On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication August 1, 1996.
Before Judges Dreier, A.m. Stein and Kestin. The opinion of the court was delivered by A.m. Stein, J.A.D.
The opinion of the court was delivered by: Stein
The opinion of the court was delivered by A.M. STEIN, J.A.D.
Defendant was found guilty of first degree armed robbery. His codefendant, Charles White, was found guilty of second degree robbery, obviously as defendant's accomplice. We reverse because the identification charge given the jury was so insufficient that it deprived defendant of a fair trial.
On September 23, 1993, at about 2:00 p.m., sixteen-year-old K.C. had a gold chain torn from her neck. She gave the following account of the robbery to police:
I was coming home from school this afternoon in the area of 132 Rhode Island Avenue, when I was approached by two black males. One was dressed in a gray or blue outfit and he had no beard.
The other had a red shirt, black pants, and a beard. The one in gray was on the opposite side of the street, and the one with the beard was diagonally across the street toward me, when he approached me head on he said, "Don't move," then he said, "Give me your chain."
The one with the beard pointed something at my chest. It was not a finger, it was hard. Then he snatched my chain and the two of them ran away laughing.
After unsuccessfully chasing the men, K.C. ran into a store and called the police. Officer Michael Pyszko arrived within minutes. Pyszko and the victim drove around nearby streets until about 3:00 p.m., when she spotted two individuals whom she said had stolen her chain. She made the identification from the police car at some distance from the men. According to Pyszko, White was wearing a "red T-shirt, black pants, [and] some sort of cloth type footwear." Defendant was wearing a "light sweatshirt, long sleeves, and light pants with black sneakers," and "had a beard, no hat." K.C. identified White as the individual who actually snatched the chain. Both men were sitting on White's porch smoking cigarettes. Neither of them had a gold chain in his possession. Defendant had a pair of pliers and a box cutter in his back pocket.
With one clarification, K.C. gave virtually the same description at trial that she had given to Officer Pyszko.
The one who came to me had on a red T-shirt and black sweat pants and a black baseball hat, and the other one across the street had on light-colored blue jeans and a light shirt, I can either guess it was light blue or gray.
The one that came up to me, he had a beard, it looked like a couple days' growth, as if he didn't shave.
Q Okay. So the individual came up to you, it's fair to ...