On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 05-03-408.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Tried to a jury, defendant, Jeffrey Scott Marrero, was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1. He was sentenced as a second-degree offender, see N.J.S.A. 2C:44- 1f(2), to a five-year custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Alleging various trial errors, he appeals from the conviction and we reverse and remand for a new trial.
The events underlying the trial relate to a knife-point robbery of Ralph Greiss, the owner of St. Mina's Deli in Bayonne, New Jersey. Only Greiss and Severo Cordero, a customer who entered the deli during the robbery, were present during the criminal act.
Greiss testified that on January 11, 2005,
[a] guy, he came about 6 o'clock I think if I don't recall the time correctly, and he ask me -- he need the result for the Pick Its for the midday. And he don't look familiar to me. I look to him. I tell him, wait couple seconds, I finish customer front of you. And I did finish the customers first, and I give him the result. Like, half an hour later, he come, and nobody in the store. And he run around the counter with a knife, and he rob me.
Greiss also testified that another customer walked in as the crime was being committed and that $700 was taken.
Greiss, however, was unable to identify defendant as the perpetrator. When asked if he saw the person who robbed him in court, Greiss replied, "He's not here." Unable, at this point, to obtain an in-court identification, the prosecutor turned to the events following the robbery. Greiss related that he gave the police a statement shortly after the robber left the deli and that he went to the police station several hours later, where he was shown "about, like, 200 pictures." Greiss testified that he "found [defendant's] picture" and pointed it out to the police.
He was asked if anyone talked to him about the pictures. Greiss replied, "[n]o" but when the question was repeated he added, "[t]hey told me this is a picture from the people, they been arrested before." After defendant objected, the judge held a sidebar conference at which counsel asked for a mistrial. The judge denied this request, commenting that "[t]his is not a significant thing." He also indicated that "[a] curative instruction can be given. What your -- the whole defense is misidentification, and this -- this is not a significant enough event to cause a mistrial. . . . I will give a curative instruction."
The judge gave the following instruction:
Okay. Ladies -- ladies and gentlemen of the jury, the witness is obviously very nervous and -- and just told us something that was told to him. Okay? And that's called hearsay, and hearsay is not admissible unless it meets certain criteria. And none of those criteria are present here.
The fact that police have photographs of people, they have it for many, many reasons. But one thing I can tell you is that in this particular case, this defendant has no other convictions. So the fact that that the police may have had his photograph and the reason for having his photograph or how they obtained his photograph is not relevant in this matter.
The only thing that's relevant in this matter is that they did have a photograph and it was shown to the witness. Okay? So for any other reasons, you must disregard for any other potential things you may think happened. The only thing that's relevant is that the police did have a photograph that they've shown him. (emphasis added.)
After Greiss unequivocally testified that the person in the picture was the person who committed the robbery, the prosecutor again attempted to have Greiss make an in-court identification. He asked Greiss "to take a look again around the entire courtroom" and see if he could identify the person who robbed him. Greiss identified one of the jurors. He did not identify the defendant in court.
Severo Cordero, the customer who walked into the store during the robbery, testified:
Well, as I walked in, I seen, you know, two gentlemen behind the counter. . . . And all of a sudden, you know, as I walked in, the -- I knew something was wrong because all of a sudden I walked in, I seen the two guys. And then the next thing, the guy stopped, and he jumped over the counter. He knocked over the cigarettes, and the gentleman ran at me. He, like -- as ...