November 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL MONROE A/K/A MICHAEL DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-02-0637.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Parrillo and Alvarez.
Tried by a jury, defendant Michael Monroe was convicted of third-degree burglary, N.J.S.A. 2C:18-2. He was sentenced, as a persistent offender, to an extended term of seven years with a two-and-one-half year period of parole ineligibility. N.J.S.A. 2C:43-7a(4), N.J.S.A. 2C:44-3. Appropriate fees and penalties were also imposed. Defendant appeals. Save for a remand for sentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), we affirm the judgment of conviction.
According to the State's proofs, on October 28, 2004, at about 7:30 p.m., Angel Diaz's Plymouth Voyager minivan was broken into while parked outside a church on North Second Street in Camden that he and his family were attending at the time. The car radio was stolen and, as a result, the dashboard was damaged.
The incident was witnessed by Diaz's friend, Augustin Torres, who upon his arrival at the church, "saw two kids . . . with hoodies on" in and around Diaz's car. Believing them to be Diaz's children, Torres walked inside the church, and when he saw Diaz's family, went back outside and saw the two individuals walking away. Torres flagged down a passing police car and told Rutgers University police officer Harry Hertfelder what he had observed, pointing out the two people walking away, who were now only about one-half block away. On routine patrol on the 300 block of North Second Street, Officer Hertfelder had just passed these two men only seconds earlier, in the opposite direction.
Officer Hertfelder then turned his car around and stopped the two men, later identified as defendant and co-defendant Derrick Cooper. Hertfelder radioed another Rutgers University officer, Evans, for assistance. Evans brought Torres over to the intersection where Hertfelder had detained the two men, and Torres identified them as the two individuals he had seen earlier at Diaz's minivan, recognizing them by the clothing they wore, specifically their hoodies.
Some of the police encounter was captured on videotape by surveillance camera located on top of one of the dormitories overlooking the 200 block of North Second Street. As the video played, the jury could observe Hertfelder's patrol vehicle proceeding north on North Second Street, passing defendant and Cooper walking across Penn Street. According to Hertfelder, it appeared from the videotape that as the two were walking, one of them "threw an object" in the area of the Walt Whitman Center. Indeed, another university police officer, Ronald Trivinia, who had done "a quick search of the area" after the two men were arrested, recovered a car radio and faceplate inside a black canvas bag with a "DKNY" logo, found at Second and Penn Streets behind a concrete "quarter-high wall" approximately one-half block from where Diaz's minivan was parked. The concrete wall where the bag was retrieved could also be observed on the videotape.
Cooper eventually pled guilty to the burglary charge and received a four-year probationary term. He testified against defendant, explaining that on the evening of October 28, 2004, en route to his residence, both he and defendant were "drunk" and "broke into a vehicle" in the area of Third and Cooper Streets. Both of them went inside the van and while defendant removed the car radio, Cooper acted as a lookout "to see was the police coming . . . ." When they later saw Hertfelder's patrol car pass them as they were approaching the intersection of Third and Cooper Streets, Cooper told defendant to throw away the black bag containing the radio. Defendant complied and discarded the bag "[i]n the grass somewhere," in the same area where it was eventually recovered by Officer Trivinia. Cooper identified the black "DKNY" bag and radio recovered by Officer Trivinia as the bag used to carry the radio they stole that night.
Defendant denied any wrongdoing. He was with Cooper at the time, whom he planned to help move to his new residence. While en route to Cooper's home, Cooper "[j]ust opened the door handle" to the parked van and "then he went inside." Defendant, who had been drinking earlier, supposedly did not pay attention to what Cooper was doing.
Evidently crediting the State's version, the jury convicted defendant of third-degree burglary. On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF THE OUT-O[F]-COURT IDENTIFICATION OF DEFENDANT BY MR. TORRES.
II. TRIAL COURT ERRED IN NOT ACQUITTING DEFENDANT IN VIOLATION OF THE DEFENDANT'S RIGHTS UNDER R. 3:18-1.
A. THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE THE ELEMENTS OF THE CRIME BEYOND A REASONABLE DOUBT.
III. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL IN VIOLATION OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION.
A. THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST TO PRESENT MS. CORMONA'S TESTIMONY INFRINGED UPON DEFENDANT'S RIGHT TO A FAIR TRIAL.
B. THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL.
IV. THE SEVEN (7) YEAR SENTENCE IMPOSED BY THE TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A. 2C:18-2 WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS.
A. THE TRIAL COURT SHOULD HAVE SENTENCED DEFENDANT TO [A] TERM OF YEARS STATUTORILY ALLOWED FOR THIRD DEGREE CRIMES.
B. THE SEVEN (7) YEAR SENTENCE IMPOSED BY THE TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A. 2C:18-2 WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that, except for a reconsideration of sentence within the broadened sentencing range articulated by the Pierce Court, none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
Contrary to defendant's first contention, there was no need to conduct a Wade*fn1 hearing in this matter. The purpose of a Wade hearing is to determine "whether or not the out of court identification was made in unduly suggestive circumstances . . .[,]" Pressler, Current N.J. Court Rules, Comment 3.6.2 on R. 3:4-2 (2008), and if so, "whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968). However, before a defendant is entitled to a Wade hearing, "[t]here must first be a proffer of some evidence of impermissible suggestiveness[.]" State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994).
Here, defendant has made no such proffer. He points only to the fact that Torres was unable to see their faces. Yet Torres' identification was based principally on the burglars' clothing and not the result of any police suggestiveness. On the contrary, it was Torres who directed the officer to defendant and his accomplice, and these two men were apprehended immediately thereafter by the same officer who had just moments before passed them in his patrol car. Thus, Torres' inability to see their faces, although relevant to the credibility or reliability of his eyewitness identification, does not constitute proof of any suggestiveness on the part of the police. We conclude there was no mistaken exercise of discretion by the trial judge in denying a Wade hearing here.
Nor was there any basis for the court to order, sua sponte, a judgment of acquittal. In the first place, defendant never moved for such relief under either Rule 3:18-1 or Rule 3:18-2. In any event, the evidence of guilt was overwhelming. Defendant and his accomplice were apprehended almost immediately after the burglary occurred, in the same vicinity and wearing the same clothes as described by the eyewitness. Moreover, they were caught on videotape discarding the fruits of their crime, which were recovered in the same area depicted in the videotape and described by defendant's cohort. Clearly, based on these proofs alone a reasonable jury could find guilt beyond a reasonable doubt. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Reyes, 50 N.J. 454, 459 (1967).
This same evidence supports the court's denial of defendant's motion for a new trial under Rule 3:20-1. In this regard, defendant now urges that it was a manifest denial of justice to disallow the proffered testimony of defendant's mother, Carmona, as to a statement allegedly made to her by co-defendant Cooper about his plea agreement and the supposed pressure he was under to testify. Yet, defendant belatedly made this request only after Cooper had testified and to date has offered no credible basis for the admissibility of such a hearsay statement. Indeed, the court even afforded the defense the opportunity to subpoena Cooper for proper impeachment through this so-called extrinsic evidence, see Rule 607, but apparently the offer was declined. In any event, on earlier cross-examination, defense counsel fully questioned Cooper on both his plea bargain with the State and his probationary status at the time of testimony, and thereafter urged the jury on summation to remember that "Mr. Cooper is an individual who's motivated to come here and testify in order to preserve in his own mind his need to cooperate with the prosecutor." Under the circumstances, the omission of Carmona's purported testimony did not amount to an injustice, much less one that prevented the jury from properly performing its function.
Lastly, defendant contends that although he is a persistent offender and qualifies for extended term sentencing under N.J.S.A. 2C:43-7a(4), nevertheless the State's motion for such was untimely and the sentence imposed manifestly excessive. As to the former, the State established "good cause" under Rule 3:21-4(e) for the late filing in light of its ongoing attempts to resolve other outstanding charges against defendant through plea negotiations and given the notice previously provided to defendant in the State's pre-trial memorandum, specifically indicating defendant was subject to a discretionary extended term up to ten years.
Our review of the records also persuades us that there is no warrant to interfere with the sentence imposed with one limited exception. We note that defendant was sentenced on May 5, 2006 and his notice of appeal was filed in July 2006 before the decision in State v. Pierce, 188 N.J. 155 (2006). There, the Court held that once the eligibility requirements for sentencing under the persistent offender statute are met, the maximum sentence to which defendant may be subject is the top of the extended-term range and the lowest sentence begins at the minimum of the ordinary-term range. Id. at 169. As the State concedes, defendant is therefore entitled to a limited remand for reconsideration of his sentence within the broadened sentencing range articulated by the Pierce Court.
Remand for sentencing. Otherwise, the judgment of conviction is affirmed.