State v. Richter
Decision Date | 04 June 1956 |
Docket Number | No. A--143,A--143 |
Citation | 21 N.J. 421,122 A.2d 502 |
Parties | STATE of New Jersey, Plaintiff-Respondent, v. Russell RICHTER, Defendant-Appellant. |
Court | New Jersey Supreme Court |
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.
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 expains 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 (73 A.2d 245) (1950); State v. Vaszorich, 13 N.J. 99, 130 (98 A.2d 299) (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 (98 A.2d at page 315) 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 (L.R.A.1916F, 1044) (Ct.App.916):
'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 ...
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