On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1461.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2012
Before Judges Harris and Newman.
Following a jury trial, defendant Joseph Johnson was found guilty of second-degree robbery, N.J.S.A. 2C:15-1 and carjacking, N.J.S.A. 2C:15-2 on counts one and two respectively of Hudson County Indictment No. 08-08-1461. The trial court denied defendant's motion for a judgment of acquittal and a new trial. The trial court also denied the State's motion for extended-term sentencing on the carjacking conviction to which the State argued for a fifty-year sentence and a consecutive ten-year sentence on the robbery. The trial court sentenced defendant to a ten-year term of imprisonment on the robbery and to a consecutive thirty-year term for the carjacking, both with 85% parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(NERA). The requisite fines and penalties were also imposed, but no restitution was exacted. However, defendant only appeals his robbery and carjacking convictions. We now affirm.*fn1
Briefly stated, the following are the facts surrounding the two crimes: At 8:30 a.m., on April 19, 2008, defendant entered Jacob's Delicatessen (the Deli) in Jersey City. He shouted
"This is a robbery, bitch" several times and walked towards Ms. Fathia Elbahnasy, who was operating the lottery machine register in the back of the store. Defendant shoved Ms. Ann Johnson, a customer, aside and began to strike Elbahnasy in the back and neck. Defendant then pushed Elbahnasy down a small flight of stairs into the kitchen area and continued to strike her until a co-worker, Anirudha "Ani" Bangera, came to her assistance. When Bangera tried to grab defendant, defendant then turned and punched Bangera two or three times. Bangera released defendant, who then proceeded to enter the office of the Deli and attempted to kick open a window. Because a metal grill covered the outside of the window, defendant was unable to exit the store through the office. Instead, he walked back through the front door entrance and left the store empty-handed. Once outside, defendant tried unsuccessfully to kick open the door of another building before he turned back toward the Deli. At this point, Bangera locked the Deli's door after he and a few others retreated safely inside. From inside the store, Bangera saw defendant "grab hold of a vehicle" and struggle with its driver.
Paul Grigg was stopped at a traffic light at the intersection of Baldwin and St. Paul in Jersey City and saw defendant running down the street. Defendant then jumped in the passenger side window of Grigg's employer's Honda Element. Defendant said "guess what, it's a robbery bitch" and pushed Grigg against the driver side door. Defendant used his elbow to pin Grigg against the driver's side door, and grabbed the steering wheel and slammed his foot on the gas. Grigg tried to maintain control of the vehicle by pressing the brake as the vehicle traveled north on Baldwin Avenue, but defendant continued to press the gas pedal. Defendant and Grigg struggled for control of the vehicle, and defendant tried to bite Grigg's hands to force him to release the steering wheel. As the car proceeded approximately ten blocks down Baldwin at a high rate of speed, it sped around a bus which skidded to a halt and narrowly missed striking two elderly women. When defendant forced the wheel to the left, the car skidded through an intersection, knocking over a traffic light and two street signs before finally coming to a stop.
Defendant then jumped over Grigg and out the driver's side window and ran up the block to the corner where he stopped. Almost immediately after Grigg called 9-1-1, a police car appeared "zooming down the street." Grigg flagged down the police car and told the officer to "get him, get him, the black man with the white long-sleeved shirt and shorts." Jersey City Police Officer Jeffrey Foxall reversed his cruiser and proceeded to arrest defendant, who offered no resistance.
Defendant was handcuffed and placed in the backseat of the police car. Officer Foxall brought defendant to the Deli because he matched the description of the robber that had been the subject of a recent police dispatch. Elbahnasy testified that the person seated in the police car was the same person who attacked her earlier that morning. Johnson, who had been in the Deli when the robbery took place, identified defendant in the police vehicle. Johnson also identified defendant as the man in the Deli when she viewed him in the holding cell in the precinct later that same day.
At trial, Elbahnasy, Johnson and Bangera all identified defendant as the robber, and Grigg identified defendant as the carjacker.
On appeal, defendant raises the following issues for our consideration:
POINT I: BECAUSE THE SHOW-UP IDENTIFICATION PROCEDURE CONDUCTED BY POLICE AT JACOB'S DELI WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION, BOTH THE OUT-OF-COURT AND LINKED IN-COURT IDENTIFICATIONS MADE BY ELBAHNASY, ANNA JOHNSON, AND BANGERA SHOULD HAVE BEEN EXCLUDED. IN ADDITION, TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE[*fn2 ] HEARING.
A. THE IDENTIFICATION SHOULD HAVE
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE HEARING.
POINT II: THE TRIAL COURT ERRED IN FAILING TO CHARGE THIRD DEGREE AGGRAVATED ASSAULT AND SIMPLE ASSAULT AS LESSER INCLUDED OFFENSES OF ROBBERY.
POINT III: DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS COUNSEL FAILED TO RAISE THE ISSUES ADDRESSED IN POINTS I AND II, ELICITED TESTIMONY REGARDING DEFENDANT'S ALLEGED DRUG USE ON THE DAY IN QUESTION, AND FAILED TO INVESTIGATE A POSSIBLE VOLUNTARY INTOXICATION DEFENSE.
POINT IV: DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant argues that the police "showup" procedure, that is, driving defendant to the scene of the robbery and allowing eyewitnesses to identify defendant while he sat in the backseat of the police car was impermissibly suggestive. Defendant asserts that procedure, tainted the in-court identifications and therefore both the out-of-court and in-court identification testimony should have been excluded with regard to the robbery charge.
The standard for determining admissibility of eyewitness
identification is set forth in Manson v. Brathwaite, 432 U.S. 98, 97
S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Our Supreme Court adopted
Manson's approach in State v. Madison, 109 N.J. 223 (1988).*fn3
In Madison, our Court described Manson's two-step test in the
[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. [Madison, supra, 109 N.J. at 232. (internal citations omitted).]
In Manson, the Supreme Court observed that "reliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.
Our Supreme Court has recognized "one-on-one show-ups are
inherently suggestive." State v. Herrera, 187 N.J. 493, 504 (2006). Nevertheless, "standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step" of the analysis. Ibid. This is because on or near-the-scene identifications "'are likely to be accurate, taking place, as they do, before memory has faded [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Ibid. (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)). In fact, "[f]ar from being conducive to misidentification, confrontation immediately after a crime promotes fairness to the accused by allowing a viewing while the witness's mental image of the perpetrator is still fresh." State v. Carter, 91 N.J. 86, 130 (1982) (citations omitted).
Given the low threshold for finding impermissible suggestiveness in police showups, we are convinced that the showup here was impermissibly suggestive. However, even if the identification procedure outside of the Deli was impermissibly suggestive, that does not end the inquiry. The second part of the analysis focuses on the reliability of the identification. Madison, supra, 109 N.J. at 232. If the identification is found to be reliable ...