On appeal from the Superior Court, Law Division, Salem County.
Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Defendant was charged in a one-count indictment with committing "robbery upon Clinton Crush, Jr., Willie [Bittel] and the Salem Package Store while armed" with a handgun in violation of N.J.S.A. 2C:15-1. He was convicted by a jury and sentenced to a term of 18 years with six years of parole ineligibility. Defendant appeals alleging:
Point I -- The circumstances of the out-of-court photographic identification procedure and the subsequent line-up identification procedure were so prejudicial as to taint the conviction of defendant, and the trial court erred in failing to suppress such evidence.
Point II -- The trial court erred in admitting the in-court identification of defendant by William Bittel and Clinton Crush because the identification was tainted by the impermissibly suggestive out-of-court identification.
Point III -- The trial court's denial of the motion to exclude defendant's prior criminal record constituted an abuse of discretion so prejudicial to the rights of the defendant as to require that the judgment be reversed.
Point IV -- The Prosecutor's misuse of defendant's prior convictions and his testimony during summation denied defendant of a fair trial and the conviction should be reversed.
Point V -- It was reversible error for the trial court to have permitted the prosecutor to argue to the jury that adverse inferences could be drawn from the defendant's failure to produce witnesses other than Carol Munyan to substantiate his whereabouts at a time subsequent to the time at which the robbery had taken place.
Point VI -- It was reversible error for the trial court to have denied defense counsel's motion for a new trial because the court had improperly permitted the prosecution to argue that adverse inferences could be drawn by the jury for defendant's failure to produce witnesses in addition to Carol Munyan.
We find no merit to defendant's arguments that the circumstances of the out-of-court photographic identification procedure and the subsequent line-up at the jail were so prejudicial as to taint the conviction of the defendant and that the trial court erred in permitting the in-court identification of defendant by Bittel and Crush. The record will not support a conclusion that there was a substantial likelihood of misidentification based upon an unnecessarily suggestive procedure. Neil v. Biggers, 409 U.S. 188, 198-201, 93 S. Ct. 375, 381-83, 34 L. Ed. 2d 401, 410-12 (1972). Viewing the evidence as a whole it cannot be said that the evidence leads forcefully to the conclusion that either the out-of-court or in-court identifications were not those of the eye witnesses but were imposed by impermissibly suggestive police action thereby requiring exclusion. State v. Farrow, 61 N.J. 434, 446-53 (1972), cert. den. 410 U.S. 937, 93 S. Ct. 1396, 33 L. Ed. 2d 602 (1973); State v. Thompson, 59 N.J. 396, 418-19 (1971).
Defendant contends that the admission of two previous convictions on which he was sentenced in 1980 were improperly ruled to be admissible, when he testified in 1983, as affecting his credibility. These convictions for resisting arrest, assault and battery upon a police officer, burglary and larceny were highly relevant. The ruling of the trial court clearly was not an abuse of discretion. State v. Sands, 76 N.J. 127, 144 (1978).
Defendant maintains that the prosecutor in summation improperly commented on his past record of assaults to bolster Bittel's claim that fear of defendant made him reluctant to identify the defendant when his deposition was taken. After summation was completed, defense counsel objected to those comments and asked for a curative instruction, which was given. The jury was specifically told that they should not consider defendant's ...