November 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY CANTEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-01-0037.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Axelrad, Fisher and Espinosa.
Defendant Anthony Cantey appeals from his conviction and sentence. Following a nine-day trial, a jury convicted him of the lesser-included offenses of second-degree robbery, N.J.S.A. 2C:15-1b, and disorderly persons hindering apprehension, N.J.S.A. 2C:29-3b(4). The court sentenced defendant to an eight-year custodial term with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery conviction and imposed a concurrent six-month term on the hindering apprehension conviction. Appropriate fines and penalties were also imposed.
Defendant asserts the following arguments on appeal:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO STRIKE HIS ALIAS FROM THE INDICTMENT.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
THE TRIAL COURT'S JURY CHARGE ON IDENTIFICATION WAS INADEQUATE AND UNDER THE FACTS IN THIS CASE RESULTED IN PLAIN ERROR (NOT RAISED BELOW).
THE CUSTODIAL BASE SENTENCE OF 8 YEARS IMPOSED ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTION FOR A PRETRIAL WADE HEARING TO DETERMINE THE ADMISSIBILITY OF THE OUT-OF-COURT AND SUBSEQUENT IN-COURT IDENTIFICATIONS OF THE DEFENDANT BY JOSEPH ROBINSON.
We are not persuaded by any of defendant's arguments and affirm.
Joseph Robinson, a Passaic County Community College student, testified that on May 3, 2003, he departed from his house around 7:30 a.m. to take a final exam. Robinson carried a backpack containing his textbooks, a CD player, his passport and some money he planned on depositing. While walking to the Summer Street bus stop, he observed two individuals, later identified as defendant and co-defendant Hakiem Shabazz, walking with a girl on the other side of the street. Before he reached the bus stop, defendant and co-defendant approached Robinson from behind. Defendant called out, "[h]ey, yo" and defendant began to strike Robinson and shove his hands in Robinson's pockets. When Robinson moved to turn and flee, co-defendant was standing right in front of him. Defendant then held Robinson as co-defendant punched him twice in the head. During the assault, Robinson's backpack fell to the ground.
Robinson attempted to flee, observing that defendant had walked around the corner and left the area. Co-defendant, however, chased Robinson and pointed a silver handgun at his head. Robinson heard a click sound, which revealed the gun's chambers were empty. Co-defendant then laughed and fled the area in the same direction as defendant.
Robinson promptly reported the incident to the police but was unable to make any photographic identifications of the assailants. He did, however, provide the police with a detailed physical description and a description of their clothing. According to Officer Brian Dubac, the first actor (defendant) was a black male, around 6' tall, in his mid to late twenties, about 150 pounds, with a scar on the right side of his face. Robinson described the second actor (co-defendant) as Hispanic, light-skinned, about 5'7", 180 pounds, muscular and in his late twenties. Robinson made in-court identifications of both defendant and co-defendant.
Robinson further testified that at around 8:00 p.m. on May 19, 2003, on his way home from church, he observed defendant on a bicycle among other African-American men in the area of Summer and Pine Streets. Robinson called the police who picked him up in a patrol car for the purpose of making an on-the-scene identification. Defendant was 5'11", 150 pounds and matched the description given earlier by Robinson. The police arrested defendant and Robinson made a positive identification.
After his arrest, defendant told Officer Piyush Patel that his name was "Jamal Portis." According to the officer, defendant later told him he had given a false name because he had some outstanding warrants unrelated to this case.
On June 9, 2003, Robinson saw co-defendant sitting on the steps of a house on Summer Street. He called the police and, according to Detective Michael LaGreca, co-defendant was arrested after Robinson made a positive on-the-scene identification of the second attacker.
Defendant presented the testimony of Andrew Frampton, the stepfather of his girlfriend. Frampton testified that defendant lived in his household and worked for him at Dumont Rentals on a 7:00 p.m. to 7:00 a.m. shift for a six month period. He recalled defendant taking a bus home from work on May 2, 2003 between 7:00 a.m. and 7:15 a.m. No records were produced to verify defendant's work schedule at that time.
Tia Plummer, co-defendant's girlfriend, and her mother, Sharon Thomas, testified on behalf of co-defendant. Plummer testified that on the morning of the Robinson incident, she and her mother had bailed co-defendant out of jail at 4:00 a.m., after which she alleged that he slept from 5:00 a.m. until noon. Thomas' testimony was consistent with that of her daughter.
Though defendant was charged with first-degree robbery and third-degree hindering apprehension, the jury convicted him of the lesser-included offenses of second-degree robbery and disorderly persons hindering apprehension. Co-defendant was convicted of the majority of the charges against him.*fn1
We first address defendant's last argument, namely, that the trial court committed reversible error by denying his motion for a pretrial Wade*fn2 hearing to determine the admissibility of the out-of-court identifications of defendant and co-defendant made by Robinson. According to defendant, the trial court determined that an evidentiary hearing was unnecessary solely because the identification was not initiated by the police. Defendant argues the court did not properly consider whether the reliability of that evidence was called into question by evidence of "highly suggestive words or conduct by [a] private actor [like Robinson] that pose a significant risk of misidentification." State v. Chen, 402 N.J. Super. 62, 82 (App. Div. 2008), certif. granted, 197 N.J. 477 (2009).
Defendant's assessment of the record is inadequate. Following a colloquy with co-defendant's counsel, the trial court denied a testimonial evidentiary hearing not only because of the lack of police involvement, but also because the defense failed to make an adequate proffer of undue suggestiveness in the identification process. As the court noted, a Wade hearing is not required in every case involving identification testimony. See State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd, 135 N.J. 3 (1994). To be entitled to a Wade hearing, a defendant must make a showing that the out-of-court identification process was "impermissibly suggestive." State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). The sole basis for defendant's Wade hearing request was the general assertion that the victim was unduly influenced by his viewing of photographs in police headquarters several weeks before he identified co-defendant, which the court properly concluded was inadequate under State v. Ortiz. There was no evidence that either defendant's or co-defendant's photograph was in the array.
We are similarly not persuaded by defendant's attempt on appeal to analogize his circumstances to those of the later-decided Chen. We found highly suggestive conduct in Chen where the witness identified the defendant after she was shown photographs of the defendant by her husband and sister, the witness' husband likely told her he suspected the defendant, the witness had initially been uncertain that the defendant was the perpetrator, and the witness' sister subsequently altered a photograph of the defendant to show how she would look wearing the type of eyeglasses described by the witness. Chen, supra, 402 N.J. Super. at 85.
Here, defendant's sole proffer of suggestiveness is Robinson's post-robbery inquiry of neighbors and friends from which he determined that defendant and co-defendant lived in the area where he subsequently made his identifications. This evidence falls far short of such "highly suggestive words or conduct" that "pose a significant risk of misidentification" to warrant a preliminary hearing under Chen, supra, 402 N.J. Super. at 82. Shortly after the incident, Robinson provided the police with detailed physical descriptions of the assailants based on his first-hand observation. Weeks later, the victim saw and recognized defendant, who was near a group of males on the street. This prompted him to contact the police and lead them to defendant. Defendant's physical characteristics matched the description the victim had given to the police weeks earlier. Thus, the evidence strongly supports the conclusion that the victim's identification is based on his own observations and perception, and not the product of undue suggestion.
Defendant also unpersuasively argues that the court's denial of his motion to strike the alias "Jamal Portis," which defendant had given to the police when he was arrested, and which appeared on his indictment, constituted reversible error. We have held that the "admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998) (citations omitted). All in all, defendant has failed to show any tangible form of prejudice that could be attributed to the use of the alias. The alias is benign and was merely used by defendant to identify himself. It is without dispute the name was not pejorative, nor was it presented to the jury in any way tending to show gang affiliation. Moreover, the record reveals that it was defense counsel who elicited testimony regarding defendant's use of the alias, asking Officer Patel in cross-examination whether it was true that "the reason why [defendant] told you that he gave you a false name was because there [were] some warrants out for him[.]" Furthermore, the jury was properly instructed that the "[i]ndictment is not evidence of the defendant's guilt on any charge stated in it."
Defendant asserts, as plain error, that in the following comments during summation, the prosecutor improperly vouched for the credibility of the victim by arguing he was not the type of person who would identify an innocent man:
[Prosecutor:] What does ring true, though? And time and time again, it was hit upon and it never wavered -- was Joseph Robinson. Perfect crimes are committed when the victims fail to testify. This was not the case here. This victim came forward and [said], I want you to hear me. I want my version to come out in font of you. I want to be heard. I want to be believed when I say it's this man and this man. And I'm not afraid of your stares and I will face the questions. And he did that time and time again.
And what type of person is Mr. Robinson? . . . Was he articulate? He was very articulate. He was very intelligent and concise. Was he quiet? He was very quiet. He was gentle. He was unassuming. He was on that stand and many times, we had to say to him, can you speak up? Can you speak up? Remember, the whole even race thing bothered him. He didn't want to say the word. And it took me, with some real prodding, listen, you can say it, we're on trial here. But he is gentle, quiet, articulate, polite person, soft-spoken.
But regardless of his demeanor, what about how he answered the questions? He was matter-of-fact. He was non-evasive. He didn't try to evade any question. And many times during cross-examination, he searched for the answers. You saw him. No. Yes. That's him. I don't remember saying that. He was searching for the answer. He answered every question. I don't think there was a question that he didn't answer or said anything but what was contained in Dubeck's report, the arrest report, the other arrest report, at Grand Jury and at trial. His ID, besides from the manner and how he answered the questions, was unwavering.
He was a hundred percent positive, he was a hundred percent sure the day --counsel had gone into this on closing. The day of -- counsel said, Passaic Police, they arrested a man and it wasn't in the reports. . . . And do you know why that guy was let go? That guy was let go because Joseph Robinson said to let him go, that's not the man. They let a man who did not commit the crime go that day. It was not in the police reports, but Joseph Robinson testified to it. It was done in cross-examination. Counsel addressed it closing. And, yes, that man did exist and he was let go because he wasn't involved.
Do we know that man's identity? No. But we have Joseph Robinson that day, after he's assaulted, he's punched on the . . . left side of the face, he's threatened with a gun, and before he goes to the hospital, before he's treated, he is brought to a person and he goes, that's not him, and they let an innocent man go. Because Joseph Robinson is not that type of person. Joseph Robinson saw what he saw. He was there. He will never forget that day.
Why would when he's still injured and before he's gone to the hospital, he's going through police report -- I mean, the photos. And we can say, literally, hundreds of photos of Hispanic males and black males and he doesn't pick anybody out because that's not Joseph Robinson. Joseph Robinson is not going to pick out somebody that was not involved.
"[P]rosecutors . . . are expected to make vigorous and forceful closing arguments to juries[,]" State v. Frost, 158 N.J. 76, 82 (1999), and are afforded "considerable leeway" in their remarks, State v. Smith, 167 N.J. 158, 177 (2001). "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). To warrant reversal, the prosecutor's comments must be "so egregious that [they] deprived  defendant of a fair trial." Frost, supra, 158 N.J. at 83. Here, we discern no impropriety in the prosecutor's summation, let alone an error "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).
The prosecutor made cogent, reasonable arguments to the jury regarding Robinson's credibility, and limited his remarks to the evidence presented at trial. In his opening statement, the prosecutor urged the jury to evaluate the credibility of the victim based on recognized credibility factors, such as the ability to view his assailants, the lighting conditions, and the ability to recall. In summation, the prosecutor emphasized that the victim took seriously his effort to correctly identify a suspect, and did not do so carelessly or hastily. Specifically, the prosecutor addressed details of the victim's demeanor, character traits (articulate, intelligent, quiet, unassuming), how he answered questions (not evasive, unwavering on identification), and the fact he had told police that another man they had arrested was not his attacker and had not picked out anyone from photo arrays as support for the credibility of his immediate and spontaneous identification of defendant when he saw him on the street. Nothing in the prosecutor's comments suggested he possessed knowledge of the victim outside of the evidence or that there was proof of defendant's guilt that was not presented in evidence.
Defendant also challenges as plain error the jury charge on identification. We discern no basis for reversal as the trial court gave the model jury charge in effect at the time. Defendant is not entitled to a retroactive application of State v. Romero, 191 N.J. 59 (2007), which post-dates this trial by over a year. In Romero, the Supreme Court held that the out-of-court identification charge should be refined and additional language should be included regarding eyewitness identification, but it applied the new language prospectively, expressly finding the "present model charge on out-of-court identifications adequately cautions juries. . . ." Id. at 63, 75.
Lastly, defendant challenges his sentence as excessive, contending the court erred in failing to find any mitigating factors. Our review of a trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). Appellate review of a sentence is restricted to whether the determination of the sentencing factors was appropriate, whether that determination was supported by competent evidence in the record, and whether the sentence is so clearly unreasonable that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984); State v. O'Donnell, 117 N.J. 210, 215-16 (1989). We are satisfied the trial court's findings on the aggravating and mitigating factors were supported by the record and the trial court properly followed and applied the sentencing guidelines and criteria. We do not find the sentence manifestly excessive or unduly punitive.