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State v. McNeil

July 16, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PATRICK MCNEIL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Approved for Publication July 16, 1997.

Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J.

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by

WECKER, J.S.C. (temporarily assigned).

After a jury trial, defendant Patrick McNeil was convicted of second degree robbery, in violation of N.J.S.A. 2C: 15-1, and sentenced to a ten-year state prison term with a five-year parole disqualifier. On appeal, defendant argues:

POINT ONE

THE REFUSAL OF THE TRIAL COURT TO GRANT DEFENDANT'S REQUEST FOR A JURY INSTRUCTION ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT TWO

MS. PETROZIAN'S OUT-OF-COURT IDENTIFICATION OF DEFENDANT, WHO WAS SEATED IN A POLICE CRUISER WHEN SHE IDENTIFIED HIM AS THE ROBBER, AND IN-COURT IDENTIFICATION WERE GROSSLY SUGGESTIVE AND UNRELIABLE, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT THREE

THE TRIAL COURT'S SUA SPONTE "FLIGHT" CHARGE, WITHOUT WARNING TO DEFENSE COUNSEL, WAS INCORRECT AND NOT SUPPORTED BY ANY EVIDENCE, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT FOUR

THE IMPOSITION OF A MAXIMUM TEN YEAR TERM OF IMPRISONMENT WITH A MAXIMUM DISCRETIONARY FIVE YEAR PERIOD OF PAROLE INELIGIBILITY WAS EXCESSIVE AND NOT SUPPORTED BY A PROPER ...


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