On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2346.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Sabatino, J. N. Harris, and Newman.
Defendant appeals from his conviction by a jury of first-degree robbery, N.J.S.A. 2C:15-1. The jury acquitted defendant of third-degree unlawful possession of a handgun without first having obtained a permit to carry, N.J.S.A. 2C:39-5(b), and second-degree possession of a firearm with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a)(1). Defendant also appeals his sentence, claiming it to be excessive. He received a fifteen-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We reverse the conviction and order a new trial due to the cumulative effect of the compounding missteps that occurred in the Law Division that appreciably erode our confidence in the jury's verdict. Significantly, because this case turned primarily upon the strength of the identification of defendant by the victim, we have reservations about the failure of defendant's trial attorney to press for and obtain a Wade*fn1
hearing. Although defendant did not testify in his own defense at trial, he presented an alibi defense and challenged the State's claim that he was present at the time of the robbery. These circumstances, along with multiple potentially problematic identification procedures employed by the police should have triggered the request for such a hearing by defense counsel, unless there was a reasonable strategic reason not to do so. Given our uncertainty as to whether defendant was deprived of fundamental tools necessary to foster an adequate defense, in addition to our apprehension that the trial court may have unintentionally misled the jury during deliberations through an uncorrected slip of the tongue, along with certain inflammatory comments of the prosecutor, we reverse and remand for a new trial.
On May 3, 2006, at approximately 6 a.m., taxicab driver Felix Ortega was radioed by his dispatcher to pick up a passenger at a Bryant Street address in Newark. A man, claimed by Ortega to be defendant Eddie Valentine, was standing in front of the address upon Ortega's arrival.*fn2 Ortega testified, "I managed to see his face." After getting into the back seat of the taxicab from the passenger side and immediately positioning himself behind Ortega, with his left hand remaining in his pocket, the passenger used his right hand to grab Ortega's jacket from behind and pulled Ortega backwards. The man allegedly told Ortega, "I have a revolver, and I want the money you have with you." Believing the man had a weapon in his pocket and "afraid for [his] life," Ortega turned over $70 in cash before the assailant fled the scene. Ortega testified that when he turned over the money, "he [the passenger] was like six or seven inches away, very close," and Ortega was again able to see the passenger, this time from that closer distance. At the trial, Ortega described his attacker as follows:
Q: This person who robbed you, what did he look like?
A: He had a black T-shirt on with yellow gold background and black band on his head.
A: My size more or less, 5'5", 5'6".
Q: Was he skinny or was he fat?
A: I think similar to me, more or less as fat as I am.
Q: Was he white, black, Hispanic, Asian?
A: He had a light skin, Hispanic.
Q: Did he have any facial hair, or how long was his hair on his head?
A: Well, it was short, not very, but it was short.
Q: Did he have any facial hair?
A: He had something. He hadn't shaved in several days.
After the robbery ended and his assailant ran away, Ortega immediately called his dispatcher who in turn called the police. When a police vehicle arrived on the scene, Ortega gave the responding officers a description of the assailant, which was recorded in a police report mentioned during trial, specifically indicating that the attacker was wearing a yellow (not black) shirt.
Ortega was brought back to the local police precinct where he remained for approximately one hour. Finally, Ortega was escorted by the police "downtown to the robbery department." The sequence of events that occurred ...