On appeal from the Superior Court, Law Division whose opinion reported at 140 N.J. Super. 28 (1976).
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
Defendant was tried on a two-count indictment charging robbery while armed in violation of N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5, was found guilty and was sentenced to an aggregate State Prison term of eight to ten years. He now appeals, contending that (1) the evidence adduced at trial was insufficient to warrant defendant's conviction for the "armed feature" of robbery pursuant to N.J.S.A. 2A:151-5, (2) the trial judge erred in denying defendant's application for a mistrial when the victim uttered "other crimes" evidence before the jury, and (3) the in-court identification was tainted by an unnecessarily and improperly suggestive out-of-court identification procedure.
The State presented the following proof. On November 16, 1974 defendant entered Smitty's Bar in Asbury Park. He sat at the bar and ordered a glass of beer from the barmaid-owner of the tavern, Mildred Biedeman. He nursed this beer for about one hour. After ordering a second beer he stood up with his hand in his jacket pocket and announced that this was a holdup, saying, "I mean it." Defendant said he wanted the money from the cash registers and motioned with his hand in his pocket as if he had a gun.
After he obtained the money from the proprietor he ordered her and the two male patrons to go into a bathroom and sit on the floor. One of the men was ordered to take off his shoestrings and tie the hands of the other two together. Defendant then hit one of the patrons in the stomach and
warned him not to do anything, "or else." Defendant then fled and the police were summoned.
The entire incident took about five minutes. No gun was ever seen. Biedeman gave the police only a general description of defendant. She did tell them she could identify the assailant.
On December 8, 1974 Biedeman was notified by the police that a suspect had been apprehended in connection with a robbery at a Quick Check food store. She was asked to come to headquarters to view a photographic lineup to determine if this was the person who had robbed her in the bar.
There is a discrepancy in the witness' recollection of the conduct of the photographic lineup. Biedeman testified that she was first shown a book of about 50 photographs, none of which she could identify. The detective then silently handed her a single photograph of defendant which she immediately identified. Conversely, Detective DiBenedetto testified that Biedeman was initially shown 10 to 12 loose photographs of known robbery suspects, none of which she was able to identify. He then asked her to look through a book of about 100 photographs in which a picture of defendant had been randomly placed. After looking through about 30 pictures she identified defendant as her assailant.
The next day Biedeman returned to police headquarters to sign a complaint against defendant. While waiting in the corridor outside the municipal courtroom she was told by Detective DiBenedetto that "they're bringing the fellow in." To reach the courtroom defendant had to pass by Biedeman. As defendant was being escorted to the courtroom, Biedeman looked directly at him and immediately recognized him as her assailant.
After defendant entered the courtroom Biedeman started to walk in, believing that her presence was required. She was not asked to look into the courtroom. However, once she glanced inside DiBenedetto asked her to look at defendant. She then told the detective that she was "positive" he was
the man who robbed her. Biedeman again saw the defendant as he ...