On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 05-08-3271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Lintner and Parrillo.
Following a jury trial, defendant Jermaine Smith was convicted of first-degree carjacking, N.J.S.A. 2C:15-2, and first-degree armed robbery, N.J.S.A. 2C:15-1.*fn1 The court merged the armed robbery conviction into the carjacking conviction, imposing for that crime a term of twenty-eight years with an 85% parole disqualifier. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on May 10, 2005, at about 2:00 a.m., Yang Gui Ren closed his Chinese restaurant in Camden, and as he entered his black 1998 Honda Passport, saw a young African-American male, later identified as defendant, rushing up to the left side of his vehicle. The man had "something black in his hand, . . . like a gun [that was] pointed at [Ren]" and told Ren to exit the vehicle. Ren hid the day's profits, $700, in the car door when defendant broke the car window with the object he was holding and forced Ren to exit the vehicle. Ren "saw the gun . . . . [and t]he man h[e]ld the gun with both of his hands and at that time [Ren] was very scared." Ren asked defendant if he needed money and then he handed defendant his wallet with twelve one-dollar bills and his driver's license identification. Defendant then told Ren to turn around as he drove off with Ren's car. Ren immediately called the police on his cell phone.
The encounter with the assailant lasted about five minutes. At the time, the area was illuminated by lighting from Ren's restaurant and a nearby street lamp, which enabled Ren to see defendant's face, as he was only two-and-one-half feet away. No one else was in the vicinity.
Camden Police Officer Daniel Torres responded to Ren's call at about 2:20 a.m. Upon arrival, Torres confronted a "[v]ery nervous and sh[aken] up" Ren, who communicated with "a little bit of English" and used "hand signals" to indicate that the suspect who took his car was a black male, approximately five feet, seven inches tall, and wearing a dark black shirt and dark jeans. Ren gave Torres his 1998 Honda Passport's paperwork, including its make, model, year, color and New Jersey license plate number. Using hand gestures, Ren told Torres that the suspect took his vehicle by use of "some type" of large, black gun. Torres immediately broadcast a description of both the suspect and the stolen vehicle, and Camden Sergeant Anthony Moffa located defendant in the stolen vehicle within fifteen minutes.
From Ren's restaurant, Officer Torres drove Ren approximately five blocks to the suspect's location at Morgan Village Middle School and arrived within minutes as Sergeant Moffa was "pulling . . . [and] handcuffing" defendant out of Ren's stolen vehicle. According to Torres, as they exited the vehicle, Ren pointed towards defendant, indicated "that's the suspect" who stole his car, and without prompting, told Torres, "Yeah, yeah, yeah. Him, him."
Ren identified defendant from approximately twenty feet away. The lighting was "clear" and "pretty good," since the school's outside lights were on with spotlights facing towards the school. After the identification, Sergeant Moffa shined a light on defendant and Ren kept nodding his head. After defendant was arrested, a quick pat-down search for weapons uncovered the key to Ren's stolen vehicle in defendant's right-hand pocket. Then, as defendant was escorted to a patrol vehicle, Ren's wallet, including Ren's driver's license identification, fell out of defendant's right pant leg. As defendant was placed into Sergeant Moffa's patrol car, Ren's vehicle became "engulfed in flames."
Ren's version of his out-of-court identification differed somewhat from Officer Torres' account in that Ren said he identified defendant at the police station and not in the vicinity of the crime scene. According to Ren, when he arrived at the location where his car was found, he "saw a lot of police officers;" "[t]he police officer said that they already arrest[ed] the [suspect;]" his "car was on fire" at that time;*fn2 and he did not see the suspect who stole his car. Within minutes, firefighters arrived and extinguished the fire. Thereafter, Ren accompanied the officers to the police station where he immediately recognized defendant. According to Ren, he identified defendant as the carjacker without even knowing the man had been arrested for that very offense. At the time, defendant was wearing a dark T-shirt and dark jeans that Ren had earlier described to the police. Ren identified defendant in court as well, adding at time of trial: "I think I recognize him. The time is so long ago." No gun was ever recovered.
On appeal, defendant raises the following issues:
I. THE "SHOW-UP" PROCEDURE BY WHICH DEFENDANT WAS IDENTIFIED WAS BOTH IMPERMISSIBLY SUGGESTIVE AND LIKELY TO RESULT IN MISIDENTIFICATION, AND SHOULD THEREFORE HAVE BEEN EXCLUDED.
II. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND OF A FAIR TRIAL BY HIS ATTORNEY'S REFERENCE DURING SUMMATION TO THE ...