situation out of which the indictment and the trial of the
defendant arises.” State v. Begyn, 34 N.J. 35, 54 (1961).
A trial court’s failure to give an “accomplice rule”
charge is not reversible error in a capital murder case
because defendant attacked the witness’ credibility
thoroughly during the course of the trial and because
other witnesses provided ample evidence to implicate
defendant as the actual shooter. State v. Harris, 156 N.J.
122, 178-82 (1998).
VIII. SENTENCING
A. Graves Act - Liability Of Unarmed Accomplice
An unarmed defendant can be subject to the Graves
Act by virtue of being an accomplice to a crime where the
weapon is in the possession of a confederate. State v.
Mancine, 124 N.J. 232, 259-60 (1991); State v. Wooters,
228 N.J. Super. 171, 178-79 (App. Div.1988). In State
v. White, 98 N.J. 122 (1984), the Court held that if an
accomplice is found guilty of an armed Graves Act offense
he is subject to sentencing under that Act. The court
went further, however, and found that if an accomplice is
convicted only of an unarmed offense, but the trial court
finds that the unarmed accomplice knew of his cohort’s
possession of a firearm, the accomplice is likewise subject
to Graves Act sentencing. Id.
To constitute possession of a firearm for purposes of
the Graves Act, constructive possession is sufficient. The
presence of a firearm in a vehicle containing several people
is presumptive evidence of possession by everyone in the
car. State v. Stewart, 96 N.J. 596 (1984).
In the case of an unarmed accomplice whose
constructive possession of a firearm is not clear-cut,
Graves Act terms may be imposed “when the evidentiary
hearing conducted by the sentencing judge disclosed
that the defendant knew or should have known firearms
were to be used in the commission of the crime. State v.
Gantt, 101 N.J. 573, 580 (1986).
B. “No Early Release Act”
The “No Early Release Act,” N.J.S.A. 2C:43-7.2
(NERA), applies to accomplices. State v. Rumblin, 166
N.J. 550, 766 (2001). The word “actor” as used in the
NERA statute “is intended as a synonym for a defendant
regardless of whether he or she acts as a principal or
accomplice.” Ibid.
ALIBIALIBIALIBIALIBIALIBI
I. GENERALLY
In asserting the defense of alibi, a defendant is
alleging that he was elsewhere at the time the crime was
committed and, therefore, could not have committed it.
This defense does not include testimony merely denying
that a defendant was at the scene of the crime, even
though such testimony inferentially suggests defendant
was elsewhere. State v. Baldwin, 47 N.J. 379 (1966), cert.
denied, 385 U.S. 980 (1966); State v. Volpone, 150 N.J.
Super. 524 (App. Div. 1974), aff’d, 75 N.J. 543 (1977).II. BURDEN OF PROOF
Alibi is not a “separate” defense; it is part of a direct
denial of the State’s charge whenever defendant’s
physical presence at a given time and place is a critical part
of the case. Accordingly, defendant does not have any
burden of proving where he was at the relevant time. Any
evidence offered regarding this issue is to be considered
with all the proofs in deciding whether there is reasonable
doubt as to guilt. State v. Garvin, 44 N.J. 268 (1965);
State v. Mucci, 25 N.J. 423 (1957).III. NOTICE OF ALIBI
A. Requirement to Provide Notice
After a written demand by the prosecutor, defendant
must provide within ten days a signed alibi, stating the
specific place or places at which the defendant claims to
have been at the time of the alleged offense, and the names
and addresses of the witnesses upon whom defendant
intends to rely to establish such alibi. On written
demand, the prosecutor must provide the names and
addresses of the witnesses upon whom he intends to rely
to establish defendant’s presence at the scene of the
offense within ten days after receipt of such alibi. R. 3:12-
2(a).The requirement that a defendant provide notice of
an alibi does not violate the privilege against self-
incrimination. Williams v. Florida, 399 U.S. 78 (1970);
State v. Irving, 114 N.J. 427 (1989); State v. Angeleri, 51
N.J. 382 (1968); State v. Lumumba, 253 N.J. Super. 375
(App. Div. 1992). That requirement is not designed to
compel a defendant to say anything, but is for discovery
purposes only to avoid surprise at trial by the sudden
introduction of a factual claim which cannot be
investigated unless the trial is continued. State v. Gross,