On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-06-01697.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Koblitz.
Defendant, David Perez, appeals his conviction following a jury trial for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a weapon, N.J.S.A. 3C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was sentenced to an aggregate term of sixteen years in custody, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. None of the convictions were merged; all were declared to be subject to NERA.
On appeal, defendant raises the following issues:
I. THE PROSECUTOR'S MULTIPLE IMPERMISSIBLE STATEMENTS DURING SUMMATION CONSTITUTE PLAIN ERROR AND THIS COURT SHOULD REVERSE THE CONVICTION BELOW.
II. REVERSAL IS WARRANTED BECAUSE THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED AN IN-COURT IDENTIFICATION BASED ON A TAINTED OUT-OF-COURT IDENTIFICATION.
We affirm defendant's convictions and remand for resentencing, which the State concedes is required.
The jury could have concluded from the evidence adduced at trial that on November 29, 2008, while the victim, Manuel Branco, was opening a check-cashing shop for a friend, defendant, a welder, used a modified metal framing square to break into Branco's van, where he hid. Branco returned, and while stopped at a light, defendant suddenly appeared, brandishing a gun and ordering Branco to drive onto the railroad tracks. Branco froze, and a tussle ensued while defendant sought to gain control of the vehicle. Failing, he got out, having taken Branco's cell phone and some checks at gunpoint. He then got into a waiting car containing two other individuals and sped away.
Following the incident, Branco drove to a nearby fire station, where firefighters reported the matter to the police. Branco stated that he knew defendant, a dark-skinned Hispanic man, from the neighborhood. Similarly, during the robbery, defendant confirmed that he knew Branco.
Thereafter, the police conducted a photo array pursuant to the Attorney General's guidelines, during which Branco identified defendant's photo as that of the perpetrator with eighty to ninety percent certainty. Branco positively identified defendant in court. Additionally, defendant's fingerprint was found on the framing square used to break into the van and left there by defendant. A video recording of the break-in depicted a person who resembled defendant, although a view of his face was not ...