On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-03-0326 and 05-03-1767.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Parrillo, Yannotti and Espinosa.
Tried by a jury, defendant Willie Denmark was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He later pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7, charged in a separate indictment. The weapons offense was merged with the armed robbery, for which defendant was sentenced to a twelve-year term subject to the 85% parole ineligibility bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also received a concurrent four-year term with a two-year period of parole ineligibility on the drug offense. Appropriate fees and penalties were imposed. Defendant appeals, and we affirm.
Defendant's conviction arose out of an armed robbery of Terrence Askew in Jersey City around midnight on October 28, 2004. According to the State's proofs, while walking to a bus stop, Askew saw a group of men walking in front of him and at one point observed two of the men walking behind him, pulling hoods over their heads. Both men then reached for their guns, but he actually observed only one silver handgun held by the shorter of the two men. Askew caught a glimpse of one of the robbers from about the distance of two cars before they ordered Askew to turn around and not look at their faces. The robbers commanded Askew to face the wall and then threatened to pistol whip him if he did not empty his pockets. Askew complied, and the two men took an Orioles jersey (Number 14), beige Timberland boots, and a black North Face jacket from him. He was then ordered to lie on the ground face down, which he did until he heard the men's footsteps at a distance. Prior to their departure, Askew did manage to glance back a second time and, because of their proximity, look directly at their faces.
Immediately after getting up, Askew ran into Jersey City Police Sergeant Harmon, who, from his unmarked police vehicle, radioed for assistance. When Officer Critelli arrived, he observed Askew shaken up, disheveled, wearing a tee-shirt, jeans and shoeless. Askew informed both officers that he was robbed by two men at gun point: one man wearing a hooded sweatshirt and one wearing a black jacket and black skull cap on his head, covering almost to his eyes. He also described the shorter man, later identified as defendant, as a dark-skinned male with a little beard or goatee, about 5'6" or 5'7", and average build. The other male was taller, about 5'11", also of average build, but with medium complexion. Although he could not describe his attackers' hair or eyes because of their head coverings, he did identify the items stolen - tan Timberland boots, black puffy coat and a Baltimore Orioles jersey with a number 14. Officer Critelli then broadcast the robbers' descriptions on the radio transmission and to the dispatcher. Thereafter, Detective William Logan, who was also present, went to the robbery scene, where he discovered Askew's wallet and some papers strewn about.
Meanwhile, Officers Broderick and Donnelly received a description of the robbery suspects from someone viewing the closed circuit television (CCTV), an outdoor camera system that monitors a neighborhood in a two block radius. The description was of four black males who were wearing grey hooded sweatshirts and black jackets. A silver handgun had been observed. The men were seen walking northbound on Ocean Avenue and one of the men was holding boots and a black jacket in his hands. When the officers located the group, at the northwest corner of Ocean and Woodlawn Avenues, Donnelly actually observed only three suspects, who then scattered in different directions, after discarding the boots and black jacket. One suspect was never found, and another was immediately apprehended and arrested by Detective Broderick. The remaining suspect fled the scene, running east on Woodlawn Avenue. Officer Donnelly chased him for about a block, but lost him in the backyards.
Donnelly and Detective Logan then proceeded to search the area, but without success. Shortly thereafter, however, Officer Broderick came upon defendant, out of breath and wearing a black Orioles jersey. Broderick recognized defendant as the man Officer Donnelly had been chasing but lost. Upon arriving at the scene, Officer Donnelly also identified defendant as the person he chased and lost.
Defendant and the other apprehended suspect were then taken to the police precinct, where they were positioned by Officer Broderick at the front desk, facing Detective Logan's office. On one side of the door to this office was a one-way mirror that was, in actuality, two-way glass. Askew was behind the door with Detective Logan to view the suspects. According to Logan and Broderick, these were the only two men in the show-up: a taller juvenile wearing a black coat and defendant, the shorter of the two, wearing the Orioles jersey.*fn1 When told by Detective Logan that "we had two possible suspects,"*fn2 Askew identified defendant as one of his two assailants but could not identify the other. The victim recognized defendant because of his forehead, which was prominent and which he noticed during the robbery when he glanced back a second time and observed defendant putting his hoodie on over his skull cap. Askew also noted that the jersey worn by defendant, the black North Face jacket, and beige Timberland boots found at the scene belonged to him.
After defendant was apprehended, police officers searched the entire pursuit area, but no gun was found. However, the next day, within twelve hours or less of the robbery, Officer Broderick heard a general radio broadcast that a gun was subsequently discovered by a homeowner in her driveway on Woodland Avenue. Officer Broderick then called his precinct and informed them that the weapon could be related to an armed robbery occurring the night before. On October 29, 2004, at approximately 8:45 a.m., Officer Currie responded to the dispatch to recover the gun. Upon arrival, the Woodland Avenue homeowner informed Currie that she had found a silver handgun in front of her house, two or three feet from the sidewalk near her driveway and in the grass, and had brought it inside. However, neither the officer nor the homeowner utilized gloves in handling the gun so as to avoid contaminating the object for purposes of fingerprint analysis. Officer Currie determined the gun, which he identified as a Lorcin caliber 380 automatic, was unloaded. He admitted that he had mistakenly indicated on the "Property and Evidence Report" that the serial number on the gun was obliterated.
Crediting the State's version, the jury convicted defendant of armed robbery and possession of a weapon for an unlawful purpose. On appeal, defendant raises the following issues for our review:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EYEWITNESS'S IDENTIFICATION BECAUSE THE LINE UP IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, THEREBY CAUSING A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.
II. THE COURT ERRED BY ALLOWING THE GUN INTO EVIDENCE AS IT LACKED RELEVANCY AND WAS MORE PREJUDICIAL THAN PROBATIVE.
III. THE COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT.
IV. THE COURT ERRED BY NOT GRANTING THE DEFENSE'S MOTION FOR A MISTRIAL.
V. THE COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A JUDGMENT OF AQUITTAL NOTWITHSTANDING THE VERDICT.
VI. THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE MODEL JURY CHARGE ON IDENTIFICATION, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW (NOT RAISED BELOW).
VII. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.
We address these issues in the order raised.
Defendant contends his show-up identification was impermissibly suggestive and irreparably tainted its reliability. He raised the same objection at the Wade*fn3 hearing, at the conclusion of which the trial judge found that even if the identification procedure was suggestive, there was no risk of misidentification under the totality of the circumstances:
Mr. Askew says that he did notice, although he was nervous and afraid, however, he did notice the person with the goatee and he did notice a striking feature which was a forehead and that he did have an opportunity to glance at this individual more, it appears than others. And that one was who he had glanced to see. And also the degree of attention. Although slight he did say that he was aware and because of certain features that's who he was able to identify. And the accuracy of his description that is what the Court has to consider. And also the time between the crime and the confrontation which is around 20 minutes.
In this case, although the defendant had . . . an Oriole[s] jersey on . . . and the . . . alleged victim in this matter, Mr. Askew, says that that was his jersey. He did give a description as to the height of the individual to the police officer, the complexion he testified to as dark skin and also a goatee. He testified that . . . the other person who was a juvenile who did have a . . . black jacket on, that was he could not positively identify that person [sic]. That person who was the juvenile was released.
The Court finds that Mr. Askew who was the only witness, relied on his recollection of the crime to identify the defendant and that there is, in this case, the Court does not find there was a risk of misidentification. His attention and opportunity to view the defendant at the time of the crime were ample. He said it was just one individual but he says he because he gave a detailed description as to the height and what he saw and the striking mention of his forehead, that is what he had relied on [sic]. So, therefore, even if there was suggestiveness because of the fact that the person had the jersey on, he gave other description to identify [defendant] [sic]. And as a result of his identification of the defendant, the Court finds that it was reliable and should not be suppressed. The defendant's motion hereby is denied.
Identification evidence will be deemed inadmissible where it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L.Ed. 2d 401, 410 (1972); State v. Cook, 330 N.J. Super. 395, 417 (App. Div.), certif. denied, 165 N.J. 486 (2000). Due process requires suppression of identification evidence in such an instance, Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed. 2d 1199, 1204 (1967). "As a result, our courts are obligated to utilize great care in the application of the governing principles in order to prevent an accused ...