August 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DWIGHT MCGEACHY, A/K/A DWAYNE GIGSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 identify the people that were involved with this crime."
Younger drove Tejada and Felder approximately eight to ten blocks to the location where the vehicle had been stopped. He testified that he explained what would happen as follows:
[B]oth of you feel you can I.D., we have a car stopped with three people. We'd like you to take a look at it. It might be them and it might not be them. You know we're going to show them to you and the vehicle. If it is them, let us know. If it's not, also let us know and we'll do what we need to at that point.
I explained to them not to feel under any sort of pressure, we're just going to go to the area.
They met with Detective Michael Post and Younger instructed Post to take Tejada in his vehicle. Younger drove Felder and stopped his vehicle so she could see the suspects "from head to toe, face, body, clothing, everything." Younger testified that the defendants were in handcuffs during the identification. He stated that Felder "identified each one individually saying what their participation was." She identified defendant as the actor who had run from the store into the front passenger seat of the vehicle. Younger testified that Felder "seem[ed] positive when she made [the] identifications[; t]here wasn't hesitation, it was . . . spontaneous. It was like excitement in her voice, that's them."
Felder testified that she and Tejada were in the same car when they were driven past the defendants. She stated that, when she observed the defendants, she was approximately fifteen feet away, and that two of the three defendants were wearing black clothing.
Like Younger, Post testified that he and Younger separated the two witnesses so they would not be influenced by one another during the identification procedure. Post did a "slow drive by" only "a few feet" away from the defendants whom, he said, were not in handcuffs. Post testified that Tejada "immediately" identified two of the three defendants but did not identify defendant. Although Tejada was unable to identify the second person in his store during the robbery, he described him to the police as five foot six or eight inches tall, wearing blue pants and a black jacket.
After his suppression motion was denied, defendant entered a guilty plea to first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement in which he reserved the right to appeal the denial of his motion. In exchange, the State agreed to dismiss the remaining six counts of the indictment against him and to recommend that defendant's prison term be limited to fifteen years with eighty-five percent parole ineligibility pursuant to NERA.
On the scheduled sentencing date, defendant informed the court he wanted to retract his guilty plea. The court adjourned the proceedings to permit defendant to file an application for withdrawal. Following a hearing, the court denied defendant's motion.
The court sentenced defendant to ten years imprisonment with eighty-five percent parole ineligibility pursuant to NERA and dismissed the six other charges against him in the indictment. Appropriate fines and penalties were also imposed. Defendant presents the following arguments for our consideration in this appeal:
THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN SUPPRESSED.
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
After reviewing defendant's arguments in light of the record and applicable legal principles, we conclude that none have any merit.
We first turn to defendant's challenge to the denial of his motion to suppress out-of-court identification testimony. It is conceded that the principles articulated in State v. Henderson, 208 N.J. 208 (2011) do not apply to the determination whether Felder's identification of defendant was admissible. See id. at 302.
The trial court applied the two-prong analysis set forth by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and adopted by the New Jersey Supreme Court. See State v. Madison, 109 N.J. 223, 232-33 (1988); see also State v. Herrera, 187 N.J. 493, 503-04 (2006). The two-prong analysis requires the court to (1) "ascertain whether the identification procedure was impermissibly suggestive, " and, if so, (2) "whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. Under the second-prong, "[t]he totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Id. at 504.
Defendant's challenge largely rests upon his assertion that there were inconsistencies in the testimony regarding the procedure followed by the police officers. He contends that the motion judge failed to adequately address these inconsistencies and included factual inaccuracies in the recitation of facts in his written opinion.
The factual findings by the motion judge are subject to limited review on appeal. State v. Robinson, 200 N.J. 1, 15 (2009). We "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Based upon what he described as the credible testimony of each of the witnesses, the motion judge found the following facts regarding the "show-up" procedure followed by the police officers here:
First, Ms. Felder and Mr. Tejada were both advised to not feel pressure to identify the suspects and it would be [OK] if they could not identify them. Second, both witnesses viewed the Defendants independently and made the identifications while in separate patrol cars. Third, although in custody, none of the suspects were in handcuffs and no guns were drawn at the time the witnesses viewed the suspects. Fourth, Ms. Felder was escorted through the drive-by/showup [sic] by Lieutenant Younger who noted that Ms. Felder was confident in her identification and immediately identified each suspect . . . . Mr. Tejada was escorted by Detective Post who noted he did not engage in any discussions with Tejada prior to the drive-by/showup [sic], Tejada immediately identified the suspects as the actors, and Tejada indicated he was 100% sure two of them were the actors. Fifth, the fact that Mr. [H]ersia did not make an identification of the Defendants is further indicia the police did not manipulate or inappropriately lead Felder and Tejada to make identifications but rather accepted the information of each witness as conveyed to them.
These factual findings are supported by sufficient credible evidence to warrant our deference. Accordingly, the motion judge did not abuse his discretion in concluding that the procedure was not "impermissibly suggestive" and that the identifications did not result "from any suggestive words or conduct of the law enforcement officers."
The motion judge also concluded that the identifications were sufficiently reliable, stating:
First, the opportunity of the witnesses to view the criminals at the time of the crime and the accuracy of their descriptions is clear. Mr. Tejada viewed the Defendants through the security cameras, peephole, front window of his store, and during the pursuit of the Defendants' vehicle. Ms. Felder viewed the Defendant[s] so well that she was even able to identify where each Defendant sat in the vehicle.
Second and third, the witnesses' degree of attention and accuracy of their descriptions also lends to the reliability of the identifications. Mr. Tejada described the masked gunman as being 6 foot and 350 pounds and the driver as a taller light skinned man, while Ms. Felder identified the clothing on each suspect during the showup [sic], each suspect wore the clothes as Ms. Felder had described.
Fourth, the witnesses immediately identified the Defendants and were both described as confident in their identifications; therefore, their levels of certainty demonstrated at the confrontation were high.
Fifth and finally, the time lapse between witnessing the suspects during the crime and at the confrontation was short. According to Mr. Tejada, only twenty minutes had passed between the robbery and the showup [sic]. In short, this showup [sic] identification was not impermissibly suggestive and is sufficiently reliable to be admitted at the Defendants' trial.
These findings are also supported by credible evidence in the record and entitled to our deference. Although Felder stated that her recollection was limited to defendant's clothing, there was an adequate basis to conclude that her identification was reliable. She was sufficiently confident in her identification to state where each of the three defendants sat in the vehicle. In addition, Younger testified that she was immediately able to identify the defendants when he drove her past them. We find no abuse of discretion in the denial of defendant's suppression motion.
Defendant next argues that the trial court erred in denying his motion to withdraw his guilty plea. Pursuant to State v. Slater, 198 N.J. 145 (2009), the trial court was required to consider and balance the following four factors in evaluating his motion:
(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Id. at 157-58.]
The decision to set aside a guilty plea lies within the court's discretion, which is to be exercised liberally to allow plea withdrawals before sentencing. Id. at 156. The trial court's denial of defendant's motion is subject to review for abuse of discretion. State v. Mustaro, 411 N.J.Super. 91, 99 (App. Div. 2009).
Although defendant sought to withdraw his plea before he was sentenced, he retained the burden "in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Slater, supra, 198 N.J. at 156. He stated he was not guilty of the armed robbery because he entered the vehicle after the robbery,  unaware of either the robbery or the fact that his codefendant had a gun. He contended that, notwithstanding his innocence, he pled guilty because he lost confidence in his attorney's ability to represent him and felt pressured to accept the plea offer.
The motion judge wrote an extensive written opinion in which he addressed each of the Slater factors. Drawing upon the admissions defendant made in entering his guilty plea, the judge found that defendant failed to assert a colorable claim of innocence. The judge also found that the nature and reason defendant offered for withdrawing his plea, i.e., that he was rushed into the plea and accepted it because he had lost confidence in his attorney, was refuted by the record of his plea. The court stated,
The defendant acknowledged that he was satisfied with his attorney's advice and had gone over the discovery in the case with his attorney. Nothing in the record supports the Defendant's contention that he was in any way dissatisfied with plea counsel. Furthermore, . . . the Court told the Defendant during his plea that if he needed more time to speak to counsel that he would allow him to.
The court also cited the transcript of the plea hearing to refute defendant's contention that his decision to plead guilty was "due to an inadequate understand[ing] of sentencing requirements under provisions of the Graves Act and [NERA]." The court concluded that the record was "clear that the Defendant was fully aware and cognizant of the sentence he faced and nothing prevented him from understanding the nature and consequences of his plea." As the motion judge noted, the plea here was entered pursuant to a plea agreement which afforded defendant substantial benefits. In addition to the dismissal of remaining counts against him, defendant was spared exposure to an extended term. The court also found that the State would be prejudiced by the seven-month delay in proceeding to trial if defendant were permitted to withdraw his guilty plea. Although no facts were cited in support of the conclusion that the State would be prejudiced, we are satisfied that the record fully supports the motion judge's conclusions regarding the other factors and that the denial of defendant's motion did not constitute an abuse of discretion.
Finally, defendant argues that his sentence was manifestly excessive. Defendant entered a guilty plea to a first-degree offense and received the minimum sentence available for that offense. His argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).