On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-01427.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012 --
Before Judges Yannotti and Espinosa.
Defendant Oshea Clarke was tried before a jury and found guilty of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). Defendant appeals from the judgment of conviction dated December 20, 2005. For the reasons that follow, we affirm defendant's convictions and the sentence imposed on counts one and two which were merged for sentencing, but vacate the sentence imposed on count three and remand the matter to the trial court for reconsideration of that sentence.
We briefly summarize the relevant facts. At approximately midnight on June 4, 2004, Nelson Garcia (Garcia) was walking to his home in Plainfield. It was dark but the street was well-lit. Garcia noticed a light-colored Mazda M.P.V. minivan, which was parked across the street. He observed two individuals exit the van and cross the street. One man was a thin, dark-skinned, African-American between five-feet, nine inches, and six-feet tall. He was wearing a white shirt and loose pants. His hair was long and in little braids. He appeared between nineteen and twenty-six years of age.
The man walked towards Garcia, and continued past him, but when Garcia turned, the man struck him with a baseball bat. The other individual held Garcia by his back. Garcia was bleeding. He got loose but the man with the bat hit him again and knocked him to the ground. Garcia said he was struck three times in the head and three times on the hands. The attack continued for about one and one-half minutes. The person who held Garcia took his wallet and the two individuals fled, entered the van and sped away.
The Plainfield Police Department (PPD) conducted a photographic lineup on July 9, 2004. Detective Fernando Sanchez (Sanchez) assembled the photos and Detective Thomas Masuhr (Masuhr) displayed the photos to Garcia. Defendant's photo was one of six that Mashur showed to Garcia. Garcia identified defendant as the person who struck him with the bat.
Garcia testified at trial that he identified defendant as the attacker with one-hundred percent certainty during the lineup. He also identified defendant at trial as the assailant, but said that he was only eighty-percent certain of his identification, due to the passage of time.
After Garcia reported the offense to the PPD, officer Terrence McDonald (McDonald) pulled over a light-colored Mazda M.P.V. van. McDonald said that it was a tan-colored vehicle. Dexter Pereira (Pereira) was driving the van, and he had a female passenger. The van was towed to the police station.
Pereira testified that he knew defendant and defendant had been in his van three or four times. He said that he knew defendant had a baseball bat. Pereira testified that defendant was not in his van when the police stopped him. He said, however, that defendant has driven his van at other times. Pereira also said that he has loaned the van to Troy Keets (Keets), who was defendant's friend.
Tonya Wood (Wood) also testified. She said that she knows defendant and Pereira. Wood said that she has seen defendant in Pereira's van, but could not recall if she had seen him driving that vehicle. Wood also stated that she had seen defendant with a bat.
Detective Francis Wilson (Wilson) testified that, after Pereira's car was taken to the police station, he "lifted" some fingerprints from the vehicle. They were sent to the State Police's Automated Fingerprint Identification System (AFIS) unit where they were run through the computer "for any known hits." Wilson said that the AFIS analysis indicated that defendant's and Pereira's fingerprints were in the car. Defendant's prints were on the inside of the window on the passenger's side door.
As we stated previously, defendant was convicted of first-degree robbery, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon. Defendant thereafter filed a motion for a new trial, which the trial court denied.
The court merged count two with count one and sentenced defendant to sixteen years of incarceration on count one, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the court sentenced defendant to a consecutive ten months of incarceration on count three.
On this appeal, defendant raises the following arguments for our consideration.
THE PRETRIAL PHOTO IDENTIFICATION PROCEDURE UTILIZED BY THE POLICE WITH THE SOLE EYEWITNESS WAS UNDULY SUGGESTIVE AND CAUSED A SUBSTANTIAL ...