On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0338.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided Before Judges Parrillo and Espinosa.
Tried by a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4A; and was acquitted of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). After merging the weapons offenses, the judge sentenced defendant to an aggregate ten-year prison term, eighty-five percent to be served prior to parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.
According to the State's proofs at trial, at around 3:00 p.m. on January 29, 2006, Edgar Viera began his shift as a cab driver for Caroba Taxi in Plainfield. Shortly before 4:00 p.m., he picked up two African-American males between twenty and twenty-five years old, one with a goatee, at the taxi station on Watchung Avenue in Plainfield. Viera already had a passenger in the front seat, so both men sat in the back seat of the vehicle. After the first fare was dropped off, the men requested a ride to Whitewood Avenue. Upon arrival, Viera was asked to wait as the man with the goatee exited the cab and went up the driveway toward the house. Approximately two to three minutes later, he returned and reentered the cab's backseat. At the same time, the other man, later identified as defendant, switched his seat from the back seat to the front passenger seat, next to Viera. Next, the men gave Viera various directions until they approached the middle of the block on Kensington Avenue, where they directed Viera to pull the vehicle to the side of the road.
Once stopped, the man with the goatee in the rear seat exited the cab on the driver's side, went to the driver's side window, knocked on the window, and ordered Viera to put the car in park and open his door. When instructed to open his door, Viera turned around to look at defendant, who was holding a pistol, described as "an automatic black pistol [six to eight inches in length] like the ones that the police carry." There was only one-and-a-half to two feet of distance between the gun and Viera's head.
Viera exited the vehicle and the man who knocked on the window took Viera's wallet from his back pocket, while defendant, remaining in the front seat, ordered Viera to hand over his ready cash, a total of approximately $90. The two men then fled down a driveway on Kensington Avenue. Viera parked his cab and called dispatch to inform them of the robbery and request that they call the police.
Meanwhile, a resident of the neighborhood, Brian Schoenberger, saw two young African-American males wearing dark puffy "North Face" style jackets move at a fast pace past his home office window and down his driveway towards his backyard. Schoenberger left his office and ran outside to confront them, demanding to know "what the hell are you doing on my property?" The two men turned toward Schoenberger, allowing him to see their faces, as it was still daylight, and then ran off, around his garage, over a fence, and through his neighbor's backyard. After the men fled, Schoenberger walked to the front of the house and approached the parked taxi, where Viera informed him of the robbery. Schoenberger called the police, who arrived within minutes.
Viera and Schoenberger remained together until the police notified them that "they had caught one of the gentlemen and they asked if [they] could come with them to ID him." Viera and Schoenberger were then taken in the same police car to where the suspect was in custody. From inside the police vehicle, Viera identified defendant, the suspect in custody who Viera stated was standing at the rear of another patrol car, as "the person that was sitting next to me pointing with the gun . . . I was sure 100%." Viera estimated that the identification occurred approximately twenty to thirty minutes after the robbery. From the back of the same police car, Schoenberger identified defendant as one of the men he saw in his backyard. According to Schoenberger, however, defendant was sitting in, not standing outside of, the other patrol car. Schoenberger estimated that thirty to forty-five minutes passed between his witnessing the men running through his driveway and the identification.
After the identification, Viera was taken to the police station where he gave a sworn statement. He was also shown a photograph of defendant and identified him as the person who pointed a gun at him during the robbery. Schoenberger did not provide an official statement until July 17, 2007.
After he was identified, defendant was transported to the police station where Detective Francis Wilson advised him of his Miranda*fn1 rights. Prior to interrogation and just before signing the final line of the Miranda form, Wilson asked defendant whether he was willing to talk about "who has the actual gun" and defendant volunteered that his cohort "has the gun." Defendant then completed execution of the Miranda form and admitted that he was in the front seat of the cab and that the other man, whom he identified as Marcus, "Black," or "Knight," approached the cab driver's door with the gun, which was real and loaded. Defendant denied having a gun and stated that he just pretended to have one by pulling out a cell phone and "poking [Viera] in his head with the phone." According to defendant, he only used the phone to prevent Marcus from actually shooting the cab driver.
Crediting the State's proofs, the jury convicted defendant of armed robbery and related weapons offenses. On appeal, defendant raises the following issues:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT SHOW-UP IDENTIFICATIONS OF BRIAN SCHOENBERGER AND EDGAR VIERA WITHOUT FIRST DETERMINING THE RELIABILITY OF THOSE IDENTIFICATIONS. (Not Raised Below).
II. THE MATTER MUST BE REMANDED FOR A HEARING TO DETERMINE THE RELIABILITY OF THE OUT-OF-COURT IDENTIFICATIONS BECAUSE THE PROCEDURES USED MATERIALLY VIOLATED SEVERAL PROVISIONS OF THE ATTORNEY GENERAL'S GUIDELINES AND ARE THUS PRESUMED TO BE IMPERMISSIBLY SUGGESTIVE. (Not Raised Below).
III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO CONDUCT A WADE MOTION PRIOR TO TRIAL. (Not Raised Below).
IV. THE STATEMENT TAKEN FROM MR. JACKSON WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION (U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 1).
V. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE COURT RULES BY FAILING TO ALLOW A NEGOTIATED PLEA PRIOR TO TRIAL DESPITE SEVERAL MATERIAL CHANGES OF CIRCUMSTANCES INCLUDING NEW DISCOVERY AND UNRESOLVED TRIAL MOTIONS.
The first three issues involve the failure to hold a Wade*fn2 hearing. Some background is in order. Defense counsel moved pretrial to suppress the out-of-court identification by Schoenberger.*fn3 In granting ...