May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASAN LABERTH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-3218.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2009
Before Judges Fuentes and Chambers.
Defendant Hasan Laberth was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1.*fn1 The trial court sentenced him to sixteen years in state prison with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed the requisite monetary assessments and penalties.
In this appeal, defendant raises the following issues:
THE DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED BECAUSE HE WAS DENIED THE OPPORTUNITY TO CROSS-EXAMINE THE FORENSIC EXPERT WHO ANALYZED THE FINGERPRINT EVIDENCE AND LINKED THAT EVIDENCE TO THE DEFENDANT. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. 1, PAR. 10.
DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING TO CHALLENGE THE IDENTIFICATION PROCEDURE DENIED DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)
THE TRIAL COURT'S INCONSISTENT AND CONFUSING CHARGE ON ACCOMPLICE LIABILITY DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL BECAUSE IT [DID] NOT ADEQUATELY ADVISE THE JURORS THAT AN ACCOMPLICE COULD BE GUILTY OF A LESSER CHARGE THAN THE PRINCIPAL. U.S. CONST. AMENDS. V, VI and XIV; N.J. CONST., ART. I, PARAS. 1, 9 and 10. (Not Raised Below)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Finding no error, we affirm.
Between 6:00 p.m. and 7:00 p.m. on December 21, 2005, in the City of Newark, Dannton Moore was placing his tools in his truck, having just finished repairing a window in a nearby home. Two men, one wearing a mask, approached him quickly, grabbed him, and demanded money. The man without the mask pushed Moore up against the truck and searched Moore's pockets. The masked man stuffed something in his pocket, pointed it at Moore as if it were a gun, and told Moore to freeze and give them his money or he would shoot. The men took Moore's wallet, cell phone, and keys. They then told Moore to get more money from the house where he had been working, and if he did not come out in five minutes, they would go in shooting. Once inside the house, Moore called the police and then observed the two men ransack the truck, taking his stereo and radar detector. The two men fled before the police arrived.
Since Moore had seen the face of the robber who was not wearing a mask, he was shown approximately 100 photographs at the police station but could not identify the robber from them.
The police gathered four latent fingerprints from the interior of the truck which were then sent to the State Police for processing in the Automated Fingerprint Identification System. Defendant's fingerprints came up as a likely candidate. Detective John Patela of the Newark Police Department compared defendant's fingerprints with those taken from the truck and determined that they matched. The police then told Moore that they had matched the fingerprints and asked him to view more photographs which he did. Moore identified defendant from an array of six photographs, and he identified defendant at trial. The State's evidence connecting defendant to the crime was based on Moore's identification and the fingerprint match. Defendant did not testify or present witnesses at trial.
Defendant argues that the State's failure to produce the expert from the State Police who did the fingerprint comparison violated his right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution; Article I, Paragraph 10 of the New Jersey Constitution; and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004).
We do not find that defendant's constitutional rights to confrontation were violated. The State presented the testimony of Detective Patela who had made his own independent comparison of defendant's fingerprints against those found in the truck and determined that they matched. Thus, the State did not rely on the State Police experts, but rather relied solely on the competency and credibility of Detective Patela when proving the fingerprint match. Defendant had an opportunity to fully cross-examine Detective Patela. We do not see that defendant's right to cross-examination was violated by this testimony.
Defendant contends that his trial counsel provided ineffective assistance because he failed to request a Wade*fn2 hearing. We decline to address this issue now. "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). We have "a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid.
We will address ineffective assistance of counsel claims on direct appeal only when the information necessary to make the decision is already in the record. State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004). For example, we have entertained an ineffective assistance of counsel claim on direct appeal when the issue was raised before the trial court in a motion for a new trial and "the post-trial evidentiary hearing on [the] motion . . . , along with the trial itself, provide[d] an adequately developed record upon which to evaluate defendant's ineffective assistance of counsel claim." Ibid. However, those factors are not present here, and the issue of ineffective assistance of counsel in connection with the Wade hearing is more fairly addressed in post-conviction relief proceedings.
Defendant criticizes the trial judge's charge to the jury, contending that the charge did not clearly convey that defendant could be convicted of second-degree robbery as a lesser included offense of first-degree robbery even if his co-defendant committed a first-degree robbery. We recognize that "appropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). Understandable instructions must be provided on accomplice liability. Id. at 388. In addition, the court must also "carefully impart to the jury the distinctions between the specific intent required for the grades of the offense." State v. Weeks, 107 N.J. 396, 410 (1987). Since defendant did not object to the charge at trial, the plain error standard applies. R. 2:10-2. After a careful review of the charge, we find no plain error here.
Defendant contends that his sentence is excessive. The sentencing range for his conviction of first-degree robbery was ten to twenty years. See N.J.S.A. 2C:43-6(a)(1). He received a sentence of sixteen years, which falls within the middle of the range. His sentence is subject to NERA, so he must serve eighty-five percent of his sentence before being eligible for parole. We find no error in the trial court's assessment of the mitigating and aggravating factors, nor does the sentence shock the judicial conscience of the court. See State v. Cassady, 198 N.J. 165, 180 (2009) (stating that unless a sentence "shocks the judicial conscience," it will be upheld provided that "the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record" (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989))).