June 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARRY PINCKNEY A/K/A BARRY PICKNEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0266.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 8, 2010
Before Judges Grall and LeWinn.
Defendant Barry Pinckney appeals from a judgment of conviction and sentence. He and his co-defendant David I. Rogers were tried to a jury on charges arising from a robbery committed in a parking lot in Union. The jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge merged defendant's convictions; found one aggravating factor, the need to deter, N.J.S.A. 2C:44-1a(9), and no mitigating factors; and sentenced defendant to a term of eleven years on his conviction for first-degree robbery. That sentence is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. For the reasons set forth below, we conclude that the arguments presented on appeal do not warrant reversal of defendant's convictions or modification of his sentence.
On December 20, 2005, Robert Bantang left his office in Union at about 1:30 a.m. As he loaded files into his car, a man he later identified as defendant rushed up and pushed him against it. Defendant held his hands in his pockets, pointed as if he had a weapon and demanded that Bantang give him money. Bantang surrendered approximately $600 - two $100 bills, six $20 bills, five $50 bills, one $10 bill and one $5 bill.
When defendant reached out to grab the money, Bantang realized that he did not have a weapon in that hand, but as defendant pulled his other hand out of his pocket, Bantang saw that he had a knife. Defendant grabbed Bantang's shirt and said, "You are coming with me." Defendant then dragged Bantang to the side of the building, sat on top of him with his knee on his back and pressed the knife against him.
During the struggle, defendant's hood moved and Bantang saw his face. Defendant directed, "Don't look at me.... Stop looking at me." Bantang focused on defendant's hands and feet and managed to free himself.
Defendant ran, but Bantang was able to follow without losing sight of him. He saw defendant jump into the rear of a Ford Explorer on the driver's side. There was a larger man in the driver's seat and someone else in the front passenger's seat.
Bantang got into his own car, followed and called 911. He described the car as a red Explorer but did not provide a license plate number. According to Bantang, he is red/green colorblind.
Officer Daniel Mitchell of the Union Police Department heard a dispatch about a robbery in the area and headed toward the area. The driver of the Explorer went through a traffic signal and made a right turn at a high rate of speed. Mitchell activated his lights and sirens, and Bantang abandoned his pursuit to return to his office and secure the papers that he dropped during the robbery.
Mitchell followed the Explorer. He too saw that there were three people inside. He noticed an exchange between the front-and back-seat passengers, after which the Explorer slowed to a "crawl" and the front-seat passenger left carrying something shiny. The passenger got out and ran toward a gas station. Next, the Explorer took off and Mitchell resumed the chase. The driver went through three red lights and a stop sign before he lost control while attempting a sharp turn and drove onto the sidewalk and into a telephone pole.
Mitchell tried to block the car, but the driver reversed direction and rammed into the patrol car. Other officers joined in the pursuit, which ended when the Explorer crashed at the entrance to Route 78.
Officers Robert Donnelly and Pietro DiGena approached the Explorer with their guns drawn; defendant was removed from the car and arrested. Donnelly described the driver as a "heavy-set African American male" and, in court, identified co-defendant Rogers as the person who drove the Explorer. Donnelly also identified defendant as the rear-seat passenger.
A search incident to arrest of defendant led to the discovery of $385 in cash. There were five $50 bills, six $20 bills, one $10 bill, and one $5 bill.
After defendant and co-defendant were placed under arrest, Bantang was taken to a gas station parking lot and asked whether he could identify the man whom the police believed had left the Explorer. He could not, and the suspect was released.
According to Bantang, an officer then told him that "they captured the people" and that they wanted him to identify them. Bantang was taken to the site of the crash, where there were approximately fifteen police officers. Bantang identified Rogers as the driver based on his observation that the person driving was a "pretty big guy." He recognized defendant as the man who had robbed him. And, he identified defendant in court.
Bantang gave a statement to the police after he made the identification. He said defendant was wearing dark clothing, a light sweatshirt, and dark work boots, and was of similar height to himself, with dreadlocks. At trial, Bantang testified that defendant wore a grey sweatshirt with a white t-shirt underneath, dirty jeans and dark boots. He also testified that defendant was of similar build to himself, which is five foot eleven and approximately two hundred and twenty pounds. Defendant stood next to Bantang in court to demonstrate that he is shorter than Bantang. A photograph of defendant taken at police headquarters after his arrest showed that he was wearing gray sneakers with a "black toe kick."
On appeal defendant's attorney raises three issues:
I. THE IDENTIFICATION SHOW UP METHOD USED WAS IMPERMISSIBLY SUGGESTIVE, VIOLATING DEFENDANT'S U.S. AND NEW JERSEY CONSTITUTIONAL RIGHTS. [(Not Raised Below).]
II. THE LOWER COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A FALSE IN ONE FALSE IN ALL CHARGE TO THE JURY.
III. THE IMPOSITION OF THE SENTENCE WAS CONTRARY TO THE CRIMINAL CODE AND AN ABUSE OF THE COURT'S DISCRETION.
These additional issues are raised in a supplemental brief filed by defendant:
I. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS. [(Not Raised Below).]
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A) TRIAL COUNSEL'S FAILURE TO FOLLOW THROUGH ON A ALREADY REQUESTED WADE HEARING.
B) TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TAINTED IN-COURT IDENTIFICATION [SIC].
Prior to trial, defense counsel made and withdrew a request for a Wade hearing. Accordingly, without expressing any opinion on the merits, we note that any relief that may be available to defendant is by way of petition for post-conviction relief asserting a claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 460 (1992).
The other arguments raised by defense counsel on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We turn to consider defendant's claim of error based on the fact that the judge did not deliver an instruction on prior contradictory statements made by witnesses. Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994). The argument is based primarily upon discrepancies in Bantang's descriptions of defendant.*fn1
Because the defense did not request an instruction that would focus the jurors' attention on inconsistent statements, defendant must establish plain error, i.e. error "'clearly capable of producing an unjust result.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting R. 2:10-2). Error is not plain, unless "the possibility of injustice [is] 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Moreover, reviewing courts considering an allegation of error in a jury instruction consider the charge as a whole to determine whether the instruction given was adequate. State v. Wilbely, 63 N.J. 420, 422 (1973).
In this case, the jurors were given guidance relevant to their assessment of the reliability of Bantang's testimony and identifications twice. Through the general instruction on credibility of witnesses, the jurors were directed to consider "whether the witness made any inconsistent or contradictory statements" in deciding what weight to assign a witness's testimony. Moreover, in providing guidance to the jurors relevant to their consideration of eyewitness identifications, the judge delivered a complete instruction, including references to the witness's opportunity to view the defendant and "discrepancies or inconsistencies with the identifications."
In light of the instructions that the jurors received and the nature of discrepancies in the testimony upon which defendant relies, the judge did not err by omitting an instruction on prior inconsistent statements. Given the evidence in this case, the jury charge provided an adequate account of the relevant principles and sufficient guidance on the jurors' role as the finders-of-fact.