On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-06-1078.
Before Judges Wefing, Ciancia and Coleman.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2002
Following a jury trial, defendant Daniel P. Galiano was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court denied the State's motion requesting that defendant be sentenced to life in prison without parole, pursuant to N.J.S.A. 2C:43-7.1a, the so-called "Three- Strikes" statute. Instead, the trial court sentenced defendant to life in prison with a twenty-five-year period of parole ineligibility, pursuant to N.J.S.A. 2C:44-3d, which requires an extended-term sentence for persons convicted of a violation of N.J.S.A. 2C:39-4a when that person has previously been convicted of certain enumerated offenses, including armed robbery. Defendant's conviction for unlawfully possessing a firearm was merged into the conviction for armed robbery. Appropriate fees and penalties were also imposed.
The State appealed the trial court's ruling that the Three-Strikes Statute was inapplicable in defendant's circumstances. Subsequently, defendant filed a notice of cross-appeal contending:
POINT ONE THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS OF GALIANO MADE BY EHRICH, BLUMENFELD AND KELPINSKI WERE THE PRODUCT OF IMPERMISSIBLY SUGGESTIVE POLICE PROCEDURES, AND THEREFORE, THEIR ADMISSION INTO EVIDENCE VIOLATED GALIANO'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
POINT TWO GALIANO'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON HOW TO ANALYZE AND CONSIDER THE TRUSTWORTHINESS OF THE PHOTO IDENTIFICATIONS MADE BY EHRICH, BLUMENFELD AND KELPINSKI, THEREBY VIOLATING GALIANO'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
POINT THREE IN HIS OPENING STATEMENT, CLOSING ARGUMENT, AND DIRECT EXAMINATION OF DETECTIVE AUGUSTIN, THE PROSECUTOR IMPROPERLY SUGGESTED THAT DEFENDANT'S PHOTOGRAPH WAS PLACED IN THE PHOTO ARRAY BECAUSE THE POLICE HAD RECEIVED INFORMATION FROM A NON-TESTIFYING PARTY WHICH IMPLICATED GALIANO AS THE PERSON WHO COMMITTED THE ROBBERY. (Not Raised Below)
POINT FOUR GALIANO'S CONVICTION FOR POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSES MUST BE REVERSED, AND THE ENHANCED SENTENCE THAT HE RECEIVED PURSUANT TO THE SECOND OFFENDER WITH A FIREARM STATUTE MUST BE VACATED, BECAUSE THE TRIAL COURT GAVE THE JURY A MISLEADING INSTRUCTION WHICH IMPROPERLY SUGGESTED THAT THE STATE DOES NOT NEED TO PROVE THAT AN OBJECT WHICH LOOKS LIKE A HANDGUN IS, IN FACT, A HANDGUN IN ORDER TO ESTABLISH THE CRIME OF POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSES. (Not Raised Below)
POINT FIVE THE TRIAL JUDGE ABUSED HIS DISCRETION IN SENTENCING GALIANO TO AN EXTENDED TERM OF LIFE IN PRISON WITH A 25-YEAR PAROLE DISQUALIFIER.
We find no merit in defendant's first three issues and the two remaining issues are essentially mooted by our determination that the State's appeal is meritorious and defendant was subject to a mandatory life sentence without parole.
The gravamen of the charges against defendant was an armed robbery of a nail salon on January 29, 1997. The perpetrator was a white male who wore a sweatshirt with its hood pulled over his head, but who otherwise made no effort to conceal his face. The robber held a black and gray gun as he demanded jewelry and money from patrons and employees. The perpetrator, at one point, threatened to kill someone if more jewelry was not forthcoming. He eventually left the store without firing the gun or otherwise physically injuring any of the victims.
At least three of the victims said they had gotten a good look at the perpetrator, and each of those three women worked with the police to produce a drawing of the robber's face. Those three drawings could be found to be similar in their depictions and, in ...