On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 99-02-0106.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lintner and Parrillo.
Following a retrial by jury on remand from our reversal of his earlier convictions, State v. Tilghman, 345 N.J. Super. 571 (App. Div. 2001), defendant, George Tilghman, was again convicted of a charge of second-degree robbery, N.J.S.A. 2C:15-1 and a related charge of third-degree burglary, N.J.S.A. 2C:18-2a(1). He was sentenced on the robbery charge to an extended term of twenty years subject to an eight-year term of parole ineligibility, and on the burglary charge, to a concurrent ten-year term with a five-year parole bar. Required statutory penalties were also imposed. Defendant appeals, and we affirm the conviction, but remand for resentencing.
The gravamen of the crimes charged against defendant arose out of the robbery, in her home, of the seventy-four year-old African-American victim, during the late evening of December 14, 1998. According to the State's proofs, she had arrived home at about 10:00 p.m., parked her car in her driveway, gathered her belongings and entered her house. When she returned outside to retrieve her briefcase, she was accosted from behind by a stranger. Her assailant pushed her into the house, and then on her back. He stole her pocketbook, containing her credit cards, medical insurance cards and cash, and fled when he heard the alarm of her car, which she was able to activate, as she was still holding her car key. Before he fled, however, he took her car key as well.
The entire incident endured for about eight to ten minutes, during which the victim looked directly at the intruder's face.
She also was able to observe him initially when he approached her on the front porch, which was well lit and further illuminated by the lights in her living room and bedroom.
When the police arrived about five minutes later, the victim gave them a description of her assailant. She described him as a black man with a slight mustache, who was wearing a dark-hooded jacket up over his head with a logo over the left breast. Believing that defendant, who lived only three blocks away, fit that description, Detective James Colanduoni included his picture in a photographic array consisting of eight photographs that he showed the victim at her home two days later, on December 16, 1998. The victim identified defendant from this array. When she observed defendant's photograph, among the others, she "took [her] hand and closed off the top of his hair line and all and just get his face, his eyes and his nose and his mouth."
Defendant was arrested two days later, on December 18, 1998, wearing the same type of blue-hooded sweatshirt the victim described her assailant as wearing when he robbed her. Three days later, on December 21, 1998, Colanduoni again met with the victim, this time at police headquarters, where she gave a formal statement describing the intruder as "a medium black male, medium skinned black male in his 20s . . . . approximately 5 foot 11 inches tall." At the time she was shown a photograph of defendant wearing the blue-hooded jacket taken at the time of his arrest and she immediately recognized him as the person who robbed her on December 14, stating: "That's him, that's the man that robbed me. Only difference is that the hood was pulled down more on his face and the zipper zipped up underneath his neck." According to Colanduoni, the victim "went into about the jacket, the hood, the zipper and she zeroed right in on the logo and said: That logo is -- that design is exactly what he was wearing that day, the day he robbed me."
Defendant produced no evidence, his defense resting on the assertion of mistaken identification by the victim. As noted, the jury convicted him of the offenses charged.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF THE OPPORTUNITY TO ESTABLISH THAT THE OUTOF-COURT IDENTIFICATION WAS UNRELIABLE.
II. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND PREJUDICED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS TO AN IMPARTIAL JURY AND TO EFFECTIVE ASSISTANCE OF COUNSEL BY LIMITING AND INTERRUPTING DEFENSE COUNSEL'S OPENING STATEMENT.
III. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY AFTER DETECTIVE COLANDUONI TESTIFIED THAT HE TOOK "MUG SHOT" PHOTOGRAPHS OF THE DEFENDANT (Not Raised Below).
IV. IMPOSITION OF THE EXTENDED BASE TERM OF TWENTY (20) YEARS WITH EIGHT (8) YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR ROBBERY ON COUNT ONE, AND THE IMPOSITION OF THE CONCURRENT TEN (10) YEAR BASE TERM WITH FIVE (5) YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR BURGLARY ON COUNT TWO, WERE MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
(A). THE TRIAL COURT'S FINDINGS WITH REGARD TO THE AGGRAVATING FACTORS PRESENT CANNOT BE SUPPORTED.
(B). THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.
(C). IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
(D). IMPOSITION OF A BASE EXTENDED TERM IN EXCESS OF THE THEN-EXISTING PREUMPTIVE EXTENDED TERM SENTENCE VIOLATES STATE V. NATALE.
(E). IMPOSITION OF THE TEN (10) YEAR BASE TERM ON THE DEFENDANT'S CONVICTION FOR BURGLARY ON COUNT TWO WAS ILLEGAL BECAUSE IT EXCEEDED THE MAXIMUM FIVE (5) ...