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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 8, 2013

STATE OF NEW JERSEY IN THE INTEREST OF Q.M.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-1778-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 13, 2012

Before Judges Ashrafi and Hayden.

Juvenile Q.M. appeals the October 20, 2010 adjudication of delinquency for acts which, if committed by an adult, would have constituted second-degree robbery, N.J.S.A. 2C:15-1. For the reasons that follow, we affirm.

We discern the following facts from the record. On March 28, 2010, the owner of a convenience store in Elizabeth was in the store when a group of about fifteen youths entered the store and began putting bags of chips and other food items in their jackets. She called the police and a local councilman, Manny Grova, and directed her employee to stand at the exit door and prevent the youths from leaving. When the employee tried to stop the youths, one of them, wearing a red jacket, pushed her and slapped her in the face.

When the juveniles left, the women watched them proceed down the street. Grova arrived within minutes, spoke to the women and then headed in the direction of the youths. The employee had told him that her assailant was wearing a red jacket. The police soon arrived and also proceeded after the youths. During the pursuit, Grova and the police followed a few of the youths into a backyard, where they found a red jacket on the ground. Nearby they found Q.M. and another youth crouching behind a fence. Q.M., who Grova recognized from a youth basketball tournament, asked for his red jacket back. The police took the two youths into custody but did not find any food items from the store on them.

The officers returned immediately to the store with the two youths and asked the owner and the employee if they recognized them and which one had slapped the employee. Both witnesses identified the youths as having been in the store with the group taking food. The employee identified Q.M. as her assailant. A few days after the showup identification, she gave the police a description of the youth who struck her, which did not match Q.M.'s height or hairstyle. At the juvenile's trial several months later, the employee identified Q.M. as the person who struck her, but the owner identified the other juvenile the police brought to the store as the person who struck the employee.

In his oral decision on October 13, 2010, the trial judge described in detail the elements the state had to prove beyond a reasonable doubt for second-degree robbery. He reviewed the facts of the case and found both women to be credible witnesses. He found that Q.M. had entered the store, stolen items and struck the employee in furtherance of the theft. Consequently, he adjudicated Q.M. guilty of second-degree robbery. Shortly thereafter, the judge sentenced him to fifteen months probation, required forty-five hours community service and a letter of apology to the victim, and imposed the requisite fines. This appeal followed.

On appeal, Q.M. raises the following contentions for our consideration.

POINT I - THE COURT ERRED IN FAILING TO CONDUCT A WADE HEARING AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE THE APPROPRIATE APPLICATION DENYING

THE JUVENILE HIS RIGHTS TO DUE PROCESS. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1 AND 10. (NOT RAISED BELOW).

POINT II - THE MATTER SHOULD BE REMANDED FOR THE COURT TO EXPLAIN WHETHER IT CONSIDERED THE APPLICABLE LESSER INCLUDED OFFENSE OF THEFT AND THE BASIS FOR REJECTING SAME.

POINT III - NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

Q.M. argues that his counsel should have requested a Wade*fn1 hearing because the identification of Q.M. had been both impressively suggestive and unreliable. Because Q.M. did not request a Wade hearing at trial, we may not reverse on that basis unless we find plain error "clearly capable of producing an unjust result." R. 2:10-2. Additionally, when a trial judge has had the opportunity to take testimony and evaluate the credibility of the witnesses, our scope of review of the judge's findings of fact is exceedingly limited. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). Such findings are entitled to our deference. See State v. Adams, 194 N.J. 186, 203 (2008).

A pretrial identification is admissible unless it is the product of suggestive procedures creating a "very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988)*fn2 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To obtain a Wade hearing to contest an out-of-court identification, the defendant must make a threshold showing of "impermissive suggestiveness". State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). Even if the identification was impressively suggestive, it may be admitted into evidence if it was reliable. See State v. Herrera, 187 N.J. 493, 503-04 (2006) ("The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification."). "The essential question is whether there was sufficient reliability in the identification[] to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." Adams, supra, 194 N.J. at 204.

One-on-one showup identifications at or near the crime scene are "inherently suggestive" since "the victim can only choose from one person, and, generally, that person is in police custody." Herrera, supra, 187 N.J. at 504. However, identifications made at a crime scene or soon thereafter "are likely to be accurate, taking place . . . before memory has faded" and "[t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid. (citing State v. Wilkerson, 60 N.J. 452, 461 (1972)).

Because we agree that the showup was impressively suggestive, the question to be resolved is "whether the impressively suggestive procedure was nevertheless reliable." Id. at 503. We make a reliability determination from the totality of circumstances adduced in the particular case. Adams, supra, 194 N.J. at 203-04. In determining reliability of identifications, we consider certain factors, including "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the eyewitness'] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Id. at 204 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

Application of those factors here points to a reliable identification. The employee was able to see Q.M. while he was in the store and when he got close enough to push and slap her. She was certain of her identification at the time. Her initial description was that he was wearing a red jacket; Q.M admitted he was wearing the red jacket Grova found. At the same time the owner also identified both youths as participants in the incident at her store. This identification was made at the crime scene shortly after the robbery occurred. Under the totality of these circumstances, we conclude that the out-of-court identification was sufficiently reliable to overcome its suggestive nature and was properly admitted into evidence.

Q.M. also contends that his attorney's failure to request a Wade hearing was ineffective assistance of counsel. To prove ineffective assistance of counsel, the defendant must show that his counsel's performance was deficient and that counsel's error so prejudiced defendant that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Generally, we do not entertain ineffective assistance of counsel claims on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

Where defendant's claim of ineffectiveness related solely to his allegation of a substantive legal error contained completely within the trial record, we can consider it. See State v. Quezada, 402 N.J. Super. 277, 280 (App. Div. 2008). As we concluded above that counsel's failure to request a Wade hearing did not result in prejudice to Q.M., we find this claim to be without merit. See State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) ("[A]s there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied the effective assistance of counsel.").

Next, Q.M. requests a remand for the trial judge to specify whether, in reaching his decision on the robbery charge, he had considered theft as a lesser included offense. Q.M. relies on State in re L.W., 333 N.J. Super. 492, 498-99 (App. Div. 2000), where we remanded for additional findings of fact respecting an adjudication of delinquency. In L.W., the trial judge had failed to find theft, a lesser included offense which must be proven to sustain a robbery charge based upon the assault that occurred after another juvenile had asked the victim for a dollar. Ibid.

We reject this remand request as we do not view L.W. as applicable here. In a bench trial, as required by Rule 1:7-4, the court must "state clearly its factual findings and correlate them with the relevant legal conclusions." Locurto, supra, 157 N.J. at 470. The trial judge appropriately observed that to prove the robbery, the State must prove both theft and the use of force with the intent to promote the theft. State v. Sein, N.J. Super. 300, 304-05 (App. Div. 1989). The judge then found that Q.M. entered the store, stole some food items and slapped the employee in furtherance of that theft. He then concluded that there was sufficient evidence to establish proof beyond a reasonable doubt that Q.M. had committed the offense of second-degree robbery. Thus, it is clear that here, as opposed to in L.W., the trial judge determined that the lesser included offense of theft had occurred when reaching his decision on the second-degree robbery charge.

We have considered Q.M.'s remaining arguments and find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We conclude from our examination of the record that the trial judge correctly applied the controlling legal principles and that Q.M. received a fair trial.

Affirmed.


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