NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2012
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-10-01742.
Kevin G. Roe argued the cause for appellant.
Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Hsu, of counsel and on the brief).
Before Judges Fuentes, Grall and Hayden.
Tried by a jury, defendant Julius Smith was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and was acquitted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:58-4 and 2C:39-5b (count three). Defendant appeals his conviction, and we affirm.
We discern the following facts from the record. On July 2, 2009, at approximately 11:30 p.m., Jane Gourgiotis, after having a few drinks with friends, was walking on a street in Jersey City, listening to music through earphones. A dark-colored, "long boaty type" car pulled up to the curb near her, and a "black man in a black shirt and jeans" got out of the front passenger side of the car. He walked up to Gourgiotis, standing directly in front and slightly to one side, and said something that she did not hear because of her earphones. The man then tapped her hip with a black handgun near her purse. Gourgiotis gave him the purse, which contained her wallet, money, identification, cell phone, and iPod. He then returned to the car, which drove away. The entire incident lasted about ten seconds.
Gourgiotis proceeded immediately to the nearby police station to report the crime. She described the robber and the vehicle to Jersey City Detective Christopher Baker, who transmitted the information to police patrol units so they could search the area. Thirty minutes later, an officer in a patrol unit informed Baker that they had stopped a vehicle matching Gourgiotis' description. He requested that she participate in a showup identification to see if she recognized the passengers. After viewing the suspects for one or two minutes, Gourgiotis stated without hesitation that neither man was the robber and that the car was not the robbery vehicle. Soon thereafter, the police located her empty purse in the area and she returned to her home.
A few hours later, two Jersey City police officers drove past a gas station and saw a black Oldsmobile Aurora, which matched the description of a car used in several robberies in Jersey City that night. Two African-American men wearing white t-shirts and jeans exited the gas station convenience store and entered the vehicle. One of the men, later identified as defendant, was heavyset, with short hair and some slight facial hair. He got into the front passenger seat. The second man, Jerry Martin, who had a stocky build and cornrows or dreadlocks in his hair, got into the driver's seat. As the car pulled away from the gas station, the officers stopped it and found a third man in the back seat of the car.
After speaking to the men, the police brought them to the police station for further questioning. The police impounded the vehicle due to lack of a registration or title. The police did not find Gourgiotis' cell phone or her other property, the proceeds from any robbery, or any weapon either on the men or in the vehicle.
On July 6, 2009, Jersey City Detective Angel Pastrana phoned Gourgiotis to request that she look through some photobooks at the Bureau of Criminal Investigation (BCI) to possibly identify the robber. Pastrana asked the BCI staff to include photographs of defendant and his two companions because the incidents in which they were suspects appeared to have similarities with the Gourgiotis robbery. Pastrana, who was not an investigator on the Gourgiotis robbery, had not seen any of the three men before, and did not know where in the photobooks the BCI staff placed their photographs. He told her that the robber's picture may or may not be in the books. All of the photos had digital information printed on the bottom, generally including the date the photo was taken. On defendant's picture, "7/3" was printed at the bottom.
At the BCI, Gourgiotis, while sitting in a small room by herself with the detective standing outside, looked through the first of four photobooks. She located defendant's photo after about fifteen pages. She looked through the rest of the book, then returned to defendant's photo and identified him as the robber. She was confident about her identification because in the picture, defendant had the same short "buzzed cut" hairstyle, eyebrows, nose, and facial features as her robber. Gourgiotis did not recall noticing the date printed on the bottom of the photos until after she identified defendant's photo because she was "way busy looking at faces."
Next, Pastrana took Gourgiotis to the police impound lot to see whether the robbery vehicle was there. After looking around for a little while, she led Pastrana to the Oldsmobile Aurora in which defendant was riding when arrested on July 3, 2009. Gourgiotis told the detective that she was certain that the car she identified looked very similar to the robber's vehicle. Before she identified that vehicle, Pastrana had not known its location. Subsequently, defendant was charged with the armed robbery of Gourgiotis and related weapons crimes.
Approximately six weeks after the robbery, a New Jersey state trooper called Gourgiotis to tell her that he had found her stolen cell phone in a vehicle driven by an individual arrested on August 10, 2009. The individual, named Stebben Drew, was wearing a white t-shirt and driving a black Infiniti, stolen two days prior to his arrest. When speaking to the prosecutor at the start of the trial, Gourgiotis first did not tell him about the trooper's call. As a result, neither the prosecution nor the defense learned of this event until the trial.
On November 3, 2010, at defendant's request, Judge Frederick J. Theemling conducted a Wade hearing. After hearing the testimony about the identification, the judge observed that he would not have held a Wade hearing if he had seen the police report. He found that the identification method employed by the police was not at all suggestive. He rejected defendant's argument that the "7/3" date printed on the bottom of his picture was unduly suggestive because there were hundreds of pictures with dates on the bottom that the victim reviewed.
While testifying at the trial, Gourgiotis described the robber as a heavyset black male with short hair, wearing jeans and a black t-shirt. She remembered his face because he stood close to her and she looked directly at him. Specifically, she recalled that "his eyebrows were a little bit thick, " and that "his nose was small and he had some facial hair." During her testimony, she identified defendant as the man who robbed her.
When Gourgiotis viewed Drew's photograph at trial, she was "very confident" that she had never seen him before and that he was not her robber. In particular, she explained that Drew had longer hair and a different nose than the robber.
On November 5, 2010, following the four-day trial, the jury convicted defendant of armed robbery (count one) and possession of a firearm for an unlawful purpose (count two). On March 28, 2011, the judge merged count two into count one and sentenced defendant to a term of twenty years in state prison with eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate fines and penalties. This appeal followed.
On appeal, defendant raises the following contentions for our consideration:
POINT I - DEFENDANT HAS BEEN DEPRIVED OF AN OPPORTUNITY TO PRESERVE AND PRESENT ISSUES ON APPEAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO PRESERVE A PROPER TRIAL RECORD, TO WIT, CONVERSATIONS BETWEEN COUNSEL AND THE TRIAL JUDGE AT SIDEBAR.
POINT II - THE TRIAL COURT ERRED IN ALLOWING THE STATE TO SOLICIT AN IN-COURT IDENTIFICATION OF DEFENDANT BY THE ALLEGED VICTIM FOLLOWING A PRE-TRIAL PHOTOGRAPHIC IDENTIFICATION PROCEDURE WHICH VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
A. The Photographic Identification Procedures Used by Police Were Unduly Suggestive.
B. As a Result of Unduly Suggestive Procedure, Identification of Defendant Was Inherently Unreliable and Has Resulted in a ...