On appeal from Superior Court of New Jersey, Law Division, Essex County.
J.h. Coleman and Brody. The opinion of the court was delivered by Brody, J.A.D.
Following a jury trial, defendant was convicted of first-degree armed robbery. N.J.S.A. 2C:15-1. He committed the robbery with the use of a firearm. After finding that defendant had previously been convicted of other armed robberies with the use of a firearm, the trial judge imposed an extended Graves Act sentence of 50 years imprisonment, 16 years and 8 months to be served before parole eligibility.
Defendant argues that the trial judge erred in permitting the jury to consider inadmissible hearsay and evidence of allegedly tainted identifications, in failing to give the jury a Clawans charge after the State failed to call a police officer as a witness and in finding that defendant had previously committed Graves Act offenses. We find no error that affected the fairness of the trial, but remand for the judge to take additional evidence as to whether defendant had committed prior Graves Act offenses,
and, depending on his findings, to reconsider whether defendant qualifies for an extended Graves Act sentence.
The State presented evidence that part of the victim's job was to take his employer's daily deposit to the bank. One day, at about 1:00 p.m., as the victim was walking to his car to drive to the bank, defendant stopped him and stole the deposit at gunpoint. The testimony of a co-employee of the victim, who had known defendant for about three years, tended to corroborate the victim's identification of defendant as the robber. The co-employee testified that he had spoken with defendant on the street near the victim's place of employment about an hour before the robbery. In this conversation defendant said that he was about to commit a robbery and showed the co-employee a handgun that he took from the waistband of his trousers.
The victim and the co-employee separately identified defendant to the police from photographs. At the close of a Wade hearing the trial judge properly measured the evidence against the standards set forth in Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401, 410 (1972), and found that the identifications were not "so unnecessarily suggestive or conducive to irreparable mistaken identification as to constitute a denial of due process." We must sustain the judge's findings because, from our review of the transcript of the hearing, they "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).
The trial judge correctly ruled that though the co-employee's testimony included defendant's statement that he intended to commit an armed robbery, defendant's statement was relevant and admissible as an admission. Evid.R. 63(7).
The State did not call as a trial witness a police officer who had witnessed the photographic identifications. The trial judge denied defendant's request to instruct the jury that it might draw an adverse inference from the State's failure to call
the witness. The judge found, on the basis of the witness's testimony in an earlier proceeding, that he would not add anything new to the evidence and was as available to defendant as he was to the State. The record supports the finding. In those circumstances the judge properly denied defendant's request. State v. Clawans, 38 N.J. 162, 171 (1962).
Although the argument is not presented as a separate point or fully developed, defendant contends throughout his brief that the testimony of the State's witnesses was not credible. However, it is the jury's function, not ours, to evaluate "the credibility of witnesses and the ...