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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...