On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1904-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Newman.
Juvenile, S.R., along with two co-juveniles, A.B. and A.S., were adjudicated delinquent for what would have been a second-degree robbery had the juveniles been adults. Only S.R.'s appeal is before us. We now affirm.
Testimony revealed the following scenario. Leaving his job as a welder at 4:30 p.m. on February 17, 2009, Luis Aguilar Sanchez went to Liberty Tax service in Neptune City. He only had $100 with him, which was not enough to retain the services of the income tax preparer. He then proceeded to return home to Asbury Park on his BMX bicycle. At approximately 7:00 p.m., as he rode his bicycle down Monroe Avenue, a group of six juvenile African-American males dressed in dark hoodies and jeans blocked his progress and virtually surrounded him. Money was demanded. Sanchez was knocked off his bicycle. The juveniles went through his pockets and took the $100 he had on him. One of the juveniles punched him on the right side of his face which left a bruise. His bicycle was taken.
Sanchez went to the Asbury Park police station and reported what happened. He described the juveniles by their clothing and their race. He thought he could identify them if he saw them again because he had seen their faces at close quarters, although the area was not well lighted. Police Officer Kamel Warraich drove Sanchez in a marked vehicle in the area of where the crime took place and other local streets. When the marked vehicle approached a group of juveniles, they dispersed and fled. Officer Warraich and Sanchez returned to the police station.
Shortly afterward, Detective Steven Ramseur, with Officer Warraich seated in the back seat, and Sanchez in the front passenger seat, drove the streets again in an unmarked vehicle. Near where the actual incident took place on Monroe Avenue, Sanchez saw three of the juveniles who had robbed him. Detective Ramseur asked Sanchez if he was sure and Sanchez responded that he was positive. Pulling the unmarked vehicle over, the detective and police officer got out of the vehicle, with Sanchez remaining behind. Sanchez left the vehicle and proceeded to walk to where the juveniles were standing. A.S. turned when he saw Sanchez, and said, "Poppy, poppy, your bike is up the street." Then S.R. turned and said that "all I did was take the bike and ride it up the street." The third juvenile, A.B., said nothing. Following those blurted statements, Detective Ramseur told Sanchez to "get back in the car."
A.S. proceeded to tell the officer where the bicycle was located in a yard down the street. Once more, according to Detective Ramseur, S.R. repeated that "all he did was take the bike and ride it up the street." Detective Ramseur recovered the bicycle, which was later identified by Sanchez as his.
The trial court combined the trial testimony with its Rule 104 hearing with the consent of all parties. The trial court then heard argument on the Wade and Miranda motions, respectively. The trial court applied the first prong under Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), which our Supreme Court confirmed its adoption of in State v. Herrera, 187 N.J. 493, 503-04 (2006). That is, whether the identification procedure was impermissibly suggestive. The trial court recognized that Sanchez was unable to make an in-court identification of S.R., although he identified the co-juveniles in court. However, Sanchez did identify S.R. out-of-court. The trial court found that there was nothing suggestive about the out-of-court identification when Sanchez spotted three of the six individuals who had robbed him. He had recognized A.S. and A.B. from having seen them around previously. During the second drive around, they had passed a number of juveniles without any identification. However, when they proceeded to the intersection of Prospect and Monroe Avenue, Sanchez pointed out, without any suggestion by the officers, three of the juveniles who had robbed him. The trial court concluded that there was no basis for an impermissible suggestive identification because there was no suggestion or prompting by the officers at any time during the drive-around.
The trial court went on to also consider the second prong under Manson, supra, requiring a finding that the identification was reliable, see Herrera, supra, 187 N.J. at 503-04, if a reviewing court were to disagree with his finding that the first prong of impermissible suggestion had not been met. The court acknowledged that while the description was general, Sanchez, nonetheless, could identify their faces because there was sufficient lighting and he saw them at close range. Sanchez demonstrated certainty at the time of the confrontation and responded to Detective Ramseur that he was a hundred percent sure when asked before they exited the vehicle. The identification was made between forty minutes to an hour after the robbery took place. The court was convinced that the second prong was satisfied, although the first prong had not even been met on the juvenile's challenge to the out-of-court identification.
The trial court pointed out that Sanchez was not asked to leave the car when the officers went to confront the juveniles. However, what A.S. blurted out and what S.R. said at the time were not statements that were barred by the Miranda decision. The trial court found that the comments made were spontaneous, "without any question." Even if A.S. and S.R. were in custody, A.S.'s indication of knowledge of where the bicycle was and S.R.'s admission that all he did was take the bicycle and drove it up the street were not the result of any police interrogation. Even if both A.S. and S.R. were detained, the court determined that there was "no need at that point in time to provide them their Miranda rights because they weren't being questioned."
The court also rejected the notion that Sanchez was an agent of the police. The trial court determined that Sanchez's actions were spontaneous and were not directed by any discussion or suggestions by the officers. The trial court denied the motion and concluded what A.S. and S.R. had said concerning the location of the ...