NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-04-0825.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa A. Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Ashrafi and Espinosa.
Defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement and was sentenced to ten years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In this appeal, he argues that the trial court erred in denying his motions to suppress an out-of court identification of him and to withdraw his guilty plea. He also argues that his sentence was excessive. We affirm.
Defendant and codefendants Chester Chavis and Mark Evans were indicted for offenses arising out of the armed robbery of a deli and grocery store in Jersey City on December 3, 2008. Defendant and Chavis filed a joint-motion to suppress the out-of court identifications. The trial court held a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The facts are derived from the testimony at the Wade hearing.
On the afternoon of the robbery, the only person working in the store was Juan Hersia, the store clerk. He was unable to identify any of the defendants and testified that he could recall nothing about the robbery.
Robert Tejada, the owner of the store, was in the adjoining dry cleaning business, which he also owns. By looking through a "peephole" between the two stores and watching the feed from his security cameras, Tejada was able to observe the robbery.
Tejada testified that there is a six-inch square "pass through window" that connects the deli and the dry cleaning store. He testified that on the date in question, he was sitting behind his computer when he heard the pass through door "slam" closed, followed by someone saying "something very loud." He found that "rare" because he knew Hersia was there alone. Looking through the pass-through window, Tejada saw a gun pointed right at him. He then looked through the peephole and saw "one guy with the gun" and Hersia to the right.
Tejada has sixteen live security cameras between the two stores, and the feed from these cameras streams onto his computer. He went to his computer to check the security cameras and saw that there were two men inside the store. Tejada testified that the gunman was a "big man, " approximately six-feet tall and two hundred fifty to three hundred pounds, and that he "had a mask that would cover like some part of [his] face [and a] beard." Tejada stated that, despite the mask, he was able to see the gunman's face when he looked through the window, because the mask covered only his forehead and parts of his cheeks, but his eyes, nose, mouth, and facial hair were still visible. He was only able to see the clothing of the second man and not his face.
Tejada called the police to report the robbery and then went outside to make sure no one entered the grocery store. He peeked inside the grocery store and saw the second man going toward the refrigerator. Tejada returned to the dry cleaning store and watched the robbers on the security screen. When he saw them leave, he walked out to his car to follow them. He saw both robbers get into the passenger side of a car and as he "pulled off, [he] never lost sight of the car." He followed them from Orient Avenue until they turned on Bayview. He was approximately thirty-five feet away from the vehicle when it made a left-hand turn onto Bayview, enabling him to see the driver's profile. He then pulled over and parked at the South Street police station. He informed the police that he was the person who reported a robbery. He described the getaway car as a maroon late model sedan and told the officers that the car had turned left on Bayview.
Tejada returned to his store. He testified that within twenty to thirty minutes of the robbery, police officers arrived and told him "they had some suspects and [asked] if [he] could ID them." Another witness, Vivian Felder, was also asked to see if she could identify the defendants.
Felder was walking to a friend's house when a woman came out of the deli, yelling they had just been robbed. She looked up in response to the yelling and saw "two guys running and then the owner of the store came running out." She testified she was able to get a view of each of the defendants, including the driver. When Felder first met with the police officers, she was unable to say what the men looked like, only recalling that they wore black clothing.
Lieutenant Frederick Younger of the Jersey City Police Department responded to the crime scene and spoke with both Tejada and Felder about what they had witnessed. He testified that "[t]hey both felt confident they could ...