STATE OF NEW JERSEY v. TYRONE BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3472-04T43472-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE BROWN,

Defendant-Appellant.

_________________________________________________________

 

Submitted May 31, 2006 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, I-02-05-0881.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Alan I. Smith, Designated Counsel,

on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

After losing his motion to suppress, defendant was tried before a jury and found guilty of first degree robbery, N.J.S.A. 2C15-1 (count one); fourth degree possession of a weapon, N.J.S.A. 2C:39-4(e)(count two); simple assault, N.J.S.A. 2C:12-1a, as a lesser included offense of aggravated assault (counts three and four); and fourth degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(12)(count six). The fifth count of the indictment was dismissed on the State's motion before trial.

The judge merged the simple assault counts and imposed the following sentences: on count one, imprisonment for sixteen years with eighty-five percent to be served without parole under the No Early Release Act ("NERA"); on count six, a consecutive prison term of nine months; and on count two, a concurrent prison term of one year with six months to be served without parole.

Defendant appeals, offering the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY DENYING THE PRETRIAL MOTION FOR A WADE-TYPE PRELIMINARY HEARING TO DETERMINE THE ADMISSIBILITY OF THE WITNESSES' IDENTIFICATION OF THE DEFENDANT'S CLOTHING BECAUSE THE EVIDENCE WAS NOT RELEVANT TO ANY MATERIAL ISSUE OR FACT OF CONSEQUENCE IN GENUINE DISPUTE OTHER THAN TO ESTABLISH THE DEFENDANT'S IDENTIFICATION AS THE ACTOR.

POINT II

SINCE THE LEGAL BASIS FOUND BY THE MOTION COURT WAS THAT THE WARRANTLESS SEIZURE OF THE DEFENDANT'S CLOTHING WAS INCIDENT TO AN ARREST, THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED PROBABLE CAUSE TO ARREST THE DEFENDANT.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY PERMITTING THOMAS LESNIAK TO TESTIFY AS AN "EXPERT" WITNESS.

POINT IV

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW.

POINT V

THE AGGREGATE CUSTODIAL BASE SENTENCE OF SIXTEEN (16) YEARS AND NINE (9) MONTHS WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON, AND STATE V. NATALE.

(A)

IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF TEN (10) YEARS ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(B)

IMPOSITION OF A SENTENCE IN EXCESS OF THE THEN-EXISTING PRESUMPTIVE FIFTEEN (15) YEAR SENTENCE FOR A FIRST DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(C)

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A CONSECUTIVE SENTENCE ON THE DEFENDANT'S CONVICTION ON COUNT SIX FOR POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add the following comments.

First, we take note of the following facts. The crimes were committed at about 1:15 a.m. on December 2, 2001, in Ocean Grove. Luke Magliaro closed his restaurant around 1:00 a.m. and was driven to his nearby home by his friend Chien Tsai. As they walked toward the rear door of his house, defendant, carrying a large black bag, jumped from the bushes, hit Magliaro in the head with a blunt object, kicked him as he was falling to the ground, and then hit Tsai in the head with the blunt object. Tsai grabbed the black bag, breaking one of its straps, and used it to hit defendant. The defendant replied, "Don't make me have to hurt you, just give me the money." Magliaro tried to enter his house, and defendant pointed a handgun at him, again demanding money. Magliaro's roommate came outside and began throwing things at defendant, who fled toward Lake Avenue. The police arrived moments thereafter, and the victims described defendant as about six feet tall, wearing black clothing, black shoes with round toes; black gloves, and a hood that had a white piece of cloth covering his face.

The police officers responded and found defendant running west on Lake Avenue. When defendant saw the police car, he turned to run south on Whitefield Avenue. The officers chased him, yelling for him to stop. Defendant continued to run, but was apprehended as he attempted to climb over a fence in the area. A search of the area of the apprehension revealed the black bag with the broken shoulder strap. Near Magliaro's house, the police found a black 9mm automatic assault handgun. Defendant told the officers he had drugs concealed on his person, and they found a clear plastic bag with numerous smaller bags of marijuana. The police also took photographs of footprints in the fire lane next to the victim's residence. At trial a State Police footprint expert testified that the boot prints matched the boots defendant was wearing on the night of the robbery. DNA tests of defendant's clothing and bag showed that the blood found on those items matched that of Tsai. The victims were not able to identify defendant since they had not seen his face, but they did testify that the clothing seized by the police looked like the clothing defendant was wearing. Defendant also made statements to the police suggestive of his guilt.

The trial judge properly rejected defendant's request for a Wade hearing as to the testimony of the victims because they never identified defendant and defendant provided no information indicating police misconduct bearing on the identification of the clothing. State v. Cherry, 289 N.J. Super. 503, 517 (App. Div.1995).

The trial judge properly denied defendant's motion to suppress the physical evidence. In light of the description of defendant given to the police, the match between that description and what defendant was wearing, defendant's presence in the area immediately after the crime, and his flight upon seeing the police car, it is clear that the police had probable cause to arrest defendant, and therefore to search him and seize relevant evidence on his person or near the crime scene. See e.g., State v. Carter, 54 N.J. 436, 447 (1969); State v. Citrella 154 N.J. 272, 281 (1989); State v. Doss, 254 N.J. Super. 122, 128-30 (App. Div. 1992); State v. Adams, 224 N.J. Super. 669, 674 (App. Div. 1988).

The State's foot print expert testified that he had qualified as an expert on such matters almost 200 times in our State courts. His qualifications are impressive, and the judge was fully justified in permitting his testimony. See e.g., State v. Harvey, 121 N.J. 407, 427 (1990), cert. denied, 499 U.S. 931 (1991). Defendant's reliance on State v. Johnson, 120 N.J. 263 (1990), is mistaken since that case involved an attempt to have a fingerprint expert testify about footprints. The admission of this testimony was well within the trial judge's discretion. Even if the judge was wrong, given the balance of the evidence, this supposed error could not have affected the result.

We affirm the denial of the motion for a new trial substantially for the reasons expressed by Judge Neafsey, who resolved that issue as soundly as he resolved all the other issues in this case.

We will not comment on defendant's sentencing arguments other than to note that the one-year over the presumptive term was given expressly and solely on the basis of defendant's criminal record.

Affirmed.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-3472-04T4

June 19, 2006