On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3849.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Carchman, Messano and Waugh.
The opinion of the court was delivered by MESSANO, J.A.D.
Defendant Jashown Walker appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; and second-degree robbery, N.J.S.A. 2C:15-1. After appropriately merging the two counts, the judge sentenced defendant to a seven-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant raises the following points on appeal:
THE TRIAL COURT'S DENIAL OF THE DEFENSE REQUEST FOR A JURY INSTRUCTION ON CROSS-RACIAL IDENTIFICATION DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 1, 10
DEFENDANT'S SENTENCE IS EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
Defendant and co-defendant Johnathan Thompson were tried together. The evidence at trial revealed that on August 13, 2007, Paul Marchak was employed at a Blimpie's sandwich shop located on Halsey Street in Newark where he had worked for two years as a counter attendant and deliveryman.*fn1 At approximately 7:00 p.m., Marchak was making two deliveries to a nearby apartment building. As he neared the address, Marchak noticed a group of approximately ten men and women gathered around a car.
Passing the group, Marchak was grabbed by a tall man having "dread lock hair" and wearing a "white football jersey with the number seven on it." This man punched him in the face and pushed him to the ground. A shorter man wearing a white tee shirt and shorts went through his pockets and grabbed his wallet. Marchak was on the ground for five minutes while being hit and kicked by a total of four individuals. He covered his face for protection.
While Marchak was still on the ground, a car stopped and a woman in the car yelled at the assailants to give back Marchak's wallet. At that point, the shorter man threw the wallet in the air and both men let Marchak go. He ran to the apartment building, explained to the security guard that he had been robbed, and the guard called the police.
Newark Police Officer Eric Mans and another officer responded at 7:33 p.m. Marchak provided them with a description of only two of his assailants -- "a tall black male with short dreads wearing a white football jersey with the number seven on it and a shorter [b]lack male with blue jeans and a dirty white tee shirt." The officers placed Marchak in their patrol car and drove around the area in an effort to locate any suspects.
Approximately fifteen minutes later, as the police car approached a group of people standing in an alley near Halsey Street and Maiden Lane, Marchak "started screaming 'that's them, that's two of them that robbed me.'" Mans exited his patrol car and approached the group. Everyone began to disperse, but "two of the suspects turn[ed] their back[s] . . . and started walking faster west on Maiden Lane." The officers apprehended and arrested defendant and Thompson, at which point Marchak confirmed his identification of them. Defendant and Thompson "were wearing the same [clothing] that the victim had described . . . . [T]he tall on[e] had . . . the white jersey with the number seven on it. The short ...