June 6, 2012
STATE OF NEW JERSEY IN THE INTEREST OF I.H., A JUVENILE.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-0197-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2012
Before Judges Payne and Simonelli.
Defendant I.H., a juvenile, appeals from an adjudication of delinquency for an act that, if committed by an adult, would constitute first-degree robbery, N.J.S.A. 2C:15-1a.*fn1 The trial judge imposed a three-year term at the Training School for Boys, and a one-year term of post-incarceration supervision.
The charges against defendant stem from his involvement in the robbery of a gas station on July 28, 2010. Surait Singh, the gas station attendant on duty at the time of the robbery, testified that the perpetrator wore a mask, had a gun, and demanded money. The gas station's surveillance video recorded the robbery. Singh identified the individual as the perpetrator.
Detectives Morris Clay and Sean Ganley of the Rahway Police Department reviewed the gas station's surveillance video and tentatively identified defendant, whom they had known for many years, as the perpetrator. When brought to police headquarters the next day for questioning, defendant was wearing the same clothing and jewelry as the perpetrator in the video. Defendant admitted he was wearing that clothing the day of the robbery.
The State's main witness, Kenneth Funk, testified that he and Antoine Blount encountered defendant, an acquaintance of Blount's, after Funk's car ran out of gas. Blount asked defendant for help, and defendant gave ten dollars to Funk. The three then drove to Blount's home, where they stayed "for a little while." Thereafter, Funk drove defendant to two locations, where defendant allegedly obtained some money. After leaving the second location, defendant asked Funk to stop at a gas station so that he could purchase a cigar. Defendant, who was wearing a white tee shirt, cargo pants and red shoes, exited Funk's car and returned after approximately five minutes with Funk's red flannel shirt and a gun in his hand. Defendant told Funk that he had robbed the gas station. Funk later identified defendant from a still photograph taken from the gas station's surveillance video on the day of the robbery, which showed the perpetrator wearing the clothing Funk said defendant was wearing. The photograph also depicted Funk's flannel shirt, which was wrapped around defendant's face.
On cross-examination, defense counsel established that Funk had given the police a videotaped statement, which differed from his trial testimony. For example, in his statement, Funk never mentioned Blount, defendant's name, the flannel shirt, the gun, the cigar, or that he, Blount and defendant went to Blount's home before the robbery.
Defendant moved for a mistrial, or alternatively to strike Funk's testimony based on the State's failure to provide Funk's true name and address. The judge denied the motion, finding that the State did not intentionally withhold discovery; however, he adjourned the trial to permit additional discovery. The State then produced Funk at its offices, but he refused to speak with defense counsel. The judge subsequently concluded there was no due process violation because the State had made Funk available for an interview, Funk had a right to decline an interview, and Funk was cross-examined at trial.
On appeal, defendant argues that by withholding Funk's address the State denied him "the opportunity to have his representative contact [Funk] directly and to fully investigate [Funk's] credibility, thus impermissibly interfering with [defendant's] constitutional rights to confront the witnesses against him and present a complete defense." We disagree.
We review a trial judge's decision on a motion for a mistrial under an abuse-of-discretion standard. State v. Winter, 96 N.J. 640, 647 (1984). We discern no abuse of discretion here.
The State admits, and we agree, that the State violated Rule 3:13-3(c)(6) by failing to provide Funk's address. However, that violation does not compel a mistrial or the striking of Funk's testimony. Funk's identity was not unknown to defendant, and the judge afforded defendant the opportunity to further investigate Funk following his trial testimony. In addition, the State made Funk available for an interview with defense counsel; however, Funk had "an absolute and personal right to either grant or deny [an] interview" with defense counsel. State v. Boiardo, 172 N.J. Super. 528, 532 (Law Div. 1980). See also State v. Tate, 47 N.J. 352, 354-55 (1966); State v. Roszkowski, 129 N.J. Super. 315, 317-318 (App. Div.), certif. denied, 66 N.J. 325 (1974).
Finally, there was no violation of defendant's constitutional right to confront adverse witnesses. Defendant had an opportunity to confront Funk at trial, and in fact, defense counsel extensively cross-examined him. Accordingly, the judge properly denied defendant's motion for a mistrial, or alternatively to strike Funk's testimony.