July 19, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
LEROY SUMMERS, a/k/a KEVIN BLAKE, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-03-0388, 09-09-1632, 10-12-1746.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Before Judges Yannotti and Hoffman.
Following the denial of his motion to suppress, defendant Leroy Summers pled guilty to second-degree robbery, N.J.S.A. 2C:15-1. In accordance with his plea agreement, defendant received a discretionary extended term of fourteen years, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. As part of the same plea agreement, defendant pled guilty to three other chargesunder two other indictments, and received a ten-year term, with a five-year parole disqualifier, for each charge, with all sentences to run concurrently. Defendant now appeals, challenging the denial of his suppression motion and also his sentence. For the reasons that follow, we reject defendant's arguments and affirm.
The following facts are derived from the record of the Wadehearing. On the afternoon of June 30, 2010, at approximately 3:40 p.m., H.W., then seventeen years old, was robbed while walking on Handy Street in New Brunswick shortly after cashing her paycheck. The robbery was witnessed by a taxi driver, who immediately called police and reported the crime. The taxi driver indicated that the robber was a black male wearing khaki shorts and a brown baseball cap. The taxi driver further reported that he followed the robber to the intersection of Joyce Kilmer Street and Suydam Street.
Dispatch immediately put out a call to any units in the area, including a description of the robber. New Brunswick Detective Carla Chendak was close by when she heard the call, and arrived in the area within seconds, where she observed and stopped defendant, who matched the description of the robber, in the area of Drift Street and Suydam Street.
When the robbery occurred, Detective Tracey Gayden was also on duty, dressed in plain clothes in an unmarked car. At 3:46 p.m., he heard a radio call that someone had just been robbed on Handy Street, near its intersection with Joyce Kilmer Avenue. As he proceeded to the location, he received another call that someone needed to pick up the victim, who was at the Handy Street Laundromat. Detective Gayden proceeded to pick up H.W., who was still on the phone with dispatch, and crying and shaking. At this time, dispatch reported that a suspect had been detained. According to Detective Gayden,
[H.W.] entered the rear of my vehicle, the backseat of my vehicle, and with the location that dispatch had given I went around the corner to Drift and [Suydam] and she immediately identified an individual standing up against the wall.
I didn't get out of the vehicle, neither did she, but she was adamant and 100 percent sure that the individual standing up against the wall was the individual that robbed her.
Detective Gayden said that he and H.W arrived at the location of the identification in "less than a minute, " and that he said nothing to her, as "she was crying, yelling." Detective Gayden estimated that there were five to seven officers present, but they were narcotics officers in plain clothes. One of the officers was a black male. At the time of the identification, defendant was not in handcuffs nor was any officer physically detaining him. Defendant and the other officers were about fifteen yards away, all facing toward the street.
After the identification, defendant was arrested and Detective Gayden transported H.W. to police headquarters, where she gave a recorded statement: a person she described as a black male, pushed her to the ground, smacked her and took her purse, breaking the strap, and ran away to a waiting car. While H.W. did not see her assailant's face, she did observe that "he had a white shirt with orange and brown stuff on it, " and that he wore brown shorts and a brown hat. She stated that when she saw defendant, she said "that's the same exact outfit I just seen of the guy who robbed me." H.W. said that she had not seen the face of the man who robbed her because he was "walking . . . with his head down." Detective Chendak testified that she took H.W.'s statement within an hour of the robbery.
At the hearing, the State also introduced an audio recording of the 911 call from the taxi driver and a video recording of Detective Chendak's interview of H.W. at the Middlesex County Prosecutor's Office.
Defendant also testified at the hearing. He said he was taken out of a van in handcuffs and told to face an unmarked car that had pulled up, with one of the officers holding him by the arm. On cross-examination, defendant estimated that he had thirteen indictable convictions.
Although Detective Gayden was present in the car with H.W. when she identified defendant as the perpetrator of the robbery, he did not prepare a police report in connection with this case. The only police report detailing the day's events was prepared by Detective Chendak, who was outside of the car when H.W. identified Summers as the robber. Detective Chendak wrote in her police report that H.W. "positively identified [defendant] as the one who robbed her."
At the conclusion of the hearing, the trial court ruled that although the showup identification procedure was impermissibly suggestive, it was nevertheless sufficiently reliable to permit its introduction into evidence.
On appeal, defendant raises the following issues:
THE TRIAL COURT SHOULD NOT HAVE ADMITTED THE RESULTS OF THE SHOWUP IDENTIFICATION WITHOUT A CONTEMPORANEOUS WRITTEN RECORD AS REQUIRED BY STATE v. DELGADO.
THE TRIAL COURT ERRONEOUSLY ANALYZED THE RELIABILITY OF THE SHOWUP IDENTIFICATION.
A. The Manson/Madison Test.
B. The Lower Court Improperly Shifted The Burden Of Showing Unreliability To The Defense.
The Defendant's Sentences Are Excessive. Remand Is Also Required Because The Defendant Was Not Properly Advised Of His Sentencing Exposure Before Pleading Guilty.
A. The Defendant's Sentences Are Excessive.
B. The Defendant Was Not Properly Advised Of His Sentencing Exposure Before Pleading Guilty.
In Points I and II, defendant argues that the trial court erred in denying his Wade motion, claiming that the State improperly failed to contemporaneously document the showup identification procedure and that the court otherwise erred in its analysis of the reliability of the procedure. We do not agree. Instead, we concur with the trial court's determination that while the showup procedure was impermissibly suggestive, based on the totality of the circumstances, the procedure was nevertheless reliable. State v. Herrara, 187 N.J. 493, 503-04 (2006).
We apply the well-established two-part test regarding the admissibility of an eyewitness identification. Under this test, the court must first determine "whether the [identification] procedure in question was in fact impermissibly suggestive." State v. Madison, 109 N.J. 223, 232 (1988), abrogated in part by Henderson, supra, 208 N.J. 208. Second, if the court deems the procedure impermissibly suggestive, it must determine whether the identification was otherwise "reliable despite the impermissibly suggestive nature of the procedure[.]" Ibid.; Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). In making its determination on reliability, the court must look at the totality of the circumstances. Madison, supra, 109 N.J. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972)).
Although not per se inadmissible, showup identifications are "inherently suggestive." Herrera, supra, 187 N.J. at 504. However, "[o]n or near-the-scene identifications have generally been supported upon three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." State v. Wilkerson, 60 N.J. 452, 461 (1972).
Here, the evidence in the record supports the trial judge's finding that the identification procedure was unduly suggestive. The police presented defendant for identification where he was the only person wearing shorts, with only one other black male present.
Because the showup procedure was impermissibly suggestive, the next question is "whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. This is done by weighing the "Manson factors" against "the corruptive influence of the suggestive identification procedure." Madison, supra, 109 N.J. at 245. "The Manson factors are 'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 507 (quoting Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154).
There was sufficient evidence produced at the Wade hearing regarding the Manson factors. H.W. had the opportunity to observe defendant's clothing from close range as he attacked her, and then ran away. Detective Gayden testified at the Wade hearing that H.W. indicated she was sure defendant was the individual who robbed her. This identification occurred less than ten minutes after the robbery.
Weighing these factors against the "corruptive effects of the impermissibly suggestive procedure" supports the trial judge's ruling to admit H.W.'s identification of defendant. The close proximity in time between the robbery and the identification represents the most important factor that supports the judge's conclusion. See Wilkerson, supra, 60 N.J. at 461.
We also disagree with defendant's contention that the identification should have been barred under State v. Delgado, 188 N.J. 48 (2006), due to an inadequate police report. Delgado permits law enforcement to summarize an identification procedure in a report when a verbatim account is not feasible. Id. at 63-64. Although Detective Chendak did not include a verbatim account of the identification in her report, she did provide a summary of the identification process. Given the circumstances under which H.W. made her identification, it is reasonable to conclude that a verbatim report was not feasible. Accordingly, the trial judge did not err by admitting the identification.
In his final point, defendant claims sentencing error, arguing that his sentences are excessive and that he was not properly advised as to his sentencing exposure. We disagree on both grounds.
We first note that when reviewing defendant's sentences we may not substitute our own judgment for that which is left in the sound discretion of the trial judge. State v. Kirk, 145 N.J. 159, 175 (1996). With that in mind, we are satisfied defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Defendant claims that his sentence, the very same sentence set forth in the plea agreement, is excessive. The judge granted the State's motion for imposition of an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. The judge found aggravating factors three, N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); five, N.J.S.A. 2C:44-1a(5) (substantial likelihood defendant is involved in organized criminal activity); six, N.J.S.A. 2C:44-1a(6) (extent of defendant's criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.
Defendant argues that the judge erred by considering his record as an aggravating factor because his record was already considered in determining whether he is a persistent offender, subject to an extended term. This is not impermissible double counting. Moreover, defendant's criminal record includes numerous offenses, in addition to those which qualified defendant as a persistent offender.
Defendant also claims that he was not sufficiently advised of his sentencing exposure at the plea hearing. At the plea hearing, defendant testified that he had reviewed the entire agreement with his attorney and that he understood all of it. Defendant initialed each page of the form and signed it.
Defendant was advised that if all of his potential maximum sentences were aggregated, he would face over fifty years of incarceration, without any extended term. The prosecutor further noted that if defendant went to trial on each of the three indictments and was convicted in three trials, it was possible that he could get three extended terms, whereas at a single sentencing date under a plea agreement only one discretionary extended term was possible. Defendant said that he understood.
Finally, the prosecutor asked defendant what sentence he expected on sentencing day, and defendant answered, "fourteen with 85 percent." We are satisfied the record fails to provide any support for defendant's claim that he was not properly advised as to his sentencing exposure.