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State of New Jersey v. Carlos Delevry

November 10, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARLOS DELEVRY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL LAMAR LIVINGSTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-01-0223.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2011

Before Judges Harris and Koblitz.

These back-to-back appeals, which we consolidate for purposes of this opinion, arise from defendants' convictions (at a joint trial) for first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), and third-degree unlawful possession of a weapon (a handgun without a permit), N.J.S.A. 2C:39-5(b) (count three). We affirm.

I.

A.

The following facts are derived from the trial record. Manuel Navarrete and his wife, Claudia Aguilar, operated The Little Diamond Jewelry Store in Red Bank. The store served a predominantly Hispanic clientele and Navarrete and Aguilar's English skills were limited.

On July 18, 2007, at 9:00 a.m., Navarrete and Aguilar arrived at The Little Diamond Jewelry Store with their infant son. At approximately 4:00 p.m., two young men entered the store. Aguilar emerged from the back office to assist them, but upon realizing that the men spoke only English, she called for Navarrete, who had a greater mastery of the language.

At trial, Navarrete and Aguilar described both men as young black males: one man was tall and thin and wore a black rag on his head; the other was shorter and wore a hat. Navarrete and Aguilar distinguished between the two by referring to their comparative heights. Their in-court identifications reflected that the "taller," "thinner" man was defendant Michael Lamar Livingston and the "shorter" man was defendant Carlos Delevry.

The afternoon of the incident, as the men perused a jewelry catalog, Livingston told Navarrete that he wanted to purchase a necklace with a name plaque that read "Erica" and wrote the name on a post-it. Livingston then asked Navarrete to make a photocopy of a particular catalog page to show his girlfriend the necklace. Navarrete produced the photocopy and gave it to the men.

The customers then departed, taking the photocopy with them but leaving the catalog and post-it on the counter of the display case. Five minutes later, they re-entered the store. Livingston again asked Navarrete for the price of the name plaque while Delevry stood off to the side. As Navarrete was speaking to Livingston about the jewelry, Delevry approached from behind and removed a .38 caliber handgun from Livingston's waistband and pointed it at Navarrete. Delevry announced a robbery and opened the firearm's cylinder to display five bullets. Meanwhile, Livingston ran towards the back of the store and came out with Navarrete's wife and son from the office. He seated the mother and child against a wall and directed Navarrete to sit down next to them while Delevry pointed the firearm at the family. Livingston then went back into the office and retrieved cash while Navarrete, Aguilar, and their son remained seated but able to observe Livingston's movements. When Livingston returned he began demanding more money while Delevry continued to hold the victims at gunpoint. Moments later, a patron entered the store and defendants fled, leaving the photocopy behind.

Red Bank Police Officer Paul Perez responded to the scene. Officer Perez's report, which was written several hours after interviewing Navarrete and Aguilar, stated that one suspect was a "black male, approximately 5'5", thin build, early 20's, wearing [a] long black-sleeved shirt, black pants, and a black do-rag and black gloves." The other suspect was described as "[a] black male, approximately 6 foot tall, thin build, early 20's, wearing . . . a black long-sleeve shirt, white undershirt, blue jeans, a black fishing-type hat, and black gloves." The taller individual (Livingston) was said to be in possession of the handgun, and the shorter man (Delevry) was reported to have entered the back office. Officer Perez's report contradicted Navarrete and Aguilar's trial testimony about the description of the individuals.

A second police officer, Lieutenant Elliot Ramos,*fn1 also interviewed the victims on the day of the robbery. Lieutenant Ramos testified that the descriptions he received from Navarrete and Aguilar indicated that the shorter man (Delevry) was wearing a fishing cap and wielding the gun. Navarrete also told Lieutenant Ramos that he recognized the shorter individual as someone who had visited the store several days earlier asking about "an ID." At trial, Navarrete's and Aguilar's testimony were consistent with the descriptions given to Lieutenant Ramos.

The police continued an investigation and proceeded to search the store for fingerprints using a kit containing powders, brushes, lift cards, lifting tape, and gloves. Images of fingerprints lifted from the countertop of the display case were delivered to the New Jersey State Police Automated Fingerprint Identification System (AFIS) Unit. An analysis of those latent fingerprints produced a positive match with an inked impression of Livingston's left middle finger and left index finger. The catalog, photocopy, and post-it were also delivered to the AFIS Unit where they were processed and analyzed. A latent fingerprint image detected on one side of the photocopy revealed a positive match with an inked impression of Delevry's left middle finger.

Approximately one month after the robbery the police prepared a photo array for the victims' viewing, which included Livingston's image. On August 22, 2007, Sergeant Michael Frazee and Officer Perez visited Navarrete and Aguilar at The Little Diamond Jewelry Store. Each victim was separately shown a differently-arranged photo array book containing six photographs. While neither Navarrete nor Aguilar were able to make a positive identification at that time, Navarrete did state that photograph number four in his photo array book resembled the taller robber.*fn2 Similarly, Aguilar stated that photograph number three in her photo array book looked like the taller robber, but that she could not be certain.*fn3

One week later, on August 30, 2007, Police Officer Juan Sardo presented Navarrete with a second photo array book from which Navarrete identified Delevry as "the one that had the gun." Lieutenant Ramos testified that a photo array book was not presented to Aguilar on this date because she had mistakenly been present when Navarrete reviewed the photo array book, which indicated to Lieutenant Ramos that any identification by Aguilar done at that time "would have been a tainted [identification]."

After defendants were arrested, charged, and indicted, a six-day jury trial ensued. Navarrete, Aguilar, and several law enforcement officers involved in the case testified for the State. Delevry testified in his own defense and presented Janice Sims as an alibi witness. Livingston did not testify or present any witnesses.

Sims was in a dating relationship with Delevry in July 2007. She testified that in June and July 2007, she was employed by the United States Postal Service at the Broad Street post office in Red Bank. Because she and Delevry were living in Shrewsbury Arms, approximately five to six miles away from Red Bank, Delevry would regularly drop her off at work in the morning and pick her up at the end of her shift in the afternoon. She would typically call him prior to the end of her workday to let him know when she was free to go home.

Sims testified that the couple went shopping for an engagement ring on July 15, 2007. Three days later, on July 18, 2007 (the day of the robbery), she spoke to Delevry for approximately two minutes around 3:50 p.m. Sims clocked out of work at 4:38 p.m. that day, but could not "exactly recall" if Delevry picked her up. The Red Bank Post Office is a three to four minute drive from The Little Diamond Jewelry Store.

Delevry confirmed that he was living in Shrewsbury Arms during the summer of 2007 and that he and Sims went engagement ring shopping at the Monmouth Mall on July 15. Delevry also testified that he visited The Little Diamond Jewelry Store by himself on July 16 in search of a better price for a ring.*fn4 He claimed that he had only begun to discuss with Navarrete what he was looking for when he was interrupted by a call from Sims informing him that she was ready to be picked up. Delevry cut short the discussion and left the store, claiming never to return.

B.

Sergeant Albert DeAngelis of the Monmouth County Prosecutor's Office testified as an expert in fingerprint analysis. Prior to trial, an N.J.R.E. 104 hearing was conducted allowing defense counsel to inquire about Sergeant DeAngelis's methodology and analysis as well as to challenge the State's non-production of certain documents during discovery. At the hearing, Sergeant DeAngelis testified at length about the AFIS fingerprint comparison results as well as the police fingerprint investigation and evidence preservation methods. The court held that any discovery violations alleged by defendants were cured by the hearing and that it would be for the jury to assess the believability of any opinion testimony relating to the fingerprints. At trial, no one from the AFIS Unit testified.

C.

At the close of the third day of trial, following the completion of the direct examination of Aguilar in which she made in-court identifications of both defendants, Livingston's counsel advised the trial court -- outside the presence of the jury -- of the following:

Judge, we have a problem. Apparently, for whatever reason, one of the sequestered witnesses, the last witness who testified, was brought into the courtroom before the defendants arrived. She was then allowed to observe the defendants manacled and being led to their seats.

Livingston's defense counsel announced his intention to cross-examine Aguilar about her observations to demonstrate the suggestiveness and lack of reliability of her in-court identification of his client. The court responded, "Okay. If you want to bring it out before the jury, I can not stop you from doing that."

When the trial resumed after the ensuing weekend, the issue was addressed again. The attorney for Delevry moved for a mistrial after the trial court indicated that if it permitted cross-examination of Aguilar about her observations, the jury would become aware that defendants had been held in custody. As such, the court suggested that counsel consider not revealing to the jury that defendants were in handcuffs and invited counsel to draft a limiting instruction to be read to the jury either before or after cross-examination.

The court denied the mistrial motion, but conducted an N.J.R.E. 104 hearing to determine what effect Aguilar's observations might have had on her in-court identifications. At the hearing, Aguilar testified that although she could not recall whether or not defendants "had anything on their hands," she immediately recognized "those two black gentlemen . . . that came into the courtroom on Thursday when the two sheriff's officers were with them" as "the people who had come into our shop."

Following the hearing, both defense attorneys elected to fully cross-examine Aguilar about her in-court observations.

Prior to doing so, however, the court issued the following instruction to the jury:

The record will reflect the jury is in the jury room. Counsel is at counsel table, as are the defendants. I apologize for the delay in getting you up here today. An issue arose late Thursday which we had to address this morning. We've been working since quarter of 9 on that issue. That issue has now resulted in my explaining the following to you ...


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