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State v. Davis

July 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERMAINE DAVIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-04-0454.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2009

Before Judges Lisa and Sapp-Peterson.

Defendant appeals his conviction, following a jury trial and the sentence imposed, for second-degree robbery, N.J.S.A. 2C:15-1(a)(1) and/or (2) and 2C:2-6; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) and 2C:2-6. He was acquitted of first-degree robbery and resisting arrest. Defendant received an aggregate thirteen-year sentence that included imposition of a consecutive sentence and a six-year, eight-month period of parole ineligibility. We affirm.

These are the relevant facts presented to the jury at trial. On November 22, 2006, at 1:49 a.m., Felix Briceno (Briceno) was dropped off at the corner of 18th Street and Park Avenue in Paterson by a friend after working his shift at Toys "R" Us in Flanders. Once dropped off, Briceno intended to purchase wine from a liquor store located within a block of his residence. He planned to celebrate his promotion at work. The liquor store, however, was closed. As he headed in the direction of his home, a hooded man approached and pointed a gun at him. At that point, Briceno was half a block away from his home. The hooded man pointed the pistol at Briceno's head and asked Briceno for his money and cell phone. Two other men approached Briceno. One of the men went through Briceno's pockets. Briceno saw the face of the man who pointed the gun at him. He later described that man to police as having a dark complexion. The men took Briceno's wallet, which contained his money, driver's license and credit card.

As a car approached with its headlights pointed at the robbers, they fled the scene. The robbers ran to the corner of the street and turned right. Approximately one minute later, Briceno observed a police cruiser coming down the street. He flagged the cruiser down, provided a description of his assailants, and pointed in the direction to which they fled. Briceno entered the police cruiser to accompany the police around the area in an effort to locate the suspects. Police also broadcast the robbery over the police radio for other units to be on the lookout for the perpetrators.

Officer Paul Miccinilli and his partner, Detective Tim Tabor, received the dispatch and responded to the area of 16th Avenue and Rosa Parks Boulevard. Based upon his prior experience apprehending suspects hiding in backyards and under cars, he started checking these areas. He saw defendant lying facedown on the ground with his hands underneath him in the backyard of 198-200 16th Avenue. Defendant matched the description broadcast to police, so he was placed under arrest. He struggled with police at that point, but with the assistance of another officer, Miccinilli was able to complete the arrest.

At the time of his arrest, defendant was wearing a "big black" jacket. Police recovered a nine millimeter gun with a defaced serial number from the right front pocket of the jacket. They also recovered Briceno's driver's license and credit card from the left front pocket of the jacket.

Following defendant's arrest, police drove Briceno to the area where defendant was being detained and asked him to look at the detained person and state whether the man was one of the men who robbed him. Briceno, without leaving the police cruiser, identified defendant as the man who pointed the gun at him.

Defendant testified and denied any involvement in the robbery. He claimed that he was robbed by three hooded individuals on November 22. Defendant testified that the men who robbed him forced him into an alley and beat him. He hid until the police found him and arrested him for robbery. Defendant claims the police planted the jacket, gun and other evidence on him.

On appeal, defendant raises the following points for our consideration:

POINT I.

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A WADE*fn1 HEARING TO DETERMINE THE ADMISSIBILITY OF THE OUT-OF- COURT IDENTIFICATION OF DEFENDANT PURSUANT TO A SHOW[]UP PROCEDURE AT THE SCENE OF ARREST, PARTICULARLY SINCE THE VICTIM WAS UNABLE TO MAKE AN IN-COURT IDENTIFICATION AND THERE WERE NO INDEPENDENT GROUNDS FOR THE IDENTIFICATION.

POINT II.

THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW).

POINT III.

THE FAILURE OF THE TRIAL JUDGE TO INSTRUCT THE JURY WITH THE MODEL CHARGE ON CROSS-RACIAL IDENTIFICATION WHERE IDENTIFICATION WAS THE KEY ISSUE IN THE CASE AND THERE WAS INADEQUATE CORROBORATION OR OTHER EYEWITNESS ACCOUNT CONSTITUTED PLAIN ERROR. (NOT RAISED BELOW).

POINT IV.

THE TRIAL COURT ERRED IN FAILING TO MERGE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO THE SUBSTANTIVE THEFT ...


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