On appeal from Superior Court of New Jersey, Law Division, Warren County.
J. H. Coleman and Havey. The opinion of the court was delivered by Coleman, J.h., J.A.D.
The novel issue raised by this appeal is whether executing an application for a public defender at a county jail at the request of a jail guard is a request for counsel within contemplation of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). The trial judge held that it did not. For the reasons which follow, we affirm.
A Warren County grand jury returned a two count indictment against defendant and codefendant Gilbert Peterson. The first count charged Larry and Peterson with robbery which occurred on August 13, 1983 when in the course of committing a theft, they "did threaten immediate bodily injury to Thomas D. Marzano and/or did purposely put Thomas D. Marzano in fear of immediate bodily injury," contrary to N.J.S.A. 2C:15-1 a(2). Defendant was also charged under the second count of
the indictment with theft, contrary to N.J.S.A. 2C:20-3 a. In a jury trial, defendant was found guilty of first degree robbery*fn1 and theft. At the time of sentencing, the theft was merged with the robbery and defendant was sentenced to a custodial term of 18 years with seven years of parole ineligibility.
Defendant has appealed, contending:
1. THE ADMISSION OF BOTH THE OUT-OF-COURT IDENTIFICATION OF DEFENDANT BASED ON IMPERMISSIVELY SUGGESTIVE PHOTOGRAPHIC LINEUPS AND THE RESULTANT IN-COURT IDENTIFICATION DENIED DEFENDANT DUE PROCESS AT LAW.
2. ADMISSION OF DEFENDANT'S STATEMENT CONFESSION DENIED THE DEFENDANT HIS RIGHTS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS.
3. SERIES OF IMPROPER COMMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION TO THE JURY COMBINED TO DEPRIVE DEFENDANT OF A FAIR TRIAL AND IT WAS ERROR FOR THE TRIAL JUDGE TO DENY DEFENDANT'S RESULTANT MOTION FOR MISTRIAL.
4. THE TOTAL SENTENCE OF 18 YEARS IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
On August 13, 1983 Thomas Marzano, an employee of the Hudson Street Market in Phillipsburg, was robbed of money and food items at gun point. Defendant and Peterson were identified as the robbers by three teenagers, William Hornbaker, age 17, Melisa Lynn, age 14, and Stephanie Nixon, age 14, who observed defendant and Peterson in the store from a distance of three to four feet. Prior to entering the store, Hornbaker observed a black car parked across the street, with its door open and motor running. Lynn memorized the license plate number on the car. After the robbery, defendant and Peterson drove ...