On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-11-1150.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Defendant Karimah Grier appeals from her April 24, 2008 conviction in the Law Division, Mercer County. Defendant was found guilty by a jury of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). After merging counts two and three with count one, the court sentenced defendant to a term of seven years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a three-year term of parole supervision upon completion of the sentence of incarceration. We have considered defendant's challenges to the judgment of conviction and the sentence imposed in light of the applicable law, and we affirm.
The conviction arises out of an early morning incident that occurred on December 3, 2005, in the parking lot of Black Jack's Lounge. An assailant struck Sterlynn Ransom in the face with a glass beer bottle repeatedly until the bottle shattered. As a result of the attack, Ransom suffered damage to the left eye resulting in blindness, broken teeth, facial lacerations, and loss of consciousness. Ransom identified defendant as her assailant.
Ransom testified that she was familiar with the defendant and confident she had seen defendant in the bar that night, noting "[s]he stands out in a crowd. She's not a quiet person." Ransom testified she frequented Black Jack's Lounge for the past several years and had seen the defendant there many times before.
At about 1:42 a.m., Ransom left the bar and sat in her car. She turned the car on to warm it up, which automatically activated headlights and illuminated the back of the car directly ahead. Ransom testified she noticed defendant holding a Corona beer bottle while approaching Ransom's car. Although initially she thought defendant might have been walking to the car behind hers, she testified defendant opened her car door and began striking her on the left side of her face. The beating continued until the bottle burst and Ransom lost consciousness. After regaining consciousness, Ransom called her friend for help and was driven to the hospital. The staff reported the smell of alcohol on her breath and cannabinoids in her system.*fn1
Detective Gregory Hollo testified that he responded to a report of an aggravated assault that occurred in front of Black Jack's Lounge. He first spoke with Ransom while she was being treated for an eye injury. Ransom described her assailant as a "black female, approximately 25 to 26 years old. She was about five foot five, 130 to 140 pounds, unknown clothing description but she said she had blond hair." Ransom stated her assailant's nickname was "Rema" and that she had seen the assailant before. Hollo testified that Ransom did not appear to be under the influence of alcohol or marijuana.
Detective Singleton Law spoke with Ransom on December 8, 2005, at which time she repeated her description of her assailant and told Law defendant might work for Rick Bus Company in Trenton. Thereafter, Law inquired at the bus company whether any employees fit the physical description given by Ransom with the nickname Rema and was given the name Karimah Grier. Law then assembled a photograph lineup of defendant and "seven other individuals with similar descriptions." Another detective presented the lineup to Ransom for identification on December 13, 2005. After Ransom identified defendant as her assailant, Law took a formal statement from Ransom. The formal statement was consistent with the information Ransom had given to Hollo on the morning of the assault. Law asked, on a scale of one to ten, how strongly Ransom believed the person she had identified in the photograph was the person who assaulted her. Ransom responded, "a [nine]."
Prior to defendant's trial by jury, a Wade hearing was held.*fn2 In the lineup presented to Ransom, defendant was the only person pictured with blond hair. The affidavit of probable cause prepared for the arrest warrant did not include a hair color, however, the wanted poster listed defendant's hair color as black, blond and red, based on Ransom's information.
Detective Law testified that the "computer generated system didn't have any [other] black females wearing blond hair at the time of their arrest." He only used photographs in the Trenton Police database, although he had access to photograph databases of the Mercer County Prosecutor's Office, the Sheriff's Department, and several other jurisdictions in Mercer County. Law set up the array, and pursuant to protocol, another detective presented it to Ransom. Law did not indicate to Ransom that defendant's photograph would be in the array, nor did the detective presenting the array know which individual was the suspect.
The trial court found the array suggestive because it showed "only one blond-haired black female." The court then analyzed the likelihood of misidentification using the factors enumerated in Neils v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401, 412 (1972). Those factors included:
(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Ibid.
Applying these factors, the court observed that, at the hospital immediately after the incident, Ransom gave a description matching defendant and her statement ten days later reiterated what she initially told the police. The court found the streetlights and Ransom's headlights "would be enough" to illuminate the scene. Likewise, the court noted Ransom's certainty at the photo array (rating a nine out of ten), her statement that she had a clear view of the woman who attacked her, and her familiarity with defendant from having seen her at Black Jack's Lounge "quite often" over the past four or five years. The court found the passage of ten days between the incident and the photo array would not outweigh the other factors. Based on a consideration of these factors, the court found "that under the circumstances this was a reliable identification made by the victim and, therefore, it is admissible."
At the end of the State's case, defense counsel moved for acquittal, but the court denied that motion. On April 24, 2008, the jury returned a verdict of guilty on all counts. During sentencing, the court applied aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of prior record and seriousness of offense committed); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter the defendant and others from violating the law); as well as mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) (conduct is the result of circumstances unlikely to recur).
Defendant presents the following issues on appeal:
POINT I: TRIAL JUDGE ERRED BY PERMITTING, WITHOUT CURATIVE INSTRUCTIONS, MULTIPLE CHARACTER REFERENCES ABOUT DEFENDANT IN VIOLATION ...