On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0674.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Sabatino and Ashrafi.
This appeal arises out of a robbery that occurred in October 2008. At trial, the victim identified defendant Alnasir Muntaqim as her assailant and stated that he pressed a sharp object to her right side during the robbery. Defendant elected not to testify and principally relied on a misidentification defense. The jury found defendant guilty of first-degree robbery but acquitted him of two counts of weapons offenses. The trial court classified defendant as a persistent offender because of his lengthy criminal record and sentenced him to an extended term of forty years imprisonment.
Defendant now appeals his conviction and sentence. Although we reject
the other points he raises on appeal, we agree with defendant that the
trial court erred in denying his pretrial motion for a Wade*fn1
hearing to assess the identification procedures employed by
the police. We therefore remand this matter for such a Wade hearing,
informed but not bound by the Supreme Court's recent explication of
identification concerns in State v. Henderson, 208 N.J. 208 (2011).
According to the State's proofs at trial, on the morning of October 20, 2008, the victim, an adult female, was waiting for a bus at the corner of Sixth Street and Sixteenth Avenue in Newark. While she was waiting, the victim was speaking on her cell phone and removing items, including $100, from her bag. The victim noticed a man pacing at the bus stop. The man approached her from behind, and the victim then felt something sharp pressing against her right side. The victim did not see a sharp object, nor was any weapon found at the scene.
The man then grabbed for the victim's phone, the $100 in cash, and her bag. He broke the victim's phone. The victim yelled for the man to "get off [her] bag." Her assailant yelled back, "give me your shit." He scratched the victim and grabbed the chain necklaces that she was wearing.
A physical altercation ensued between the victim and the her assailant, which, according to the victim, lasted between three and four minutes. During the altercation the victim was able to view her assailant's face.
A man who was driving down Sixteenth Avenue noticed the altercation. He heard the victim exclaim, "stop, stop." He pulled over to help, and, at that point, the assailant fled the scene.
At trial, the passerby testified that he followed the assailant into a housing complex and watched him walk around the complex for three to five minutes. The passerby related that the assailant then got into a vehicle and drove away. He recorded the make and model of the getaway vehicle as well as its license plate number and gave the information to a police officer. The passerby did not give the police an out-of-court identification; however, he identified defendant as the assailant during the trial.
Newark Police Officer Joaquin Jenkins arrived on the scene to investigate. Officer Jenkins spoke with the victim, who estimated that her assailant was age "twenty to twenty-five, twenty-six." The victim further described her assailant as being about five feet eight inches tall and 110 pounds.*fn2 The victim also provided Officer Jenkins with the license plate number of the getaway vehicle. According to Officer Jenkins's report, the assailant drove a blue Chrysler Intrepid.*fn3
Later that same day, the victim gave a written statement to Porfirio Dominguez, a Newark police detective and the lead investigator on the case. She repeated her description of her assailant. She also looked through a series of photographs on the police department's computer and initially identified two people whom she thought might have done it.
Detective Dominguez thereafter ran the license plate number that he had received from the victim through the State's computerized motor vehicles records. He discovered that the vehicle with that license plate belonged to defendant. Based upon that additional information, Detective Dominguez compiled a new photo array for the victim.
The victim related that on October 25, 2008, Detective Dominguez picked her up at her home and drove her to the police station so that she could look at more photographs. In her trial testimony, the victim gave inconsistent answers about whether the police told her before administering this second photo array that they had identified a suspect through the getaway car's license plate number. As we will elaborate in our discussion of the Wade issue in Part II(A), infra, the victim in her testimony twice denied receiving such a disclosure from the police but also twice stated that such a disclosure had occurred.
The photos in the second array were shown to the victim apparently by another police officer assigned to the investigation, Detective Gerardo Rodriguez.*fn4 According to the victim, upon her arrival at the police station on October 25, an officer left her alone with six photos, and she viewed all siX at the same time. Conversely, Detective Rodriguez testified that he showed the victim the photos one at a time and denied that he had left her alone with them.
The two individuals that the victim had tentatively identified earlier on October 20 as potential suspects were not included in the second photo array. The victim picked defendant's photograph out of the array, and she identified him as the man who had grabbed her bag. At trial, the victim again identified defendant, pointing him out in the courtroom as her assailant.
Following the issuance of an arrest warrant based upon this additional information, defendant was arrested on November 4, 2008. In March 2009, an Essex County grand jury returned an indictment, charging defendant with robbery while armed with or threatening the use of a sharp object, N.J.S.A. 2C:15-1 (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).
Prior to trial, defense counsel requested a Wade hearing to determine whether the police's out-of-court identification procedures were, in this case, impermissibly suggestive. The trial court denied that request, concluding that defendant had not made an adequate showing to require such a hearing.
At the two-day jury trial in March 2010, the State called the victim, the passerby, Officer Jenkins, Detective Dominguez, and Detective Rodriguez as witnesses. As we have noted, both the victim and the passerby identified defendant in court as the assailant. Defendant did not testify, and he did not present any witnesses. The jury convicted defendant of count one, the robbery offense, but acquitted defendant of counts two and three, the weapons offenses.
On May 14, 2010, defendant filed a motion for a new trial and for a judgment of acquittal notwithstanding the verdict. The motion was denied by the trial court as both procedurally time-barred and substantively without merit.
At the sentencing hearing on May 24, 2010, the court granted the State's motion for an extended term. The court imposed upon defendant, who has an extensive prior criminal record, a forty-year prison sentence, with a thirty-four-year period of parole ineligibility.
In his appeal, defendant ...