On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-03-0903; 06-08-2711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Cuff and Payne.
A jury found defendant guilty of third degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1 (Count One); and second degree robbery,*fn1 N.J.S.A. 2C:15-1 (Count Two) on Indictment No. 06-03-0903. Following the jury verdict, defendant pled guilty to first degree robbery, N.J.S.A. 2C:15-1, under Indictment No. 06-08-2711. After merging Count One with Count Two of Indictment No. 06-03-0903, defendant was sentenced to a seven-year term of imprisonment with an 85% No Early Release Act (NERA)*fn2 period of parole ineligibility, and a concurrent five-year term of imprisonment subject to NERA on the first degree robbery charge of Indictment No. 06-08-2711. The appropriate fees, fines, assessments and penalties were also imposed.
At 5:50 a.m. on August 5, 2005, Angel*fn3 Chalco left his home in Newark and headed toward the nearby Bloomfield Avenue subway station to catch the 6:00 or 6:10 a.m. train to work. He arrived in the area at 6:05 a.m. or 6:10 a.m. As Chalco entered the train station, he saw three men walking behind him. Seconds later, while walking down the stairs, the men grabbed Chalco's neck from behind, pulled him back, and demanded his money. One of the three men, identified by Chalco as defendant, moved in front of him with a knife.
Chalco stated defendant touched his chest and stomach with the knife, while the other men held him from behind and took approximately $200 from his pocket and his cell phone. After taking his money, the men kicked Chalco's head and stomach, causing him to lose consciousness and fall to the ground. When he regained consciousness, Chalco returned to his home where he washed himself, took a drink of water and called the police.
At 6:50 a.m. on August 5, Detective Miguel Valido of the New Jersey Transit Police Department received notice of a robbery in the area of the Bloomfield Avenue subway station. Upon arrival, Detective Valido observed Chalco speaking to New Jersey Transit officers on the scene. Valido noticed Chalco was talking "nervously" and "quickly," and had some cuts and bruises about his eyes and on his face.
Chalco, who spoke Spanish, described the suspect as Hispanic, approximately eighteen to twenty-five years of age, five feet nine inches tall and 150 pounds. He also stated the suspect had a fair complexion and wore a white t-shirt, blue jeans, and a baseball cap turned backwards. Chalco was unable to identify the remaining two men involved in the robbery because he never saw them. Chalco refused medical attention.
Later, Chalco was transported to police headquarters where he viewed, via computer, approximately thirty photographs of young men who fit his assailant's description. Chalco did not identify anyone at that time.
During the course of showing the photographs, Detective Valido received information that the police had detained an individual who fit the description provided by Chalco. Sometime after 9:00 a.m., detectives transported Chalco to the area of the Broad Street Station in Newark, where police conducted a show-up. Chalco was unable to make an identification. At the time, he was approximately thirty to thirty-five feet from the suspect.
Chalco was then transported to Newark Penn Station, where he viewed the suspect in a processing room through a one-way window. Standing approximately ten feet away from the suspect, Chalco immediately stated the suspect was not involved in the robbery.
On August 5, 2004, approximately ninety minutes following the robbery, the victim worked with an artist from the New Jersey State Police Composite Drawing Unit to complete a sketch of the robber. When Chalco viewed the finished product, he stated he was "sure" the sketch resembled the individual who assaulted and robbed him. Chalco was never given a copy of the completed composite sketch, but a copy of the sketch was disseminated to all New Jersey Transit patrol commands.
On August 9, 2005, Detective Valido compiled a photo array of six pictures from the New York/New Jersey High Intensity Drug Trafficking Agency Network. Using the description provided by Chalco, Detective Valido chose individuals of similar race, height and weight. He included defendant's picture in the photo array because he fit the ...