On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-10-01358.
Before Judges Skillman, Coburn and Fisher.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2003
At defendant's robbery trial, the trial court ruled that defendant"opened the door" to admission of evidence of his alleged accomplice's guilty plea by testifying that neither he nor the accomplice robbed the alleged victims. We conclude that the guilty plea of the alleged accomplice, who did not testify at defendant's trial, was inadmissible hearsay, and that defendant did not open the door to admission of this evidence by testifying that neither he nor the alleged accomplice committed a robbery. Consequently, we reverse defendant's conviction.
A jury found defendant guilty of two counts of second-degree robbery, in violation of N.J.S.A. 2C:15-1. The trial court sentenced defendant to concurrent indeterminate terms at the Youth Correctional Facility.
Defendant's convictions were based on an incident in which, if the alleged victims' version is credited, defendant and his confederate James Kosch committed a robbery upon Efrain Garcia and Uriel Vasquez, or if defendant's version is credited, Garcia and Vasquez assaulted and attempted to rob defendant and Kosch. Garcia, Vasquez and defendant testified at defendant's trial. Kosch did not testify.
According to Garcia and Vasquez, they first encountered defendant and Kosch around midnight on September 11, 2000, in a Dunkin' Donuts in Point Pleasant. Defendant and Kosch asked them the time, and Vasquez responded that they did not have a watch. After buying drinks, Garcia and Vasquez left the Dunkin' Donuts and began riding home on their bicycles. Defendant and Kosch followed, also riding bicycles. When they arrived at the Point Pleasant Bridge, defendant and Kosch cut-off Vasquez and defendant began hitting him on the head. They asked Vasquez whether he had money, and he said no. At this point, Garcia, who had been riding ahead of Vasquez, turned around and went back to help him. As he approached, one of the assailants said:"We want money. That's what we want." Defendant then punched Garcia in the face. Garcia began to run away, but defendant and Kosch caught him, threw him to the ground, started kicking him in the head and back, and grabbed his knapsack. Vasquez removed his bicycle chain from his bicycle, ran to where defendant and Kosch were assaulting Garcia and began swinging the chain. Defendant and Kosch got back on their bicycles and rode away, taking Garcia's knapsack with them.
Testifying in his own defense, defendant presented a starkly different version of the incident. According to defendant, as he and Kosch were approaching the Point Pleasant Bridge on their bicycles, Garcia and Vasquez drove up next to him on their bicycles, and asked whether he had the time. Defendant responded that he did not have a watch. Garcia and Vasquez then knocked him off his bicycle, jumped on his back, got him down onto the ground, and tried to pull his wallet out of his back pocket. Kosch ran over to assist him and punched one of his assailants in the face. Defendant punched the other one and managed to get both of them off of him. Defendant heard Kosch say,"One of them has a chain," and then observed Vasquez swinging a chain. At this point, defendant and Kosch were able to get back on their bicycles and escape.
The issue of admissibility of evidence of Kosch's guilty plea arose during defendant's cross-examination, when the prosecutor asked whether he was aware of the disposition of the charges against Kosch. Defense counsel objected to this question, but the trial court overruled the objection on the ground that defense counsel had opened the door to evidence of Kosch's guilty plea by asking defendant on direct whether Kosch had robbed the alleged victims.
The prosecutor then elicited the following testimony from defendant:
Q. Are you aware of the outcome of [Kosch's] case?
A. Yeah. His case got dropped down to an assault. And he pled guilty to it'cause he did ...