January 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERALD FAULK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-12-2046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Yannotti and Espinosa.
Defendant Gerald Faulk pled guilty to various offenses, charged under Hudson County Indictment No. 07-12-2046, and was sentenced to an aggregate term of eighteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction dated April 28, 2009. We affirm.
Defendant was charged with robbery, N.J.S.A. 2C:15-1 (counts one, five, eleven and nineteen); burglary, N.J.S.A. 2C:18-2 (counts two, seven, thirteen, fifteen and twenty-three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts three, nine and twenty); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts four, ten and twenty-one); conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1 (counts six, twelve and twenty-two); aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eight); conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 18-2 (counts fourteen, sixteen and twenty-four); theft by unlawful taking, N.J.S.A. 2C:20-3 (count seventeen); and conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and 20-3 (count eighteen).
Thereafter, defendant filed a motion for a hearing challenging his identification by certain victims and witnesses. The motion was argued on February 9, 2009, and the attorneys placed the relevant facts on the record on that date.
The first incident, the robbery of Deonarian Kaulessar (Kaulessar), took place on June 20, 2007. According to Kaulessar, a black male entered his apartment on Clinton Avenue in Jersey City, held a knife to his throat, demanded money and took $200 and a wristwatch. Kaulessar reported the incident to the police, who searched the area around his building but made no arrests.
The second incident took place on June 22, 2007. Henry Granderson (Granderson) reported to the police that a male entered his home on Bergen Avenue in Jersey City, said that Granderson was "gonna pay" and struck him, causing him to sustain a fractured jaw and nose. Granderson stated that he chased the perpetrator away with a knife.
On June 26, 2007, Detectives Brodie and Banco of the Jersey City Police Department (JCPD) became involved in the investigation of the aforementioned incidents. Granderson told Brodie that he believed the perpetrator's street name was "Wise." For reasons that are not clear from the record, Brodie identified defendant as "Wise" and also identified co-defendant Teshia Felix (Felix)*fn1 as a potential witness to the Granderson assault. On July 10, 2007, a detective from the JCPD showed Granderson an array of six photographs. Granderson selected defendant's photograph and identified him as the perpetrator.
On August 8, 2007, Sue Harris (Harris) reported to the police that she had been robbed in her apartment. Thereafter, a detective from the JCPD met with Harris and another tenant in Harris' building and they provided him with a description of a male perpetrator. The tenant also reported that she had observed a female in the area at the time of the offense.
The detectives believed that the Harris robbery was similar to the other incidents then under investigation. At the police station, Harris was provided with a book of photographs of black males and she selected defendant's photo. Harris said that, on a scale of one to ten, she was positive "as to a nine" that defendant committed the robbery.
Kaulessar was robbed again in his apartment on August 31, 2007. He reported that he was home watching television when a male entered, put a knife to his throat, threatened him and took his money. Kaulessar's wife walked in and saw her husband engaged in a fight with the perpetrator. In addition, Kaulessar's daughter-in-law entered and saw the fight. The daughter-in-law and a neighbor both saw a female standing outside of the building at the time. The neighbor also observed the male as he left the premises.
The second Kaulessar robbery was reported to the police, who found defendant and Felix in the area and brought them to the Kaulessar residence. Kausessar, his wife, daughter-in-law and the neighbor positively identified defendant as the perpetrator. Later, Kaulessar's son went to the police station to assist his father. He observed defendant there. Kaulessar's son told the police that he saw defendant outside of his father's building when he left to go to work, and he learned shortly thereafter that his father had been robbed.
The trial court denied defendant's motion for an evidentiary hearing. The court found that the identifications of defendant as the perpetrator of the various offenses were not the result of any impermissibly suggestive actions by the police.
On March 12, 2009, defendant pled guilty to the robbery of Kaulessar on June 20, 2007, a first degree offense, as charged in count one; the aggravated assault upon Granderson, a second degree offense, as charged in count five; the Harris robbery, a second degree offense, as charged in count eleven; the burglary of certain premises on Westside Avenue in Jersey City, a third degree offense, as charged in count fifteen; and the second Kaulessar robbery on August 31, 2007, a first degree offense, as charged in count nineteen.
The trial court sentenced defendant to eighteen years on count one; ten years on count five; ten years on count eleven; five years on count fifteen; and eighteen years on count nineteen, with all sentences to be served concurrently with each other. In addition, defendant was required to serve eighty-five percent of the terms imposed, as required by NERA. The court entered a judgment of conviction dated April 28, 2009.
On appeal, defendant raises the following argument for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR A WADE[*fn2 ] HEARING AS ENOUGH EVIDENCE WAS PRESENTED TO REQUIRE A HEARING AS TO WHETHER THE VARIOUS IDENTIFICATION PROCEDURES WERE IMPERMISSIBLY SUGGESTIVE IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
Based on our review of the record, we conclude that the trial court did not err by denying defendant's motion for a Wade hearing.
In order to determine whether certain out-of-court identifications are admissible against a defendant in a criminal case, the court must consider whether the identification procedures employed by the police were impermissibly suggestive and, if so, whether the procedures resulted in a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 205, 225 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).
"'Reliability is the linchpin in determining the admissibility of identification testimony[.]'" Id. at 232 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). The reliability determination must be based on the totality of the circumstances. Id. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).
Wade hearings are conducted in order to determine whether identifications are admissible. State v. Long, 119 N.J. 439, 493 (1990). However, in order to obtain a full Wade hearing, a defendant must make a threshold showing that there is some evidence of impermissible suggestiveness in the identification procedures employed by the law enforcement officers. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985); see also State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994) (noting that before a defendant is entitled to a Wade hearing, there "must first be a proffer of some evidence of impermissible suggestiveness").
Here, defendant failed to establish that a hearing was required with regard to Granderson's identification. There was no evidence indicating that Granderson's identification resulted from any impermissibly suggestive procedure. A detective who was not involved in the investigation showed Granderson an array of six photos of different black males, one of which was defendant's photo. Granderson was shown the photos about three weeks after the incident. There was no evidence indicating that the police prompted Granderson to identify defendant as the perpetrator.
Defendant also failed to establish that a hearing was required with regard to Harris' identification. A detective showed Harris a book of photographs of black males, and the book included defendant's photo. Harris selected defendant's photo and stated that, on a scale of one-to-ten, she was "positive as to a nine" that defendant was the individual who robbed her.
Defendant asserts that the book of photographs shown to Harris might have been unduly suggestive because defendant's photo had been recently inserted therein. However, defendant presented no evidence to support that assertion. Moreover, defendant asserts that the procedure was impermissibly suggestive because Detective Brodie, who was involved in the investigation, showed Harris the photo book. However, Brodie was not present in the room when Harris reviewed the photographs and there was no evidence indicating that Harris was coaxed to identify defendant as the perpetrator.
In addition, defendant did not present sufficient evidence to warrant a hearing on the identifications by Kaulessar and other witnesses to the August 31, 2007 robbery. As stated previously, shortly after the robbery, the police arrested defendant and Felix and brought them to Kaulessar's apartment where Kaulessar and others identified defendant as the perpetrator.
Whether such a "show up" procedure was impermissibly suggestive must be determined based on the consideration of all factors, including "'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'" State v. Carter, 91 N.J. 86, 129-30 (1982) (quoting Biggers, supra, 409 U.S. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411).
The record indicates that Kaulessar, his wife and his daughter-in-law had the opportunity to observe defendant during the August 31, 2007, robbery. Kaulessar's neighbor also had an opportunity to observe defendant as he was leaving Kaulessar's building after the incident. The "show up" took place shortly after the robbery occurred. All of the witnesses were positive in their identifications of defendant. Moreover, Kaulessar's son identified defendant at the police station when he went to assist his father after the second robbery, but defendant did not present any evidence establishing that this identification was the result of the use of any impermissibly suggestive procedure by the police.