On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-07-1699.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Argued September 29, 2008
Before Judges Carchman, R. B. Coleman and Simonelli.
A grand jury indicted defendant Jose Perez for first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). A jury acquitted defendant on count one of first-degree robbery and of the lesser included offense of second-degree robbery. It convicted him on counts two and three. The trial judge sentenced defendant on count three to a mandatory extended eighteen-year term of imprisonment with a five-year period of parole ineligibility under the Graves Act,*fn1 and to a concurrent five-year term of imprisonment on count two. The judge also imposed the appropriate assessments and penalty.
On appeal, defendant raises the following contentions:
THE DEFENDANT'S CONVICTION ON COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED SINCE THIS CONVICTION IS INCONSISTENT WITH THE ACQUITTALS FOR FIRST AND SECOND DEGREE ROBBERY AND INSUFFICIENT EVIDENCE [EXISTS] TO SUSTAIN THIS CONVICTION; THE CONVICTION MUST BE REVERSED UNDER STATE V. JENKINS, 234 N.J. SUPER. 311 (APP. DIV. 1989) AND STATE V. TURNER, 310 N.J. SUPER. 423 (APP. DIV. 1998) AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL IN FAVOR OF THE DEFENDANT AS TO ALL OF THE COUNTS AS THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION
THE TRIAL JUDGE ERRED IN REFUSING TO CHARGE THE JURY AS TO CROSS-RACIAL IDENTIFICATION IN VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL
THE TRIAL COURT SHOULD HAVE EXCLUDED THE IN-COURT IDENTIFICATION OF THE WITNESSES AS THAT IDENTIFICATION WAS TAINTED BY AN UNDULY SUGGESTIVE OUT-OF-COURT IDENTIFICATION PROCEDURE IN WHICH DETECTIVE GLOVER 1) UTILIZED ONLY A SINGLE PHOTOGRAPH OF THE DEFENDANT; 2) WAS THE SAME DETECTIVE WHO CONDUCTED THE INVESTIGATION; AND 3) NEVER ADVISED THE WITNESSES THAT THE PHOTOGRAPH MAY NOT BE THE ACTUAL SUSPECT ALL IN CONTRAVENTION OF THE ATTORNEY GENERAL'S GUIDELINES FOR EYEWITNESS IDENTIFICATION PROCEDURES (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) ART. I, PARA. 10)
THE TRIAL COURT ERRED IN ADMITTING ALL THREE PRIOR CONVICTIONS OF THE DEFENDANT FOR IMPEACHMENT PURPOSES.
THE DEFENDANT'S STATE DISCOVERY AND DUE PROCESS RIGHTS WERE VIOLATED BY THE STATE MANDATING A REVERSAL OF HIS CONVICTIONS (U.S. CONST. AMENDS. VI AND XIV; NEW JERSEY CONST. OF 1947, ART. I, PAR. 10).
THE DEFENDANT'S EXTENDED SENTENCE MUST BE VACATED AS HE WAS INELIGIBLE FOR AN EXTENDED TERM UNDER THE GRAVES ACT (N.J.S.A. 2C:44-3D).
THE DEFENDANT'S EXTENDED TERM SENTENCE IS ILLEGAL AND VIOLATIVE OF DEFENDANT'S DUE PROCESS AND SIXTH AMENDMENT JURY TRIAL RIGHTS; NEW JERSEY STATE CONSTITUTIONAL RIGHT TO NOTICE AND INDICTMENT (N.J. CONST. ART. I, ¶ 8); APPRENDI, BLAKELY, NATALE AND PIERCE; THE DEFENDANT MUST BE RE-SENTENCED TO TIME SERVED.
We affirm defendant's conviction sentence, except for the period of parole ineligibility, which shall be amended to a six-year period of parole ineligibility on count three as required by N.J.S.A. 2C:43-7c.
The following facts are summarized from the record. On December 23, 2004, at approximately 10:45 a.m., Kyung Kim and her husband, Kynom Kim, were working in their jewelry store on Halsey Street, Newark. An Hispanic male in a black hat and black jacket, later identified as defendant, entered the store, removed a gun from his pocket, pointed it at Kynom and said, "hold up, give me the money." Defendant moved toward Kynom and told him to "move back."
Kyung, who was on the telephone at the time defendant entered the store, held the phone up over her head and waved to attract the attention of a person in a store across the street. Defendant grabbed the phone from Kyung and threw it to the floor. Kyung continued waving her empty hand at the person across the street, at which point defendant covered her mouth with his hand and hit her in the head. With the gun still in his hand, defendant grabbed Kyung around the neck and pulled her to the floor. Kyung was shaking and said she felt like she was "dying."
Min Kim*fn2 was in the bathroom in the store across the street. As she came out of the bathroom, her brother, who saw Kyung waving her hands, told Min to call the police. Instead of calling the police, Min ran to Kyung's store. When Min entered the store, she saw Kyung on the floor with defendant standing over her and she saw Kynom standing by the stock room door. Defendant had a goatee, clear, light skin and was dressed in a dark jacket and skully hat.
As Min called out to Kyung, defendant walked slowly toward her with gun pointed. Min believed that she "was going to die," and "was very scared." She looked to the ground and "moved to the side thinking that [defendant] would just leave." Defendant stood in place for a few seconds and then left the store. Min saw defendant go left upon exiting the store and "[she] just ran outside and . . . screamed out that [defendant] had a gun." Min then re-entered the store to check on Kyung.
Detectives Darren Gilbert and Ronald Glover of the Newark Police Department were on routine patrol in plain clothes and an unmarked police vehicle in the vicinity of Halsey Street. As they turned on to Halsey Street they saw defendant running out of a store and another individual behind him. Gilbert heard people yelling and saw defendant with what appeared to be a handgun in his right hand.
Gilbert exited his patrol car and chased defendant while Glover drove around the block to cut off defendant's escape from the opposite direction. Gilbert chased defendant onto Bank Street, where he and Glover converged on defendant with weapons drawn. Gilbert identified himself as a police officer and ordered defendant to stop and drop to his knees. According to Gilbert, defendant did not obey and "walked a couple of feet and threw the gun under a car that was parked on the . . . right-hand side of the street." The gun was a 9-mm semi-automatic Makarov pistol. The detectives were then "able to subdue [defendant] without any further complications."
About two hours later, Glover interviewed Kyung and Min at police headquarters. After Kyung and Min said they could positively identify the perpetrator if they saw him again, Glover showed them a photograph of defendant taken at the time of his arrest. Kyung and Min ...