On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-09-1781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 19, 2008
Before Judges Cuff and Baxter.
A jury found defendant Willie J. Gordon guilty of third degree burglary, N.J.S.A. 2C:18-2 (Count One), and third degree theft by unlawful taking, N.J.S.A. 2C:20-3a (Count Two). The judge imposed a discretionary extended term of ten years imprisonment with a five-year parole ineligibility term for burglary and a concurrent five-year term for theft. The appropriate fines, penalties and assessments were also imposed.
On June 18, 2005, Anna Bryja drove to St. Mary's Cemetery in Saddle Brook to visit her father's grave. She parked her Toyota Corolla on a small street approximately sixty feet from the grave. She brought candles to leave by the tombstone. Because the candles were heavy, she left her purse in her locked car.
Ciro Giue was also at the cemetery that day. He arrived at approximately 11:45 a.m. to visit the graves of his grandfather and other family members, parking his car near one of the entrances to their mausoleum. As Giue turned the corner of the mausoleum, he heard the sound of breaking glass and saw a black male standing between two parked cars. The driver's side window of the Corolla was shattered and glass was lying in the street. The man observed by Giue was walking towards the Corolla. The car closest to Giue was a Pontiac Grand Am.
According to Giue, the male walked over to the driver's side of the Corolla, pulled the door open, reached into the car and removed something. The man then spun around in Giue's direction and suddenly Giue and the man stood face-to-face, five feet apart. Realizing he was observing a burglary, Giue yelled for the man to stop. The man paused for a moment, allowing Giue to see that he was clutching a woman's purse. The man then ran toward the Grand Am, jumped into the driver's seat, and drove off. As Giue ran after the Grand Am, the man turned and smiled. The vehicle turned right out of the cemetery toward the town of Garfield. Giue obtained the license plate number and recorded it on the palm of his hand.
Giue called the Garfield Police Department on his cell phone and alerted them to the burglary. He provided a description of the man, his car, its license plate number, and direction of travel. Meanwhile, other mourners at the cemetery alerted Bryja to the incident. She walked over to her car and saw the broken driver's side window. Her purse, which contained approximately $600 in cash, her cell phone, credit cards, her driver's license, and other documents, was missing.
Detective John Fontana of the Saddle Brook Police Department was already at the cemetery due to prior burglary and theft complaints. When he was informed of the burglary, he and Detective Jeffrey Panagia responded in an undercover vehicle. When the officers arrived at the mausoleum, Giue provided Fontana with a description of the suspect and his car. After this brief interview, Fontana, accompanied by Panagia, left the cemetery in an effort to locate the suspect. Their search was unsuccessful. Meanwhile, they checked the license plate number provided by Giue and discovered that it belonged to Azalie Gordon of 712 E. 27th Street in Paterson. The make and model assigned to the plate number matched Giue's information.
Detectives Fontana and Panagia drove to Paterson to attempt to locate the car or stake out the address associated with the plate number. Before setting up surveillance, Fontana contacted the Paterson Police Department to advise them of the situation and arrange for back-up if necessary. Twenty minutes later the detectives arrived at the Gordon home and parked their unmarked car on the opposite side of the street, five or six houses from the Gordon home. About five minutes later, Detective Thomas Johnson of the Saddle Brook Police Department also arrived on the scene.
About ten minutes later, the Grand Am arrived. It drove down the block, past the Gordon home. Both undercover cars followed the Grand Am. Fontana was about to contact the Paterson Police Department about stopping the Grand Am when it pulled into a gas station. Panagia followed, parking the undercover car behind the Grand Am. Fontana, wearing his badge on a lanyard around his neck, walked up to the Grand Am, identified himself as a police officer, ordered the driver out of the car and arrested him. A cursory search of the driver and the car revealed nothing of evidentiary value. The driver was transported to the Saddle Brook Police Headquarters by the Paterson police.
Following the arrest, Giue returned to the Saddle Brook Police headquarters. There he was shown six photographs twice. Each time the detective on duty presented the photos in different order. In both instances Giue identified the photo of the driver of the Grand Am who was arrested at the gas station in Paterson as the man he encountered in the cemetery. Giue told the detective he was "very sure" the person depicted in the photograph marked "S-6-D" was the person he saw at the cemetery. Giue confirmed the photo identification at trial, telling the jury that defendant was the man he saw burglarizing the Corolla at the cemetery.
On appeal, defendant raises the following arguments:
The identification charge was insufficient ...