On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-06-0598.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Messano.
Following a jury trial, defendant Quashon Johnson was convicted of the first-degree robbery of Michael Ridges, N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); fourth-degree aggravated assault by knowingly pointing a firearm at Ridges under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1(b)(4) (count four); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count five). At sentencing, the judge merged counts two, four, and five into count one and sentenced defendant to a period of imprisonment of twelve years, 85% of which was to be served without parole under the No Early Release Act (NERA).*fn1 The judge imposed a concurrent four year sentence of imprisonment on count three, along with the appropriate monetary penalties.
On appeal, defendant raises the following points for our consideration:
POINT ONE THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE IMPERMISSILBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION OF DEFENDANT BY RIDGES AND THE RESULTING TAINTED IN-COURT IDENTIFICATION.
POINT TWO THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
POINT THREE THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING DEFENDANT TO A CRIME A DEGREE LOWER OR AT LEAST TO THE MINIMUM TERM FOR A FIRST-DEGREE CRIME.
In a pro se filing, defendant has raised the following points for our consideration:
POINT ONE DEFENDANT  RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF PLEA AND SENTENCING WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO SUPPRESS HIS ARREST AND ALL INFORMATION USED IN ATTAINING PROBABLE CAUSE UNLAWFULLY, WHICH IS A VIOLATION OF HIS [SIXTH] AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT A [DEFENDANT'S] CONSTITUTION[AL] RIGHTS WERE VIOLATED AS A RESULT OF THE "JUDICIAL REQUIREMENT" NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT, THEREBY FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED [AND] REQUIRED BY NEW JERSEY RULES OF  COURT . . . AND NEW JERSEY'S CONSTITUTION.
POINT B THE STATE HAS VIOLATED THE SEPARATION OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION HAS BECOME CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANT AUTHORITY TO AN EXECUTIVE OFFICER.
POINT C THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST. A DEFECTIVE ARREST WARRANT ALLOWS FOR [DEFENDANT] TO SUPPRESS THE EVIDENCE THAT WAS A PRODUCT OF THE ILLEGAL ARREST, IT DOES NOT INVALIDATE THE PROSECUTION[']S ABILITY TO CONTINUE ITS PROSECUTION.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
Defendant moved pre-trial to suppress an out-of-court photographic identification and requested a Wade hearing.*fn2
Colloquy between the judge and the attorneys established the basis for defendant's request. See State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.) (holding defendant must make "a threshold showing of some evidence of impermissible suggestiveness in all pre-charge police photographic array identification procedures" before an evidentiary hearing is required), certif. denied, 102 N.J. 335 (1985).
As explained by defense counsel, defendant was initially charged with the robbery of Benny's Mini Market in Paterson based upon a statement given to the police by one Tyvone Harrison. Further investigation revealed that in fact Harrison had falsely accused defendant, leading to the dismissal of the charge against defendant and the conviction of another person for that robbery. However, based upon "similarities" between the two robberies, the police suspected defendant of having robbed Ridges and included defendant's photograph in a photo array they showed to him. Based upon these representations, the judge concluded
[B]ecause of the specific and particular facts of this case and the totality of the circumstances, it could be a situation where there was some suggestibility on the part of the police officers if they believed that [defendant] was involved in the Mini Market robbery . . . [a]nd they saw some similarities between the two [robberies] which led them to believe that [defendant] perpetrated the Ridges robbery, it is conceivable to me that not even intentionally but unintentionally or subconsciously they might have done something to steer . . . Ridges into picking [defendant's] photograph.
The judge granted defendant's request for a Wade hearing.
The State's first witness was Detective Daniel Findlay of the Paterson police department. He testified that on April 8, 2003, Ridges came to the detective bureau pursuant to Findlay's invitation to view some "mug books." Ridges had been the victim of an "armed robbery" shortly after midnight on April 6, and described his assailants as "black male[s]" to the initial investigating officers. Findlay provided Ridges with "ten, twelve" photo albums of "black males" and left him alone "in a room." Findlay testified that after "ten, fifteen minutes," Ridges came out of the room and yelled his name. Findlay went back into the room, Ridges identified a photo of defendant as one of his assailants, and the detective had him sign and date the picture. Findlay then took a formal question and answer identification statement from Ridges.
In that statement, Ridges claimed that defendant was "[t]he one with the gun" during the robbery. When asked, "On a scale of one to ten, with ten being the most certain, are you sure this is the person?," Ridges responded, "Yes, ten." After Ridges had made his identification and left the office, Findlay told a fellow detective who was investigating the Mini Market robbery that "a suspect [had been] identified in [Ridges's] robbery."
On cross-examination, Findlay could not remember discussing the Mini Market robbery prior to Ridges's identification even though he acknowledged that the entire detective squad would hold daily meetings to discuss their open cases with each other. Findlay did not recall ever hearing defendant's name in the context of that investigation. Defense counsel then attempted to ask Findlay a question based upon a police report filed during the earlier Mini Market robbery investigation in February. That report apparently indicated that Harrison had identified defendant's photo as that of the person who perpetrated the Mini Market robbery, and that as a result, defendant's photo was removed from the mug shot book at that time. Although Findlay had no first hand knowledge of the procedure involving Harrison, the judge permitted a question allowing Findlay to state "in generalities how [defendant's] photograph could have been in the book on April 8, 2003 when, according to that report . . . it had been removed in February." Findlay had no explanation other than the possibility that defendant's photo had been replaced in the interim. Findlay also testified that a wanted flyer naming defendant in connection with the Mini Market robbery had been circulated, though Findlay did not recall seeing the flyer before the photo array was shown to Ridges.
The State's next witness at the hearing was Michael Ridges. He testified that shortly after midnight on April 6, 2003, as he exited his car in the parking lot of his apartment building, he was robbed at gunpoint by two individuals. Ridges claimed that one man held a gun to his forehead and demanded his money while a second man was "tugging on [his] back." Ridges ...