On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-09-2009-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and LeWinn.
Following a jury trial on February 15 and February 16, 2006, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree eluding, N.J.S.A. 2C:29-2b. The court imposed a seventeen-year extended prison term on count one, with an eighty-five percent period of parole ineligibility. On counts two and three, the court imposed five-year prison terms, with two and one-half years of parole ineligibility. The sentence on counts two and three were concurrent with each other and consecutive to the sentence on count one. On appeal, defendant raises six points for our consideration:
Point 1 The trial court should have excluded the victim's out-of-court identification because the identification procedure was impermissibly suggestive and resulted in a very substantial likelihood of irreparable misidentification, unfairly prejudicing defendant at trial.
Point 2 Admitting as excited utterances the alleged victim's out-of-court description of the perpetrator and subsequent identification of defendant was erroneous and violated defendant's confrontation rights.
Point 3 The Court should vacate defendant's robbery conviction because admitting the victim's videotaped testimony unfairly prejudiced defendant.
Point 4 The prosecutor's comments during closing denied defendant a fair trial of the eluding charge (not raised below).
Point 5 The trial court erred in denying defendant's motion to dismiss the State's robbery and receiving stolen property charges.
Point 6 Remand is required because defendant's sentence is improper and excessive.
Having carefully considered defendant's arguments in light of the record and the prevailing law, we affirm his conviction, but vacate his sentence and remand for resentencing.
On July 23, 2005, at approximately 9:00 p.m., Tina Laspina was walking in Atlantic City when a man got out of an SUV, ran up to her and punched her in the face. The man, whom Laspina later identified as defendant, took her money, ran back to the vehicle, and drove away. Another individual was in the passenger seat.*fn1 A few minutes later, Laspina gave Officer Dean Dooley a description of the person who robbed her and of the car he was driving. She described the man as a large black male with a bald head and beard wearing a white T-shirt. She described the car as a silver Lexus SUV.
Dooley radioed the description to police dispatch and then called for an ambulance for Laspina, who was visibly upset and bleeding from the mouth. She received medical attention on the scene, but refused to go the hospital. She was taken from the scene in Officer Paul Aristizabal's police cruiser.
Sergeant Rodney Ruark heard the police dispatch of the robbery suspect's description. Approximately twenty minutes later, he observed a silver Toyota 4Runner turning into a gas station on Route 30. He saw a bald, black male with a full beard wearing a white t-shirt in the driver's seat. Ruark called Aristizabal and asked him to confirm with Laspina whether there had been a passenger in the suspect's SUV and whether the suspect was bald. Laspina stated that the suspect was bald and she believed a passenger was in the SUV.
Ruark drove directly behind the SUV and turned on his overhead lights and side spotlight. The SUV did not stop. He then activated his siren and advised dispatch that the SUV was not stopping. Defendant stopped the vehicle approximately a mile later, and ran from the SUV to a nearby apartment complex where he was apprehended. He was placed in the back of Officer DePaul's police car.
Laspina was transferred to Dooley's car. Dooley and DePaul decided to perform a show-up in a nearby vacant lot. DePaul arrived first with defendant. When Dooley pulled into the lot with Laspina, DePaul placed defendant, in handcuffs, in front of Dooley's car headlights. Laspina, from inside Dooley's car, positively identified defendant as the man who had robbed her. The identification took place approximately thirty minutes after the robbery.
Defendant challenged the identification procedure and on February 1, 2006, the court conducted a Wade*fn2 hearing. At the hearing, conducted just over six months after the incident took place, Laspina testified that she no longer remembered what the robber looked like, but she did recognize defendant at the time of her identification as the man who robbed her. She testified that the man the police showed her "looked just like [the robber]," but she was not one-hundred percent certain. Laspina testified that she had used heroin on the afternoon that she was robbed and that she had been "under the influence," but the drug's effects had worn off by the time she was assaulted.
Dooley testified that Laspina was afraid of defendant during the show-up identification and crouched down in the seat of the police car; that she was attentive throughout the process and did not appear to be under the influence of any substances. The court concluded that the identification was not impermissibly suggestive.
Trial commenced on February 15, 2006, and concluded the next day. Laspina was subpoenaed to testify at trial, but did not appear. The State moved to admit her statements to Dooley immediately after the robbery and at the show-up as excited utterances. The testimony would include Dooley's observations of Laspina's demeanor, that she was bleeding and crying, and that she was speaking so rapidly that the officer could barely understand her and had to tell her to slow down. The court admitted the statements as ...