On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-3802.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and R. B. Coleman.
On December 13, 2004, an Essex County Grand Jury returned Indictment No. 04-12-3802, charging defendant, Eddyson Legrand, with the following crimes: first degree robbery, N.J.S.A. 2C:15-1 (count one); third degree aggravated assault with a handgun, N.J.S.A. 2C:12-1b(2) (count two); third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and second degree possession of a handgun with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a (count four). Following a trial in May 2005, a jury found defendant guilty of all charges. At sentencing, the court merged counts three and four with count one, and imposed on count one a prison term of fifteen years with an eighty-five percent parole disqualifier and on count three, four years in prison to be served concurrently with the sentence for count one.
Defendant now appeals from his June 24, 2005, judgment of conviction, and in his brief on appeal, he raises the following arguments:
POINT I: THE TRIAL COURT'S REFUSAL TO CHARGE CROSS-RACIAL IDENTIFICATION CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. U.S. CONST. AMENDS V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
POINT II: BECAUSE THE ONLY ISSUE AT TRIAL WAS IDENTIFICATION, AND ESSER AND WATSON MADE OUT-OF-COURT IDENTIFICATIONS OF DEFENDANT VIA A "SHOW-UP" PROCEDURE, AND ESSER WAS TOLD THAT THE DEFENDANT WAS A "SUSPECT", DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO REQUEST A PRETRIAL WADE HEARING TO CHALLENGE THE IDENTIFICATION. U.S. CONST. AMENDS VI AND XIV; N.J. CONST., (1947), ART. I, PARS. 1 AND 10. (NOT RAISED BELOW).
POINT III: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
After careful consideration of defendant's arguments in light of the facts and applicable law, we affirm defendant's conviction and sentence.
Around 8:30 a.m. on August 9, 2004, Howard C. Esser, age sixty-six, was walking to his home on Bamford Place in Irvington. As he was walking, he noticed defendant riding a girl's bike and snaking back and forth down Bamford Place. Esser, who observed defendant for approximately forty to fifty seconds, thought defendant's actions were suspicious. During this period of time, Esser was able to see defendant's face and bike. After defendant rode past him and pulled behind a white van, Esser heard the sound of the bike dropping to the asphalt. Then defendant came around the van, stood about two or two and half feet away and, pointing a gun at Esser's forehead, demanded money. When Esser stated that he did not have any money, defendant struck him with the gun, knocking him to the ground. Esser began yelling for someone to call the police and attempted to defend himself. This episode lasted approximately forty seconds to a minute, during which time Esser was able to observe defendant's face and his gun, a revolver.
While the attack was occurring, Esser's neighbor, Cortney Watson, saw through his fence what seemed to be someone on top of something. Watson testified he assumed it was just kids playing but, when he saw the bike begin to move, Esser stood up with blood running down his face and Watson knew something was wrong. Believing the person on the bike to be the culprit, Watson got into his car and followed the bicyclist, later identified as defendant. Relying on his experience as a bail enforcement agent, Watson was able to follow defendant without being noticed. As he was following defendant, Watson saw him throw his jacket into a garbage can and also saw him discard his hat. The pursuit lasted for twenty to thirty minutes, during which time Watson called the police to have them respond.
Watson followed defendant to Linden Avenue and saw him enter a home. Police arrived on the scene and knocked on the door. The man who answered the door was not the person whom Watson had followed. It was defendant's brother, Jean Legrand. The police then brought defendant to the door and Watson immediately identified him as the person he had followed. Thereafter, the officers, with Watson's help, recovered the discarded jacket and hat. With permission, they also searched the home, but no weapon was recovered.
Officer Miles Brown was one of the officers who responded to the home. He noticed that defendant was sweating and his heart was beating fast. Once Watson had identified defendant as the person who had perpetrated the assault on Esser, another officer told Esser that they believed that they had a suspect. Esser was taken in a police vehicle to Linden Avenue, where he ...