The opinion
LANDAU, J.A.D.,
concurring.
It is no secret that the withholding of the existence of an alibi or of the identity of alibi witnesses until trial in violation of R. 3:11-1 is viewed as a no-lose gambit from the perspective of a battlewise defendant. Notwithstanding our holdings in State v. Gonzalez, 223 N.J.Super. 377 (App.Div.1988), certif. den., 111 N.J. 589 (1988), State v. Francis, 128 N.J.Super. 346 (App.Div. 1974) and State v. Woodard, 102 N.J.Super. 419 (App.Div. 1968), certif. den., 53 N.J. 64 (1968), cert, den., 395 US. 938, 89 *230 S.Ct. 2004 , 23 L.Ed.2d 453 (1969), the preclusion remedy provided by R. 3:11-2 is fraught with uncertain consequences. See, e.g., State v. Caffee, 220 N.J.Super. 34, 37 (App.Div.1987). As we observed in Gonzalez, the practical difficulties of a cold-trail investigation, as well as the urgency of trial calendar management in most jurisdictions, render the brief investigatory recess sometimes granted to the State a remedy of dubious equivalency to R. 3:11-1. We have done relatively little to discourage trial by ambush or to encourage the search for truth. My concern is that the majority opinion appears to preclude comment upon a R. 3:11-1 violation in all cases.
I concur in the result reached by the majority in this case only because of its singular facts. Brown’s identity as a fact witness had already been disclosed. Thus, the late alibi notice could not have prejudiced the State’s preparation, particularly as Brown tended bar at the small establishment where Patterson’s version of the facts had placed Sutton and himself. This was not a case for either preclusion, See State v. Harris, 117 N.J.Super. 83 (App.Div.1971), certif. den., 63 N.J. 557 (1973), or for comment because the Evid.R. 4 dangers of the remedy far outweighed the magnitude of the defect.
I write to make clear my view that there is no general constitutional interdiction against informing a jury that a defendant failed to comply with R. 3:11-1 requirements, when that defendant has testimonially introduced his alibi witness or his alibi into the trial. Certainly this should not be the subject of comment when the alibi has not been introduced. See State v. Gross, 216 N.J.Super. 92, 96 (App.Div.1987), certif. den., 108 N.J. 194 (1987). Once a defendant has offered the alibi or alibi witness, however, I do not believe that his right to remain silent is constitutionally offended by permitting comment by the trial judge or prosecutor about the requirement of the Rule.
I suggest that such an approach is consistent with the holding in State v. Irving, 114 N.J. 427, 435-36 (1989), and that it should be encouraged by the courts where there has been *231 prejudice to the State’s preparation, because it avoids the need to consider preclusion of testimony as a remedy, and thus will enable a jury to evaluate relevant evidence subject to receiving information affecting its credibility. State v. Deatore, 70 N.J. 100 (1976) does not compel an opposite conclusion in my view. As to State v. Aceta, 223 N.J.Super. 21 (App.Div.1988), I would associate myself with the view expressed in the concurring opinion of Judge Stein.