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State v. Conde

June 28, 2007


On appeal from the Superior Court of New Jersey, Criminal Division, Cumberland County, Indictment No. 06-04-00425-I.

Per curiam.


Submitted June 5, 2007

Before Judges Coburn and Gilroy.

On leave granted, the State appeals from the January 18, 2007, order of the Law Division, directing the State to conduct a pre-trial photo array with the victim of an armed robbery. We reverse.

On January 10, 2006, Edwin Martinez was robbed by two individuals, a male and a female, after they had unlawfully entered his automobile. The male perpetrator grabbed Martinez from behind and placed a knife to his neck, demanding that Martinez give him money. While the male held the knife to Martinez's neck, the female removed $30 from Martinez's pockets. After the two perpetrators left, Martinez immediately reported the incident to the police, informing them that the two perpetrators were Hispanic and described each by their gender, approximate age, height, skin complexion and clothing. When asked if he could recognize either of the two suspects, Martinez informed the police that he had seen the female in the past and even though he had never seen the male previously, he could probably identify the male if he saw him again. Following a computerized photo array, Martinez identified the female perpetrator as Luz Roman. However, Martinez was never shown a photo of defendant.

On January 11, 2006, Roman was arrested, brought to police headquarters, and interviewed. During her interview, Roman provided the police with a taped statement, identifying defendant as the second person involved in the robbery. Based on Roman's identification of defendant as the second perpetrator, defendant was arrested the same day; and when interviewed by police, defendant denied any knowledge of the robbery. On March 8, 2006, Roman provided a notarized statement to the Public Defender's Office, stating that defendant had not been involved in the robbery, and that she had lied to the police because she wanted "him out of the streets and away from drugs."

On April 26, 2006, a Cumberland County Grand Jury returned a four-count indictment, charging defendant and Roman with second-degree conspiracy to commit robbery and first-degree robbery (Counts One and Two, respectively); and charged defendant only in Counts Three and Four with third-degree possession of a weapon for an unlawful purpose and fourth-degree unlawful possession of a weapon, respectively. On May 22, 2006, defendant was arraigned. On July 5, 2006, Roman provided a recorded statement to Detective John Berry of the Cumberland County Prosecutor's Office, in which she again identified defendant as the second individual who had committed the robbery. On July 10, 2006, Roman pled guilty to an amended charge of third-degree theft in exchange for a five-year prison term. She also agreed to testify against defendant.

On September 21, 2006, defendant filed a motion seeking to compel a lineup, relying on Roman's March 8, 2006 "affidavit" in support of his position that there was a substantial question of identification. The motion was argued on December 19, 2006. On January 18, 2006, the motion judge issued a written decision granting the motion but limiting the discovery to a photo array, not a physical lineup. A confirming order was entered the same day.

On appeal, the State argues that the motion judge erred in directing that it must conduct a pre-trial photo array with the victim of the robbery, contending that defendant did not satisfy the three-prong test of State in the Interest of W.C., 85 N.J. 218, 226-27 (1981). Because we are satisfied the motion record was inadequate to support the judge's decision, we reverse.

An appellate court's scope of review of the trial court's determination is limited to whether the findings made by the trial judge could reasonably be reached on substantial, credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964). Stated differently, when the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the results, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Ibid.

Motions to compel the State to arrange for a pre-trial identification lineup to be viewed by the victim or witness of a crime "is a discovery mechanism which may lead to relevant material evidence and assist in preparation of the defense." W.C., supra, 85 N.J. at 221. "Although defendant has no constitutional right to pre-trial lineup discovery . . ., we have no doubt that a Court has the inherent power to order discovery when justice so requires." Ibid. (internal citations omitted). However, "[u]ninhibited discovery in criminal, unlike civil, proceedings cannot exist, primarily because defendant's constitutional privilege against self-incrimination limits reciprocal discovery in criminal matters." Id. at 221-22. Accordingly, whether the State should be compelled to have a victim or witness to a crime undergo a pre-trial lineup requires the trial court to exercise its discretion in "balancing the beneficial effects of discovery against its disadvantages." Id. at 224. As guidance in exercising such discretion, the Court provided trial courts with guidelines:

In deciding whether to grant a defendant's motion for a pretrial lineup, the trial court must consider and determine several matters. Though the circumstances will probably vary from case to case, certain guidelines should be followed. First identification must be a substantial material issue. The absence of materiality may be self-evident from the nature and circumstances of the alleged crime, identification not truly being in issue. The trial court should also consider the degree of doubt concerning the identification. Realistically, it may be so insubstantial that a lineup is not justifiable. Second, there must be a reasonable likelihood that a lineup would be of some probative value. In this respect the length of time between the crime and the arrest and the possibility that the defendant may have altered his appearance should be considered. It is common knowledge that memories often fade with the passage of time, and a shorter interval between the event and the lineup may increase the likelihood of accuracy. Third, the defendant's motion should be made as soon after arrest or arraignment as practicable. In the absence of good cause, a trial court would be justified in denying such a request on timeliness grounds alone. [Id. at 226-27 (footnote omitted).]

The aforementioned three guidelines are not exclusive. Id. at 227. The court may also consider such items as "the burden imposed on the prosecution, the extent of inconvenience to prosecution witnesses, the inability or difficulty in having the witnesses appear, and the likelihood of subjecting witnesses to intimidation, unnecessary annoyance, harassment, or embarrassment." Ibid. Procedurally, the motion should "be heard and decided in a summary manner, based on affidavits, police reports, and other supporting documents." Id. at 228. The burden is on the defendant to satisfy the first three guidelines by a preponderance of the evidence. Ibid. As to the other factors, the burden is on the State ...

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