January 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS J. BROCKINGTON A/K/A THOMAS JOHNSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 11, 2011
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, DEFENDANT'S CONVICTIONS MUST BE REVERSED.
IF THIS COURT SHOULD CONCLUDE THAT DEFENDANT'S CONVICTIONS DO NOT HAVE TO BE REVERSED, THE MATTER SHOULD NEVERTHELESS BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED BY THE TRIAL COURT WAS AN ABUSE OF ITS DISCRETION.
In a pro se brief, defendant argues the verdict was against the weight of the evidence because it was based on hearsay, not evidence. Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm.
Judge Stuart Peim denied defendant's motion for a Wade hearing by order of September 17, 2009, providing that "after review of [the] photo spread, the Court does not find that the defendant has met his threshold burden of providing some evidence of impermissible suggestiveness."
Defendant does not argue that anything in particular about the photo array was impermissibly suggestive. He merely states he pointed out in his motion seeking a Wade hearing that the array was not of males similar in appearance and he was particularly noticeable relative to those in the other photos because of the positioning of his face, that three of the photos were of persons who had beards and the whites of his eyes were more noticeable than that of the other individuals. According to defendant, these distinctions constitute "some evidence" of suggestiveness, State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985), and thus the failure of the motion court to grant his request for a Wade hearing was reversible error.
We disagree. The New Jersey Supreme Court has adopted a two-step analysis for determining a violation of due process of law in the context of unduly suggestive identifications, called the Manson/Madison test.*fn2 The court must first decide if the conduct was impermissibly suggestive, and if so, whether such procedure resulted in a "'substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 239 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).
The court next focuses on reliability by looking at the totality of the circumstances. Madison, supra, 109 N.J. at 239; Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967). See also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972) ("[T]he central question [is], whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive."). Specifically regarding a claim of overly suggestive identification evidence, the Supreme Court of the United States dictated that courts should consider:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).]
Although the Court in Madison warned, the "danger [of improper identification] will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw," supra, 109 N.J. at 231 (quoting Simmons, supra, 390 U.S. at 383, 88 S. Ct. at 971, 19 L. Ed. 2d at 1253), this out-of-court identification will not necessarily be excluded. State v. Adams, 194 N.J. 186, 205-06 (2008); State v. Matlack, 49 N.J. 491, 498, cert. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). Rather, it will be considered in terms of its effect on the reliability of the identification. Matlack, supra, 49 N.J. at 498.
Judge Peim properly denied defendant a Wade hearing because he did not make a prima facie showing that the photo identification made within twenty-four hours of the attack on the victim was either impermissibly suggestive or unreliable. During the attack, the victim looked directly at defendant's face for a few minutes in a well-lit room. She observed details, describing defendant as "thin" and "weathered-looking" and noting he had "very specific" features, including "larger eyes." In fact, at one point, defendant told Andrezejczak to "stop looking at him[.]"
The victim also testified that no one tried to influence her identification and no one suggested which photo to identify as her attacker. The array consisted of six photographs, out of which she identified the person in photograph number two, defendant, as her attacker with ninety-five percent certainty and, after being shown another photograph of defendant wearing a hood, she identified him as her attacker with one-hundred percent certainty. Given that Andrezejczak saw defendant so clearly during the attack and so positively identified him from an array consisting of multiple photographs, there was not "a substantial likelihood of irreparable misidentification." Adams, supra, 194 N.J. at 204.
Defendant's argument that the jury verdict was against the weight of the evidence because the only evidence presented was hearsay is not "cognizable on appeal" because a motion for a new trial on that ground was not made in the trial court. R. 2:10-1; see, e.g., State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). But see State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993). In any event, we find no "miscarriage of justice under the law[,]" R. 2:10-1, because the "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Smith, supra, 262 N.J. Super. at 512 (quoting State v. Carter, 91 N.J. 86, 96 (1982)).
Defendant argues that the robbery and criminal restraint sentences should not have been made consecutive under the controlling case, State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Defendant concedes that criminal restraint constitutes a separate and distinct crime from that of robbery but argues it was "a single period of aberrant behavior" warranting concurrent sentences. Id. at 643-44.
We disagree. A trial court has the discretion to impose concurrent or consecutive sentences as it determines is appropriate. N.J.S.A. 2C:44-5(a); State v. Abdullah, 184 N.J. 497, 512 (2005). We discern no abuse of discretion or legal error by Judge Moynihan in his sentencing of defendant. He applied the Yarbough principles correctly, finding that, though close in time, the robbery and criminal restraint were two separate crimes such that defendant should be subjected to consecutive punishment. As Judge Moynihan noted, "[t]he object of the criminal restraint had nothing to do with the object of the completed crime of robbery and that of burglary." Defendant robbed Andrezejczak by taking approximately $100 from her wallet and two cell phones from the kitchen, during which time he placed her in a choke hold and threatened to kill her. Defendant then subjected Andrezejczak to "further terror by locking her down the basement, committing a separate threat to her of violence, and subjecting her to the danger of escaping through the basement window." As such, the robbery and criminal restraint "'involved separate acts of violence or threats of violence[.]'" See Abdullah, supra, 184 N.J. at 513 (quoting Yarbough, supra, 100 N.J. at 644).
Additionally, the two crimes had different objectives in that defendant hoped to gain financially from the robbery while his objective from restraining Andrezejczak was to prevent her from contacting the police for help. As the judge explained, the criminal restraint was not an integrated part of the robbery; rather, "[t]he restraint was a perverse exercise of power over the victim." We echo Judge Moynihan's astute comment that "defendant's actions were akin to burning a fly by focusing the sun's rays through a magnifying glass after pulling off its wings."
The court concluded that, under the circumstances of this case, a concurrent sentence would undercut the longstanding policy that "there can be no free crimes[,]" citing Yarbough, supra, 100 N.J. at 643. This determination does not constitute "such a clear error of judgment that it shocks the judicial conscience[,]" warranting modification of the sentence on appeal. State v. Roth, 95 N.J. 334, 364 (1984).