On appeal from the Superior Court of New Jersey, Law Division, Essex County, 356-1-99, 357-1-99.
Before Judges A. A. Rodríguez, Lefelt and Lisa.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 17, 2001
In this appeal we hold that State v. Cromedy, 158 N.J. 112 (1999), which requires a special cross-racial identification jury instruction in appropriate cases, does not require the giving of a "cross-ethnic" identification jury instruction.
Following a jury trial, defendant, Maurice Valentine, was convicted of first degree robbery of Edwin Negron on August 13, 1998, N.J.S.A. 2C:15-1; two counts of third degree possession of a firearm, N.J.S.A. 2C:39-5c; two counts of third degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b; and second degree possession of a weapon with the intent to use it unlawfully, N.J.S.A. 2C:39-4a. After the jurors announced the verdict, they were asked to consider the additional charge of second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The jury returned a verdict of guilty on that charge.
After appropriate mergers of some of the convictions, the judge imposed concurrent terms aggregating twenty years with a period of parole ineligibility of at least ten years pursuant to the Graves Act, N.J.S.A. 2C:43-6c to -6d, and eighty-five percent of the base term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
The evidence presented by the state can be summarized as follows. On August 13, 1998, Negron, age twenty-five, went to a housing project at Prince Street in Newark to purchase illicit drugs. At the time, he was a heroin abuser. He entered the building's lobby carrying a radio. He noticed a man standing inside. Negron was going to ask the man, "if he had anything," when another man, whom he later identified as defendant, approached from behind. Defendant pushed Negron against the wall and pulled a sawed-off shotgun from a blue bag that he was carrying. He pointed it at Negron and said that if Negron did not give him his money, he would be shot. According to Negron, after defendant demanded the money, he "became paralyzed." He did not provide the money quickly. Defendant struck him with the shotgun. Negron thought that somebody came around behind him and grabbed his hands. He noticed other men standing around, although he did not get a good look at any of them. The men were laughing as if it was a joke. As Negron turned his head around, he was struck a second time with the shotgun, this time in the back of his head. He began to bleed and became disoriented. He took the money out of his pocket and gave it to defendant along with the radio.
Negron ran out of the building to the security booth. He was still bleeding from the cut on the back of his head. Near the security booth, he spoke to Jeanette Martin. She told Negron that she had seen everything. He and Martin reported the incident to the security guard. The security guard called the police to handle the situation. However, Negron did not wait for the police to arrive. He was scared to remain on the premises because defendant had threatened to kill him. Negron went to his grandmother's house nearby to tend to his cut. He reported the incident to the security guard at his grandmother's building at Martin Luther King Boulevard.
Responding police officers met Negron at his grandmother's building. He was taken to the robbery unit at the police station. He informed the police that his assailant was a dark-skinned male, about 5'8", 170 to 190 pounds, between twenty-five and thirty-five years old, with dark gold-rimmed glasses and a striped shirt. He also informed the police that the man had a sawed-off shot gun which he carried in a blue bag. Negron looked through photograph books at headquarters. He was not able to find a photograph of his assailant.
Negron admits lying to the police regarding the location where the attack took place because his purpose for being there was illegal. He told the police that he had gone to a store to purchase cigarettes and had been assaulted at the intersection of Spruce and Somerset streets. When Negron and the police officers went to that intersection in an attempt to locate the assailant, this attempt was unsuccessful.
The next evening, Negron was asked to return to the police station. The police had arrested the defendant while he was in possession of a sawed-off shotgun. The defendant fit Negron's description. Negron was shown another photo array with six photographs of dark-skinned males wearing glasses with gold rims. Negron selected defendant's photograph and signed the back. Negron then changed his statement to indicate the ...