March 22, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK ROIGE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 positive or negative identification . . . if that was the gentleman in his yard." Tucker identified defendant without any equivocation.
The judge concluded that given the short period of time between the events and the two identification procedures, there was nothing "impermissibly suggestive" and denied defendant's request to suppress the out of court identifications.
Before the jury at trial, Blanchard testified that she was walking to her home and was right outside when someone grabbed her from behind. She started to scream, and her assailant demanded money and her bag. Blanchard resisted, felt the man had "facial hair and stubble," and tried to grab his neck and face. She fell to the ground, and the man dragged her by her backpack until the strap broke. He ran off with her backpack that contained her laptop computer, cell phone, wallet, camera, a book and house keys. She suffered injuries to her face and a "bump on [her] head." Blanchard identified defendant in court as her assailant.
She also described the show-up identification that followed the assault. Within minutes, the police arrived and Blanchard gave them a description of her assailant. About ten minutes later, the police drove her "[a] few blocks" and, from about "[fifteen] feet" away, she identified defendant as he stood in the middle of the street. Blanchard identified her backpack and various items that were in it when stolen.
Tucker testified he saw someone in his yard near his "grill" who was "bobbing and ducking down." Tucker called out, and saw the man who had some "facial hair." The police put Tucker in their vehicle, and he made an identification within "ten or [fifteen], [twenty] minutes." Tucker claimed defendant was "handcuff[ed]" when he saw him. Tucker could not identify defendant in court, but did identify a photo of defendant, shown to him by the prosecutor, as the man he identified that evening.
Officer Kevin Ronski initially detained defendant because he fit the description already broadcast. Once identified by Blanchard and Tucker, defendant was placed under arrest. He had blood on his neck and the middle finder of his left hand, and he appeared to be out of breath and sweating.
Other officers testified regarding the recovery of Blanchard's property in the yards of nearby homes. Photographs of defendant's hands taken that night showed they were injured and bloody. DNA analysis of Blanchard's backpack revealed the presence of defendant's blood.
Defendant elicited on cross-examination that a photo array containing his picture was shown to a woman who also told police she saw someone running through a backyard. She could not make a positive identification of defendant.
Defendant testified in his own behalf. He claimed that as he was walking home from a friend's house, he was approached by a stranger who said, "you look like a man who knows something about fine electronics." The man showed defendant a backpack containing a laptop computer, cellphone and digital camera, and permitted defendant to "rummage" through the bag. Defendant told the man he was not interested and continued walking until he was detained by the police.
Defendant testified that he worked for a florist and frequently cut his hands on "thorns and spines." He denied any involvement in the robbery, or that he ran through backyards to elude being apprehended.
Defendant contends that the judge "erred in allowing impermissibly suggestive unreliable identification evidence . . . that created a substantial likelihood of misidentification." We disagree.
"[O]ne-on-one show ups are inherently suggestive" since the defendant is generally already in "police custody." State v. Herrera, 187 N.J. 493, 504 (2006). However, "[s]o-called 'show up' . . . identifications made within a reasonably short time at the scene of the crime are permissible under the Wade doctrine." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003).
"First, a reviewing court must 'ascertain whether the identification procedure was impermissibly suggestive.'" State v. Romero, 191 N.J. 59, 76 (2007) (quoting Herrera, supra, 187 N.J. at 503). The Court has said, "a little more is required in a show up to tip the scale toward [it being] impermissibly suggestive." Herrera, supra, 187 N.J. at 504.
This case was tried, the appeal filed, and the briefs submitted before our Supreme Court decided State v. Henderson, 208 N.J. 208 (2011). Although Henderson undoubtedly altered the landscape regarding the admissibility of out-of-court identification testimony, the Court clearly indicated its "decision announce[d] a new rule of law," id. at 300, that would only be applied prospectively. Id. at 302. Thus, Henderson does not apply to this case.
Perhaps more importantly, in discussing the inherent suggestiveness of showup identifications, the Court in Henderson, noted "the record casts doubt on the reliability of showups conducted more than two hours after an event, which present a heightened risk of misidentification." Id. at 261 (emphasis added). "As with lineups, showup administrators should instruct witnesses that the person they are about to view may or may not be the culprit and that they should not feel compelled to make an identification." Ibid. In adopting its revised analytic framework, the Court posited the following appropriate inquiries to be made by the reviewing court regarding showups: "Did the police perform a showup more than two hours after an event? Did the police warn the witness that the suspect may not be the perpetrator and that the witness should not feel compelled to make an identification?" Id. at 290.
It is clear that in this case the two showup procedures took place within minutes of Blanchard and Tucker observing defendant. In each instance, the police conduct was relatively neutral, leaving the witnesses the option of making, or declining to make, a positive identification of defendant. Neither witness felt compelled to identify defendant. Therefore, we agree with the trial judge that the evidence of defendant's out-of-court identification was properly admitted, and we affirm defendant's conviction.
In his statement in lieu of transcript filed as a result of our remand, the judge noted that defendant was eligible for an extended term as a persistent offender, a conclusion that defendant does not challenge. The judge detailed defendant's prior criminal record, that included convictions for second-degree possession of a controlled dangerous substance with intent to distribute, two counts of first-degree robbery, and two separate convictions for simple assault. Defendant also had an open indictment for theft at the time of his conviction on these charges.
The judge found aggravating factors one ("[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"); two ("[t]he gravity and seriousness of harm inflicted on the victim"); three ("[t]he risk that the defendant will commit another offense"); six ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine ([t]he need for deterring the defendant"). N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), and (9). In particular, the judge noted:
While such findings ordinarily would result in a sentence towards the top of the sentencing range, the Court considered that two of the Defendant's convictions were used to extend the term of imprisonment. Furthermore, while the Defendant did more than was minimally necessary to establish a robbery, the injuries inflicted were not so serious as to justify great weight being placed on aggravating factors [one] and [two].
Noting the impact of NERA upon the actual time defendant would serve on this conviction, the judge further determined that "a sentence in the approximate mid range of the available sentence range was . . . the appropriate sentence."
Defendant argues that "aggravating factors one and two should not have been found at all," and that the weight accorded to the remaining factors was unjustified, such that he should have been sentenced to "no more than the top of the ordinary range, or [ten] years with the mandatory NERA period of parole ineligibility." While we might agree that the application of factors one and two were not justified, the judge explicitly noted that he attached little weight to those findings.
An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. at 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). It cannot be seriously argued that the judge's findings as to aggravating factors three, six and nine were not amply supported by the record. Under our standard of review, we will only reverse a sentence if it "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009). Here, the judge imposed a sentence of thirteen years which, though greater than the maximum sentence for a second-degree offense, was significantly less than the twenty-year maximum sentence defendant faced as a persistent offender. The sentence does not shock our conscience.
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