Opinion
Submitted April 23, 1956 —
Decided April 30, 1956.
Appeal from Superior Court, Appellate Division.
Mr. Russell Richter in propria persona. Mr. Archibald Kreiger and Mr. Charles S. Joelson for the respondent.
On appeal from a judgment of the Superior Court, Appellate Division, where Judge Goldmann filed the following opinion:
"Defendant appeals from the Passaic County Court's denial of his application for a new trial based on newly discovered evidence, viz., an alibi different from that urged at the trial.
"A robbery occurred in Paterson, N.J., late in the evening of June 12, 1954. Defendant was arrested on June 21 and brought to police headquarters where he was identified in a line-up as a participant in the robbery. He was released on $5,000 bail the next day. On August 31, 1954 he pleaded not guilty to an indictment charging him with armed robbery. Assigned counsel represented him throughout the five-day trial which followed on September 13 through 17, 1954. The defense was alibi, defendant insisting throughout the trial that he had been at the 3 O'clock Club, Paterson, and not at the scene of the crime on the evening in question. The jury returned a verdict of guilty of robbery without a gun. On October 8, 1954 defendant was sentenced to serve a period of not less than seven nor more than ten years in the New Jersey State Prison, credit being given for the time spent in the county jail.
"The motion for a new trial on the ground of newly discovered evidence was filed November 4, 1955 and denied November 23, 1955. Application for a rehearing was denied December 7, 1955. The notice of appeal was filed December 19, 1955, although defendant claims he actually mailed it to the county clerk, trial judge and prosecutor on December 9.
"The new alibi on which defendant based his motion for a new trial is supported by three very short affidavits of his lady friend Mrs. Margaret DeAngeli, her mother Grace Miles, and her brother William Miles. They placed defendant in Grace Miles' home from about 6 P.M. on June 12, 1954 to 11:30 A.M. the next day. Defendant explains this belated alibi at some length. He states that on June 28 or 29, 1954, shortly after he was released on bail, he met Mrs. DeAngeli but did not mention his arrest `because of prior disagreements between them.' He next saw her when she visited at the county jail on October 4, 1954, while he was awaiting sentence. He told her the essentials of his case, said he would be sentenced on October 8, and promised to have his mother phone her as to the outcome. Mrs. DeAngeli again visited defendant in the county jail on October 11, prior to his removal to State Prison. His story is that she asked him when the crime had taken place, and when he gave her the June 12, 1954 date she told him that `while discussing the case in general with his mother on the telephone on the 8th day of October, 1954, that she remembered Jackie's [her son's] birthday was celebrated on the 12th of June, 1954, and that he was at her house all that night and had stayed overnight at the house and slept in the company of her brother William until the following morning when they had departed with her brother to her place of employment.' According to defendant he then, on October 11, recalled for the first time that he had not been at the 3 O'clock Club as he had testified at the trial, but with Mrs. DeAngeli and members of her family in Bergenfield, N.J., celebrating the birthday of Jackie, the two-year-old son of Mrs. DeAngeli. (Incidentally, Jackie's birthday actually fell on June 3, 1954, but defendant explains it was being celebrated late so that all members of the family might be present.) Defendant also represents that he did not realize, from October 11, 1954 up until September 1955, that this `newly discovered evidence' could be used as grounds for a new trial. The three affidavits mentioned above were executed October 24, 1955.
"The court properly denied the motion for a new trial based upon the so-called newly discovered evidence. To entitle a defendant to a new trial on that ground, he must show that the new evidence (1) is material to the issue and not merely cumulative, nor impeaching nor contradictory; (2) could not in fact have been discovered before such trial by the exercise of due diligence; and (3) would probably change the result if a new trial were granted. State v. Bunk, 4 N.J. 482 , 486 (1950); State v. Vaszorich, 13 N.J. 99 , 130 (1953). In denying the application for a new trial, the County Court specifically found that defendant had not met the second and third requirements of the quoted rule. We agree.
"Defendant was arrested nine days after the robbery. It is highly unlikely that he did not know then just where he had been on the night of June 12, 1954. He certainly could have remembered being present at the celebration for his lady friend's little boy, if that unusual occasion actually transpired. If, as he thought and as he insisted throughout the trial, he was in the 3 O'clock Club on the night of the crime, there was ample time following his release on bail on June 22, 1954 and prior to the trial on September 13 following, in which to confirm and verify his recollection as to his whereabouts on the evening of June 12. The alibi which he now advances as `newly discovered evidence' could have been discovered before trial by the exercise of due diligence. Defendant's account as to how his memory was refreshed by Mrs. DeAngeli — after he had spoken to her on at least two occasions — is a strained one and does not invite credence.
"It should also be observed that the alleged new evidence is of a recanting nature, `a particularly unreliable form of proof,' which, if true, involves a confession of perjury. See State v. Vaszorich, above, 13 N.J., at page 130, where the Supreme Court, in resolving the question of whether the trial judge erred in exercising his discretion by denying a new trial, quoted from the concurring opinion of Judge Cardozo in People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733 ( Ct. App. 1916):
`* * * I do not mean that to justify a new trial, he must have been convinced — firmly or with a sense of certainty convinced — that the first story of the witnesses was false and that their new story was true. He might act upon a reasonable probability. But if, on the contrary, he was convinced that the second tale was false, that a criminal league had been formed to set at naught the verdict of the jury and the judgment of the court, his duty was clearly marked. * * * He was not at liberty to shift upon the shoulders of another jury his own responsibility. That would have been to make the conspiracy triumph. He was charged with a responsibility to seek the truth himself.'
"The recanting nature of defendant's proffered new alibi adversely affects its status as `newly discovered evidence' and strongly supports the ruling of the County Court judge.
"There is no showing that the new alibi would probably change the result if a new trial were granted. The jury did not believe the 3 O'clock Club alibi; there is no reason to believe that a second jury would place any more credence in the birthday party alibi now offered by way of substitute. In fact, defendant does not even attempt to persuade us that such would be the result. It is almost certain that the new trial would result in a conviction in the light of defendant's complete change in position as to his whereabouts on the night of June 12, 1954.
"We are convinced that defendant speculated on the effect of his alibi evidence at the trial. He failed, and now, more than a year after his conviction, he attempts another tactic, a new alibi. To permit him to do so is to invite perjury.
"Defendant's brief is not limited to the question of newly discovered evidence. He extends his argument to alleged errors in the conduct of the trial, the rulings of the trial judge, and the weight of the evidence. These are matters properly to be raised on appeal from the judgment of conviction.
"R.R. 1:3-1(a) provides that the time for appeal from a final judgment in a criminal cause tried in the County Court is three months. R.R. 1:27B (formerly R.R. 1:1-9) permits the time for appeal to be extended for a period not exceeding 30 days `upon a clear showing of a good cause and the absence of prejudice.' As noted, defendant was found guilty by the jury verdict returned September 17, 1954 and sentenced October 8, 1954. He failed to file any notice of appeal until December 9, 1955 (accepting defendant's own statement as to the filing), a period of well over a year from the date of conviction. The time for taking an appeal or securing an extension has long run its course, and may not now be enlarged. Cf. In re Pfizer, 6 N.J. 233, 239 (1951); State v. Janiec, 6 N.J. 608 (1951); Stern v. Glassen, 10 N.J. 596 (1952). "R.R. 3:7-11(a) does not come to defendant's aid. Although, under that rule, a motion for a new trial based on newly discovered evidence may be made at any time, such a motion based on any other grounds must be made `within 10 days after verdict or finding of guilty, or within such further time as the court may fix during the 10-day period.'
"In view of judicial decision and the language of R.R. 1:3-1(a), 1:27B and 3:7-11(a), defendant's contentions that the verdict was against the weight of the evidence and that there were trial errors are barred by the time limitations under the stated rules.
"We have, however, reviewed these contentions and find them without merit. We would briefly allude to one of them — the claim that the trial court erred in refusing the jury's request, made in the course of its deliberations, that certain testimony be re-read to it. Defendant claims that such a request was specifically made and that the judge stated that `After all they "the jury" had been in court for a week and should have gathered sufficient testimony to decide the case and that he wouldn't give them the testimony they desired but however, that if any of the jurors could read shorthand, he would gladly give them the notes to transcribe for themselves.' The claim is totally unsupported in the portion of the transcript which defendant has reproduced by way of support in the appendix to his supplemental brief:
`THE COURT: Ladies and gentlemen, are you hopelessly at disagreement?
THE FOREMAN: No, sir.
THE COURT: Do you think you might agree on a verdict?
THE FOREMAN: Yes.
THE COURT: Then you will retire. But you can not have any more testimony. There is no information on the law that you want. I think, I made the law very clear when I charged you this morning.
All right. Will you then retire.'
"Defendant does not contend that the jury was not adequately and thoroughly instructed regarding the applicable law. The court was under no duty, had the jury in fact so requested, to have certain testimony re-read during the course of their deliberations. A refusal to do so is not error. Whether or not a portion of the testimony shall be re-read to the jury lies entirely within the trial court's discretion. State v. Close, 106 N.J.L. 321 , 334 ( E. A. 1930); Higgins v. Polk, 14 N.J. 490 , 492-3 (1954). It has been said that the practice of having testimony read at the request of the jury is not to be commended and should not be encouraged. State v. Dragone, 1 N.J. Misc. 84, 85 ( Sup. Ct. 1923).
"Affirmed."
The judgment is affirmed for the reasons expressed in the opinion of Judge Goldmann in the court below.
For affirmance — Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, JACOBS and BRENNAN — 6.
For reversal — None.