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State v. Daniels

Decided: October 7, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS E. DANIELS, DEFENDANT-APPELLANT.



On appeal from Superior Court, Law Division, Salem County.

Before Judges Pressler, Landau and Newman.

Landau

The opinion of the court was delivered by

LANDAU, J.A.D.

Defendant Thomas E. Daniels appeals from his conviction which followed jury trial on an indictment charging him with second degree robbery (N.J.S.A. 25:15-1). He was sentenced to a custodial term of ten years with four years of parole disqualification and a VCCB penalty. A motion for sentence reconsideration was dismissed.

Prior to trial, defendant sought to enter a negotiated plea to a reduced charge of third degree theft, for which the prosecutor had agreed to recommend probation conditional upon a 364-day county-jail term, to run concurrent with a sentence already being served on a violation of probation. Another charge of probation violation was also to be dropped. The retraxit plea was placed upon the record before one Law Division Judge but, following completion of the pre-sentence report, the plea agreement was rejected by the Judge before whom the matter was scheduled for sentence, and the case was set down for trial.

Defendant argues on appeal:

POINT I

THE COURT'S REFUSAL TO ALLOW THE DEFENDANT TO PLEAD GUILTY TO THIRD DEGREE THEFT FROM THE PERSON PURSUANT TO A PLEA AGREEMENT WITH THE STATE WAS ERRONEOUS, REQUIRING A REMAND. (Not Raised Below).

POINT II

THE ADMISSION OF THE PRETRIAL PHOTOGRAPHIC IDENTIFICATION AS WELL AS THE SUBSEQUENT IN-COURT IDENTIFICATION OF THE DEFENDANT BY SAMUEL WILLIS CONSTITUTED A DENIAL OF DUE PROCESS, AND WAS REVERSIBLE ERROR, SINCE EACH WAS THE UNRELIABLE PRODUCT OF UNNECESSARILY SUGGESTIVE IDENTIFICATION PROCEDURES WHICH GAVE RISE TO A SUBSTANTIAL LIKELIHOOD ...


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