS THE SUSPECT FROM THE ROBBERY WAS IRRELEVANT AND SO PREJUDICIAL AS TO DENY DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not raised below).
POINT V. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON DEFENDANT'S RIGHT NOT TO TESTIFY ON HIS OWN BEHALF WHERE SUCH A CHARGE WAS REQUESTED BY MR. HALEY.
POINT VI. THE SENTENCE IMPOSED IS EXCESSIVE AND IS UNSUPPORTED BY THE STATUTORY AGGRAVATING AND MITIGATING FACTORS.
We have carefully considered these contentions in light of the entire record. We are convinced that point V requires a reversal. It is not, therefore, necessary for us to consider defendant's other contentions except the double jeopardy claim raised in point I. As to that, we are convinced it is without merit and requires no further opinion. R. 2:11-3(e)(2). See generally State v. Love, 282 N.J. Super. 590, 596-99, 660 A.2d 1246 (App. Div.), certif. denied, 142 N.J. 572 (1995). Compare State v. Andrial, 203 N.J. Super. 1, 8-9, 495 A.2d 878 (App. Div. 1985) with State v. Nappo, 185 N.J. super; 600-605 (Law Div. 1982). We observe only that the mistrial plainly was "required by a sufficient legal reason and a manifest or absolute or overriding necessity." N.J.S.A. 2C:1-9(d)(3). There is, moreover, not the slightest hint that anything other than clerical mistake caused the inclusion of the police report in the evidence that was transmitted to the jury during the first trial. The trial Judge's Conclusion that prosecutorial misconduct was not involved is unassailable. We specifically reject defendant's claim that he was entitled to a plenary hearing as to that.
We address, then, defendant's contention in point V that the trial Judge's failure to instruct the jury on the defendant's right not to testify constitutes reversible error. In addressing this point, we note that the State's evidence was substantially premised upon the identification by the three victims of defendant as the perpetrator. We need not recount that evidence in detail, but we acknowledge that the evidence was fairly convincing, at least in the face of no counter evidence. We note, however, some discrepancy in the description of the clothing worn by the perpetrator and that worn by defendant at the time of his apprehension shortly after the robbery. We further observe some hesitancy on the part of one of the victims, Mr. Kish, in his "show-up" identification of defendant that occurred within minutes after the robbery. During this show-up identification, Mr. Kish admitted that he had asked one of the other victims whether that was "the guy" and admitted that he did so because he had some doubts about whether defendant was the robber. We also note that defendant's alibi witness, his mother, had testified in the first trial, but was not timely available during the second trial. Defendant's request for a short adjournment so that her testimony could be obtained was denied. The ...