On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Payne, Baxter and Koblitz.
Defendant, Michael Hubbard, appeals his conviction, following trial by jury, of second-degree robbery, N.J.S.A. 2C:15-1, and his sentence of eight years in prison subject to the eighty-five percent period of parole ineligibility specified in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant argues:
THE TRIAL JUDGE ERRED IN ADMITTING THE OUTOF-COURT IDENTIFICATIONS OF THE WITNESSES AND THE RESULTING TAINTED IN-COURT IDENTIFICATIONS.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Evidence presented by the State at trial established that, on the morning of September 26, 2006, Tonya Miller was walking her students from their day-care center in Newark to the playground. To ensure the safety of the students, they were holding onto a rope, with Miller at the head of the line, and her assistant at its foot. As they progressed down the sidewalk, Miller saw defendant approaching her and the children. Unlike most passersby, he did not pass on the street side of the group, but rather on the inside. As he passed Miller, defendant grabbed the chain around her neck. Miller fell to the ground as the result of defendant's action, and she received a scratch on her neck. She did not seek medical treatment for the neck injury.
Robert Jones, who was talking to a used car salesman at a business located next to the day-care center, heard Miller cry out "my chain, my chain" and, looking around, he saw defendant running down the street. Jones and the used car salesman attempted to apprehend defendant, following him in a car and then on foot. Eventually, defendant turned in their direction, and after first saying that someone else had stolen the chain, "charged after" his pursuers and threw the chain at their feet. Jones returned with the chain to the day-care center and gave it to Miller.
In the meantime, Police Officer Antoine Baskerville, while unsure of the precise crime committed, had taken up the attempt to apprehend defendant, who was eventually stopped by a truant officer. Defendant was then arrested by Officer Baskerville, who placed him in handcuffs in the back of his cruiser and returned to the scene of the robbery. There, two showup identifications occurred that were later the subject of a Wade*fn1 hearing to determine the admissibility of the identifications at trial. Both were ruled admissible, and testimony regarding them was presented to the jury. A conviction for second-degree robbery resulted.
I. On appeal, defendant has not challenged the conduct of the trial itself, but only the result of the Wade hearing that took place in the matter. At that hearing, the testimony of Officer Baskerville was offered by the ...