Submitted: April 8, 2014.
Approved for Publication July 29, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1062.
Joseph E. Krakora, Public Defender, attorney for appellant ( Jason A. Coe, Assistant Deputy Public Defender, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent ( Jeffrey P. Mongiello, Deputy Attorney General, on the brief).
Before Judges SAPP-PETERSON, LIHOTZ and HOFFMAN. The opinion of the court was delivered by LIHOTZ, J.A.D.
[436 N.J.Super. 559] LIHOTZ, J.A.D.
Defendant Alfred J. Smith appeals from a judgment of conviction for second-degree robbery, N.J.S.A. 2C:15-1 (count one) and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count two),
entered following a jury trial. Prior to trial, defendant challenged the admissibility of the victim's out-of-court identification. His motion to suppress was denied. Following conviction, defendant was sentenced to a ten-year term, subject to the eighty-five percent period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the second-degree robbery conviction, and a concurrent five-year term on the third-degree hindering apprehension conviction.
On appeal, defendant argues:
THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE SHOW[-]UP IDENTIFICATION TO BE USED AT TRIAL BECAUSE IT DID NOT SATISFY CONSTITUTIONAL STANDARDS OF RELIABILITY.
THE PROSECUTOR'S APPEAL TO THE JURY TO CONVICT SMITH IN ORDER TO PROTECT THEMSELVES AND THE COMMUNITY WAS IMPROPER AND HIGHLY PREJUDICIAL. (not raised below)
OFFICER MARTINA IMPROPERLY PROVIDED LAY OPINION TESTIMONY ON AN ISSUE WHICH WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR. (not raised below)
Following our review, we conclude the motion judge erred in denying defendant's motion to suppress the identification testimony. Accordingly, we reverse the suppression order, vacate his conviction and remand for further proceedings, including a new trial.
[436 N.J.Super. 560] These facts are taken from the pre-trial Wade  hearing. The State presented the testimony of Plainfield Police Officers Edward Jackson and Charles Martina. The defense called the victim, Josephine DiMeglio.
Officer Jackson testified he responded to a call received at approximately 10:30 p.m., on July 10, 2009, from DiMeglio who was assaulted and robbed as she walked toward her home. Specifically, DiMeglio was suddenly attacked from behind by a man trying to snatch her purse. A struggle ensued, during which the assailant slapped DiMeglio, injuring her and causing her to fall to the ground. The scuffle continued briefly as DiMeglio resisted, but ultimately she relaxed her grip and the assailant fled with her purse.
DiMeglio called 9-1-1. Then, approximately ten minutes after the robbery, DiMeglio described her attacker to Officer Jackson as " a tall black male" wearing " jeans and a dark shirt." She also stated the attacker wore a brown windbreaker. Officer Jackson confirmed on cross-examination the description was " [j]ust a tall black male and a clothing description."
Officer Jackson radioed the description and within ten minutes, Officer Martina, who was canvassing the area, encountered defendant four blocks away sitting in a park with others. Officer Martina believed defendant matched the radioed description and he informed Officer Jackson, who in turn told DiMeglio " we might have someone fitting the description . . . ." Officer Jackson " asked her if she can take a ride [to] see if she can make a positive ID on the person." Officer Jackson brought DiMeglio to the park. He recalled defendant was standing next to Officer Martina. Without hesitation, DiMeglio identified defendant as her assailant.
After DiMeglio viewed defendant at the show-up, she provided her written statement to police. In that statement, DiMeglio [436 N.J.Super. 561] described her attacker as: " Afro-American, 6feet [sic] tall, 5-8, brown shirt, cap and black pants."
Officer Martina also testified. He recalled the description of DiMeglio's assailant radioed from Officer Jackson was " [a] black male, black shirt, brown windbreaker, over six feet tall." As he drove toward the park he aimed his spotlight on " a group of people, [and an] individual matching the description[ ] immediately looked startled and scared." Defendant was among those in the group. He wore a black hoodie and brown pants; he did not have a windbreaker. Officer Martina acknowledged the description he received was not the most detailed and did not include the alleged assailant's age, the presence or absence of facial hair, or whether he was bald.
When asked by Officer Martina, defendant gave his name as " Thomas J. Smith." Once Officer Martina was told DiMeglio identified defendant as her attacker, he was arrested and charged with second-degree ...