On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 96-08-1821-D.
Before Judges Stern, Collester and Alley.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Nial Wilson and co-defendant Ronald Hall were indicted by an Atlantic County grand jury on three charges: third degree unlawful possession of a weapon (9mm handgun) contrary to N.J.S.A. 2C:39-5b (count one); fourth degree aggravated assault, pointing a firearm, contrary to N.J.S.A. 2C:12-1b(4) (count two); and second degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count three). Following a jury trial, defendant was found guilty on November 19, 1997, of all three counts of the indictment. Co-defendant Hall was found guilty of only count one.
The incident giving rise to the charges took place shortly after 11 a.m. on June 12, 1996. At that time, George Philippou, a landscape manager for the Atlantic City Special Improvement District, was supervising a work crew of ten or eleven men who were performing landscaping and maintenance work on New York Avenue at the beach block adjacent to the Atlantic City Boardwalk. The crew was putting their equipment away and about to break for lunch when three shots rang out. Most of the crew dove for cover, but Philippou and Charles Richardson, a member of the crew, were frozen in their tracks. Richardson saw a man running down an alley onto New York Avenue being chased by another man. A cab suddenly appeared and the first man jumped into the back seat. Three more shots were fired. Philippou watched in shocked attention as the second man stood on the sidewalk holding his still smoking black 9mm gun. As the gunman walked down the street, he lifted up his shirt and put the gun in his waistband. Moments later, a dark blue Honda Accord with tinted windows and New York license plates drove out of the alley, picked up the gunman and drove off.
The Atlantic City police arrived within a few moments. Philippou and Richardson separately described the gunman as an African-American man about 6' tall with short hair and wearing black clothing. Philippou described the driver as an African-American man with dreadlocks. He also gave a partial license plate number for the Honda. The description of the men and the car were immediately sent out over the police radio.
Events unfolded rapidly. Officer James Davis was on bicycle duty nearby at Kentucky Avenue and the beach block when he heard the transmission. He saw an automobile matching the description in an Econo Lodge hotel parking lot, only a block from the scene of the shooting. Davis noted a parking validation ticket inside the windshield which indicated that the car was parked there just a few minutes earlier at 11:39 a.m. The car hood was still warm to the touch. Officer Davis went inside and spoke to the front desk clerk, who told him that two men came into the Econo Lodge office shortly before and paid $3 to park the car. The desk clerk described one of the men as about 5'7" tall with dreadlocks. He told Davis that a video surveillance camera in the front office recorded the transaction.
When David radioed his findings, other officers arrived. They viewed the security videotape of the two men who parked the Honda and observed that they left, heading for the Boardwalk. After broadcasting a description over the police radio, the officers fanned out to search the area. Davis went onto the Boardwalk and saw two men fitting a description of the shooter and the driver on a"people mover," which transported people on the Boardwalk between casinos. He summoned other officers, and they took defendant Wilson and Hall into custody. They were then advised over the police radio to transport them to the Econo Lodge parking lot.
In the interim, Philippou and Richardson has been taken by police to the Econo Lodge parking lot where they identified the Honda. After the police car pulled up with defendant and Hall in the back seat, they positively identified the defendant as the gunman and Hall as the driver. The police then used a set of car keys found in the defendant's pocket to open the Honda. A 9mm handgun was found under the driver's floor mat. Philippou identified the gun as the one he saw the defendant firing. Subsequent ballistic tests on the handgun matched spent shell casings found in the alley at the crime scene.
The same day Jean Docteur, an Atlantic City taxicab driver, came to the station and told Atlantic City police that the back passenger side of his taxicab had been hit by bullets. He said he picked up three men sometime about 11 a.m. and drove them to New York Avenue. One of the men got out and walked down an alley while the others remained in the cab. After Docteur heard gunshots, the men in the cab told him to drive away. He claimed that no one got into his cab after the gunshots.
No witnesses were presented by the defense. When both defendant and Hall did not appear the last day of the trial, the trial continued and they were both found guilty in absentia. Defendant remained a fugitive from justice for nearly three years. He was sentenced on August 25, 2000, to a term a term of seven years imprisonment with a three year period of parole ineligibility on the conviction for second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a); an eighteen month consecutive term of incarceration on the conviction for fourth degree aggravated assault (N.J.S.A. 2C:12-1b(4)); and a concurrent four year term of incarceration on the conviction for third degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b).
On appeal defendant sets forth the following contentions:
POINT I - THE IDENTIFICATION OF APPELLANT BY RICHARDSON WAS UNDULY SUGGESTIVE AND TAINTED THE TRIAL.
1. THE SHOW UP IDENTIFICATION WAS IMPERMISSIBLY SUGGESTIVE.
2. THE UNDULY SUGGESTIVE SHOW UP TAINTED THE TRIAL.
3. THE TRIAL COURT'S CHARGE TO THE JURY ON IDENTIFICATION WAS IMPROPER AND INCOMPLETE AND IT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT II - THE WARRANTLESS SEARCH OF THE VEHICLE VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 § 7 OF THE NEW JERSEY CONSTITUTION.
1. THERE WAS NO PROBABLE CAUSE TO SEARCH THE VEHICLE.
2. EXIGENT CIRCUMSTANCES DID NOT JUSTIFY THE SEARCH ...