STATE OF NEW JERSEY v. JOHN HOWARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0404-04T40404-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN HOWARD,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 8, 2005 - Decided April 12, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 03-02-0124.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Donald T. Thelander,

Assistant Deputy Public Defender, of counsel

and on the brief).

Theodore J. Romankow, Prosecutor of Union

County, attorney for respondent (Steven J.

Kaflowitz, Assistant Prosecutor, of counsel

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant John Howard appeals from a judgment of conviction entered on June 11, 2004 after a jury found him guilty of first degree robbery, N.J.S.A. 2C:15-1; fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1). After the appropriate mergers, defendant was sentenced to an extended term of twenty-two years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He also pled guilty and was sentenced to a concurrent term of eight years subject to five years parole ineligibility on a violation of probation for second degree possession of a weapon by a person not authorized, N.J.S.A. 2C:39-7b.

The incident leading to these charges occurred on November 23, 2003, at about 6:45 p.m., when a man, later identified as defendant, walked into a liquor store owned and operated by Arvind Patel, on Route 22 in Union. Defendant was wearing a winter jacket with a scarf and hood partially concealing his face. Because the weather was not cold, Patel became suspicious. Defendant then asked if Patel was the owner and when Patel said he was, defendant pulled a gun and pointed it at Patel. Patel saw that it was a BB gun and told defendant, "Shoot, there's a cop behind you." Defendant then walked out of the store. As he did so, his muffler and hood came down so Patel could see defendant's face. Patel picked up a garbage can and ran after defendant while his wife called the police. Patel chased defendant through the parking lot, across Vauxhall Road toward the Garden State Parkway entrance. Patel then got into his car and followed defendant to a point where defendant was walking down a one-way street that Patel could not enter. Patel last saw defendant in the vicinity of Schmidt Avenue.

When Patel returned to his store, three police officers had arrived, and Patel described defendant to them as a black man, about 5' 10", 180 to 200 pounds, wearing a puffy ski jacket with a hood and a fishing hat. Patel said the hood was fur-lined and the jacket a military green color. The police immediately put the description over the radio.

About ten minutes later, Union Police Officer Matthew Brescia called to say he was detaining a possible suspect. Brescia testified at trial that defendant was out of breath when Brescia detained him and when defendant removed his hands from his pockets, a fishing hat fell to the ground.

Patel was brought to the place where defendant was being detained and, after observing defendant from twenty feet away in a well-lit area, positively identified him. The BB gun and the hood from defendant's jacket were found nearby.

In the brief submitted by counsel, defendant argues:

POINT ONE

INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS AND CIRCUMSTANCES SURROUNDING THE VICTIM'S IDENTIFICATION OF THE DEFENDANT, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

POINT TWO

THE DEFENDANT'S CONVICTION ON COUNT THREE, SECOND-DEGREE POSSESSION OF A WEAPON WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER MERGES WITH THE DEFENDANT'S CONVICTIONS ON COUNT ONE, FIRST DEGREE ARMED ROBBERY, AND DEFENDANT'S CONVICTION ON COUNT TWO, FOURTH-DEGREE AGGRAVATED ASSAULT WITH A DEADLY WEAPON, ALSO MERGES WITH DEFENDANT'S CONVICTION ON COUNT ONE

POINT THREE

THE DEFENDANT'S PERSISTENT OFFENDER SENTENCE OF 22 YEARS WITH 85% PAROLE INELIGIBILITY FOR ATTEMPTED ARMED ROBBERY WITH A B-B GUN IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE

POINT FOUR

THE DEFENDANT'S CONVICTION ON INDICTMENT NO. 03-02-00124 MUST BE VACATED

In his pro se supplemental brief, defendant argues:

POINT ONE

PRESENCE OF A WEAPON IN A BUSINESS ESTABLISHMENT DOES NOT TRANSLATE INTO AN OFFENSE OF ARMED ROBBERY

POINT TWO

THE VERDICT SHEET DID NOT REFLECT THE COURT'S JURY CHARGE THUS THE JURY VERDICT OBTAINED WITHOUT USE OF INSTRUCTION OF HOW TO USE THE VERDICT SHEET TO FIND GUILT

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments, except for the merger argument in Point Two of counsel's brief, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following.

With respect to the merger, defendant argues that the weapon possession charge should have merged with the first degree robbery count. The State agrees and so do we. We, therefore, remand for amendment of the judgment of conviction on this point.

Defendant argues that the trial judge did not tailor the model charges to the facts of the case, specifically on the issue of identification. Defendant did not object at trial as required by R. 1:7-2. Where there is a failure to object, it may be presumed that the instructions were adequate. State v. Macon, 57 N.J. 325, 333 (1971). The absence of an objection indicates that trial counsel perceived that no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973).

Consequently, we should only reverse if we find plain error. R. 2:10-2. Plain error, in the context of a jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). In a cross-racial identification case, i.e., when the defendant and witness are of different races, the trial court has a duty to charge the jury on cross-racial identification. State v. Cromedy, 158 N.J. 112, 132 (1999).

Here, the charge to the jury on identification was more than adequate:

We have here an issue of identification, and there have been an in and out-of-court identification. Let me read you the law as to that.

The defendant as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find the defendant guilty the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime.

The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether [the] State has proved each and every element of the offense charged beyond a reasonable doubt [but also whether the State has proved beyond a reasonable doubt] that this defendant is the person who committed the crime.

The State has presented the testimony of Arvin or Mr. Patel. I'll butcher his first name; of the victim Mr. Patel. You will recall that Mr. Patel identified the defendant in court as the person who committed the robbery, the aggravated assault. The State also presented testimony that on a prior occasion before this trial Mr. Patel identified the defendant as the person who committed this offense of robbery and aggravated assault. According to Mr. Patel, his identification of the defendant was based upon observations and perceptions that Mr. Patel made of the perpetrator at the time the robbery and aggravated assault was being committed.

It is your function to determine whether the witness' identification of the defendant is reliable and believable or whether it is based on a mistake or for any other reason which is not worthy of belief. You must decide whether it is sufficiently reliable upon which to conclude that the defendant is the person who committed the robbery and aggravated assault.

In evaluating the identification you should consider the observations and the perceptions on which the identifications were based and the witness' ability to make those observations and perceptions. If you determine that the out-of-court identification is not reliable, you may still consider the witness' in-court identification of the defendant if you find it to be reliable. Unless the in-court identification had resulted from the witness' observations or perceptions of the perpetrator during the commission of the offense rather than being the product of an impression gained at the out-of-court identification procedure it should be afforded no weight.

The ultimate issues of trustworthiness of both the in and out of court identification are for you to decide. To decide whether the identification testimony is sufficiently reliable upon which to conclude that this defendant is the person who committed the charge of robbery and aggravated assault, you should evaluate the testimony of the witness in the light of the factors which I just gave you considering credibility.

In addition to those credibility factors you should consider the following: The witness' opportunity to view the person who committed the offense at the time of the offense; the witness' degree of attention on the perpetrator when he observed the crime being committed. The accuracy of any description the witness gave prior to identifying the perpetrator; the degree of certainty expressed by the witness in making his identification; the length of time between the witness' observation of the offense and the witness' first identification of the perpetrator.

Discrepancies or inconsistencies between the identifications if any; the circumstances under which the out-of-court identification was made. Here Mr. Patel was driven in a police car to a location where the defendant was located and from 20 to 30 feet away identified the defendant. Any other factors based on the evidence or lack of evidence in the case which you consider relevant to your determination whether the identifications were reliable.

Now the fact that an identifying witness is not of the same race as the perpetrator and/or the defendant, and whether that fact may have had an impact on the accuracy of the witness' original perception or, and/or the accuracy of the subsequent identification. You should consider that in the ordinary human experience people may have greater difficulty in accurately identifying people of a different race.

Defendant further argues that the twenty-two year sentence subject to 85% parole ineligibility is excessive, considering he only had a BB gun. Defendant was sentenced to an extended term as a persistent offender. Considering his criminal history of four prior indictable convictions, the twenty-two year term is not excessive. State v. Hodge, 95 N.J. 369, 375 (1984); State v. Roth, 95 N.J. 334, 345 (1984).

Finally, defendant argues that his conviction on the violation of probation should be vacated if we reverse his conviction on these charges. Given our decision here, we need not address this argument. R. 2:11-3(e)(2).

 
The conviction is affirmed, but the matter is remanded for amendment of the judgment of conviction to reflect the appropriate merger.

Defendant was convicted of and sentenced for armed robbery, not attempted armed robbery.

(continued)

(continued)

9

A-0404-04T4

April 12, 2006