State v. Cherry

• Decision Date: 16 November 1977
• Citation: 381 A.2d 49,154 N.J.Super. 157
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Tony CHERRY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 157

154 N.J.Super. 157

381 A.2d 49

STATE of New Jersey, Plaintiff-Respondent, v. Tony CHERRY, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 24, 1977.

Decided Nov. 16, 1977.

Robert J. Konzelmann, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender; Martin L. Kaplan, Whippany, of counsel and on the brief).

Kenneth P. Ply, Asst. Prosecutor, for plaintiff-respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges CONFORD, MICHELS and PRESSLER.

The opinion of the court was delivered by

MICHELS, J. A. D.

Following a jury trial defendant Tony Cherry was convicted with codefendant Sandra Jenkins (Jenkins) ¹ of sodomy, armed robbery, possession of a dangerous knife, assault with a dangerous knife and private lewdness. Defendant was sentenced to consecutive and concurrent State Prison terms aggregating 10 to 15 years. Defendant appeals.

According to the State's proofs, the victim met Jenkins in a bar in Newark. After some discussion Jenkins agreed to engage in sexual intercourse with the victim for a sum of money, and told the victim that she would take him to a room. After Jenkins and the victim left the bar they went to a room in an apartment building located in the area. Shortly after they arrived defendant entered the room and demanded $5 from the victim for the use of the room. The victim stated that he did not have enough money to pay both defendant and Jenkins, but offered to pay defendant the $5 demanded. Defendant in effect said that the amount offered was not enough, and immediately he and Jenkins pulled out knives and robbed the victim of $38. Thereafter defendant ordered the victim to drop his pants and bend over. When the victim refused, defendant slashed his arm with a knife and sodomized him. Jenkins held a knife to the victim's neck during the assault. Thereafter defendant forced the victim to commit fellatio on him. When the victim finally was released, he called the police to report the crime.

Defendant seeks a reversal of his convictions and modification of his sentences on the following grounds set forth in his brief:

Point One The testimony of the expert fingerprint witness was improperly admitted, and said admission was so prejudicial to the defendant that reversal is warranted.

Point Two The defendant Tony Cherry's rights to a fair trial were denied by the presence on the jury of a relative of his codefendant and the cause should be reversed and remanded for a new trial.

Point Three The trial court erred in admitting the hearsay testimony of Officer Radin under the fresh complaint exception.

Point Four (not raised below) The trial was so fraught with legal errors that their aggregate effect was to deny the defendant Cherry a fair trial before an impartial jury.

Point Five (not raised below) The multiplicity of criminal charges levelled against the defendant were improperly made as several of the charges should have been merged.

Point Six (not raised below) The incarceration of defendant Tony Cherry continually subjects him, because of his overt transsexualism, to serious problems with other male prisoners and to the constant threat of homosexual attacks and thus requires him to undergo cruel and unusual punishment in violation of the Federal and State Constitutions.

We have given careful consideration to these contentions and all of the arguments advanced by defendant in support of them, and find that they are clearly without merit, R. 2:11-3(e)(2), with the exception that defendant's conviction for possession of a dangerous knife should merge with his conviction for armed robbery. In this regard it is perfectly clear from the proofs that defendant's possession of the knife was an integral part of the armed robbery and that possession of the dangerous knife and the armed robbery constituted a single offense. Therefore, the possessory offense merged with the armed robbery under the principles of State v. Best, 70 N.J. 56, 65-68, 356 A.2d 385 (1976).

However, further comment is necessary with respect to defendant's claim that the trial judge erred in admitting Officer Radin's testimony about the victim's complaint made shortly after the incident. This testimony was admitted under the so-called "fresh complaint" doctrine. The doctrine is applied widely in rape and morals cases and permits proof by the prosecutor that the violated victim complained of the criminal act within a reasonable time after it occurred to someone she would ordinarily turn to for sympathy, protection or advice. State v. Tirone, 64 N.J. 222, 226-227,314 A.2d 601 (1974); State v. Balles, 47 N.J. 331, 338-339, 221 A.2d 1 (1966), cert. den. and app. dism. 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed.2d 1321 (1967); State v. Hintenberger, 41 N.J.Super. 597, 602, 125 A.2d 735 (App.Div.), certif. den. 23 N.J. 57, 127 A.2d 227 (1956); State v. Gambutti, 36 N.J.Super. 219, 225-228, 115 A.2d 136, 139 (App.Div.1955); State v. Saccone, 7 N.J.Super. 263, 266-267, 72 A.2d 923 (App.Div.1950). 4 Wigmore, Evidence (Chadbourn rev. 1972), § 1134 et seq. at 218. The admission of this testimony, although clearly hearsay, "is justified on the theory that upon the happening of such an outrage, the pattern of normal human behavior would be to complain of it to persons in the designated category," and consequently the victim's complaint is "provable in recognition of the adverse inference which might be expected to flow from silence and for the purpose of negativing or rebutting in advance a self- contradiction which, if not explained, would tend to discredit her as a witness." State v. Gambutti, supra. See also, State v. Balles, supra, wherein the Supreme Court discussed the...