STATE OF NEW JERSEY v. CARL R. SUYDAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5373-03T45373-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL R. SUYDAM,

Defendant-Appellant.

 

Submitted December 19, 2005 - Decided January 12, 2006

Before: Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-01-0219.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, 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

Defendant was charged under a Monmouth County indictment with burglary, contrary to N.J.S.A. 2C:18-2 (count one), and receiving stolen property, contrary to N.J.S.A. 2C:20-7a (count two). Defendant was tried before a jury and convicted on count one and on the lesser included offense of receiving stolen property less than $200, contrary to N.J.S.A. 2C:20-2b. The judge granted the State's motion to sentence defendant to an extended term as a persistent offender. The judge sentenced defendant to a ten-year term on the burglary conviction, and a concurrent six-month term for receiving stolen property.

Defendant appeals and raises the following contentions:

POINT I: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE IDENTIFICATION OF DEFENDANT BY ALBARO MIRANDA.

POINT II: DEFENDANT'S SENTENCE VIOLATES HIS RIGHT TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT.

POINT III: THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT AS THE FINDINGS OF AGGRAVATING AND MITIGATING FACTORS WERE NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE AND THE PUNISHMENT WAS CREATED FOR THE CRIMINAL, RATHER THAN THE CRIMES.

We have carefully considered these contentions and thoroughly reviewed the record. For the reasons that follow, we affirm.

I.

We briefly summarize the evidence presented at trial. On October 17, 2000, Albaro Miranda was living in a basement apartment in a home owned by Francisco Pragosa in Long Branch, New Jersey. Miranda had fallen asleep with the television on. At around 11:45 p.m., Miranda was awakened by a phone call from his sister, who was living at the time across the street. Miranda put on his shoes and looked out the window at the parking lot. Miranda testified that he saw a "guy" who opened Pragosa's car and got into the car. Miranda went upstairs to tell Pragosa that someone was in his car. The car was a Mercedes Benz.

Miranda said that he was able to see the man in the parking lot. He said that the man was an African-American. He had a "little white beard." The man was wearing jeans, yellow boots and a tee shirt. He was wearing a winter hat and carrying a bag. Miranda saw the man walking away. Miranda and Pragosa left the apartment and went outside. They saw the man walking to Cleveland Avenue. Pragosa called the police.

Miranda said that, when the police responded, he gave them a description of the man who entered Pragosa's vehicle. The police left and later they returned. The police took Miranda and Pragosa in a police car to identify a suspect. The police had a man with them and asked Miranda if he was the individual who entered Pragosa's car. Miranda said that it was not the man. The police took Miranda home and sometime later told Miranda that they had located another person. The police took Miranda to see that man. Miranda identified this individual as the person who entered Pragosa's vehicle. Miranda testified that defendant was the man he had identified.

Corporal Michael Schulz of the Long Branch Police Department testified that, on the night of October 17, 2000, at about 11:45 p.m., he was dispatched to Pragosa's house to respond to a report of a burglary to a motor vehicle. He spoke with Miranda and Pragosa and looked at Pragosa's vehicle. Schulz said that the glove box had been broken into and was rifled. Miranda gave Schulz a description of the man he saw enter the car - a black male, possibly in his 40's, with graying facial hair, wearing a dark jacket and carrying a small bag. Schulz radioed the description to other officers and Schulz received a transmission from Officer Robert Shamrock that he had a possible suspect on Westwood Avenue. The suspect was last seen walking down Cleveland Avenue toward Prospect.

Schulz put Pragosa and Miranda in the police car and drove to the place where the suspect had been stopped. Pragosa and Miranda remained in the car. Schulz said that they had the opportunity to see the man and Miranda informed Schulz that the person was not the individual who entered the car. The officers released the man and Schulz drove Pragosa and Miranda home. About fifteen minutes later, Shamrock radioed that he had stopped another suspect. Schulz again drove Pragosa and Miranda to the place where the suspect was being detained. Miranda identified defendant as the person who burglarized the car. Schulz arrested defendant. Schulz said that defendant was carrying a black satchel or gym bag in which he found bolt cutters, a cordless drill, a cordless saw, a carpenter's level and a "speed level."

Shamrock testified that on the night of October 17th, he assisted Schulz in looking for the burglary suspect. Schulz radioed a description of the suspect and Shamrock stopped a person who "slightly" matched the description. After Miranda said that it was not the person he had seen enter Pragosa's car, Shamrock located defendant, who was walking in the area of Division and Willow. He was carrying a black bag, a level and square and what appeared to be a case for carrying a saw. Defendant appeared to match the description given to him by Schulz. Shamrock stopped defendant and informed Schulz. Schulz returned with Pragosa and Miranda, and Miranda identified defendant as the individual he had seen enter Pragosa's car.

Kenneth Begane testified that, on the night of October 17th, his van was parked in his driveway on Cleveland Avenue. In the morning, he discovered that his van was in disarray. Begane's circular saw and several carpenter's levels were missing. Begane reported the matter to the police. He went to the police station and identified the items recovered from defendant as his property. Begane said that he purchased the items for about $250.

II.

Defendant first argues that the judge erred in denying his motion to suppress Miranda's identification testimony. Defendant asserts that Miranda's identification was the result of a procedure that was impermissibly suggestive. Defendant contends that, in the totality of the circumstances, the identification was not reliable. We disagree.

In determining whether to admit evidence of an eyewitness's identification of a defendant, we consider whether the procedure is impermissibly suggestive and, if so, whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (quoting from Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). "Reliability is the linchpin in determining the admissibility of identification testimony." Id. at 232-33 (quoting from Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

The determination as to whether an identification is reliable must be made based on the totality of the circumstances. Id. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)). In this regard, the trial judge must consider the opportunity of the witness to observe the perpetrator at the time the crime was committed, the witness's degree of attention, the accuracy of the prior description of the criminal, the time between the crime and the identification, and the level of certainty demonstrated at the time the identification is made. Id. at 239-40 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

This case involves a "show-up" or "one-on-one" identification. An identification of this sort is admissible if it is made within a reasonably short time after the crime. State v. Wilkerson, 60 N.J. 452 (1972).

On or near-the-scene identifications have generally been supported on three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.

[Id. at 461.]

See also State v. McNeil, 303 N.J. Super. 266, 272 (App. Div. 1997)("one-on-one" identification permissible where the suspect was apprehended promptly and brought before the victim for identification).

Here, the judge conducted a hearing outside the presence of the jury and concluded that the "one-on-one" identification was not unduly suggestive. The evidence established that defendant matched the description that Miranda had given to Schulz shortly after he observed defendant enter the vehicle in the parking lot. Miranda testified that the parking lot was illuminated at the time. Miranda also said that he was able to observe the man for about two minutes before he went to inform Pragosa that someone had entered his car. Defendant was apprehended and Miranda was brought to the place where defendant was being detained. He identified defendant within a half hour of the incident. At the time, Miranda was sitting in the back of the police vehicle. Defendant was not restrained. He was standing on the street near the police officer.

Defendant asserts that Miranda's identification was unreliable. Defendant argues that Miranda made his observations after he was awakened by the telephone call. Miranda's observations were made from a basement window. Defendant contends that Miranda did not have a good vantage point. He also states that Miranda observed the perpetrator for two minutes and, for some of that time, the perpetrator was in the vehicle. Defendant notes that Miranda did not identify the first suspect detained by the police, indicating that his identification of defendant is not reliable. This shows, according to defendant, that the police pressured Miranda to make a positive identification.

We are not persuaded by these contentions. The trial judge considered all of the facts and determined, based on the totality of the circumstances, that the procedure was not impermissibly suggestive and Miranda's identification was reliable. A finding of fact by the trial judge is binding on appeal if it is supported by adequate, substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). An appellate court must defer to the findings of the trial judge particularly where, as in this case, those findings are "substantially influenced" by the judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case,..." State v. Locurto, 157 N.J. 463, 471 (1999)(quoting from State v. Johnson, 42 N.J. 146, 161 (1964)).

III.

Defendant next argues that the trial judge abused his discretion in sentencing defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. We disagree.

Here, the judge properly adhered to the procedures for imposition of an extended term.

First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, [the sentencing court] must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, [the court] must determine whether to impose a period of parole ineligibility.

[State v. Pennington, 154 N.J. 344, 354 (1998)(quoting State v. Dunbar, 108 N.J. 80, 89 (1987)).]

It is undisputed that defendant was eligible to be sentenced to an extended term as a persistent offender. Defendant was previously convicted "on at least two separate occasions of two crimes," and those crimes were committed at different times, when defendant was at least 18 years of age. N.J.S.A. 2C:44-3a. Moreover, the later of these convictions was within ten years of the date of the burglary for which defendant was being sentenced. Ibid.

The judge properly determined that an extended term was appropriate. As the judge pointed out in his sentencing decision, defendant has an extensive record as a juvenile offender. His involvement with the criminal justice system continued after he became an adult. Defendant has been convicted of numerous indictable offenses since 1972, including possession of stolen property, possession of burglary tools, theft of a motor vehicle, burglary, possession of a weapon, and resisting arrest. In these circumstances, an extended term is warranted to protect the public. Dunbar, supra, 108 N.J. at 90-91.

The judge also found aggravating factors under N.J.S.A. 2C:44-1a(3)(risk that defendant will re-offend); N.J.S.A. 2C:44-1a(6) (defendant had an extensive criminal record); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge's findings are amply supported by the record.

We therefore are convinced that the extended term sentence of ten years is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

IV.

Defendant also argues that the extended term sentence violates his right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed 2d 435 (2000), and Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The imposition of an extended term pursuant to N.J.S.A. 2C:44-3a does not run afoul of Sixth Amendment principles enunciated in Apprendi and Blakely. State v. Franklin, 377 N.J. Super. 48, 58 (App. Div. 2005). Furthermore, although the judge imposed a sentence that is longer than the presumptive extended term, that decision was based on aggravating factors in N.J.S.A. 2C:44-1a (3) (6) and (9). Because those findings were based on the seriousness of this offense and defendant's prior criminal record, the sentence does not violate defendant's right to trial by jury. See State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

 
Affirmed.

(continued)

(continued)

12

A-5373-03T4

January 12, 2006