Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D. Conford, P.J.A.D. (dissenting).
Defendant Joseph Mustacchio and one Anthony D'Agostino were indicted for the crime of armed robbery, in violation of N.J.S.A. 2A:141-1 and 2A:151-5. Following a jury trial Mustacchio was found guilty and D'Agostino acquitted. Mustacchio appeals.
The indictment followed the holdup of a drug store in Bloomfield on the evening of April 4, 1967. Two men, one armed with a shotgun, entered the pharmacy and robbed David Goffman, the proprietor, of approximately $289. William Bell, who was making a phone call in the public telephone booth in the store, witnessed the crime. While the man with the shotgun covered Goffman, the other man, who kept his right hand in his coat pocket throughout the robbery (apparently giving the impression that he was armed), removed the contents of the cash register. He then made Goffman go to the rear of the store and produce a metal box containing more cash. After taking the money he cut the telephone wires. The man with the shotgun ordered Bell to remain in the booth until his partner and Goffman returned. Thereafter, both Goffman and Bell were forced to lie down on the floor until the robbers fled. The police were called and given a description of the two men.
Mustacchio and D'Agostino were identified as the robbers from police photographs and, following their arrests, were identified by the eyewitnesses separately at lineups conducted by the police. At the trial Goffman and Bell again identified the two men -- D'Agostino as the man who carried the shotgun and Mustacchio as the person who took the money. Both Mustacchio and D'Agostino asserted the defense of alibi.
The principal ground of appeal urged by Mustacchio is that the admission of testimony of his pretrial identification by Goffman and Bell was error because it violated his rights under the Sixth and Fourteenth Amendments. At the trial, when the State was about to offer testimony by Goffman that he had identified Mustacchio and D'Agostino at lineups conducted by the police, defendant objected, arguing that evidence as to the lineup identification was inadmissible because he had not been represented by counsel at the lineups as called for by United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and requesting a hearing to determine whether the in-court identification to be made by Goffman was tainted by the allegedly invalid lineup identification. The court overruled defendant's objection and denied his request for a hearing, holding that the rule of Wade requiring the presence of counsel at a lineup did not apply to the lineups in this case which took place some two months before June 12, 1967, the date Wade was decided.
Defendant argues here, as he did below, that he was denied his Sixth Amendment right to the assistance of counsel at the lineups and that it was unfair not to exclude the pretrial identification testimony because the confrontations took place prior to the effective date of Wade. The argument is without merit. In Stovall v. Denno , 388 U.S. 293, 300, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), the court held that an accused's right to counsel at a lineup mandated by Wade did not apply to lineups conducted prior to June 12, 1967. We are also satisfied that admission of the out-of-court identification did not, as asserted by defendant, constitute
Defendant also contends that the trial court erred in denying the request he says he made for a preliminary hearing and determination by the court "regarding the fairness of the totality of the circumstances surrounding such pretrial identification." The record furnishes no support for the claim that he had made such a request. Defendant's argument for a voir dire hearing was based solely on his contention that Wade should be given retroactive effect, e.g. , "What difference does it make when the lineup was conducted * * * The element of time should not affect [defendant's] particular right." His request for a hearing was limited to a request that it be held to determine whether the witness' proposed in-court identification of defendant was tainted by the lineup identification, assertedly invalid because defendant was not then represented by counsel. Absent a request that the trial court hold a preliminary hearing and rule with respect to the alleged unfairness of the lineup procedures, the lack of such a hearing affords no basis for reversal.
Defendant's final contention with respect to the pretrial identifications is that they were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This point was not raised below, defendant relying instead on his cross-examination of the State's witnesses and his own testimony to impugn, for the benefit of the jury, the weight of the pretrial identification testimony. Accordingly, we may consider the argument only if the introduction of the pretrial identification qualifies as plain error, R. 2:10-2, the test being whether the error complained of was of such a nature as to have been clearly capable of producing an unjust result. State v. Lowery , 49 N.J. 476, 484 (1967).
A pretrial identification, if made under circumstances precluding unfairness or unreliability, is admissible where the person making the prior identification is in court as a witness. State v. Matlack , 49 N.J. 491, 497 (1967). The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation. Ibid. , at 498; Stovall v. Denno, supra , at 302, 87 S. Ct. 1967: State v. Mars , 107 N.J. Super. 36, 39 (App. Div. 1969), certifi. den. 55 N.J. 319 (1970).
In the instant case both Goffman and Bell were able to observe defendant at the time of the robbery, and separately identified him from photographs before his arrest and subsequently at lineups conducted by the police -- all within three days after the crime was committed. Both eyewitnesses positively identified defendant at the trial. ...