Before Judges Kestin and Fall.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 3, 1999
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County.
The opinion of the court was delivered by
Following involuntary waiver of juvenile jurisdiction, R. 5:22-2, defendant was indicted on four counts of first degree robbery, four counts of second degree aggravated assault, possession of a handgun for unlawful purpose (second degree), unlawful possession of a handgun (third degree), and four counts of fourth degree aggravated assault. Prior to trial, the four second degree aggravated assault charges were dismissed on the State's motion. The jury convicted defendant on the remaining counts of the indictment.
After mergers were effected, defendant was sentenced on each of the armed robberies to concurrent ten year terms of imprisonment with three-and-one-third years of parole ineligibility, along with a concurrent term of four years on the third degree weapon offense. Appropriate statutory fees and assessments were also ordered.
On appeal, defendant raises the following issues:
POINT I DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING TO CHALLENGE THE STATE'S IDENTIFICATION EVIDENCE DENIED DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)
POINT II DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S ABBREVIATED IDENTIFICATION INSTRUCTION DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
POINT III THE POTENTIAL FOR PREJUDICE FROM THE TRIAL COURT'S ABBREVIATED IDENTIFICATION INSTRUCTION WAS INCREASED BY THE JUDGE'S CLOSING REMARKS TO THE JURY WHICH TRIVIALIZED THE DUTY OF THE JURY TO CAREFULLY APPLY THE LAW TO DEFENDANT'S CASE AND MINIMIZED THE STATE'S BURDEN OF PROOF. (Not Raised Below)
We reverse the convictions and remand for a new trial.
Identification was the focal issue of this trial. Four young men, Sebastian Wecer, Edward Cliff, Michael Weber and Mark Campana had been robbed at gunpoint at about 12:45 a.m. on January 26, 1997. Wecer, Cliff and Weber testified at the trial.
According to Wecer, they were in a car parked in front of Cliff's home in Vineland, about to drive to a nearby diner. Campana was in the driver's seat; Cliff was in the front passenger seat; Wecer was in the back seat behind Campana; Weber was behind Cliff. A young black male, wearing dark pants, a black vest and a black ski cap on his head, knocked on a passenger-side window, and asked for directions. He then put a semiautomatic pistol to the window and said: "Well, let me get $5 from this company." Before the occupants of the car could lock all the doors, the assailant opened the driver's door, illuminating the interior of the car. The robber pointed the handgun at each of the four victims and pulled its trigger two or more times. It did not fire. A dollar and a wallet were taken from the victims, along with a cassette tape which the assailant took from the car's tape player.
In his testimony, Wecer identified defendant as the assailant. Wecer could not identify a toy revolver that had been stipulated into evidence. The toy revolver had been found by the police on the grounds of the Children's Residential Facility (CRF) at the State Developmental Center (Center) at 2 p.m. on the same day as the robbery. The Center was near the location of the robbery. Wecer insisted that he had a knowledge of firearms, and that the robbery had been conducted with a real semiautomatic handgun. Before his direct testimony concluded, Wecer identified a black knit ski cap and a black vest as articles worn by defendant during the incident.
Following the robbery, the victims went to the diner. After spending some time there, they proceeded to Wecer's home to tell his parents what had occurred. The incident was then reported to the police, and officers were dispatched to the Wecer home, arriving at about 2:30 a.m.
All four victims went to police headquarters where their statements were taken. A police officer suggested a "drive-by" identification. Wecer got into a police car because he "was the only one who could remember or identify the . . . suspect." He was in the rear seat of the police car, behind the driver, and was taken to a soccer field at the CRF. During cross-examination, Wecer described the "drive-by" identification as follows:
A. [W]e were stationed at the soccer field. And the lights were all off in the . . . police car I was in. And then another police car came by with the two suspects in the back. And you would drive . . . very slowly with the lights flashed on them. * * *
A. "Lights flashed on them." What lights?
A. They had like a spotlight in the car.
A. Two separate spotlights, one for each of them, or just one light?
A. Just one in the back. Like it was just a spotlight in the back.
A. Okay; and where was the light coming from?
A. The police officer had it.
A. Where was the police officer, sitting in front?
A. So the officer in the car was shining the light ...