STATE OF NEW JERSEY v. JAMES A. MOORE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6303-03T46303-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES A. MOORE,

Defendant-Appellant.

_______________________________________________________________

 

Submitted December 19, 2005 - Decided February 3, 2006

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 03-07-0339.

Yvonne Smith Segars, Public Defender, attorney for appellant (Shara D. Saget, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Leslie-Ann Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, James A. Moore, was tried before Judge William L. Forester and a jury between March 16, 2004 and March 18, 2004 and was found guilty on count one of Salem County Indictment Number 03-07-339 of second-degree robbery contrary to N.J.S.A. 2C:15-1. At the sentencing hearing on May 4, 2004, count two, charging defendant with second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, was dismissed. The judge determined the conspiracy count was subsumed in the robbery conviction. Defendant was sentenced for second-degree robbery to a ten-year term of imprisonment with an 85% parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA). Defendant was also sentenced to three years of parole supervision, appropriate monetary penalties were assessed and he was ordered to pay $165 in restitution. Defendant appeals his conviction and sentence. We affirm the conviction but remand for re-sentencing.

On March 16, 2004, the judge conducted a pre-trial hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). At the conclusion of the hearing, the judge ruled that all identification testimony would be admissible.

On May 24, 2003, Jennifer Johnson was a sales clerk at Snyder's News Agency in Salem, where she had worked for the previous six years. After waiting on a few customers at about 9:00 a.m., Johnson observed defendant and his female co-defendant enter the store. There was a "suspicious look about them" because of "[t]he way they walked in, the way they observed the whole store [and because] they walked around the whole store." They went to the greeting cards section, moved in and out of aisles and settled in the middle aisle. When the last of the other customers exited the store, defendant, who she described as a dark male wearing a navy blue shirt and sweat pants, walked up with a greeting card and a dark gift bag. The female, who was wearing a black sweat suit, walked towards the door. When the man said he could not pay for the items after Johnson rang them up, Johnson began to void the transaction and asked him if he wanted to pay for one of the items. The man answered, "all right, this is a holdup. I want all of the money in the bag." He put his hand in his pocket and gestured to her. Johnson thought that he might have a gun in his pocket and would not think twice about harming her. For that reason, Johnson put all of the money, totaling $165, into the gift bag. She clearly saw defendant's face. He was not wearing a mask. There was good lighting in the store. The man and woman left and Johnson called the police.

Earlier that morning, Dolores Stevenson was in the area of West Broadway running errands and observed a man and a woman walking in Fenwick Plaza. She noticed them because they were coming toward her and she recalled the couple "because they were the only two people there." There was nothing unusual about their appearance. A few minutes later, Stevenson noticed the two again as she was exiting a store. When they passed each other on the street, she looked directly into the man's face. Stevenson described the man as a tall black man, wearing dark shorts and carrying a black child's birthday bag in his hand. She thought to herself that he was "kind of handsome, kind of cute." Later, Stevenson saw the couple again but she noticed that the couple had separated and that the woman was on the opposite side of the street. Although she had never seen the male before, she recognized the female as the daughter of a woman who she had seen around the neighborhood, although she could not recall the woman's name. A little while later she stopped at Snyder's to find out why the police were there.

Detective Duane Johnson, of the Salem City Police Department, tried to lift fingerprints from the scene of the robbery but was unable to collect any prints of evidential value. Johnson and Stevenson went to the police station and gave their statements. Both Johnson and Stevenson separately looked through four mug shot books but were unable to identify any of the photographs as either of the robbers. Defendant's photograph was not in any of the mug shot books. Stevenson, however, was able to pick out the photograph of the mother of the woman she saw in Fenwick Plaza from the mug book. From Stevenson's information, the police determined that the woman who Stevenson identified had a daughter named Brenda Simmons.

Detective Johnson conducted an investigation that led him to the Salem Motor Lodge where he found Brenda Simmons and defendant. He placed them under arrest. Three weeks later the detective put together a photo array, which was administered to Johnson by Detective Sergeant Eller. Johnson could not identify Simmons but did identify defendant, whose photograph was the fifth photograph in the photo array, as the man who committed the robbery. Stevenson was never shown the photo array.

At trial, both Johnson and Stevenson made in-court identifications of defendant as the person who committed the robbery. Johnson testified that defendant was a dark-skinned black man who wore a navy blue shirt and sweat pants or sweat shorts on the day of the robbery. She described defendant as tall, about six-one or six-two. Johnson admitted that she was not able to see the woman as well as she had seen defendant. Defendant did not testify nor present any witnesses on his behalf.

Defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION BY JOHNSON AND THE RESULTING TAINTED IN-COURT IDENTIFICATIONS BY JOHNSON AND STEVENSON, THEREBY DENYING MOORE DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 10.

A. THE COURT ERRED IN ADMITTING JOHNSON'S IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION WHICH RESULTED IN A TAINTED IN-COURT IDENTIFICATION.

B. THE COURT ERRED IN ADMITTING STEVENSON'S IMPERMISSIBLY SUGGESTIVE IN-COURT IDENTIFICATION.

POINT II

THE COURT'S CHARGE FOR ROBBERY MISSTATED THE PROOF NECESSARY FOR THEFT, DILUTING THE STATE'S BURDEN OF PROOF AND NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. I, 10.

POINT III

THE SENTENCE IMPOSED ON MR. MOORE IS MANIFESTLY EXCESSIVE, AND VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND A JURY TRIAL.

A. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

B. THE ABOVE-THE-PRESUMPTIVE SENTENCE IMPOSED DENIED MOORE HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND RIGHT TO JURY TRIAL.

I

Defendant contends that the photo array shown to Johnson nineteen days after the offense was highly suggestive in that defendant's photograph appeared at the end of the array and immediately after a photograph of a person with a completely different complexion. Defendant contends that the impermissible out-of-court identification resulted in a tainted in-court identification. Additionally, defendant asserts that Steven-son's in-court identification was highly suggestive and that it resembled an impermissible one-man "show up" since defendant was the only person present in the court room. Defendant argues that the testimony regarding the out-of-court and in-court identifications of both Johnson and Stevenson should have been excluded because there was a substantial likelihood of misidentification.

At the Wade hearing, the court found that the array was not suggestive and was permissible evidence. Judge Forester made several observations regarding the photographs. He noticed that all six men depicted were African-American, with short hair, facial hair, a mustache, and had a range of complexions. He commented about the range of the complexions. The photograph identified as S-13 was the comparatively lighter-complexioned male, S-9 was the darker-complexioned male, and the others, including defendant's photograph, ranged from medium-to-dark complexions. The judge stated, "[n]othing would suggest . . . that the photograph that was identified, which turns out to be defendant, was suggestive or . . . [that] there's a substantial likelihood of misidentification."

We are convinced that Judge Forester properly exercised his discretion in making his findings. The test on appellate review of a Wade hearing is whether the trial judge could reasonably conclude that the identification procedure was not "'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 225 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). Even in cases when there is held to be suggestivity in the identification process, courts have still held that "[t]he strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973).

The test for suggestivity is a two-pronged test. The first prong is whether the identification procedure employed was "impermissibly suggestive." Madison, supra, 109 N.J. at 232. Only if there is a finding of impermissible suggestivity does the second prong of the test even apply. Ibid. The second prong requires a determination of whether the suggestivity resulted in a "'very substantial likelihood of irreparable misidentification.'" Ibid. (citation omitted). "The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation." State v. Mustacchio, 109 N.J. Super. 257, 263 (App. Div.), aff'd, 57 N.J. 265 (1970).

An array depicting a range of facial characteristics is not suggestive and actually inures to the defendant's benefit. See Farrow, supra, 61 N.J. at 452. In Farrow, the Supreme Court stated, "[t]he other pictures were of men with both differing and similar facial characteristics, so as to afford a fair basis for choice." Ibid. Consequently, even in circumstances when there is a finding that the identification was suggestive, which was not the case here, the evidence should still be admitted if it is reasonable that the victim could, in fact, identify the defendant. See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

For the second prong, the court focuses on the witness' reliability. To determine whether or not the witness is reliable and the procedure resulted in a very substantial likelihood of misidentification, the following factors must be weighed: "'[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description . . ., the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" State v. Clausell, 121 N.J. 298, 326 (1990) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). The time that lapses between the crime and the identification is not determinative. In United States v. Archibald, 734 F.2d 938, 943, modified, 756 F.2d 223 (2d Cir. 1984), the court held that the array was not unduly suggestive where there was a twenty month delay between the robbery and the photographic identification.

In-court identifications are admissible even when a witness was presented a prior line-up or array but was unable to identify the defendant. Clausell, supra, 121 N.J. at 327 (citing United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987)). With respect to a testifying identification witness, defense counsel has "ample chance to challenge the accuracy of the identification on cross-examination, and the jury was free to discount its value based on [the witness'] inability to identify anyone on earlier occasions." Id. at 328.

A defendant does not have a constitutional right to a pre-trial identification. State v. Walls, 85 N.J. 218, 221 (1981). Pre-trial identifications must be requested in a timely manner and it is up to the judge's discretion whether to grant or deny the request. Ibid.

We are satisfied that the photographic array presented to Johnson was not suggestive. She was shown six photographs, all of African-American men with short hair, facial hair and mustaches. She was specifically instructed by the police that the photographs were not shown in any particular order of importance. She was not placed under any time restrictions nor pressured by the police to choose defendant's photograph.

Defendant's claim that his photograph was emphasized because his "photo[graph] was last in the array" is belied by the report in this case. Defendant's photograph was actually the fifth out of the six array photographs shown prior to trial, when Johnson identified defendant. Therefore, there is no issue of whether defendant's picture was emphasized as the alleged "last photograph" in the array.

Defendant's reliance on Archibald is misplaced. Unlike in Archibald where there were twenty months between the robbery and the identification, in this case there were only nineteen days. Archibald, supra, 734 F.2d at 939. Johnson did not identify defendant on the day of the robbery because his photograph was not in the mug books. Johnson, from her testimony, knew what defendant looked like and the array was not suggestive in any way. Johnson's out-of-court identification also satisfies the second prong of the Madison test. She was the victim in the robbery, observed defendant without a mask in a well-lit store for several minutes during his commission of the crime and identified him a few weeks later. Furthermore, the in-court identification was thorough and consistent with Stevenson's description of defendant.

We are satisfied that the police procedure whereby defendant was identified by Johnson in a photo array was not suggestive and did not taint the in-court identification. Nor was it likely to lead to an irreparable misidentification. Defendant's claims to the contrary are rejected.

We are also satisfied that the judge's decision to allow Stevenson's in-court identification was a proper exercise of the judge's discretion. Walls, supra, 85 N.J. at 221. Similar to our Supreme Court's reasoning in Clausell, where there was no out-of-court identification but the in-court identification was permitted nineteen months after the crime, Stevenson's in-court identification ten months later was properly admitted. The duration of time between the crime and the identification is not the critical issue. What is most important is the witness' opportunity to view the defendant and the defense's opportunity to cross-examine the witness. Clausell, supra, 121 N.J. at 327-28. Stevenson's in-court identification was not akin to a one-man "show-up." Stevenson was asked if she had the opportunity to really look at defendant when he was carrying the bag and if she could identify him at the trial. She unequivocally answered yes to both questions. Additionally, Stevenson's identification was subject to cross-examination. Although Stevenson's in-court identification occurred slightly less than ten months after the robbery, this is not a considerable lapse in time, given that she observed defendant three times, her recollection ultimately led police to defendant, and she was cross-examined at trial. Like Johnson, Stevenson could not identify defendant from the mug books because his photograph was not in those books the day she reviewed them.

II

The court charged the jury on second-degree robbery and the lesser-included offense of theft of movable property. Defendant asserts that the judge read the model charge for second-degree robbery word-for-word, with a small but critical misstatement:

In order to prove that the defendant was in the course of committing a theft, the State must prove beyond a reasonable doubt that the defendant threatened another with, or purposely put another in fear of immediate bodily injury. (emphasis added).

Defendant claims that this incorrect instruction had the capability of misleading the jury into thinking there was no distinction between second-degree robbery and theft of movable property, resulting in an unjust verdict. Although not raised below, defendant contends that the court's incorrect instruction on one of the material elements of the crime is clearly plain error, requiring reversal. R. 2:10-2.

The entire jury charge on second degree robbery was as follows:

A person is guilty of robbery if, in the course of committing a theft he . . .

And the one that applies in this case is: . . . threatens another with, or purposely puts him or her in fear of immediate bodily injury.

Let me say it again, not for emphasis, but just so it's clear.

A person is guilty of robbery if, in the course of committing a theft, he or she threatens another with, or purposely puts him or her in fear of immediate bodily injury.

So in order for you to find the defendant guilty of robbery, the State is required to prove each of the following elements. And this is what I referred to earlier. Elements, factors, or points of law. This is what the State must prove beyond a reasonable doubt.

(1) That the defendant, this defendant, James A. Moore was in the course of committing a theft.

(2) That while in the course of committing that theft, the defendant threatened another with, or purposely put another in fear of immediate bodily injury.

The State must prove, beyond a reasonable doubt, that the defendant was in the course of committing a theft. In this connection, you are advised that an act is considered to be in the course of committing a theft, if it occurs in an attempt to commit the theft, during the commission of the theft, or in immediate flight after that attempt or commission [sic] to commit a theft.

Theft is defined as the unlawful taking, or exercise of unlawful control over property of another, with the purpose to deprive him or her, or it, in the case of a news agency, thereof.

Now here you've heard me use the word with purpose, or purposely. A person acts purposely with respect to the nature of his conduct, or a result thereof, if it is his conscious object to engage in conduct of that nature. In order to prove that the defendant was in the course of committing a theft, the State must prove beyond a reasonable doubt that the defendant threatened another with, or purposely put another in fear of immediate bodily injury.

The phrase bodily injury means physical pain, illness, or any impairment of physical condition. Although no bodily injury need have resulted, the prosecution must prove that the defendant either threatened the victim with, or purposely put the victim in fear of such bodily injury.

Should you find that the State has failed to prove either of these elements of the crime of robbery beyond a reasonable doubt, then you must find Mr. Moore not guilty.

But if you find that the State has proved both of those elements beyond a reasonable doubt, then you must find Mr. Moore not guilty [sic].

(emphasis added).

The judge thereafter asked the attorneys if they had any objections to the charge. While defense counsel raised several objections that were addressed, he did not raise any objections to the portion of the second-degree robbery jury charge alleged as plain error here. At the conclusion of the jury charge, each member of the jury was given a jury verdict sheet. Again, defense counsel did not raise any objections to the judge's explanation of the elements of robbery.

The absence of an objection to the charge at trial is strong evidence that defendant's belated claims of error in the charge were not prejudicial. State v. Tierney, 356 N.J. Super. 468, 481-82 (App. Div.), certif. denied, 176 N.J. 72 (2003). Furthermore, defense counsel's "failure to object points up the fact that experienced counsel did not consider that the use of the words detracted from the clear meaning which the charge as a whole conveyed." State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325, 333 (1971).

While a "trial court has an absolute duty to accurately instruct the jury on the law governing the facts of the case[,]" this does not mean that any misstatement of law during the course of jury instructions "automatically" warrants the reversal of a criminal conviction. State v. Concepcion, 111 N.J. 373, 379 (1988).

An appellate court reviews the charge in the context of the specific facts of the case under review and examines the alleged prejudicial effect of the challenged jury charge in the context of the trial, the summations of counsel, and the entire charge. State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

In looking at the jury charge as a whole rather than in isolation, as defendant would have this court do, it is clear that the jury was properly charged on the law of second-degree robbery. The elements of second-degree robbery are (1) defendant was in the course of committing a theft; and (2) while in the course of committing that theft, defendant threatened another or purposely put another in fear of immediate bodily injury. See N.J.S.A. 2C:15-1a; Model Jury Charge (Criminal), Robbery in the Second-Degree. (Approved 4/13/92).

Judge Forester correctly charged the jury on the elements of robbery three times. It was only when he expounded on the mental culpability state of "purposely" in the context of the second-degree robbery charge that he varied from that portion of the Model Jury Charge. However, at that point, the jury had been well apprised that the judge was referencing robbery and not theft of movable property. Thereafter, the judge reiterated that the jury had to find that the State had proved the elements of the crime beyond a reasonable doubt. Judge Forester restated the elements of robbery again when he reviewed the verdict sheet with the jury.

The jury was correctly charged on the elements of robbery four times. We are, thus, satisfied that the judge gave a comprehensive and correct explanation of the law of second-degree robbery and that there was no risk that the jury could have misunderstood the elements of second-degree robbery.

III

Defendant received a sentence of ten years, 85% without parole, in accordance with the NERA. Defendant contends the sentence should be reduced for two reasons: (1) it is manifestly excessive, and (2) it violates his constitutional rights to due process and trial by jury. U.S. CONST., Amends. VI, XIV; N.J. CONST., art. I, 1, 9 and 10.

The trial court found three aggravating factors pursuant to N.J.S.A. 2C:44-1a: (3), the risk that defendant will commit another offense; (6), the extent of defendant's prior criminal record; and (9), the need to deter defendant and others from violating the law. The court also found mitigating factor N.J.S.A. 2C:44-1b(6), that Moore will compensate the victim (Snyder News Agency) for the money taken. The court gave the mitigating factor "slight" weight and concluded that the aggravating factors significantly outweighed the mitigating factors.

Defendant asserts that the court overlooked the application of mitigating factor N.J.S.A. 2C:44-1b(11), the imprisonment of Moore would entail excessive hardship to his dependents because at sentencing defendant stated that he has a daughter and "a family that need me out there." Additionally, the court should have considered the fact that he is relatively young (age twenty-five) and has a history of employment.

In reviewing a sentence imposed by the trial judge, an Appellate Court is deferential in its review of a trial court's exercise of sentencing discretion and is guided by the three-pronged test established in State v. Roth, 95 N.J. 334, 363-64 (1984): (1) whether the appropriate sentencing guidelines were followed; (2) whether the findings of fact were grounded in competent, reasonably credible evidence; and (3) whether in applying those guidelines to the facts of the case, the sentencing court showed such a "clear error of judgment that it shocks the judicial conscience[]" that a sentence should be modified on appeal. See also State v. Pillot, 115 N.J. 558, 564 (1989).

Defendant was subject to five to ten years imprisonment for second-degree robbery. N.J.S.A. 2C:15-1; N.J.S.A. 2C:43-6a(2). Judge Forester comprehensively discussed and then balanced the aggravating and mitigating factors presented by defendant's case. The judge noted that defendant has been involved in constant criminal activity since he was a juvenile, and his crimes are "progressing upward." In a six year period, the following are some of the convictions from New Jersey and Delaware of which defendant has been found guilty: three counts of receiving stolen property, criminal impersonation, resisting arrest, escape, two counts of theft, and possession or use of drugs. Defense counsel conceded, and Judge Forester agreed with the State, that defendant was extended term eligible in light of his unwavering disregard for the law. However, the judge declined to impose an extended term in this case, holding that the aggravating factors significantly outweighed the one mitigating factor and as a result imposed a ten-year term of imprisonment on count one. The sentence does not shock the judicial conscience.

Defendant contends, however, that the trial court abused its discretion in imposing a sentence in excess of the seven year presumptive term for a second-degree crime, and that such a sentence violated defendant's constitutional rights to a jury trial and due process as articulated by the Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In addition to Blakely, defendant relies on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362, 147 L. Ed. 2d 435, 455 (2000), which held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

In State v. Natale, 184 N.J. 458, 466 (2005), (Natale II), our Supreme Court held:

Under New Jersey's Code of Criminal Justice, a defendant cannot be sentenced to a period of imprisonment greater than the presumptive term for the crime he committed, unless the judge finds one or more statutory aggravating factors. See N.J.S.A. 2C:44-1(f)(1). The Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant at a plea hearing. We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee.

Because in this case defendant's sentence was greater than the presumptive term of seven years, a remand is necessary in the form of a new sentencing hearing.

The Supreme Court in Natale II stated:

Our Code provisions make clear that, before any judicial factfinding, the maximum sentence that can be imposed based on a jury verdict or guilty plea is the presumptive term. Accordingly, the "statutory maximum" for Blakely and Booker purposes is the presumptive sentence. Because the Code's system of presumptive sentencing allows judges to sentence beyond the "statutory maximum" based on their finding of aggravating factors, that system is incompatible with the holdings in Apprendi, supra, Blakely, supra, and [U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 621 (2005)]. We, therefore, conclude that the Code's system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury.

In light of that holding, we now must provide the appropriate remedy for New Jersey's criminal sentencing system.

[Id. at 484-85.]

The remedy chosen by our Supreme Court in Natale II to cure this constitutional problem was the elimination of presumptive terms. Id. at 487. "Without presumptive terms, the 'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Ibid. "Judges will continue to determine whether credible evidence supports the finding of aggravating and mitigating factors and whether the aggravating or mitigating factors preponderate." Ibid. The Court elaborated: "We suspect that many, if not most, judges will pick the middle of the sentencing range as the logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence." Id. at 488. However, the Court noted that this methodology is not compelled. Ibid.

As noted by the Court in State v. Abdullah, 184 N.J. 497, 506 (2005), "In Natale II, supra, we excised the presumptive terms from the Code so that judges, not juries, still will decide the aggravating factors as the Legislature would have intended. . . ."

In regards to the new sentencing hearing,

the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Natale, supra, 184 N.J. at 495-96.]

We are satisfied that Judge Forester properly admitted both the out-of-court and in-court identifications of defendant and that the court properly charged the jury on the elements of second-degree robbery. We are, however, convinced that because defendant was sentenced to greater than the presumptive term of imprisonment for a second-degree offense that defendant's sentence must be remanded for re-sentencing in accordance with Natale II.

Affirmed as to conviction; remanded as to sentence.

 

A photocopy of the photo array is exhibit (Pa2) in the appendix to the State's brief. Although it is a photocopy of the array, the exhibit does serve to confirm Judge Forester's observations that the complexions of the men depicted did not improperly focus on defendant.

(continued)

(continued)

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A-6303-03T4

February 3, 2006