(concurring).
I respectfully disagree with much of Judge Pressler’s analysis of the record and with her criticism of the trial judge’s discretionary decisions permitting the amendment of the indictment, denying a three day continuance and failing to declare a mistrial.
Because I concur in the reversal, it would serve no useful purpose to set forth my disagreement at length. Suffice it to say, my reading of the record satisfies me that the defendant was not prejudiced by the above decisions of the trial court, and that the trial judge exercised his discretion on these matters with due consideration for the defendant’s right to a fair trial. Accordingly, I would sustain the trial judge’s finding that the “defense [was given] adequate time to restructure its alibi defense and to contact the appropriate witnesses.”
We should be mindful that the public also has rights including the right to expect that a criminal trial will be conducted efficiently and effectively without being encumbered by unnecessary delays and mistrials. Delay is an ancient enemy of justice. See Magna Charta art. 40 (“[t]o none will we deny, or delay, right or justice.”). Unnecessary continuances and retrials mean that the trials of other criminal cases must be held in abeyance. The resources available to the criminal justice system are quite limited. In the absence of real prejudice to a defendant’s rights, continuances should not be readily granted.
Further, a mistrial here would have been completely unwarranted. Once started, trials should proceed to conclusion. State v. Rechtschaffer, 70 N.J. 395, 406, 360 A.2d 362 (1976). Mistrials are generally granted only to prevent manifest injustice. Ibid.; see also N.J.S.A. 2C:1-9(d)(3); Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901, 904 (1961).
Nevertheless, I concur in the reversal because the' judge’s refusal, without explanation or inquiry, to accede to the jury’s request for the identification testimony was clearly capable of causing a miscarriage of justice. See R. 1:7-5; State v. Wilkerson, *3760 N.J. 452, 460, 291 A.2d 8 (1972) (“Normally a trial court, which has ultimate discretion in the matter, should readily accede to any request by a jury to have any particular testimony read to it during its deliberations.”); State v. Wolf, 44 N.J. 176, 185, 207 A.2d 670 (1965) (the jury’s request for reading of testimony should be granted in the absence of some unusual circumstance because “[t]he true administration of justice calls for such action”).
This case turned on identification. The jury wished to have its memory refreshed on the identification testimony of the State’s witnesses. The judge’s refusal coupled with his failure to give the model identification charge had a clear potential for causing an unjust result. State v. Green, 86 N.J. 281, 291, 430 A.2d 914 (1981) (the potential danger of mistaken eyewitness identification is particularly significant where identification is “a fundamental and essential trial issue”). When a jury is not given proper guidance on an issue critical to guilt or innocence, a conviction must be reversed.