STATE OF NEW JERSEY v. MICHAEL COSBY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3292-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL COSBY,

Defendant-Appellant.

__________________________________________

October 28, 2013

Argued October 7, 2013 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 09-07-2482 and Indictment No. 10-12-3476.

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief).

Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Michael Cosby was convicted of third-degree arson, N.J.S.A. 2C:17-1(b), as a lesser included offense of second-degree arson; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); and simple assault, N.J.S.A. 2C:12-1(a), as a lesser included offense of third-degree aggravated assault. Defendant was acquitted on seven other counts. On the arson charge, he was sentenced to four years. The court merged the aggravated assault and disorderly persons offense and sentenced defendant to three years, to run consecutive to the arson sentence. Additionally, defendant was given an eighteen-month sentence for violation of probation due to an earlier, unrelated conviction, which was to run consecutive to the other two charges. In total, defendant received a sentence of eight and one-half years.

On appeal defendant raises the following arguments:

POINT I

THE DENIAL OF DEFENDANT'S REQUEST FOR DETAILED JURY CHARGES ABOUT HOW JUDICIALLY ACCEPTED SOCIAL SCIENCE FINDINGS COULD AFFECT THE JURORS' DETERMINATION OF THE RELIABILITY OF AN IDENTIFICATION WAS IMPROPER AND DENIED THE DEFENDANT BOTH A FAIR TRIAL AND HIS RIGHT TO DUE PROCESS (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10).

POINT II

THE SENTENCE WAS EXCESSIVE AS THE COURT IGNORED MITIGATING FACTORS AND INCORRECTLY FOUND CERTAIN AGGRAVATING FACTORS WHEN SENTENCING MR. COSBY TO A TERM OF EIGHT AND ONE-HALF YEARS OF IMPRISONMENT.

I.

Defendant and Geneva Rasian-Thomas were involved in a romantic relationship for several years. They lived together, and had a daughter. In September of 2009, after an argument, defendant left the home.

On October 24, 2009, a fire severely damaged Geneva's home. Before the fire began, a neighbor, Wilbur Hainey, who lived five houses away, saw defendant enter the home with a white bag under his arm. After fifteen to twenty minutes, Hainey, who was sitting on his porch, observed defendant leave the home without the white bag. About five minutes after defendant departed, smoke began to billow from the windows.

Hainey, who had lived in his home for forty years, recognized defendant as someone he knew from the neighborhood. Hainey had spoken with defendant on a few occasions, although he did not know defendant's name.

The police investigated the fire and determined that, although no accelerants were used, the fire was intentionally set. Hainey spoke with the police on the day of the fire, and provided a taped statement to Detective Robert Borger, four days later. Borger returned to Hainey's home on October 31, 2009, to conduct a photo array. No other officer was present. Hainey testified that Borger placed six photographs face down on the table, and then began flipping them one at a time, until all the photos were facing upwards. Hainey also testified that the picture of defendant was larger, or more close up, than any of the other pictures. After Hainey selected defendant's photograph from the array, defendant was arrested and charged with arson.

Defendant and Geneva remained in contact after the arrest, and defendant testified that he helped install a new refrigerator in her home. Afterwards they began to argue and Geneva testified defendant picked up a hacksaw and assaulted her with it. Defendant maintained Geneva attacked him with the saw, causing several wounds to his head. Defendant's injuries were fairly severe while Geneva suffered only superficial injuries. Geneva called the police and defendant was arrested for aggravated assault.

II.

Defendant argues that the court erred in not submitting "enhanced" instructions to the jury regarding the use of the photo array identification process. Defendant challenges the identification, as the same officer who was conducting the investigation also conducted the photo array. Defendant also complains that his photo was larger and more of a close up than any of the other photos shown to the witness and the procedure did not comply with the protocol announced in State v. Henderson, 208 N.J. 208 (2011). As these practices violated the Attorney General Guidelines,1 defendant claims the court erred in failing to provide an enhanced jury instruction, explaining that the failure to follow the Guidelines could call into question the reliability of the photo identification. We disagree.

The identification procedure and trial in this case were completed before the effective date of the new legal standard for assessing eyewitness identification evidence and the guidelines for identification procedures announced in Henderson. The Court explicitly stated that the revised principles would "apply purely prospectively[.]" Id. at 220.

The trial court recognized this and compared the Henderson standard with the standard in place at the time of the trial:

The issue of witness identification is extremely important as a concept of . . . our criminal justice system. And the Supreme Court speaks to that at some length in connection with the Henderson decision and in connection with the holding in that case relative to how identification procedures should be conducted going forward. At the same time, the court makes clear, this is to be done going forward.

I have reviewed the existing identification charge. And although it doesn't do obviously everything that Henderson says should occur going forward, it is relatively substantial and the factors that it brings to the attention of the jury relative to what they should consider in determining how to treat the identification of . . . suspects by witnesses.

. . . .

Therefore, I'm left to . . . conclude . . . that . . . in light of the language of Henderson that these Henderson type charges that the defendant suggests should not be part of the jury charge. Instead, the standard charge, with its rather substantial factor discussion as it is, is sufficient to protect the defendant's due process rights relative to the matter of identification.

The identification procedure was neither unfair nor impermissibly suggestive. Hainey knew defendant, although not by name, and knew that he lived five houses away from him. Hainey had spoken with defendant five or six times and was so familiar with him that he was able to recognize him on October 24, 2009, as he was walking toward Geneva's house, even though defendant was wearing a blue hoodie and was walking with his head down. Hainey watched defendant and waited for him to put his head up so he could wave to him. The trial court noted, "the fact that the witness to whom the photo array was presented . . . had already identified the defendant as being the perpetrator. It was someone he already knew before any of these events happened."

We are satisfied that Hainey's out-of-court identification was not improper and the trial court correctly permitted his in-court identification. Moreover, given Hainey's familiarity with defendant, his out-of-court identification was more in the nature of a recognition than an identification, and his in-court identification was independent of his prior out-of-court identification. See State v. Royster, 57 N.J. 472, 480, cert. denied, 404 U.S. 910, 92 S. Ct. 235, 30 L. Ed. 2d 182 (1971). We find no error in the jury instructions given by the trial court.

Defendant next challenges his sentence as excessive claiming the trial court failed to consider appropriate mitigating factors and improperly applied certain aggravating factors.

The role of aggravating and mitigating circumstances is to identify "individual circumstances which distinguish the particular offense from other crimes of the same nature." State v. Yarbough, 195 N.J. Super. 135, 143 (App. Div. 1984), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). When reviewing a trial court's sentencing procedures, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence"; (2) "require that the factfinder apply correct legal principles in exercising its discretion"; and (3) modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

The sole aggravating factor challenged by defendant is the application of factor number two, the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance, N.J.S.A. 2C:44-1(a)(2). The trial court applied that factor because it determined that "there was substantial fire damage relative to the - - the arson, so there is a substantiality to the gravity and seriousness of the harm inflicted on the victim." The extent of damage to Geneva's home supports that finding and we find no abuse of discretion in the trial court's application of the factor.

The three mitigating factors in question are number three, defendant acted under a strong provocation, N.J.S.A. 2C:44-1(b)(3); number five, the victim of the defendant's conduct induced or facilitated its commission, N.J.S.A. 2C:44-1(b)(5); and number six, defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service, N.J.S.A. 2C:44-1(b)(6).

Defendant claims that mitigating factors three and five should apply to the aggravated assault charge because the jury determined defendant and Geneva engaged in a mutual fight. This argument has no merit.

Mitigating factor three requires defendant to have acted under a strong provocation. The fact the jury found the fight to be mutual is irrelevant. There was no proof offered that defendant was provoked into assaulting Geneva. The existence of a mutual fight does not establish provocation.

The trial court denied application of mitigating factor five for the same reason: lack of proof that Geneva's conduct induced or facilitated defendant's assault.

Finally, defendant argues that mitigating factor six should apply, as he is being forced to pay $10,000 restitution and thus will compensate Geneva. However, any restitution paid by defendant will go to the Violent Crimes Compensations Board and to Geneva's insurance company. If she realizes any compensation, it will be limited to $500 for her deductible. We find no error in the trial court's failure to apply these mitigating factors.

Affirmed.

1Office of the Attorney Gen., N.J. Dep't of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (2001).