On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-04-1097.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
Before Judges Parrillo, Grall and Alvarez.
Tried by a jury, defendant Renard Joseph was convicted of three counts of first-degree armed robbery, N.J.S.A. 2C:15-1(b), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On the armed robbery convictions, he was sentenced to concurrent eighteen-year prison terms, each 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, and on the second-degree weapons offenses, to concurrent five-year terms with a five-year period of parole ineligibility. The third-degree weapons offense was merged into one of the second-degree weapons convictions. Appropriate fees and penalties were also imposed.
The armed robberies of three individuals occurred around 9:40 a.m. on December 28, 2007, at a beauty salon on Springfield Avenue in Newark, where Gloria Reed and Keisha Munroe were patrons and Mary Luz Hernandez worked as a beautician. According to the State's proofs, Munroe saw a man, later identified by all three women as defendant, enter the salon and tap Hernandez twice. When Hernandez ignored him, defendant sat down next to Munroe and attempted to grab her purse. Munroe moved the purse before he could take it, and asked what he wanted. At that time, she saw a gun with a "skinny barrel" in his hand. Defendant demanded her "stuff," got up from the chair, and told Munroe that he also wanted her rings as he walked towards Hernandez. Munroe gave him ninety dollars and her engagement ring set.
Reed, who had fallen asleep, was awakened by Hernandez's voice saying "what do you want?" She saw defendant standing by Hernandez. Reed heard him tell Hernandez, "I'm not playin," and "take the fuckin' rings off." Both Reed and Hernandez saw him pull from a bag a black revolver with a long barrel. Hernandez took off her engagement ring, and gave it to him. Defendant then pointed the gun at Reed's face, and demanded money. When Reed replied that she did not carry money, he told her to take off her engagement ring and give it to him, which she did.
After he took their money and jewelry, defendant ordered the women at gunpoint to walk to the back of the salon. When Reed refused, he walked out. By Munroe's estimate, the entire incident lasted between five and ten minutes. All three victims got a good look at the robber as the salon was well lit.
After defendant left, Reed got into her car, which was parked directly in front of the salon, and chased him about eight blocks to Tenth Street, while Munroe called the Newark Police Department (Newark PD). At some point, defendant turned around and looked directly at Reed before running into a cemetery. Reed lost sight of him, and when she returned to the salon, the police were there. She told a police officer about the chase, and he drove her back to the cemetery but they did not find the suspect.
At 10:15 a.m., Detective Gerardo Rodriguez and Sergeant Lee Douglas of the Newark PD responded to a call of a robbery at the beauty salon. While Rodriguez briefly investigated the scene, the three victims were transported separately to police headquarters, where they continued to be separated.
Rodriguez first took Munroe to a small room with a computer containing a database of photographs of individuals previously arrested in Essex County. The database was part of the High Intensity Drug-Trafficking Area (HIDA) system. Rodriguez was trained on "[h]ow to set up the parameters, how to switch from six photos to six other photos, [and] how to set up photo displays," but was not trained on how to save a search.
To set up the computer-based photo retrieval system, Rodriguez first asked Munroe for a description of the suspect. Munroe described the robber as a "light-brown-skinned black male," with gold teeth and a goatee, who was wearing a black flight jacket, black jeans and a black skull cap. Rodriguez entered the information into the computer, "light-skinned black males with goatee," explaining there were no parameters for clothes or teeth. He did not write down the description, explaining there was no pre-identification procedure to memorialize it.*fn1
Rodriguez then directed Munroe to sit in front of the computer, and told her to take her time viewing the photographs. He explained that the screen would display six photographs at a time, and showed her "how to go forward to get six more." He asked her to alert him or the sergeant if she saw someone who resembled the suspect. He then returned to his desk, which was located at least twenty feet away, and took Hernandez's statement.
Munroe remained at the computer by herself, where no one disturbed her. After about fifteen to twenty minutes, and viewing over 300 photographs, she recognized defendant as the individual involved in the robbery, and alerted the sergeant, who notified Rodriguez. When Rodriguez asked if she was certain of her identification, Munroe replied yes, "one hundred percent." He then printed the photograph and Munroe signed and dated it.
After Munroe completed her identification, she came to Rodriguez's desk and Hernandez moved to the computer. The women did not speak to each other as they exchanged seats. Hernandez described the suspect as a black male with a thin build, a goatee, and front gold teeth, who was wearing all black clothing and a black skull cap. Rodriguez entered this description into the computer as Hernandez stood by him. He gave her the same instructions, telling her to take her time viewing the photographs and to let him or the sergeant know if she recognized the suspect. He explained that she did not have to pick someone. Afterwards, he returned to his desk and took Munroe's statement. Hernandez remained at the computer by herself, and notified the sergeant when she identified the suspect. He printed the photograph of defendant, and she signed and dated it. She subsequently gave Rodriguez a second statement.*fn2
Douglas's first contact with Reed took place at the police station, when he took her statement. She reported seeing the suspect begging for quarters on Hawthorne Avenue prior to the robbery. She described him as five foot, eight or nine inches tall, skinny, light-brown dry skin, dirty hands, and gold teeth. Douglas input the information, except for the description of the suspect's clothing. He did not record the description, except in Reed's statement. Afterwards, he directed her to sit in front of the computer, to click the mouse to move forward or backward between screens, and to notify him if she saw a picture of the suspect. He then returned to his desk about seven feet away. After she identified defendant, she alerted Douglas, who printed the photograph and had her sign and date it.*fn3
Reed was "100 percent sure" of her photographic identification. She explained: "I'm the one who seen him on top of me with that gun in my face and I never had a gun in my face ever in my life." She also identified defendant in court as the man who had robbed her.
After Reed gave her statement, she retrieved a "messed-up" photograph of defendant that someone had thrown away, and put it in her pocketbook. The photograph had his address on it. Although she did not know defendant, she thought he looked vaguely familiar. At some point after returning home, she decided that the "Newark Police not gonna do their job. So I'm gonna do it." She drove to defendant's house, parked in front, and waited. After a while, she drove to the corner and showed someone the photograph. After being told she was in the right area, Reed parked her car and waited about forty-five minutes to an hour until defendant arrived home. When he went into the house, she called the police.
At 5:00 p.m. on December 28, 2007, Rodriguez went to defendant's home with an arrest warrant after being notified by his sergeant that one of the victims had observed the person who committed the robberies. When he arrived, he met Douglas, who told him the suspect was inside the house. Reed was waiting when the officers arrived.
Douglas knocked on the front door and identified himself as a police officer. He saw defendant "peek out, [and] go back in, and out of sight." After "a long time," Herman Joseph opened the door and identified himself as defendant's father. When Douglas told him about the arrest warrant, the father allowed the officers to enter and search his house. They found defendant hiding in the attic and arrested him. Defendant was handcuffed and taken outside where a detective asked Reed to identify him, which she did. According to Reed, defendant's father asked if his son did "this" to her, and she said yes and walked away.
Testifying on behalf of defendant, Herman said that he and his son owned a limousine and messenger service and that on the day of the robberies, he had returned home from a job at JFK airport between 7:30 and 8:00 a.m., where he spoke with his son around 8:30 or 9:00 a.m. Around that time, one of Herman's friends, Clarence Walker, stopped by, and let defendant drive his new car around the block. Afterwards, the three men went inside the house. Walker confirmed that when he left Herman's house at 9:55 a.m., defendant was still there. According to Herman, his son left the house between 10:15 a.m. and 10:30 a.m. to go to the car wash.
That evening, after the officers had searched his house and were leaving with his son, Herman noticed a lady with rollers in her hair walking across the street. When he asked her why she had falsely accused his son, she replied, "[O]h, that's not the one." When asked why he did not go to the Newark PD to give his version of events, he replied that he told the detective at his house that the police had the "wrong guy" but that they were so busy looking for his son they did not let him say anything. He also did not believe it was necessary, explaining: "When the police lock you up, they got [their] mind made up ...