On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Lisa and Lihotz.
Defendant, Richard Brent, Jr., and his co-defendant, Marion C. Darby, were charged in a five-count indictment as follows:
(1) second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; (2) first-degree armed robbery, N.J.S.A. 2C:15-1; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5b; (4) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and (5) fourth-degree*fn1 possession of a defaced firearm, N.J.S.A. 2C:39-9e. Darby was acquitted of all five charges. Defendant was acquitted of count one but convicted of the remaining charges. After merging counts three and four with count two, the judge imposed sentence on count two of ten years imprisonment subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count five, the judge sentenced defendant to eighteen months imprisonment, to be served concurrently with count two. The judge also imposed appropriate mandatory monetary assessments.
On appeal, defendant argues:
LOPEZ'S OUT-OF-COURT, ONE-MAN SHOW UP IDENTIFICATION OF BRENT TOGETHER WITH SUGGESTIVE COMMENTS BY THE POLICE TO LOPEZ WHO SPOKE VERY LITTLE ENGLISH AND HAD NO INTERPRETER WERE UNDULY SUGGESTIVE AND VIOLATED BRENT'S FEDERAL AND STATE DUE PROCESS RIGHTS THEREBY ALSO TAINTING LOPEZ'S IN-COURT IDENTIFICATION OF BRENT; THUS, THE COURT REVERSIBLY ERRED IN PERMITTING LOPEZ'S TESTIMONY AS TO HIS TAINTED OUT-OF-COURT AND IN-COURT IDENTIFICATION OF BRENT BEFORE THE JURY. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art.I, Para. 1 and 10.
THE COURT REVERSIBLY ERRED IN ACCEPTING BRENT'S AFFIDAVIT, EXHIBIT D-1, INTO EVIDENCE BECAUSE THE STATE FAILED TO CARRY ITS BURDEN OF DEMONSTRATING THE VOLUNTARINESS OF THAT ADMISSION WHICH BRENT SIGNED WHILE IN PRISON. (U.S. Const. Amends. V, VI & XIV; N.J. Const. (1947) Art. I, Para., 10).
THE COURT REVERSIBLY ERRED IN PERMITTING THE PROSECUTOR IN SUMMATION TO ARGUE WITHOUT SUPPORTING EVIDENCE IN THE RECORD THAT THE $79 SEIZED FROM BRENT UPON HIS ARREST WAS IN THE SAME DENOMINATIONS AS THE MONEY TAKEN FROM THE STORE, ESPECIALLY IN VIEW OF THE FACT THAT DEFENSE COUNSEL IN HIS SUMMATION WAS HELD STRICTLY TO WHAT THE COURT PERCEIVED WAS THE LIMIT OF THE RECORD EVIDENCE ON THE ISSUE OF WHETHER DARBY COERCED BRENT TO SIGN THE ADMISSION IN THE AFFIDAVIT. (U.S. Const. Amends VI & IV; N.J. Const. (1947) Art.I, Para. 1 & 10).
THE COURT IN VIOLATION OF N.J.R.E. 403 REVERSIBLY ERRED IN INCLUDING COLOR PHOTOGRAPHS TAKEN OF BRENT AFTER HIS ARREST, EXHIBITS 18 THROUGH 22, BECAUSE THE NONEXISTENT PROBATIVE VALUE OF THOSE PHOTOGRAPHS WAS SUBSTANTIALLY OUTWEIGHED BY THEIR EXTREME PREJUDICE TO BRENT WHO BECAUSE OF PROBLEMS IN OBTAINING CLOTHING APPEARED BEFORE THE JURY INITIALLY IN THE SAME CLOTHES HE WAS WEARING WHEN THE PICTURES WERE TAKEN. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I para 10.
BRENT'S TEN-YEAR PRISON TERM WITH AN 85% NERA PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.
We reject these arguments and affirm.
On November 14, 2004, Quilbio Marquez owned the K & M Deli in New Brunswick. Orbe Lopez was his employee. At about 9:57 that night, the men were preparing to close the store. Lopez was at the register. Marquez was nearby counting the day's receipts. Marquez had placed in the register the next day's startup money, consisting of about $80 in currency and $20 in change.
Darby entered the store and purchased a pack of chewing gum from Lopez. Darby paid for the gum, but walked out of the store without taking his change. Darby was wearing a red jacket. Marquez and Lopez had seen Darby in the store on a couple of prior occasions. There were no other customers in the store at that time.
Immediately after Darby left the store, defendant entered. He was wearing a camouflage jacket. He pointed a revolver at Lopez demanding money. After defendant "pulled back the hammer," Marquez instructed Lopez to give defendant the money in the register. Because of the way Marquez was positioned, defendant apparently did not see the larger amount of money that Marquez was handling. Lopez handed defendant the currency from the register, and after being in the store for about forty seconds to one minute, defendant left.
At Marquez's direction, Lopez pushed the emergency button behind the counter to notify the police. Marquez went to the door to see where defendant went so he could inform the authorities. Marquez saw defendant and Darby run across the street, and he observed their direction of travel. A patrolling New Brunswick police officer, Raymond Hansen, happened by. Marquez flagged him down and informed him he had just been robbed by two black men. He told Hansen he saw the men run from the store and turn right on Seaman Street.
Hansen directed Marquez to get into the car to help search for them. They drove down Seaman Street, and Marquez spotted defendant and Darby standing on a porch trying to open a door. One man was wearing a red jacket and the other a camouflage jacket. Marquez yelled, "That's them, that's them." Hansen stopped the vehicle, and as he got out he saw defendant throw "a dark object from his right hand into the alley." Hansen recovered the object, which was a loaded black handgun with a brown handle. Marquez identified the gun as the one used in the robbery. Defendant and Darby were placed under arrest. A search of defendant revealed the presence on his person of $79 in currency, in denominations of four $10 bills, four $5 bills, and nineteen $1 bills. Defendant and Darby were transported to the police station.
Hansen drove Marquez back to the store. They picked up Lopez and proceeded to the station, where showup identification procedures of the two suspects were conducted. At 11:21 p.m., Lopez viewed Darby, who was wearing his red jacket, and positively identified him as the individual who came into the store and bought a pack of gum. At 11:24 p.m., Lopez separately viewed ...