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State v. Washington

April 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN WASHINGTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-1997.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges Gilroy and Baxter.

Following a trial by jury, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (Count One); third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three); third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Four); third-degree eluding, N.J.S.A. 2C:29-2b (Count Five); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a (Count Six).

After a denial of his motion for a new trial on February 9, 2005, defendant was sentenced to a mandatory extended term of fifty years of imprisonment on the conviction of armed robbery on Count One, pursuant to N.J.S.A. 2C:43-7.1b, subject to the No Early Release Act (NERA).*fn1 Counts Two and Three were merged with Count One. On Counts Four and Five, defendant was sentenced to a term of five years on each conviction. On his conviction on Count Six, defendant was sentenced to a term of eighteen months, with a nine-month period of parole ineligibility. The sentences on Counts Four, Five, and Six run concurrent to each other and to the sentence imposed on Count One. All appropriate fines and penalties were imposed. Defendant appeals, and we affirm.

Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other facts as necessary in addressing the issues.

I.

On August 10, 2002, Septin Ayyildiz was working the nighttime shift at a gas station located at the intersection of Monmouth Road and Cedar Avenue, West Long Branch. At approximately 2:20 a.m., a gold-colored motor vehicle entered the gas station and pulled up near the attendant's booth in which Ayyildiz was sitting. The driver, later identified as defendant, exited the motor vehicle and approached the booth, requesting a pack of cigarettes from Ayyildiz. After Ayyildiz complied, defendant asked for a second pack. As Ayyildiz turned his head to retrieve the cigarettes, he felt an object pressed against the left side of his stomach. Ayyildiz observed that the object was a knife, approximately five to six-inches in length.

Defendant demanded that Ayyildiz give him the money from the cash register in the booth. After Ayyildiz complied, defendant returned to his vehicle and drove out of the gas station with the tires of the car screeching. As the vehicle left the gas station, it was observed by Sergeant Lawrence Mihlon of the West Long Branch Police Department. Mihlon intended to stop the vehicle and issue a summons for careless driving, but first drove slowly past the gas station to ascertain whether the attendant was all right. Ayyildiz informed Mihlon that he had just been robbed by the driver of the gold vehicle.

Mihlon proceeded to follow defendant's vehicle onto Cedar Avenue, activating his patrol vehicle's overhead lights and siren. Defendant did not stop, and a high-speed chase ensued eastbound onto Ocean Boulevard. After Mihlon turned onto Ocean Boulevard, he observed that defendant had crashed his vehicle and had fled the scene. Paper money was strewn about the street near the crash site.

After other officers responded to the area, the police searched the crash site attempting to locate defendant. Responding to a pedestrian's tip, the officers proceeded to the beach, where they observed defendant treading water approximately fifty feet offshore. After defendant came back near the shoreline, the police placed him under arrest and took him to Monmouth Medical Center.

In the interim, Ayyildiz and the manager of the gas station had responded to the West Long Branch Police Department to formally report the robbery. Ayyildiz informed Detective Paul Habermann, that he had been robbed by a black male. At Habermann's request, Ayyildiz accompanied him to the Monmouth Medical Center, where Ayyildiz identified defendant as the person who had robbed him. After Ayyildiz identified defendant, Ayyildiz was driven by Habermann to the accident site, where he also identified defendant's vehicle.

At trial, defendant testified that he did not commit the robbery, stating that he had loaned his automobile to an acquaintance known as "Rasheem." While defendant was waiting for Rasheem to return for him on Ocean Boulevard, he heard sirens and saw his car crash into some bushes. Believing that he would get in trouble because his license was suspended, defendant ran and hid among jetty rocks on the beach. After he was discovered, he ran into the ocean, but was later placed under arrest. Concerning Ayyildiz's identification, defendant stated that Rasheem looked like him and that could have accounted for the misidentification.

On appeal, defendant argues:

POINT I.

THE ADMISSION INTO EVIDENCE OF THE TESTIMONY[,] CONCERNING THE INHERENTLY UNRELIABLE OUT-OF-COURT IDENTIFICATION, OBTAINED PURSUANT TO A SHOWUP, DEPRIVED DEFENDANT OF HIS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS. U.S. CONST. [ART.] VI; XIV; N.J. CONST. ART. I, PARA. 10.

POINT II.

THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST TO ADMIT EVIDENCE OF A SIMILAR ROBBERY COMMITTED WHILE THE DEFENDANT WAS IN JAIL. SUCH EVIDENCE WAS ADMISSIBLE ON THE THEORY OF THIRD-PARTY GUILT. U.S. CONST.

[ART.] VI, XIV; N.J. CONST. ART. I, PARA. 10.

POINT III.

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant raises the following arguments pro se:

POINT I.

THE ONE-PERSON SHOW-UP OF DEFENDANT WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND, AS SUCH, THE PRE-TRIAL AND IN COURT IDENTIFICATION OF DEFENDANT BY SEPTIN AYYILDIZ SHOULD HAVE ...


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