Before Judges Stern, Kestin and Wefing.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 27, 1999 - Decided: November 17, 1999
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County.
The opinion of the court was delivered by
Defendant was convicted by a jury of fourth degree possession of a motor vehicle with an altered vehicle identification number, and third degree tampering with a public record. A charge of third degree theft was dismissed by the court on defendant's motion for a judgment of acquittal. Defendant was sentenced to a one-year probationary term. A $500 fine was ordered along with statutory assessments, fees and penalties. The record discloses no stay of the sentence.
On appeal, defendant raises the following issues:
POINT I THE TRIAL COURT'S RULING, WHICH PRECLUDED AN EXCULPATORY DEFENSE WITNESS FROM TESTIFYING BECAUSE OF DEFENSE COUNSEL'S FAILURE TO PROVIDE DISCOVERY, DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO COMPULSORY PROCESS, TO PRESENT EXCULPATORY EVIDENCE, TO DUE PROCESS OF LAW AND TO A FAIR TRIAL; TRIAL COUNSEL'S FAILURE TO SUPPLY THE PROSECUTOR WITH THE WITNESS' NAME AND ADDRESS AND THE INVESTIGATOR'S REPORT PRIOR TO TRIAL DENIED THE DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10.)
POINT II THE COURT'S CHARGE TO THE JURY, WHICH ALLOWED THE JURY TO CONVICT THE DEFENDANT ON A THEORY OF GUILT WHICH NO RATIONAL JURY COULD FIND BEYOND A REASONABLE DOUBT, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9, AND 10.)
POINT III THE FAILURE TO REQUIRE THAT THE JURY MAKE A SPECIFIC FINDING ON EACH COUNT OF THE INDICTMENT AS TO THE DEFENDANT'S CONDUCT CAUSED THE POTENTIAL OF A NON-UNANIMOUS PATCHWORK VERDICT IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1.) (Not Raised Below)
POINT IV THE IMPOSITION OF A LAW ENFORCEMENT OFFICERS TRAINING AND EQUIPMENT FUND (LEOPA) ASSESSMENT FOR A CRIME COMMITTED BEFORE SUCH A PENALTY WAS AUTHORIZED VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM EX POST FACTO LAWS. (U.S. CONST. ART. I, SEC. 10; N.J. CONST. ART. IV, SEC. 7, PAR. 3.) (Not Raised Below)
The indictment had been filed on May 21, 1997. The matter came on for trial on March 16, 1998. The assistant prosecutor advised the trial Judge that she had that very morning received from defendant a two-page investigation report dated February 24, 1998, concerning a theretofore unknown fact witness who defendant intended to call to testify at trial. The witness would be testifying to "underlying transactions with respect to the [stolen] vehicle involved." The assistant prosecutor explained:
I thought that I would be able to sustain my burden of proof without having to call the victim [the out-of-state owner of a stolen motor vehicle] to the stand. Now Mr. Strauss [defense counsel] presents me with a two-page investigation that questions some very things that the jury may be questioning had I not put the victim on the stand.
There's a message on my desk from the victim's secretary . . . indicating he's able to drive to New Jersey ...