On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-02-0140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Graves and Guadagno.
Tried to a jury, defendant was convicted of first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)(count two); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(count three); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(count four); and first degree robbery, N.J.S.A. 2C:15-1 (count six). In a bifurcated proceeding, the jury also convicted defendant of second degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a)(count five).
On count one, the court found defendant subject to a mandatory extended term with a range of twenty years to life, and imposed a sentence of forty years. On count six, a concurrent twenty-year term was imposed. Both of these sentences were subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Counts two and three were merged into count one and defendant received concurrent five and ten-year sentences for counts four and five.
On appeal, defendant claims the trial court erred in denying his motion to suppress the victim's identification; the introduction of other crimes evidence was improper; and the sentence was excessive. After a thorough review of the record in light of the contentions advanced on appeal, we affirm.
Because defendant does not challenge the sufficiency of the evidence of guilt, which was substantial, we will only briefly recite the facts.
Just after midnight on August 3, 2008, Samuel Epright left his home in Seabrook, intending to drive to the local WaWa for coffee and to refuel his car. As he reached for the handle of his car, a person holding a shotgun told Epright "Give me your money." When Epright replied he didn't have any money, the gunman asked, "Do you think I'm playing?" Epright was then struck in the back of his head and fell. When he got back up, the gunman again asked if Epright thought he was playing. When Epright responded "No, I don't think you're playing," the gunman fired a shot into Epright's left thigh. Epright fell to the ground and yelled for someone to call 911 and an ambulance. The gunman fled. Epright's daughter and neighbors responded and the police were called. Epright provided a general description of his assailant but gave no indication that he knew him. Medical personnel arrived and airlifted Epright to Cooper Hospital.
One of the responding officers, State Trooper John Delsordo, interviewed neighbors and members of defendant's family. This investigation provided substantial evidence linking defendant to the shooting.
Defendant's cousin, Tina Rennie, who lived two houses from Epright on the same street, had dinner with defendant in her home a few hours before the shooting. Rennie was awakened that evening by her dogs barking and someone trying to get in her back door. When Delsordo interviewed her the following morning, Rennie told him of this incident and gave him permission to search her back yard. Delsordo found a shotgun which was covered by a blanket in a shed behind Rennie's home about thirty feet from where Epright was shot. Rennie had never seen the gun before and did not know how it got into her shed.
Rennie's son, Rahim Newman, told Delsordo he had seen defendant in his mother's backyard a few hours before the shooting. Defendant was wearing a hunting belt with shotgun shells attached.
Bobbie-Ann Young, Epright's former girlfriend, was stopped by police investigating the shooting as she was driving home. She told them she had seen a man running from the direction of Epright's home toward her neighborhood. About twenty minutes after Young returned home, defendant knocked on her door and asked to come in. Young refused.
Young also told police that defendant had come to her home a few weeks earlier on a bicycle wearing a vest with bullets stuck to it. Young saw a tarp on the bike and after feeling it realized it was a shotgun. When she asked defendant what he was doing, he responded, "Nobody's going to hurt me any more."
Defendant's father Michael Santiago told police that he spoke with defendant the morning after the shooting and defendant said he was in trouble because he shot someone. Defendant made a similar admission to his cousin Terry Smith-Bey, telling him that he shot a white guy in the leg and they knew each other.
Based on this evidence, defendant was arrested on August 4, 2008, and charged with Epright's shooting.
Epright spent twelve days in the hospital and underwent two surgeries on his leg. On August 6, 2008, Delsordo interviewed Epright in the hospital. He again was able to give a general description of his assailant and the type of gun he used, a single barrel shotgun.
On August 18, 2008, after his release from the hospital, Epright was again interviewed by Delsordo and identified defendant, by name, as the person who shot him. Epright said he could identify defendant and DelSordo showed him a photo of Newman obtained from DMV. Epright looked at the photo for several minutes because he "wanted to be sure," then positively identified Newman as the shooter.
On appeal, defendant raises the following issues:
UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EPRIGHT'S IDENTIFICATION BECAUSE THE SINGLE PHOTOGRAPH IDENTIFICATION PROCEDURE USED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. U.S. CONST. Amends. VI, XIV; N.J. Const. Art. I ¶¶ 1, 10
DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE ERRONEOUS INTRODUCTION OF OTHER CRIMES EVIDENCE. U.S. Const. ...