On appeal from Superior Court, Law Division, Bergen County.
Antell, Havey and Brochin. The opinion of the court was delivered by Antell, P.J.A.D.
Tried to a jury, defendant was convicted of armed robbery, N.J.S.A. 2C:15-1, and thereafter sentenced to a 20 year custodial term with a 10 year period of parole ineligibility. On this appeal, he challenges the judgment below on the ground of claimed error in the exclusion of evidence, error in the admission of testimony as to an impermissibly suggestive identification, ineffective assistance of counsel, the improper admission of defendant's prior convictions and excessiveness of sentence.
At around 10:00 p.m. on March 30, 1985, a gunman robbed a convenience food store then being operated by Kathleen Pavelec. After the intruder left, Pavelec notified the police who responded promptly. Approximately one week after the robbery, Pavelec identified defendant from an array of eight photographs, and approximately two months later she selected him in person from a line-up of five men. We first consider defendant's contention that because the out-of-court identification of defendant was the product of an impermissibly suggestive procedure it should not have been received in evidence.
The test on review hereof is whether the trial judge could reasonably conclude that the identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Madison, 109 N.J. 223, 232-233 (1988); State v. Ford, 79 N.J. 136 (1979); rev'g on dissent 165 N.J. Super. 249, 254 (App.Div.1978); State v. Bono, 128 N.J. Super. 254, 262 (App.Div.1974), certif. den. 65 N.J. 572 (1974). The defendant ordinarily bears the burden of demonstrating by a preponderance of the evidence that the pretrial identification procedure was so suggestive as to result in a substantial likelihood of misidentification. State v. Hurd, 86 N.J. 525, 548 (1981).
If the out-of-court identification was conducted under suggestive procedures, we must determine whether that identification is otherwise supported by indicia of reliability. Suggestiveness alone is not fatal. Manson v. Brathwaite, 432 U.S. 98, 109-114, 97 S. Ct. 2243, 2250-2253, 53 L. Ed. 2d 140 (1977); State v. Johnson, 138 N.J. Super. 579, 586 (App.Div.1976), certif. den. 71 N.J. 340 (1976). As stated by the United States Supreme Court, "[R]eliability is the linchpin in determining the admissibility of identification testimony . . . ." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S. Ct. at 2253. The purpose of assessing reliability is to determine whether the identification was prompted by the eyewitness' own recollection of the crime or by the suggestive manner in which the identification procedure was conducted. State v. Farrow, 61 N.J. 434, 451 (1972), cert. den., sub nom. Farrow v. New Jersey, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973).
Several indicia of reliability militating against suggestiveness were noted by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972), and reiterated in Manson v. Brathwaite, supra, in the following language:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. [ Manson, 432 U.S. at 114, 97 S. Ct. at 2253].
Defendant's claim of impermissible suggestiveness relies mainly on the contention that although Mrs. Pavelec usually wears reading glasses, she did not have them on at the time of the incident and that the men in the line-up were not sufficiently similar in appearance or speech characteristics to preclude a mistaken identification. He points out that Pavelec described the robber as being 5'8" in height, whereas defendant is 6'1", and emphasizes that at the time of the identification, she was not in the best emotional condition to view a line-up since her mother had just suffered a heart attack and was in a hospital.
The foregoing facts do not compel defendant's proffered conclusion. Under the totality of the circumstances, both the photographic identification and the line-up could be found reliable. The gunman was in the store for approximately three minutes, standing no more than three feet away from Pavelec during the episode. The store was brightly lit, and it was only a week after the robbery that she made the photographic identification. Except for ...