State v. Blanca

• Decision Date: 02 April 1968
• Docket Number: No. A--1105,A--1105
• Citation: 241 A.2d 647,100 N.J.Super. 241
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anthony BLANCA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 241

100 N.J.Super. 241

241 A.2d 647

STATE of New Jersey, Plaintiff-Respondent, v. Anthony BLANCA, Defendant-Appellant.

No. A--1105.

Superior Court of New Jersey Appellate Division.

Argued March 11, 1968.

Decided April 2, 1968.

Samuel H. Davis, Jersey City, Assigned Attorney, for appellant.

John D. Grossi, Asst. Prosecutor, for respondent (James A. Tumulty, Jr., Prosecutor or Hudson County, attorney.)

Before Judges GOLDMANN, KILKENNY and CARTON.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Defendant appeals as an indigent and with the aid of assigned counsel from convictions of armed robbery (N.J.S. 2A:141--1 and 2A:151--5 N.J.S.A.) and of carrying concealed pistols in an automobile without first having obtained a permit to carry the same (N.J.S. 2A:151--41, N.J.S.A.). He was found guilty after a jury trial and was sentenced to concurrent indeterminate terms at Bordentown Reformatory.

Three others--Massey, Foster and Reid--were jointly indicted and tried with defendant Blanca for the same offenses, but this appeal is by Blanca alone.

At the outset, defendant's attorney on appeal frankly concedes that certain grounds advanced by the assigned trial attorney for dismissal of the indictments against defendant are without legal merit. We agree. We mention them for the sake of completeness.

Defendant moved for a dismissal at trial on the following grounds: (1) he had not been shown the original indictment; (2) he had not been present at the grand jury proceedings; (3) he had not been advised of his constitutional rights under the Miranda doctrine, and (4) no attorney represented him at the arraignment in municipal court. As to (1), the original indictment is on file with the county clerk, pursuant to R.R. 3:4--1(b), and the assigned trial counsel received a copy as required by R.R. 3:5--1. As to (2), defendant was not entitled under R.R. 3:3--6 to be present or have anyone present during the grand jury proceedings. As to (3), Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is not applicable because defendant did not testify and no police officer testified as to any statements made by him. As to (4), defendant was in no way prejudiced by the absence of an attorney at the preliminary hearing before the municipal magistrate. State v. Hale, 45 N.J. 255, 263, 212 A.2d 146 (1965), certification denied 384 U.S. 884, 86 S.Ct. 1981, 16 L.Ed.2d 1001 (1966), is dispositive of this contention.

Defendant's attorney on appeal also candidly admits that he considered challenging the propriety of the procedure used by the police when defendants were identified at the police station in Jersey City and later at the county jail, in view of recent decisions of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). However, the doctrine of those cases affects only pre-indictment identifications made after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Defendant's identifications preceded that date, having been made in 1966. Cf. State v. Sinclair, 49 N.J. 525, 544--547, 231 A.2d 565 (1967).

We deem it expedient also to note at the outset that defendant's brief does not challenge his conviction on the charge of armed robbery. Its three points are directed to the concealed weapons charge. In its conclusion we are asked only to reverse 'the conviction of defendant Blanca on the charge of carrying a concealed weapon in a motor vehicle.'

The State's proofs clearly establish that on April 9, 1966, just before the 10 P.M. closing time, an armed robbery was committed by three Negro males at Irv's Liquor Store, 1067 Avenue C, near 52nd Street, in Bayonne, New Jersey. Two of the robbers, one of whom was identified as Blanca, pointed pistols at Esther Botwinik, one of the co-owners of the store, and took over $900 in cash from the register, a $26.50 check given that day by a customer in payment of liquor purchased, some 70-odd dollars from Mrs. Botwinik's purse, and a bottle of scotch whiskey, Johnny Walker Red Label, from a shelf as the robbers departed. Upon their arrest within an hour's time, Blanca was identified as one of the robbers who held a gun while the robbery was being perpetrated.

Blanca did not testify and he called no defense witnesses. Nor did Massey or Foster, who were identified before and at trial as the other two of the three who actively participated in the commission of the crime. The only defendant to testify was Reid, the owner and driver of the automobile in which the other three were riding when taken into custody. We need not discuss Reid's claim of innocence. His automobile was, according to Reid, at 53rd Street and Broadway in Bayonne, not far from the scene of the robbery, at the time the robbery was committed.

Immediately following the robbery, Esther's son, Stuart, who witnessed the crime, and two store employees who came upon the scene while the crime was being committed, went by automobile to find the fleeing robbers. They had gone about three minutes and nine blocks to 59th Street and the Boulevard when Stuart observed an automobile with apparently nervous male Negroes in it, one of whom looked like one of the robbers. The color and license number of the car were noted as they followed in close pursuit, both vehicles proceeding northerly toward Jersey City. The police were notified, a county-wide radio alert went out from Bayonne police headquarters, and the suspected car was ultimately stopped by the Jersey City police at 120 Summit Avenue in that city, about a block and a half from where Reid, the owner-driver, lived.

Blanca was in the front passenger seat, Massey was behind him in the rear. Foster was also in the rear behind the driver Reid. The police who had followed them in a patrol squad car ordered the four out of the vehicle and frisked each at the scene. As Massey pushed the front seat of this two-door car forward, the police saw a loaded pistol in plain view on the floor of the rear of the car. They also saw a bottle of Johnny Walker Red Label and some clothing, which they seized. A crowd had begun to gather and the four, as well as the car, were taken to Fourth Precinct to unsnarl the traffic and for the sake of convenience in making further searches.

Search of Foster disclosed that he had in his pocket a roll of bills amounting to $901, with which there was the check stolen from the cash register. Massey had $74 in cash. Thus, these items and the bottle of scotch tallied with the cash, check and bottle taken during the robbery. The clothing was later identified as that worn by the robbers.

About ten minutes after the police brought the suspects to the Fourth Precinct, Stuart Botwinik, who had witnessed the crime and the use of two guns, called this to the attention of Sgt. Kelly, who then had only the one pistol found in the rear of the car. The sergeant and another police officer went out and continued to search the automobile. They found another automatic pistol under the rubber mat at the front seat where defendant Blanca had been sitting when the police stopped the car. Thus, two pistols found in the car tallied with two pistols used at the time of the robbery. The search of the four occupants and the car revealed only these two pistols.

We now consider the three grounds urged for reversal of the concealed weapons conviction.

I.

Defendant argues that his conviction under N.J.S. 2A:151--41, N.J.S.A. must be set aside because of the absence of proof that he failed to obtain a permit to carry a firearm.

Concededly, there was no proof at trial that this defendant did or did not have the statutorily required permit.

N.J.S. 2A:151--41, N.J.S.A. provides in pertinent part '* * * any person who carries in any automobile * * * or otherwise concealed in his possession:

(a) A pistol * * * without first having obtained a permit to carry the same in accordance with the provisions of this chapter; * * *.

Is guilty of a misdemeanor.'

From this language defendant argues that failure to obtain a permit is an essential element of the crime and must be proved by the State. He contends that to require him to come forward with proof would violate his constitutional rights, including the right against self-incrimination.

We cannot see how a defendant would incriminate himself by the production of exculpatory evidence--the permit, if he had one. That evidence could be produced even without defendant's taking the stand. For example, the official records could establish the fact. No such proof was offered.

We held in State v. Rabatin, 25 N.J.Super. 24, 95 A.2d 431 (1953), certification denied 13 N.J. 361, 99 A.2d 675 (1953):

'The fact that the State failed to prove that the defendant did not first obtain the requisite permit to carry the revolver is of no aid to the defendant. It was not incumbent upon the State to show that no permit had been issued to the defendant.' (at pp. 30--31 at p. 434 of 95 A.2d).

We reasoned that the truth or falsity of the averment lay more immediately within the knowledge of the defendant himself and the Onus probandi rested upon him.

In State v. New York Central Railroad Co., 37 N.J.Super. 42, 116 A.2d 800 (1955), we reiterated this rule, stating:

'Where the charge or indictment includes a negative averment, the truth or falsity of which lies peculiarly within the knowledge of the defendant, the burden of evidence, or of going forward with proof on that issue, as distinguished from the burden of proof, rests with the defendant.' (at p. 51 at p. 805 of 116 A.2d).

We have been referred to no case overruling or modifying State v. Rabatin, supra. On its authority, we deem defendant's first point not a sound basis for...