STATE OF NEW JERSEY v. HAKIM ROUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1366-07T41366-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKIM ROUSE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 26, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 04-09-2947.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ruth Bove Carlucci,

Assistant Deputy Public Defender, of counsel

and on the brief).

Paula T. Dow, Acting Attorney General,

attorney for respondent (Michael J. Williams,

Deputy Attorney General, of counsel and on

the brief).

PER CURIAM

Following a jury trial, defendant Hakim Rouse was found guilty of first-degree carjacking, N.J.S.A. 2C:15-2a(1); first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); second-degree eluding, N.J.S.A. 2C:29-2b; second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4a; two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; third-degree resisting arrest, N.J.S.A. 2C:29-2; and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d. After appropriate mergers, the trial judge sentenced defendant to an term of twenty-six years in prison, subject to the 85% provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, on the carjacking offense. The sentences imposed on the remaining convictions were made concurrent subject to mandated parole disqualifiers. Defendant appeals, and subject to the remand for resentencing, we affirm.

These are the relevant facts adduced from the trial record.

At approximately 7:00 p.m. on July 6, 2004, Andrew Stefanyshyn was sitting in his limousine at a McDonald's near the Newark Airport waiting for a fare. He sat in the back of his vehicle with the window open, reading a book when a car carrying three men pulled in beside the limousine. A male, later identified as defendant, with dreadlocks and his face partially covered with a black bandana, wearing a dark sleeveless shirt and jeans, stepped out brandishing a semi-automatic handgun, pointed it through the open window into the victim's face and demanded money. The victim gave defendant a $10 bill, and defendant grabbed the victim's laptop computer from between the two front seats, handing it to one of his cohorts. Defendant then smashed his handgun into the victim's face, and "[b]lood came bursting [out]." Defendant ordered the victim out of the limousine, got in and sped away. The incident lasted about two to three minutes.

Within seconds, another limousine driver pulled into the McDonald's. The victim used the driver's cell phone and called the police, telling them that he had been robbed and carjacked. He also described his car and gave its license plate number. The police arrived minutes later and transported the victim to the hospital, where he received seven stitches to close a gash above his right eyebrow.

Meanwhile, other officers were searching for the victim's stolen limousine. Officer Matthew Ruane of the Newark Police Department and his partner were on patrol in their marked police car when they received the dispatch at about 7:15 p.m. that the stolen limousine was headed in their direction. Traveling west on 15th Avenue, the officers observed the vehicle traveling at approximately fifty miles per hour heading north on Littleton Avenue. Officer Ruane pulled behind the vehicle and followed it at forty-five to fifty miles per hour with his lights and sirens on. Defendant sped up, heading north on Littleton Avenue and into South Orange in late rush-hour traffic.

After making several turns while being chased, defendant sped onto Central Avenue. While traveling thirty-five to forty-five miles per hour, he crashed head-on into the stopped patrol car of Officers Victor Gomes and Adolfo Furtado. Both officers were injured even though their airbags deployed; Officer Gomes was able to exit, draw his gun and assist other officers in trying to remove defendant from the crashed vehicle. Officer Furtado was initially trapped inside but was able to kick open his door. The crash caused an injury to his knee, which rendered him unable to assist in subduing defendant.

Defendant continued to resist and refused to exit the stolen limousine, holding on to the steering wheel instead. Because a police car blocked the Lincoln's driver's door, Officer Ruane and another office pulled defendant through the open driver's door window. Defendant, who had dreadlocks, wore a black tank top and had a black bandana around his neck, continued to resist arrest even outside the vehicle. Eventually, officers were able to subdue and handcuff him.

Defendant was uninjured and possessed a $10 bill as well as a Rolex watch. On the limousine's front passenger seat was an operable, dark gray semi-automatic Hi-Point .380 caliber handgun with a defaced serial number. Defendant did not have a gun permit.

After being treated at the hospital, the victim proceeded to the station house where he gave Detective John LaBella a statement describing the incident. He identified both the handgun recovered from his wrecked limousine and the black bandana as the ones the carjacker had used. In another room, other officers interviewed defendant, who asked to use the bathroom. While being escorted without handcuffs to the bathroom, defendant and the accompanying officer passed the victim who was giving a statement. The victim commented that defendant "looked like the person that robbed me."

The victim described the incident at trial:

Q. At the police station, Mr. Stefanyshyn, did anything else occur?

A. I saw the person who looked like who robbed me.

Q. Can you tell the jury what happened at that point in time?

A. I was giving the . . . statement to the police officer and the police, other police officer just walk him. He was walking with, the police officer was walking with somebody through the room.

Q. And, that caught your attention?

A. Yes.

Q. How did it catch your attention?

A. That person was, looked like the person who robbed me.

Q. How did they look like the person that robbed you? What drew you to notice that person?

A. His hair style, African American, and his eyes, and the clothes.

Q. What was significant about the clothes?

A. It was the same clothes that the person was wearing.

Q. Mr. Stefanyshyn, do you see that person in the courtroom today?

A. Yes. I think so.

Q. Could you please point him out?

A. Yeah. Look like this guy [defendant].

On appeal, defendant raises the following issues:

POINT I

BECAUSE THE SHOW-UP IDENTIFICATION OF DEFENDANT BY ANDREW STEFANYSHYN WAS UNNECESSARILY AND IMPERMISSIBLY SUGGESTIVE, BOTH THE OUT-OF-COURT AND LINKED IN-COURT IDENTIFICATIONS MADE BY HIM SHOULD HAVE BEEN EXCLUDED. IN ADDITION, TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE HEARING.

A. The Identifications Should Have Been Excluded.

B. Trial Counsel Was Ineffective in Failing To Request a Wade Hearing.

POINT II

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT.

POINT III

UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN SENTENCING THIS YOUTHFUL DEFENDANT TO A 26-YEAR TERM OF IMPRISONMENT, SUBJECT TO NERA, ON HIS FIRST CRIMINAL CONVICTION, BY GIVING UNDUE WEIGHT TO THE DECISION IN STATE V. ZADOYAN, TO THE EXCLUSION OF APPROPRIATELY WEIGHING THE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD. U.S. Const. Amend. VI, XIV; N.J. Const. Art. I 1, 9, 10.

We have carefully reviewed the record and conclude that the issues raised in defendant's Point II are without merit and require little further discussion. We note that we disagree with defendant's interpretation of the use of the word "even," as he interprets it as a suggestion that a defendant is expected to testify. We view it differently and conclude that the presumption of innocence prevails under all circumstances, even if a defendant does not testify. The presumption remains preeminent under all circumstances. No objection was made to the charge, and we find no error in the charge as rendered.

We now address the remaining arguments.

Defendant raises the issue of the propriety of the victim's identification at the station house and later at trial. We first note that the issue was neither raised before trial at a Wade hearing nor at trial and is raised for the first time on appeal. Trial judges generally will not initiate or conduct a hearing on their own motion, without a challenge by a party, as they recognize, as do we, that in many instances challenges are deferred for tactical or strategic reasons. See State v. Harvey, 151 N.J. 117, 181 (1997). Nevertheless, we will address the merits.

The test for the admissibility of an identification is whether the identification was impermissibly suggestive. State v. Chen, 402 N.J. Super. 62, 83 (App. Div. 2008). That determination requires an inquiry into not only whether the identification procedure was impermissibly suggestive but notwithstanding any suggestive nature of the procedure, whether the identification was nevertheless reliable considering the totality of the circumstances. State v. Adams, 194 N.J. 186, 203, 206 (2008) (holding that "despite the clear suggestive nature of the identification procedure," the totality of the circumstances indicated that the identifications were "reliable"). Ultimately, reliability remains the critical factor in determining admissibility. Id. at 204.

Although defendant asserts that the identification procedure here was suggestive, nothing in the record supports that contention. As the victim was seated in the police station, defendant, escorted by officers, was taken to the bathroom when the victim volunteered that he recognized defendant. Although characterized as a show-up, this was little more than a defendant and victim being in the station at the same time; this was not a show-up for the purposes of identification. Nothing in this record supports the assertion that the procedure was suggestive.

Even if we were to conclude that the procedure was suggestive, we conclude that the identification was reliable. The circumstances here involved a daylight carjacking, where the victim could see part of defendant's face, his clothing and his hairstyle. These factors were specifically cited by the victim as he testified to his identification both at the station and at trial.

We are also mindful of the fact that the identification took place a relatively short time after the carjacking, defendant was apprehended driving the stolen vehicle and was in possession of a gun as well as the victim's money. We recognize that identifications are powerful tools in the prosecutions of criminal activity, State v. Delgado, 188 N.J. 48, 60 (2006), and we must be vigilant in our review, yet the circumstances presented here leave little doubt that the identification procedure was neither suggestive nor inappropriate and generated an identification that was reliable and probative.

We likewise reject defendant's assertion that trial counsel was ineffective in failing to request a Wade hearing. Our finding that the identification procedure was neither suggestive nor resulted in an unreliable identification of defendant precludes a finding of ineffective assistance of counsel. Whether counsel did not pursue a pre-trial examination of the identification for strategic or other reasons, defendant cannot meet his burden under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of the right to effective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Generally, ineffective assistance of counsel claims may be pursued by a petition for post-conviction relief. R. 3:22-2(a). See also State v. Chen, 179 N.J. 186, 191 (2009); State v. Roundtree, 388 N.J. Super. 190, 213-14 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). However, where the record is complete, we may consider the issues raised on the direct appeal. State v. Allah, 170 N.J. 269, 285 (2002); State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003). We are satisfied that the issue raised can be resolved on the record before us.

Even if not strategic, counsel's failure to request Wade hearing would not impact on the jury's ultimate finding of guilt. We note that counsel cross-examined the victim at length about the victim's identification of defendant. We are satisfied that there is no showing of ineffective assistance of counsel.

Finally, defendant challenges the sentence, asserting that this is defendant's first indictable offense and he is a youthful offender. The trial judge considered these arguments when imposing sentence and imposed a twenty-six year sentence with the NERA minimum as well as imposing concurrent sentences on the additional serious offenses.

In evaluating the appropriateness of a sentence, we must satisfy ourselves that the trial judge properly applied the Code of Criminal Justice's standards and guidelines. State v. Megargel, 143 N.J. 484, 493 (1996). Under the Code, the focus is on the gravity of the offense. State v. Carey, 168 N.J. 413, 422 (2002). We will not substitute our judgment for the trial court's and must affirm a sentence as long as the sentencing judge properly identified and balanced the relevant aggravating and mitigating factors. State v. Bieniek, ___, N.J. ___ (2010) (slip op. at 15); State v. Cassady, 198 N.J. 165, 179-80 (2009); State v. Natale II, 184 N.J. 458, 489 (2005). If the judge properly followed the guidelines, we may modify the sentence only if it shocks our judicial conscience. Cassady, supra, 198 N.J. at 181; State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364 (1984)).

Defendants convicted of carjacking are exposed to an ordinary ten to thirty year term and must receive an 85% NERA period of parole ineligibility. N.J.S.A. 2C:15-2b; N.J.S.A. 2C:43-7.2d(10); State v. Henry, 323 N.J. Super. 157, 163 (App. Div. 1990). Four forms of carjacking exist, which focus on whether defendant

(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle;

(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury;

(3) commits or threatens immediately to commit any crime of the first or second degree; or

(4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.

[N.J.S.A. 2C:15-2a.]

Sentencing judges must look to these alternate forms to guide their sentencing discretion, together with the aggravating and mitigating factors. Henry, supra, 323 N.J. Super. at 163; State v. Zadoyan, 290 N.J. Super. 280, 291 (1996). As we have stated,

[e]lement a(1) is the most serious additional fact: the infliction of bodily injury or the use of force. Element a(4), operation of the vehicle with the lawful occupant remaining in it, ordinarily would be the least serious carjacking. Elements a(2) and a(3), the threat of bodily injury or the commission or threat to commit a first or second degree crime, are of intermediate concern.

[Ibid. (footnote omitted).]

For carjacking, the Legislature intended the high end of the sentencing range to apply to defendants committing the most serious forms of this crime. This is because "'the severity of the crime is . . . the single most important factor in the sentencing process.'" Id. at 292 (quoting State v. Hodge, 95 N.J. 369, 379 (1984)).

Defendant was convicted of the most serious form of carjacking because using a gun, he used force and inflicted bodily injury upon the victim. N.J.S.A. 2C:15-2a(1); Henry, supra, 323 N.J. Super. at 164 (noting that defendant's carjacking was "extremely serious" because it involved a gun, a risk of serious bodily injury and threat of robbery).

While this was defendant's first indictable offense, he had amassed a significant juvenile record; moreover, this carjacking represented a significant offense warranting an appropriate sentence. We find no error in the sentence imposed here.

 
Affirmed.

The State concedes that the matter must be remanded for resentencing to three-year periods of community parole supervision on the two second-degree aggravated assault convictions. See N.J.S.A. 2C:43-7.1a.

Apparently, this issue has been raised and rejected in a number of other unreported decisions. State v. Holmes, No. A-6229-06T4 (App. Div. Apr. 30, 2009); State v. Rodriguez, No. A-5150-06T4 (App. Div. May 2, 2008). Most recently, the charge has been modified and states that a defendant "is presumed innocent whether or not he/she chooses to testify." Model Jury Charge (Criminal), Defendant's Election Not To Testify (revised May 4, 2009).

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

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A-1366-07T4

March 2, 2010