On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. No. 02-05-1845.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
In the first of these back-to-back appeals, A-6501-05T4, defendant David Minor was tried to a jury and found guilty of first degree robbery, contrary to N.J.S.A. 2C:15-1, third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b), and second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). Defendant was sentenced to concurrent sentences aggregating twenty years with a parole ineligibility period of eighty-five percent pursuant to the No Early Release Act (NERA).
The facts as testified to at defendant's trial were as follows. At about 8 p.m. on January 11, 2002, Lidwyn Cummings was the victim of an armed robbery after he left a drugstore at the corner of Stuyvesant Avenue and 18th Avenue in Newark. As he walked from the drugstore to his pickup truck, Cummings noticed a man walking across the street heading in the same direction. After Cummings put his key into the truck door, the man pressed a chrome handgun to his side and demanded money. When Cummings replied that he had no money, and the man then threatened him saying, "Give me your fucking money or else I'm going to pop you one." Cummings then turned over $20 in cash and the pack of cigarettes he had just purchased. The robber then demanded that Cummings give him his wallet and the keys to the truck. The perpetrator took money from the wallet and threw the keys in a lot across the street. He then headed on foot down Valley Street.
Cummings retrieved his keys and drove to a Newark police substation to report the incident. A formal typed statement was later taken from Cummings by Detective Michael Chirico. Cummings described the man at about five feet, eight inches tall, weighing about 150 pounds, between twenty-three and twenty-five years old, and wearing a black hooded sweater, grey pants and a cap. Cummings later testified that the lighting conditions were good when he made his observations because of three streetlights in the immediate area. Cummings told Detective Chirico that he would be able to identify the individual who robbed him.
Two days later Cummings returned to the police station and reviewed photographs in six large mug books but did not recognize anyone as the person who robbed him. On January 16, 2002, Cummings returned and viewed a six-photo array, which included defendant and persons looking similar to defendant. Cummings selected a photograph of defendant David Minor and said that he was "really sure" he was the perpetrator who robbed him.
At trial the assistant prosecutor asked Cummings whether he could make an in-court identification, and the following colloquy took place:
Q: I'm going to ask you to look around the courtroom at anyone in here. And I'm going to ask you if you can recognize anyone here or recognize the person who did this to you? Look around the whole courtroom.
A: I'd say that gentleman over there.
Q: Okay. You're pointing to the man sitting here. What is he wearing, sir?
Q: Alright. How positive are you, sir, that he is the person who robbed you?
A: This happened over a year ago... So the memory-but from remembering back, I would say about 80 percent.
A: I'm not going to say I am 100 percent certain now because this happened a way back.
Q: Well, how positive are you today that the person sitting in court is the person who did this?
A: I'd say about 80 percent.
Q: Alright. How about when you picked the picture out?
A: I was-then it was much fresher.
Q: Now you said that when you picked this picture out the image of the person who did this to ...