April 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD FASULKA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. I-76-07-0827.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Wefing, Grall and Messano.
Tried to a jury, defendant was convicted of robbery, robbery while armed, and assault with a dangerous weapon. He was sentenced to an aggregate term of seven years in prison, with no period of parole ineligibility. Defendant has appealed from his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand the matter to correct the judgment of conviction.
The incident which gave rise to the charges against defendant occurred in 1976, as did his trial. Defendant absconded following the return of the jury's verdict of guilty, and he was not apprehended for approximately thirty years. The judgment of conviction from which he appeals was thus not entered until 2008.
In the late afternoon of July 1, 1976, two men, both armed with guns, entered S & S Factory Outlet in Garfield. The owner of the store, Onofiro Spoto, was behind the counter. He later described one of the men as having dark hair and a beard, the other light hair, no beard but a mustache. Spoto said both men pulled their guns on him, telling him not to move and that the light-haired man with the mustache took the money that was in the cash register and in Spoto's pockets and wallet, nearly $400 in all. The men told Spoto to go into the bathroom and not to move; they also pulled the wire from the phone. When Spoto heard the door to the store close, he left the bathroom and grabbed the gun he kept beneath the counter and ran out of the store. He saw two men walking down the street and cried out, "Halt," and fired his gun over their heads. One of the men fired back at him. Spoto took cover behind a car and fired two more shots in their direction as the men ran toward River Road. The police arrived in response to this exchange of gunfire.
A number of the police, hearing that the two men at whom Spoto had fired had headed toward the Passaic River, did as well. They found two men, one with a beard and one with a mustache, standing in the water. The two men, later identified as defendant and his co-defendant Frank Ammiano, were placed under arrest. There was testimony that they questioned why they were being arrested since they had only been swimming in the river. The two had no money or weapons in their possession at the time.
A scuba team returned to the river the next day, when the tide was low. They discovered two guns in the river. A subsequent ballistics test matched a bullet recovered from the store with one of the weapons recovered from the river.
The police did not take defendant and Ammiano immediately back to Spoto to see if he could identify them. Rather, they were taken to police headquarters for processing. Later, Spoto identified the two men from a photo array. He also identified them at trial as the two men who had robbed him at gunpoint.
Both defendant and Ammiano testified at trial, and both denied any involvement in the robbery. Defendant said that he and Ammiano had run several errands together that day and then visited with a friend in the afternoon. After leaving that friend, they were walking along River Road when the police stopped them. He said that when Ammiano asked why they had been stopped, one of the officers hit Ammiano with the butt of his gun. He said he was never in the river that day, did not know Spoto and had never been in S & S. Ammiano testified that one of the officers hit him with the butt of his gun and that he slipped, and fell into the water.
On appeal, defendant raises the following contentions for our consideration:
THE TRIAL COURT ERRED IN PERMITTING THE OUTOF-COURT IDENTIFICATION AND IN-COURT IDENTIFICATION TESTIMONY OF THE VICTIM SINCE THE IDENTIFICATIONS RESULTED FROM AN IMPERMISSIBLY SUGGESTIVE IDENTIFICATION PROCEDURE.
A. FACTUAL INTRODUCTION
B. THE TRIAL COURT ERRED BY PERMITTING THE PHOTOGRAPHIC IDENTIFICATION TESTIMONY OF ONOFIRO SPOTO SINCE IT RESULTED FROM AN IMPERMISSIBLY SUGGESTIVE IDENTIFICATION PROCEDURE, WHICH NECESSARILY TAINTED HIS SUBSEQUENT IN-COURT IDENTIFICATION OF THE DEFENDANT.
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT III CHARGING ASSAULT WITH A DANGEROUS WEAPON PURSUANT TO N.J.S.A. 2A:90- 3 WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW)
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (PARTIALLY RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO DELETE ANY REFERENCE TO THE IMPOSITION OF FINES SINCE NO FINES WERE IMPOSED BY THE COURT AT SENTENCING SINCE THE OFFENSES RELATED TO TITLE 2A AND NOT TITLE 2C.
In our judgment, defendant's contentions do not require extended comment. Prior to the trial getting under way, the court held a Wade hearing to determine the admissibility of Spoto's identification of defendants. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967). Spoto testified at that hearing that he went to the police station on the evening of July 1 and looked at six Polaroid photographs. He selected a picture of defendant and a picture of Ammiano and signed and dated the photographs; he also placed an "X" on the front of each. Of those six photographs, only one depicted a man with a beard and only one depicted a man with light brown hair.
The following day, Spoto returned to the police station and was shown an additional array. This one included the siX photographs he had seen the previous day and ten additional photographs. These latter were all mug shots, and none of the pictures bore any real resemblance to either defendant or Ammiano. Spoto again selected the two pictures he had picked out the day before.
Spoto identified defendant and Ammiano at the Wade hearing. He was asked whether this identification was based upon the photographs he had seen or what had happened in the store. He answered, "What happened within my store." He said the store had been well lit at the time. He was not certain how long the robbery took, but estimated it was more than half a minute. The trial court held Spoto's identification to be admissible at defendant's trial.
The trial court's determination on whether an identification is admissible is entitled to great deference and "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v.
Adams, 194 N.J. 186, 203 (2008) (permitting in-court identifications despite suggestive photo array because under the totality of the circumstances, including that the victims had an opportunity to see suspect in clear light and the identification took place shortly after the crime, the identifications were reliable).
There is a two-part test to determine whether the identification violates due process: (1) whether the pretrial identification procedure was impermissibly suggestive, and if it was, (2) whether the suggestiveness resulted in "a very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)).
The question is thus whether under the totality of the circumstances the identification is reliable even if the procedure was suggestive. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed. 2d 401, 411 (1972). The United States Supreme Court listed factors in determining reliability: "[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Ibid. In Neil, supra, even though the line-up for identification of a rapist was suggestive, the victim's identification was permitted because she had adequate opportunity to observe her assailant in the light. 409 U.S. at 200-01, 93 S.Ct. at 383, 34 L.Ed. 2d at 412. Unless there is "a very substantial likelihood of irreparable misidentification" the identification and its suggestiveness are a jury question, and should not be excluded. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed. 2d 140, 155 (1977) (quoting Simmons, supra, 390 U.S. at 383, 88 S.Ct. at 971, 19 L.Ed. 2d at 1253 (1968)); accord State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973).
Reliability is the linchpin in determining whether an identification is admissible. Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154. Our Supreme Court has been consistently vigilant in attempting to assure the reliability of identification procedures the police use. State v. Herrera, 187 N.J. 493 (2006) (promulgating the Attorney General's "Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures"); State v. Henderson, N.J. Supreme Court Order No. A-8-05 (Feb. 26, 2009) (remanding the matter to the trial court for a plenary hearing "to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability remain valid and appropriate in light of recent scientific and other evidence.") Neither party has suggested to us that the Attorney General's guidelines, adopted thirty years after Spoto reviewed the two photo arrays, bear upon the analysis of this issue.
A court should determine whether the in-court identification is based on the witness's observations at the time of the crime, or impermissible suggestions from the police/photos. State v. Orlando, 269 N.J. Super. 116, 125 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994), accord Wade, supra, 388 U.S. at 240, 87 S.Ct. at 1939, 18 L.Ed. 2d at 1164. Here, the trial court considered the reliability of the identification and made the following finding:
I also find as a result of this hearing that this case, and I as a factfinder, as shown by clear producing evidence [sic],*fn1
that there was a witness here who had plenty of opportunity. His statements on the witness stand, I'll never forget that. I've never been held up. When I see somebody behind the counter, I don't forget faces, and I asked that question. There was something there.
Examining the Neil factors leads to the conclusion the identification here was reliable, even if the photo array was impermissibly suggestive. The array as to Ammiano was clearly suggestive, as Spoto said that one robber had black hair and a beard, and none of the other photos in the array pictured a bearded man. One of the other photos pictured a significantly older and heavier man. That left four potential photos to identify defendant. While none of the other photos contained a subject with light brown hair, one photo had a subject with dark brown hair and a mustache and a second photo contained a subject with dark brown hair. Thus, arguably there were three potential photos from which defendant might be pictured. The photos from the second day, with another ten photos added, do not change the analysis, because the additional photos were mug shots, clearly distinguishable from the Polaroids of suspects, and Spoto had marked and signed the photos of Ammiano and defendant the evening before indicating the "correct" photos.
Under the factors for reliability, however, despite the suggestiveness of the array, Spoto's identification was reliable. The first factor is the opportunity of the witness to view the criminal at the time of the crime. Spoto was robbed at gunpoint by defendant in a well-lit store in daylight; he had ample opportunity to view defendant. The second factor is the witness' degree of attention. Spoto claimed defendant was one to two feet from him. The third factor is the level of certainty of the witness; Spoto was certain in his identification.
The fourth and last factor is the length of time between the crime and the confrontation. Only a few hours passed between the robbery and the identification. "Far from being conducive to misidentification, confrontation immediately after a crime promotes fairness to the accused by allowing a viewing while the witness's mental image of the perpetrator is still fresh." State v. Carter, 91 N.J. 86, 130 (1982). Given these factors, the identification had hallmarks of independent reliability. There was "sufficient credible evidence" in the record for the trial court to find that the in-court identification was independent from the photo array. Adams, supra, 194 N.J. at 203. It was not error to permit Spoto to make the in-court identification.
Defendant's second contention is that his conviction for assault with a dangerous weapon was against the weight of the evidence. The State contends that defendant is procedurally barred from raising this argument, no motion for a new trial having been made, Rule 2:10-1. In our judgment, the contention is moot, the trial court having entered an amended judgment of conviction which merged defendant's conviction for assault with a dangerous weapon into his conviction for robbery and vacated the separate sentence that it had earlier imposed.
Defendant also argues that certain remarks made by the prosecutor in his summation were so improper that he did not receive a fair trial. At the end of that summation, both defense counsel made a motion for a mistrial, which the trial court denied without elaboration.
Whether a defendant's conviction should be reversed because of improper comments by a prosecutor during summation depends upon whether the remarks were so egregious as to deprive the defendant of a fair trial; that can only be determined by viewing the remarks in the context of the entire trial. State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008).
A prosecutor is entitled to "sum up the State's case graphically and forcefully," State v. Feaster, 156 N.J. 1, 58 (1998), and prosecute. He is not held to the standards of a lecture hall. State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).
We have reviewed the prosecutor's remarks, and we are confident that if they were to be made during a trial today, a reversal would be in order. During the course of his remarks, for instance, the prosecutor denigrated the defense, going so far as to say that the defense was engaged in a "game of deception," had "everything to gain by deceiving [the jury]" and had "ma[d]e up some cock and bull story." It is improper to suggest that defense counsel's job is to confuse the jury. State v. Kounelis, 258 N.J. Super. 420, 428-29 (App. Div. 1992), certif. denied, 133 N.J. 429 (1993). He also pointed out that defendants had the opportunity to review the State's case in advance and then consult with their attorneys. It is improper to imply a defendant is guilty as a result of his having consulted with his attorney. State v. Buscham, 360 N.J. Super. 346, 365 (App. Div. 2003).
This case law, however, did not exist at the time of defendant's trial. If defendant had not absconded as he did, and appealed his convictions in the regular course, it is very doubtful that his convictions would have been set aside on the basis of these remarks. The State has, for example, included in its appendix a copy of this court's opinion affirming the convictions of co-defendant Frank Ammiano following this trial. Although Ammiano raised a number of arguments why his convictions should be reversed, he never questioned the propriety of the prosecutor's summation.
It strikes us as anomalous that a defendant can thumb his nose at the judicial system, disappear for more than thirty years, and then seek to take advantage of developments in the law in the interim. Defendant should not be able to benefit by his flight.
In our judgment, State v. Bishop, 350 N.J. Super. 335 (App. Div.), certif. denied, 174 N.J. 192 (2002), provides guidance.
In that case, defendant was tried and convicted in 1979 for crimes committed in 1978. Id. at 339. After the trial court denied his motion for a new trial in October 1979, but prior to the court imposing a sentence, defendant fled the country.
Ibid. He was not extradited until 1997, at which time, after another motion for a new trial was denied, he was sentenced.
Id. at 339-40. He appealed his conviction, we affirmed, and the Supreme Court denied certification. Id. at 340. Defendant thereafter filed a petition for post-conviction relief, which the trial court denied. Id. at 340-41. Defendant again appealed to this court. One of defendant's arguments revolved around the fact that due to the passage of time, the trial record no longer existed and could not be reconstructed. Id. at 344. In denying defendant's petition, the trial court had noted that the court reporter was deceased, his notes could not be located, the defendant's trial attorney had destroyed his file years earlier, the prosecutor who had tried the case had left the office more than twenty years ago, and the judge who had tried the case had retired years ago. Id. at 341. Defendant argued that he was entitled to a new trial due to the absence of the trial record. Id. at 344. We rejected his argument, concluding that a "defendant [should] not be permitted to gain an advantage through his fugitive status." Id. at 351. In our judgment, that principle is equally applicable to this appeal.
Defendant's final arguments relate to his sentence. While we reject as without merit his contention that his five-year sentence for committing robbery while armed is excessive, the judgment of conviction must be amended. When the trial court first imposed sentence, the judgment included various assessments and fees that were enacted subsequent to the offense. When the trial court amended its sentence, and merged the conviction for assault with a weapon into the conviction for robbery, it correctly removed those assessments from the judgment. Its order included removal of the $1.00 transaction fee imposed by P.L. 1992, c. 169. The amended judgment, however, included that fee.
In addition, when defendant appeared for sentencing, the attorneys agreed that defendant was to be sentenced under the provisions of Title 2A, the law in effect at the time of the offense. The law required at that time that each sentence include both a minimum and a maximum term. N.J.S.A. 2A:164-17. Here, the trial court imposed a flat sentence. We recognize that in light of the fact that defendant has since been paroled, this deficiency may have little practical import for him. That, however, does not relieve us of our responsibility to assure that a judgment of conviction entered by a trial court comports with the governing law.
Defendant's convictions are affirmed. The matter is remanded to the trial court for entry of an amended judgment of conviction.