Decided. As Corrected March 16 1994.: December 13, 1993.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Michels, Skillman and Wefing. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Michael Orlando was found guilty of (1) unlawful possession of a shotgun without first having obtained a firearms purchaser identification card, a crime of the third degree, in violation of N.J.S.A. 2C:39-5c(1) (Count One); (2) possession of a shotgun with a purpose to use it unlawfully against the person of another, a crime of the second degree, in violation of N.J.S.A. 2C:39-4a (Count Two); (3) terroristic threats, a crime of the third degree, in violation of N.J.S.A. 2C:12-3b (Count Three); (4) armed robbery, a crime of the first degree, in violation of N.J.S.A. 2C:15-1 (Count Four); (5) aggravated assault, a crime of the fourth degree, in violation of N.J.S.A. 2C:12-1b(4) (Count Five); and (6) kidnapping, a crime of the first degree, in violation of N.J.S.A. 2C:13-1b(1) (Count Six).
The trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for (1) five years for unlawful possession of a shotgun without first having obtained a firearms purchaser identification card under Count One; (2) ten years for unlawful possession of a shotgun with a purpose to use it unlawfully against the person of another under Count Two; (3) five years for terroristic threats under Count Three; and (4) eighteen months for aggravated assault under Count Five. These sentences were to be served concurrently with one another. The trial court also committed defendant to the custody of the Commissioner for (5) twenty years for armed robbery under Count Four; and (6) ten years for kidnapping under Count Six which were to be served consecutively to one another for an aggregate term of thirty years. The trial court then imposed a fifteen year period of parole ineligibility without assigning the parole ineligibility term to any specific sentences or specific counts of the indictment. Additionally, the trial court ordered defendant to make restitution of one-third of $6,433 or $2,144.33 and assessed Violent Crimes Compensation Board penalties of $30 for each conviction for a total of $180. Finally, the trial court committed defendant to the custody of the Commissioner for
five years for a parole violation, which was to be served consecutively to the above sentences. Thus, the aggregate of the custodial sentences imposed upon defendant was thirty five years with a fifteen year period of parole ineligibility. Defendant appeals.
Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING INTO EVIDENCE THE IDENTIFICATIONS OF MICHAEL ORLANDO BY THE WITNESS BECAUSE OUT OF COURT THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE RISE TO A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION AND BECAUSE THE PROSECUTOR IDENTIFIED MICHAEL ORLANDO WHEN THE WITNESS COULD NOT IN VIOLATION OF DUE PROCESS PROTECTED BY BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
II. THE STATE'S FAILURE TO PRESERVE THE PHOTOGRAPHS SHOWN TO THE WITNESS AND TO PRODUCE THESE PHOTOGRAPHS VIOLATED MICHAEL'S DUE PROCESS RIGHTS GUARANTEED BY THE NEW JERSEY AND UNITED STATES CONSTITUTIONS AND, THEREFORE, REQUIRES ACQUITTAL, OR ALTERNATIVELY, SUPPRESSION OF THE IDENTIFICATION AT RETRIAL.
III. THERE WAS INSUFFICIENT EVIDENCE TO CONCLUDE THAT A "FIREARM" WAS USED, BUT RATHER BASED ON THE SWORN TESTIMONY OF THE OWNER OF THE GUN, IT WAS MERELY A REPLICA SINCE ITS BARREL WAS STUFFED WITH A WOODEN DOWEL, THE CASING WAS ROTTED AND HAD NO FIRING PIN OR STOCK. THEREFORE, THE "GUN" ALLEGEDLY USED WAS NEITHER A "FIREARM" OR A "WEAPON" WITHIN THE MEANING OF N.J.S.A. 2C:39-1.
IV. MICHAEL'S RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS VIOLATED DUE TO PROSECUTORIAL MISCONDUCT IN THAT THE PROSECUTOR POINTED OUT THE DEFENDANT AS "MIKE" AT THE WADE HEARING AND FAILED TO DISCLOSE EXCULPATORY EVIDENCE RELATING TO BOTH GUILT AND SENTENCING .
V. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE RIGHTS GUARANTEED BY THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
VI. THERE WAS NO BASIS IN THE RECORD TO JUSTIFY THE IMPOSITION OF THE LONGEST SENTENCE LEGALLY POSSIBLE BY DEVIATING FROM THE PRESUMPTIVE SENTENCES, MAKING
THOSE MAXIMUM SENTENCES CONSECUTIVE AND IMPOSING THE MAXIMUM PERIOD OF PAROLE INELIGIBILITY TO ARRIVE AT A 35 YEAR SENTENCE WITH A 15 YEAR PAROLE DISQUALIFIER. THE COURT ABUSED ITS DISCRETION BY IMPOSING A PATENTLY EXCESSIVE, DISPROPORTIONATE AND DISPARATE SENTENCE (PARTIALLY RAISED BELOW).
We have carefully considered these contentions and all the supporting arguments advanced by defendant and find that, with the sole exception of the failure of the trial court to assign the parole ineligibility term to any specific sentences or specific counts of the indictment, they are clearly without merit. R. 2:11-3(e)(2). Before turning to the issue of the legality of the parole ineligibility term, further comment is appropriate with respect to some of defendant's contentions.
We are satisfied from our study of the record and the arguments presented that the trial court reasonably could have found that the pretrial photographic identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 382-83, 34 L. Ed. 2d 401, 411 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968); State v. Madison, 109 N.J. 223, 232, 536 A.2d 254 (1988); State v. Ford, 79 N.J. 136, 398 A.2d 95 (1979), rev'g on Dissent 165 N.J. Super. 249, 254, 398 A.2d 101 (App.Div.1978); State v. Bono, 128 N.J. Super. 254, 262, 319 A.2d 762 (App.Div.), certif. denied, 65 N.J. 572, 325 A.2d 705 (1974). Impermissible suggestibility is to be determined by the totality of the circumstances attendant to the pretrial identification. The strength and credibility of the identification go to the weight that should be accorded the identification but is not the issue being tested in the admissibility proceeding. State v. Farrow, 61 N.J. 434, 451, 294 A.2d 873 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). As our Supreme Court observed in State v. Carter, 91 N.J. 86, 129, 449 A.2d 1280 (1982), "'[R]eliability is the linchpin in determining the admissibility of identification
Application of these fundamentally sound principles compels the Conclusion that the trial court did not err in finding that the victim's out-of-court photographic identification of defendant was admissible. Sufficient evidence was presented at the Wade hearing for the trial court to conclude that the identification procedure used did not create a very substantial likelihood of irreparable misidentification at the out-of-court or in-court identifications.
We are also satisfied, contrary to defendant's argument, that the record clearly and convincingly established that the victim's in-court identification of defendant was based on the victim's own observations at the time of the criminal assaults. The in-court identification certainly "had a separate and independent origin not influenced by any prior out-of-court identification." State v. Ford, supra, 165 N.J. Super. at 257, 398 A.2d 101. See also United States v. Wade, 388 U.S. 218, 240-42, 87 S. Ct. 1926, 1939-40, 18 L. Ed. 2d 1149, 1164-65 (1967); State v. Thompson, 59 N.J. 396, 419, 283 A.2d 513 (1971).
First, the victim had ample opportunity to observe and mentally record defendant's image during the six-hour abduction. The victim was able to view defendant at a close range throughout the evening, particularly when defendant moved the victim into and out of the trunk. Defendant was not wearing a mask, and, although it was dark outside, the inside car light sufficiently illuminated defendant's face when the car door was open so that the victim easily could see defendant. Second, although the victim testified that he was frightened, there is no reason to conclude that he was scared to such a degree that he was unable to focus his attention on his assailants, including defendant. Evidently, the victim's thoughts were collected enough for him to drive and obey road signals. Third, the victim's prior description of defendant was consistent with the photographs used in the array, and he made the photographic identification only three days after the crimes occurred, when the events were still very fresh in his mind.
Finally, the victim exhibited a high degree of certainty about the identification at the Wade hearing. The victim stated that he was able to identify defendant immediately after viewing his photograph. The victim observed that defendant appeared different in court than he did the night of the crimes, particularly noting that he had shorter hair and was perhaps a little thinner. Nevertheless, the victim was adamant that defendant was the same man.
Accordingly, we affirm the admission of the victim's out-of-court photographic identification of defendant substantially for the reasons expressed by Judge Campbell in his oral opinion of June 20, 1990.
Defendant also contends that his convictions should be reversed to the extent that they required a finding of possession of a firearm because the shotgun involved in the criminal offenses was an antique and incapable of being fired, and, therefore, not a "firearm" as defined by N.J.S.A. 2C:39-1f. Alternatively, defendant contends 0 that he should be resentenced as a non- Graves Act offender because the shotgun involved did not qualify as a firearm for Graves Act purposes. We disagree with both contentions.
Defendant was charged with the following offenses that required a finding that a gun was used: (1) unlawful possession of a shotgun without first having obtained a firearms purchaser identification card in violation of N.J.S.A. 2C:39-5c and N.J.S.A. 2C:58-3 (Count One); (2) possession of a shotgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (Count Two); (3) armed robbery in violation of N.J.S.A. 2C:15-1 (Count Four); and (4) aggravated assault with a shotgun in violation of N.J.S.A. 2C:12-1b(4) (Count Five).
It is unquestionable that sufficient credible evidence exists in this record to find defendant guilty beyond a reasonable doubt of armed robbery. Contrary to defendant's claim, N.J.S.A. 2C:15-1
does not require a finding that the gun was a "firearm" within the definition of N.J.S.A. 2C:39-1f. N.J.S.A. 2C:15-1 provides:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force 1 upon another; or
(2) Threatens another with or purposely puts him in fear of ...