On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0469.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Messano, Yannotti and Kennedy.
Tried before a jury, defendant Mark Roige was convicted of second-degree robbery, N.J.S.A. 2C:15-1. The judge granted the State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:44-3(a), and imposed a sentence of thirteen years in prison, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed his notice of appeal, and we ordered a remand to the trial court for reconstruction of the transcript of defendant's sentencing pursuant to Rule 2:5-3(f).
Defendant raises the following points on appeal:
THE SHOW-UP IDENTIFICATION PROCEDURE CONDUCTED BY POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION POINT II THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant's request for a pre-trial identification hearing, see United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), was granted by the judge.
Rahway police officer Edward Lowe testified that he was on patrol in a marked police vehicle on the evening of January 28, 2008. He was dispatched to the corner of "Whittier and Raleigh" and spoke to a woman, Elizabeth Blanchard, "visibly upset," with "a bruise . . . on her wrist." She claimed "somebody attempted to steal her backpack" and supplied Lowe with a description of the man and the direction he fled.
Within minutes, Lowe received a report that someone was "running through backyards," and that a suspect "matching the description" had been located. Lowe drove Blanchard to that location and told her "we've possibly found a . . . suspect . . . . [He] told her to take her time, if she recognize[d] anything about him, to let [him] know." Defendant was standing in front of another patrol car, without handcuffs, and the headlights of the patrol car illuminated the area. Blanchard was approximately twelve feet away, looking out the rear window of the patrol car, when she identified defendant as the man who had robbed her.
Officer Donald Dayon also testified at the hearing. He was dispatched to the area, engaged in a foot patrol and encountered a homeowner, Trevor Tucker, who told him "there was an individual in his yard." Dayon received a broadcast that someone had been apprehended. Within "a couple of minutes," Dayon took Tucker, who indicated he could identify the man, in his police vehicle to the suspect, who was standing next to a police car. Dayon told Tucker, "he was going to . . . make a determination, a ...