NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-09-0692.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Simonelli.
Following a jury trial, defendant Davon Cody was convicted of second-degree robbery, N.J.S.A. 2C:15-1a(1). The charge stemmed from the robbery of a young woman in a shopping mall parking lot. Because the victim could not identify her attackers, the State's case depended on defendant's alleged confession to the police and the testimony of co-defendant D.P., a juvenile who had been adjudicated delinquent for the same crime.
On appeal, defendant raises the following contentions:
THE TRIAL COURT'S ADMISSION OF TESTIMONY REGARDING DEFENDANT'S PURPORTED INCULPATORY STATEMENT TO POLICE WHEN THE STATE FAILED TO PRESERVE THE RECORDING OF DEFENDANT'S INTERROGATION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A COMPLETE DEFENSE, AND RULES 3:13-3(c)(2) and 3:17.
THE JUDGE'S REMARK THAT "YOU KNOW A STATEMENT WAS MADE AND A STATEMENT WAS RECORDED, " IN RESPONSE TO A JURY QUESTION DURING ITS DELIBERATIONS, CONTRADICTED THE EARLIER CORRECT INSTRUCTION REGARDING DEFENDANT'S ALLEGED ORAL STATEMENTS, VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI,  XIV; N.J. CONST. (1947), ART. , [PARAS.] 1, 9 AND 10.) (Not raised Below).
THE ADMISSION OF EVIDENCE THAT [D.P.] HAD ALREADY BEEN ADJUDICATED DELINQUENT OF ROBBERY AS DEFENDANT'S ACCOMPLICE BY ANOTHER FACT-FINDER, COMBINED WITH THE ABSENCE OF A LIMITING INSTRUCTION REGARDING THE PROHIBITED USE OF THIS EVIDENCE AND AN ERRONEOUS INSTRUCTION ON THE PROPER USE OF THE EVIDENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. ...