January 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE SMITH, JR. A/K/A LARRY SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-0710.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 7, 2009
Before Judges Stern and Waugh.
Defendant appeals from a judgment of conviction with an extended term sentence of eighteen years to the New Jersey State Prison (technically to the custody of the Commissioner of the Department of Corrections, see N.J.S.A. 2C:43-10a), with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for robbery and concurrent sentences for possession of CDS and obstruction of justice. The judgment followed a conditional guilty plea which preserved review of the pretrial rulings including one admitting the identification testimony. See R. 3:9-3(f). Defendant challenges that ruling which admitted the identification of defendant by the victim, Mariela Mosquera. He also claims the extended term sentence of eighteen years was excessive.
The perpetrator grabbed the victim's purse after she cashed a check in order to pay her rent. According to Ms. Mosquera, as she was walking down the street, defendant approached her from the opposite direction and started to pass "close to" her on her left side. She expected "something wrong" might happen to her, and she held on to her purse "hard." Defendant grabbed her purse and started to "swing [her] side to side." One of the straps on the purse ultimately broke, as Ms. Mosquera fell to the pavement, and defendant ran away. Mosquera signaled for help, tried to stop a truck, yelled for assistance, and was helped by a man with a cell phone who called 9-1-1.
Ms. Mosquera described her assailant as a black man wearing a white shirt and green pants. Patrolman Alan McKay arrived at the scene about ten seconds after the dispatch because he was "maybe two blocks away at the time, heading in that direction." He then drove in the direction the perpetrator was headed, and spotted the defendant, who was wearing a white shirt and green pants. He matched the perpetrator's description as given to McKay, and was about 150 feet from the scene of the robbery. Defendant was arrested after a chase by police and struggle when he tried to jump a fence. Ms. Mosquera's purse was found about "three to four feet from where he was tackled."
The victim was taken to the scene where defendant was apprehended, and a positive identification was made about fifteen minutes after the robbery occurred, while defendant was "standing up between two policemen," with his hands behind his back and Mosquera was in a patrol car. Cash and the victim's paycheck stub were found in defendant's right front pocket after his arrest.
It is clear that defendant seeks reconsideration of our law concerning showup identifications. However, as an intermediate appellate court, we must adhere to the law as established by the Supreme Court.
In State v. Herrera, 187 N.J. 493 (2006), the Supreme Court recently concluded that a "show-up procedure was impermissibly suggestive," but that "because the victim's identification of defendant was reliable it was properly admitted at trial." Id. at 495-96. In that case police asked the victim "to go to the police station to identify the man who attacked him." Id. at 497. However, as defendant had been taken to the hospital, the victim was then taken there. He identified defendant who was alone in the emergency room with two nurses and two police officers. Ibid.
Defendant makes the argument that defendant failed to make in Herrera before this court. Id. at 499. He points to DNA studies and other cases which exonerate defendants who were convicted based on eyewitness testimony. He argues that because showups are inherently suggestive, they should be admissible only if made in exigent circumstances and fairly conducted. In other words, there has to be "lack of probable cause to arrest" and no ability to conduct a photo or corporeal line up procedure.
In Herrera, the Supreme Court held that "[i]n the absence of a [proper] record, and in light of [its] consistent application of federal constitutional precedent in deciding the admissibility of identification evidence," the Court would not "adopt a new standard under our state constitution." Id. at 501. The Herrera Court then described the governing federal constitutional test and its adherence to that standard:
In sum, the Supreme Court's two-step analysis requires the court first to ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable. The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification.
Our Court has consistently followed the United States Supreme Court's analysis in determining the admissibility of out-of-court and in-court identifications. State v. Madison, 109 N.J. 223, 233, 536, A.2d 254 (1988). Until we are convinced that a different approach is required after a proper record has been made in the trial court, we continue to follow the Supreme Court's approach. [Id. at 503-04.]
In Herrera, the Court further noted that "one-on-one showups are inherently suggestive" but that "[o]ur case law recognizes ... that standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Id. at 504. Because the police told the victim they had the perpetrator in custody, the Court concluded:
... that in combination with the suggestiveness inherent in a showup, the added comments by the police rendered the showup procedures in the out-of-court identification of defendant impermissibly suggestive. Those comments made by the police to the victim were inappropriate because they may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit. See, e.g., [**185] United States v. Thai, 29 F.3d 785, 810 (2d Cir.), certif. denied, 513 U.S. 977, 115 S.Ct. 456, 130 L.Ed. 2d 364 (1994).*fn1
[Id. at 506 (footnote omitted).]
However, after evaluating "the totality of circumstances surrounding the identification procedure" and weighing the Manson factors, "against the corrupting effect of the suggestive procedure," id. at 506-07, quoting State v. Madison, supra, 109 N.J. at 240, the Herrera Court was "satisfied that the identification procedure was reliable and did not result in a substantial likelihood of misidentification. Id. at 509. The out-of-court identification was therefore properly admitted.
Ms. Mosquera struggled with defendant when he grabbed her purse. The judge found her to be vigilant in anticipation of such an occurrence. Moreover, she gave an accurate description of the perpetrator's race and the clothing he wore. Furthermore, the victim's purse was found on the ground near where defendant was arrested, and her pay-stub was found in his pocket. Accordingly, we cannot upset the trial court's finding upholding the admissibility of the identification testimony, State v. Locurto, 157, N.J. 463 (1999), and affirm the order admitting the identification testimony substantially for the reasons stated by Judge Edward M. Coleman in his oral opinion of January 2, 2007.
Defendant acknowledges that "an extended term [was] mandatory" under N.J.S.A. 2C:43-7.1(b), but he objects to one at the high end of the range because he was already being punished for his record and by the required NERA term. He also asserts that, once an extended term was imposed based on defendant's record, the focus should have been on the offense, that no harm was intended, and no violence was involved. N.J.S.A. 2C:44-1b(1)(2). However, we conclude that the sentence cannot be disturbed under our scope of review. See State v. Pierce, 188 N.J. 155, 170-71 (2006); State v. Roth, 95 N.J. 334, 363-64 (1984). This defendant had previously been sentenced to an extended term, and had more than the minimum number of convictions required for the mandatory extended term, so deterrence was particularly significant. Moreover, there was a physical struggle resulting in the victim falling to the ground.
The judgment is affirmed.