On appeal from the Superior Court, Law Division, Union County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).
Defendant was convicted of first degree armed robbery, contrary to N.J.S.A. 2C:15-1, and was sentenced to an extended term of 30 years in the custody of the Commissioner of Corrections with 15 years to be served before parole eligibility. He appeals and argues:
POINT I THE OUT-OF-COURT BLACK AND WHITE IDENTIFICATIONS WERE SO INHERENTLY UNRELIABLE THAT THEIR ADMISSION INTO EVIDENCE SERVED TO VIOLATE THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW.
POINT II THE PROSECUTOR FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE COLOR IDENTIFICATIONS AND THE IN-COURT IDENTIFICATIONS OF DEFENDANT WERE NOT TAINTED BY THE ORIGINAL SUGGESTIVE IDENTIFICATIONS.
POINT III THE COURT COULD NOT IMPOSE AN EXTENDED TERM WITHOUT NOTICE TO DEFENDANT AND THE OPPORTUNITY TO HEAR AND CONTROVERT EVIDENCE AGAINST HIM.
POINT IV DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
We have carefully reviewed the record in light of these contentions and conclude that Points I and II are clearly without merit. R. 2:11-3(e)(2).
At the time of sentencing the prosecutor indicated that defendant had previously "pled guilty to an armed robbery on Indictment 280-79. This armed robbery involved the use of a handgun, which was recovered by the police. That handgun was proven to be operable. . . ." A discussion then ensued regarding whether a mandatory extended term was required under the "Graves Act", N.J.S.A. 2C:43-6c, 2C:43-7c, 2C:44-3d. Defense counsel indicated that the prosecutor was required "to move for a persistent offender" sentence, and after consideration of the subject, the court disagreed. The sentencing judge
indicated that pursuant to N.J.S.A. 2C:44-3d, an extended term was required, notwithstanding that extended terms are ordinarily discretionary with the court. The court, however, indicated that the defense was entitled to a hearing as to whether defendant used or possessed a handgun in connection with the matter then before it for sentencing. The court stated:
The defense is entitled to a hearing on that phase as to whether or not in this case, the case at hand, not the original, but this one on which he is being tried, whether or not it is proven by a preponderance of ...