Before Judges Pressler, Conley and Carchman.
The opinion of the court was delivered by: Carchman, J.s.c., (temporarily assigned)
On appeal from Superior Court of New Jersey, Law Division, Essex County.
This case again raises the issue of the necessity of providing the jury with a special charge on identification where the critical issue in dispute is the identification of defendant, and defendant requests such charge. After a trial resulting in a hung jury, defendant Delbert Green was again tried and convicted of first degree armed robbery, N.J.S.A. 2C:15-1; fourth degree possession of knife under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d); and third degree possession of a knife with the person to use it unlawfully against the purpose of another, N.J.S.A. 2C:39-4(d). Defendant was sentenced to an aggregate term of fifteen years in prison. Defendant appeals and claims numerous trial errors. We conclude that the trial Judge's refusal to charge the jury on identification was plain error, clearly capable of producing an unjust result, R. 2:10-2, and warrants a new trial. Accordingly, we reverse and remand for a new trial.
To put the issue in context, we briefly relate the facts adduced at trial. On October 14, 1995, Marie Noelcin was in the parking lot of a bank at Irvington Center when a man put his hand on the car door, put a knife to her side and said "Give me the chain." He then grabbed the $1,000 gold chain and medallion from her neck and ran. Noelcin described the man as a thin black man with a moustache, wearing a baseball hat, jean shorts and a black shirt. At the first trial, Noelcin was initially unable to identify defendant but did soon thereafter. At the second trial, she again identified defendant as the man who robbed her.
After the man left, Noelcin screamed and two men, Ray Belen and his brother-in-law, Saleem Dawson, came to her aid. She explained what had happened, and Belen proceeded to give chase for about two blocks but was unable to catch the robber. He described the man, whom he only saw from the back, as wearing a hat, dark jeans and a dark jacket. Noelcin, Belen and Dawson drove in Noelcin's car and proceeded to search for the man.
Defendant was observed near the Pathmark supermarket, a few blocks away. When confronted, defendant indicated he was coming from the Pathmark and denied taking the chain. He then walked away and was followed by the three in the car.
The trio followed defendant, at one point offering money for the return of the chain, to Beth Israel Hospital in Newark. At the hospital, various Discussions took place between defendant, Noelcin and security officers at which time it was established that defendant was carrying a knife. Defendant steadfastly denied taking the chain while Noelcin continued her accusations that defendant had robbed her.
The police initially learned of the incident when a call was received by the Irvington Police Department at about 5:30 p.m. that a woman was screaming in the bank parking lot in Irvington Center. The police arrived a few minutes later but found no one present. At 7:15 p.m., the police proceeded to Beth Israel where they investigated the robbery. Again, Noelcin accused defendant of the robbery, and, again, defendant denied involvement. A protective pat-down of defendant revealed a black handled folding knife. Defendant was arrested. At the police station, the police recovered a baseball hat from defendant's coat. A search of defendant failed to produce the chain.
Defendant testified on his own behalf and claimed that he had been dropped off at the Pathmark by a friend, Ray Snell. He then walked a short distance to a Merit Gas station where he made a collect call to his girlfriend, Yolanda Hadley. While walking to her house, he was approached by Noelcin, Belen and Dawson. Both Snell and Hadley corroborated defendant's version of the events. In fact, Hadley's phone bill establishes that the call was made at 5:12 p.m.
During defense counsel's summation, counsel focused the jury's attention on the identification issue. The trial Judge charged the jury but did not give the special identification charge despite defendant's request, the Judge commenting, "it's covered in the elements and the authorities say that's sufficient when it comes to identity." After the charge, the jury returned with a series of questions, most of which were directed to the issue of identification. The jury returned a verdict of guilty on all charges. This appeal followed.
On appeal, defendant raises the following issues:
THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON IDENTIFICATION, WHEN IDENTIFICATION WAS THE ESSENTIAL ISSUE IN THE CASE, ...