September 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY A. ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-06-1160.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Alvarez and Nugent.
Defendant Gregory A. Robinson appeals from the denial of a pretrial motion seeking to suppress his identification.*fn1
Subsequent to the motion hearing, defendant entered a guilty plea to the offense, third-degree burglary, N.J.S.A. 2C:18-2(a), and was sentenced to three years imprisonment pursuant to the agreement with the State. Appropriate fines and penalties were imposed. We affirm.
At the motion hearing, the State presented two witnesses, Jersey City Police Department Patrol Officer Jesse Hilburn and Detective Phillip Webb. Defendant called one witness, Rick Lisondra, the burglary victim.
Hilburn testified that on April 9, 2009, at approximately 1:38 in the afternoon, he received a dispatch that an African-American male was observed running on Gifford Avenue and, moments later, headed south on Kennedy Boulevard. The suspect was described as short, light-skinned and wearing a blue and white jacket with a Devils hockey team emblem on the back. Hilburn traveled south from his location on Sip Avenue to Kennedy Boulevard and within minutes saw a man matching the description, defendant, whom he detained.
The victim was brought to the location where defendant had been stopped. Lisondra stood approximately one car length from defendant, and identified defendant as the person he saw exiting his home. Hilburn said that the victim had no hesitation in identifying defendant and was, in fact, "[a] hundred percent positive." On cross-examination, Hilburn was shown a computer-aided dispatch (CAD) ticket from the initial report, stating that "a caller saw a Black male  last seen wearing yellow jacket running." The CAD ticket later indicated that the suspect was last seen wearing "a Duke jacket and yellow shirt[, heading] east on Gifford towards the Boulevard." On redirect, Hilburn also said that defendant was wearing a yellow hooded sweatshirt underneath his jacket and denied that defendant was wearing handcuffs during the victim's identification.
Webb testified that at approximately 2:15 that afternoon, he took a statement from the victim who described the perpetrator as a "bald, clean shaven, Black male, wearing a yellow half[-]length jacket." When arrested, defendant had a goatee.
Lisondra testified that police arrived at his home within five minutes of his initial 911 call and he was taken to the corner of Union and Kennedy Boulevard. He was told that a person had been detained who matched his description of the perpetrator and that the authorities wanted him "to identify if it was the right guy." Lisondra described seeing defendant sitting on the curb, his hands cuffed behind his back. He was asked if this was the person who broke into his house, and he responded in the affirmative. Although the victim could not remember defendant's garb at the moment of the identification, he remembered identifying defendant within seconds of seeing him. Even when he saw defendant at the show-up, Lisondra thought he had a mustache but was not sure because he was "shaken, nervous and scared." He affirmed, however, that he did "get a good look" at the perpetrator's face, albeit for "a couple of seconds," and had no doubt that the burglar was the person he identified at the show-up, in other words, defendant. When arrested, defendant was in possession of a chisel. He was wearing a yellow jacket or sweatshirt underneath his blue and white Devils jacket.
In rendering his decision, the trial judge noted that the entire sequence of events, from attempted burglary to identification, occurred in under fifteen minutes, in broad daylight, on a sunny day. Acknowledging that the show-up was suggestive, the judge nonetheless concluded it was not suggestive to the extent that the process prejudiced defendant. He opined that the brief passage of time between burglary and show-up, the victim's opportunity to see the perpetrator's face and clothing, the similarities between Lisondra's description and defendant's appearance, together with the level of certainty of the victim's identification, made it reliable. He therefore denied the motion.
On appeal, defendant contends:
THE PRETRIAL IDENTIFICATION OF THE DEFENDANT WAS UNDULY SUGGESTIVE AND LACKED RELIABILITY. THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S PRETRIAL MOTION TO SUPPRESS.
It cannot be disputed that show-ups, such as the one that occurred in this case, of a handcuffed defendant by a victim who is told he is about to see a suspect, are suggestive. See State v. Romero, 191 N.J. 59, 77-79 (2007). But, where the circumstances make the identification reliable, it will be admitted. Ibid. When applying the necessary two-step analysis, the totality of the circumstances is taken into account. We ask "whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006).*fn2
Despite the suggestiveness of the circumstances here, Lisondra's identification was reliable. It occurred within fifteen minutes of the crime. The victim only described the perpetrator as wearing a yellow sweatshirt, and not a blue and white jacket, but defendant was wearing a yellow sweatshirt beneath his jacket when detained. The victim's confusion about whether defendant had facial hair persisted even when asked about defendant's appearance at the time of the show-up, i.e., he said defendant had a mustache but made no mention of a goatee.
The victim accurately described defendant's general appearance, however, that he was short, light-skinned, and bald. Defendant was stopped after he was seen running away from the location of the victim's home. The victim was told the purpose of the show-up was to be sure police stopped "the right guy." We therefore agree with the trial judge that the positive identification was admissible given its proximity in time to the crime, the victim's opportunity to observe defendant's appearance, the similarities between his description and defendant's appearance, and the victim's level of certainty. The trial court did not err in determining that the eyewitness identification was sufficiently reliable to overcome the inherent suggestiveness of a show-up and to therefore warrant admission.