On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0475.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R.B. Coleman.
After a request by defendant, Thomas J. Brockington, for a Wade*fn1 hearing was denied, defendant was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count three); and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count four). After merging counts two and four with count one, Judge Scott J. Moynihan sentenced defendant to a nine-year custodial term subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the robbery conviction, and a four-year consecutive term on the criminal restraint conviction. The court also imposed appropriate fines and penalties. On appeal, defendant challenges the denial of his request for a Wade hearing, claims the verdict was against the weight of the evidence because it was solely based on hearsay, and challenges the imposition of consecutive sentences. We affirm.
The following testimony and evidence were adduced at trial. On February 9, 2008, at approximately 7:00 p.m., Beata Andrezejczak was alone in her parents' house, working at a computer desk in the dining room. She began to smell cigarette smoke, which she found odd because no one in the house smoked. She went to the kitchen to investigate, first turning to her left to make certain the appliances were off. Andrezejczak then turned to her right and saw a person, defendant, facing her and standing less than three feet away. Both were shocked and did not know what to do, so Andrezejczak "was looking right at his face" for "a few minutes[.]" Because there was a "massive" light turned on in the middle of the kitchen, the room was well lit and Andrezejczak was able to see defendant clearly. She observed defendant was "thin" and "weathered-looking," and had "very specific" features such as "larger eyes." She described him as a "lighter-skinned" African American who was wearing a hooded sweatshirt that covered only his ears and his hair, not his face.
Defendant told her to "stop looking at him" and placed her in a choke hold from behind. He knocked the wind out of her, dragged her down the hallway, and repeatedly told her that she had two minutes to tell him where her money and property were located or she was going to die. After Andrezejczak told the man she had some money in her wallet in the kitchen, he dragged her back to the kitchen, tore the kitchen phone out of the wall socket, slammed her to the ground "with all of his force," and continued to threaten to kill her.
After Andrezejczak gave the man approximately $100 from her wallet and a couple of cell phones that were in the kitchen, the man then grabbed her "forcefully," dragged her down the hallway to the basement, pushed her down the stairs, and told her he was going to look for her identification so she would not call the police. Seeing a broken window, Andrezejczak crawled through it and ran from the house.
On the morning of February 10, Andrezejczak went to the Linden Police Department and had a sketch artist draw a sketch of her assailant. She returned that evening, where she was shown a photo array by Detective David Dehler. After the detective read her the photo display instructions, the detective and Andrezejczak signed the instructions. The detective showed each of the six photos in the array individually, through the use of a photo box. Andrezejczak asked to look at photograph number two twice and indicated she was "about 95 percent sure" that was her attacker. The photograph was of defendant, but he was not wearing a hooded sweatshirt. After identifying defendant, Andrezejczak saw a second photograph of him, this time wearing a hooded sweatshirt. Andrezejczak testified she was then "definitely 100 percent" sure that defendant was her attacker.
Pertinent to this appeal, Alba Martins, Andrezejczak's next door neighbor, testified that her husband took their dog outside between 7:00 and 8:00 p.m. on February 9, 2008. When he returned about ten minutes later, she was at the kitchen sink washing dishes. Because the motion sensor lights were still illuminated from her husband being in the backyard, she could see a person hiding his face and running quickly while bent over, who she identified as a male wearing a "shirt with a hood with white lines" on the arms.
Defendant testified that on the evening in question he was in his house in Linden watching the movie "Black Hawk Down" from approximately 4:00 p.m. to 7:30 or 8:00 p.m. According to defendant, he was in his house the entire night and went to sleep after watching the movie. Defendant maintained he did not know anything about the break-in at Andrezejczak's parents' house and proclaimed his innocence. On cross-examination, however, defendant acknowledged he owned a hooded sweatshirt with a white stripe running down the arms. A jury convicted defendant of all four counts of the indictment. This appeal ensued.
On appeal, defendant argues through counsel:
BECAUSE THE MOTION COURT ERRED IN DENYING DEFENDANT A HEARING ON HIS MOTION TO EXCLUDE THE OUT-OF-COURT IDENTIFICATION, ...