STATE OF NEW JERSEY v. RAYMOND MORALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND MORALES, a/k/a

RAYMOND MORELLO,

Defendant-Appellant.

___________________________________________

December 28, 2016

Submitted November 9, 2016 Decided

Before Judges Yannotti and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 12-01-0023, 12-02-0130, and 13-09-0750.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was tried before a jury and found guilty of burglary and theft. The trial judge denied defendant's motion for a new trial and sentenced defendant to an extended term of eight years of incarceration, with four years of parole ineligibility. Defendant appeals from the judgment of conviction dated February 9, 2015. We affirm.

I.

Defendant was charged under Cumberland County Indictment No. 13-09-0750 with third-degree burglary, contrary to N.J.S.A. 2C:18-2(a)(1), and third-degree theft by unlawfully taking or exercising unlawful control over the property of another, with a value of more than $500 and less than $75,000, contrary to N.J.S.A. 2C:20-3(a). The trial court denied defendant's motion for a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), on the admissibility of certain identification evidence. Thereafter, defendant was tried before a jury.

At the trial, evidence was presented showing that D.G.'s grandmother M.S. resided in an apartment on Russell Avenue in Vineland.1 Co-defendant Edwin Correa resided with his mother in another apartment in the same building. D.G. and Correa had dated for about four years, and they terminated their relationship in April 2013. At around the same time, defendant was dating Correa's mother. D.G. often encountered defendant while visiting Correa's apartment.

On April 26, 2013, D.G. visited M.S., and M.S. drove D.G. to the dentist. When they returned home, D.G. and M.S. observed two men running from the area near M.S.'s apartment building. As their vehicle turned onto Russell Avenue, D.G. recognized the two men as Correa and defendant. D.G. estimated that, at the time of her identification, the distance between her vehicle and the men was approximately twenty-two feet.

M.S. testified that she and D.G. observed several items of her property lying in the driveway. These included a tool box, an auto jack, and an auto engine. D.G. and M.S. did not see the two men carrying any property away from the home; however, several items were missing from M.S.'s apartment, including a laptop computer, jewelry, the contents of a piggy bank, car radios, a bike rack, and two watches.

Officer Joseph Montana of the Vineland Police Department (VPD) responded first to the scene and encountered D.G. and M.S. They provided Montana with a general description of the two suspects. D.G. identified Correa and defendant as the persons she saw running from her grandmother's apartment building. She also provided Montana with Correa's home address. Soon thereafter, Officer Timothy Knight of the VPD arrived at the scene. Although D.G. did not provide Knight with physical descriptions of the two men, she provided him with their names and Correa's address.

An hour later, at police headquarters, D.G. was shown two photos one of defendant and one of Correa. She identified them as the persons she saw running from her grandmother's apartment building. Knight also conducted a videotaped interview of defendant, during which he acknowledged that he was in the vicinity of M.S.'s residence that morning, but denied any involvement in a burglary.

Correa testified that he had a previous relationship with D.G., and he confirmed that defendant had a relationship with his mother. Correa admitted that he and another individual committed the burglary and theft of property from M.S.'s residence. He refused, however, to identify defendant as his accomplice.

The jury found defendant guilty on both charges. Prior to sentencing, defendant filed a motion for a new trial, arguing that the verdict was against the weight of the evidence. In support of the motion, defendant submitted an affidavit from D.G., who recanted her identification of defendant as one of the persons she saw leaving her grandmother's residence on the date of the burglary and theft.

The trial judge conducted an evidentiary hearing on the motion, during which the judge heard testimony from D.G., the notary before whom D.G. made her affidavit, and Correa's mother. The judge denied defendant's motion. In an oral decision placed on the record, the judge stated that D.G.'s post-conviction testimony had "all the hallmarks" of a "forced post-conviction recantation."

The judge said that D.G. went to the notary on two occasions, and made two affidavits. The judge noted that the notary testified that when D.G. made her first affidavit, she was "nervous and fidgety." In addition, Correa and defendant's "significant other" had accompanied D.G. to the notary on both occasions. The judge observed that they "all live in the same apartment complex."

The judge also noted that, during the hearing, D.G. spoke in a low voice and was at times barely audible. She kept her head down and barely looked at the attorneys, the judge, or defendant. She was not tearful, and she did not give the judge the impression that she was "truly repentant for her prior testimony." The judge observed that, if anything, D.G. appeared to be fearful, and she was attempting to match her testimony with what she "imagined" would be the testimony of the other witnesses, who had been sequestered.

The judge found that D.G.'s trial testimony was truthful and her testimony at the post-trial hearing was "forced and deceitful." The judge determined that "[i]t would be patently obvious to even the most casual of observers that her post-conviction testimony was influenced by the co-[d]efendant and the [d]efendant's significant other."

On February 9, 2015, the judge granted the State's motion to sentence defendant to a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). The judge merged the two offenses. The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's criminal record and seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge did not find any mitigating factors. As noted previously, defendant was sentenced to eight years of incarceration, with a four-year parole bar. This appeal followed.

On appeal, defendant argues

POINT I

THE TRIAL COURT'S PRETRIAL DECISION NOT TO GRANT A WADE HEARING WAS ERRONEOUS BECAUSE DEFENDANT MADE A SUFFICIENT SHOWING OF IMPERMISSIBLE SUGGESTIVENESS. THE TRIAL COURT FURTHER ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL WITHOUT FIRST CONDUCTING A WADE HEARING.

POINT II

THE TRIAL COURT IMPROPERLY DOUBLE-COUNTED DEFENDANT'S PRIOR RECORD IN IMPOSING AN EXTENDED-TERM SENTENCE.

II.

Defendant argues that the trial judge erred by denying his motion for a Wade hearing. He contends that he made a sufficient showing that the identification procedure employed here was impermissibly suggestive. He also contends that the judge erred by denying his motion for a new trial without first conducting a Wade hearing.

To obtain an evidentiary hearing on the admissibility of an out-of-court identification, a defendant must show some evidence of suggestiveness in the identification process that could lead to a mistaken identification. State v. Henderson, 208 N.J. 208, 288 (2011) (citations omitted). The State must then establish that the proffered identification is reliable. Id. at 289. Defendant has the ultimate burden of proving a "very substantial likelihood of irreparable misidentification." Ibid.

When evaluating whether there is evidence of suggestiveness in the identification process sufficient to warrant an evidentiary hearing, the court must consider so-called "system variables," which include: the manner in which the photo array or lineup was administered; whether the person conducting the identification process provided the witness with neutral pre-identification instructions; the construction of the lineup or array; whether the witness received any information or feedback about the suspect or the crime before, during, or after the identification process; whether any record was made of the witness's statement of confidence in his or her identification; whether the witness viewed the suspect more than once as part of multiple identification procedures; and whether the police performed a show-up more than two hours after an event. Id. at 289-90.

If there is some actual proof of suggestiveness, the court then considers various "estimator variables" in determining the "overall reliability" of the identification. Id. at 291. The "estimator variables" include the witness's stress; whether a visible weapon was used during a crime of short duration; the amount of time the witness had to observe the event; the distance between the witness and the perpetrator, as well as the lighting conditions; the physical characteristics of the perpetrator; whether the witness was under the influence of alcohol or drugs; memory decay; and race-bias. Id. at 291-92.

Here, the trial judge correctly determined that defendant failed to establish that there was a very substantial likelihood of irreparable misidentification to warrant a Wade hearing. Even assuming there was some actual proof of suggestiveness, the State established that the identification was reliable. The record shows that when Officer Montana arrived at the scene shortly after the initial emergency call, D.G. immediately identified defendant and Correa as the two persons she saw running from her grandmother's apartment building.

Although defendant questions the reliability of D.G.'s identification, asserting that she viewed the two men from a distance of sixty-six feet, D.G. testified at trial that the distance separating her and defendant was about twenty-two feet. In addition, while D.G. did not initially provide the police with a physical description of the two men, D.G. told the police that she was familiar with them, based upon her almost four-year romantic relationship with Correa and defendant's relationship with Correa's mother.

As the trial judge noted, under the circumstances, the use of a single photo in the identification process did not affect the reliability of D.G.'s identification of defendant. The process was undertaken to confirm that defendant and Correa were the individuals that D.G. said she saw running from her grandmother's apartment building. As the judge observed, D.G. knew the perpetrators. Moreover, the single photograph procedure used here was conducted at police headquarters within two hours after D.G. witnessed defendant fleeing the apartment building, thereby proving further support for the reliability of D.G.'s identification. Id. at 260-61. We conclude that the judge did not err by denying defendant's request for a Wade hearing.

We also conclude that the judge did not err by denying defendant's motion for a new trial without first conducting a Wade hearing. As noted, D.G. submitted a post-trial affidavit to the court in which she recanted her identification of defendant as one of the individuals she saw running from her grandmother's apartment building. The judge conducted an evidentiary hearing on the motion and found that D.G.'s recantation was not credible.

There is sufficient evidence in the record to support the judge's finding. The court had previously determined that D.G.'s initial identification was reliable. Her purported recantation did not alter that finding. Defendant's contention that the judge should have conducted a Wade hearing before ruling on the motion for a new trial is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

III.

Next, defendant argues that the trial judge improperly double counted several of his prior criminal offenses in imposing the extended-term sentence.

The record shows that in March 2012, defendant pled guilty to third-degree receiving stolen property and third-degree theft. He was sentenced to five years of probation, conditioned upon service of 180 days in county jail. In addition, in May 2003, defendant pled guilty to second-degree robbery. Based on these two offenses, the judge correctly found that defendant was eligible for an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a).

Furthermore, when sentencing defendant, the judge found aggravating factor six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record and the seriousness of the offenses of which he has been convicted). The judge noted that defendant's juvenile record included delinquent acts which, if committed by an adult, would constitute criminal mischief, shoplifting, criminal trespass, burglary, theft, and receiving stolen property. Moreover, as an adult, defendant pled guilty to a robbery, which involved the beating of a couple on the boardwalk. He also had prior theft charges, and two disorderly persons convictions for hindering apprehension and conspiracy to commit theft.

It is clear, therefore, that when sentencing defendant, the judge did not double-count the convictions which formed the basis for the finding that defendant was extended-term eligible. Defendant's juvenile record and his other criminal convictions provided a sufficient factual basis to find aggravating factor six.

Defendant also argues that the judge erred by refusing to find mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm), and two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his/her conduct would cause or threaten serious harm). Again we disagree. Here, the judge noted that defendant had been convicted of committing a burglary and theft, which caused harm to the victim, and that defendant knew the victim would be harmed by their criminal acts. The judge stated that the "only saving grace" was that the victim was not at home when defendant and Correa committed the offenses.

We are therefore convinced that the trial judge followed the applicable sentencing guidelines, there is sufficient competent and credible evidence to support the judge's findings on the aggravating and mitigating factors, and the resulting sentence is an appropriate exercise of the court's discretion, which does not shock the judicial conscience. State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)).

Affirmed.

1 We use initials to identify certain individuals in order to protect their privacy.