STATE OF NEW JERSEY v. RENARD JOSEPH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5651-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENARD JOSEPH,

Defendant-Appellant.

June 4, 2012

 

Submitted April 30, 2012 - Decided

 

Before Judges Parrillo, Grall and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-04-1097.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

The opinion of the court was delivered by

PARRILLO, P.J.A.D.

Tried by a jury, defendant Renard Joseph was convicted of three counts of first-degree armed robbery, N.J.S.A. 2C:15-1(b), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On the armed robbery convictions, he was sentenced to concurrent eighteen-year prison terms, each with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on the second-degree weapons offenses, to concurrent five-year terms with a five-year period of parole ineligibility. The third-degree weapons offense was merged into one of the second-degree weapons convictions. Appropriate fees and penalties were also imposed.

The armed robberies of three individuals occurred around 9:40 a.m. on December 28, 2007, at a beauty salon on Springfield Avenue in Newark, where Gloria Reed and Keisha Munroe were patrons and Mary Luz Hernandez worked as a beautician. According to the State's proofs, Munroe saw a man, later identified by all three women as defendant, enter the salon and tap Hernandez twice. When Hernandez ignored him, defendant sat down next to Munroe and attempted to grab her purse. Munroe moved the purse before he could take it, and asked what he wanted. At that time, she saw a gun with a "skinny barrel" in his hand. Defendant demanded her "stuff," got up from the chair, and told Munroe that he also wanted her rings as he walked towards Hernandez. Munroe gave him ninety dollars and her engagement ring set.

Reed, who had fallen asleep, was awakened by Hernandez's voice saying "what do you want?" She saw defendant standing by Hernandez. Reed heard him tell Hernandez, "I'm not playin," and "take the fuckin' rings off." Both Reed and Hernandez saw him pull from a bag a black revolver with a long barrel. Hernandez took off her engagement ring, and gave it to him. Defendant then pointed the gun at Reed's face, and demanded money. When Reed replied that she did not carry money, he told her to take off her engagement ring and give it to him, which she did.

After he took their money and jewelry, defendant ordered the women at gunpoint to walk to the back of the salon. When Reed refused, he walked out. By Munroe's estimate, the entire incident lasted between five and ten minutes. All three victims got a good look at the robber as the salon was well lit.

After defendant left, Reed got into her car, which was parked directly in front of the salon, and chased him about eight blocks to Tenth Street, while Munroe called the Newark Police Department (Newark PD). At some point, defendant turned around and looked directly at Reed before running into a cemetery. Reed lost sight of him, and when she returned to the salon, the police were there. She told a police officer about the chase, and he drove her back to the cemetery but they did not find the suspect.

At 10:15 a.m., Detective Gerardo Rodriguez and Sergeant Lee Douglas of the Newark PD responded to a call of a robbery at the beauty salon. While Rodriguez briefly investigated the scene, the three victims were transported separately to police headquarters, where they continued to be separated.

Rodriguez first took Munroe to a small room with a computer containing a database of photographs of individuals previously arrested in Essex County. The database was part of the High Intensity Drug-Trafficking Area (HIDA) system. Rodriguez was trained on "[h]ow to set up the parameters, how to switch from six photos to six other photos, [and] how to set up photo displays," but was not trained on how to save a search.

To set up the computer-based photo retrieval system, Rodriguez first asked Munroe for a description of the suspect. Munroe described the robber as a "light-brown-skinned black male," with gold teeth and a goatee, who was wearing a black flight jacket, black jeans and a black skull cap. Rodriguez entered the information into the computer, "light-skinned black males with goatee," explaining there were no parameters for clothes or teeth. He did not write down the description, explaining there was no pre-identification procedure to memorialize it.1

Rodriguez then directed Munroe to sit in front of the computer, and told her to take her time viewing the photographs. He explained that the screen would display six photographs at a time, and showed her "how to go forward to get six more." He asked her to alert him or the sergeant if she saw someone who resembled the suspect. He then returned to his desk, which was located at least twenty feet away, and took Hernandez's statement.

Munroe remained at the computer by herself, where no one disturbed her. After about fifteen to twenty minutes, and viewing over 300 photographs, she recognized defendant as the individual involved in the robbery, and alerted the sergeant, who notified Rodriguez. When Rodriguez asked if she was certain of her identification, Munroe replied yes, "one hundred percent." He then printed the photograph and Munroe signed and dated it.

After Munroe completed her identification, she came to Rodriguez's desk and Hernandez moved to the computer. The women did not speak to each other as they exchanged seats. Hernandez described the suspect as a black male with a thin build, a goatee, and front gold teeth, who was wearing all black clothing and a black skull cap. Rodriguez entered this description into the computer as Hernandez stood by him. He gave her the same instructions, telling her to take her time viewing the photographs and to let him or the sergeant know if she recognized the suspect. He explained that she did not have to pick someone. Afterwards, he returned to his desk and took Munroe's statement. Hernandez remained at the computer by herself, and notified the sergeant when she identified the suspect. He printed the photograph of defendant, and she signed and dated it. She subsequently gave Rodriguez a second statement.2

Douglas's first contact with Reed took place at the police station, when he took her statement. She reported seeing the suspect begging for quarters on Hawthorne Avenue prior to the robbery. She described him as five foot, eight or nine inches tall, skinny, light-brown dry skin, dirty hands, and gold teeth. Douglas input the information, except for the description of the suspect's clothing. He did not record the description, except in Reed's statement. Afterwards, he directed her to sit in front of the computer, to click the mouse to move forward or backward between screens, and to notify him if she saw a picture of the suspect. He then returned to his desk about seven feet away. After she identified defendant, she alerted Douglas, who printed the photograph and had her sign and date it.3

Reed was "100 percent sure" of her photographic identification. She explained: "I'm the one who seen him on top of me with that gun in my face and I never had a gun in my face ever in my life." She also identified defendant in court as the man who had robbed her.

After Reed gave her statement, she retrieved a "messed-up" photograph of defendant that someone had thrown away, and put it in her pocketbook. The photograph had his address on it. Although she did not know defendant, she thought he looked vaguely familiar. At some point after returning home, she decided that the "Newark Police not gonna do their job. So I'm gonna do it." She drove to defendant's house, parked in front, and waited. After a while, she drove to the corner and showed someone the photograph. After being told she was in the right area, Reed parked her car and waited about forty-five minutes to an hour until defendant arrived home. When he went into the house, she called the police.

At 5:00 p.m. on December 28, 2007, Rodriguez went to defendant's home with an arrest warrant after being notified by his sergeant that one of the victims had observed the person who committed the robberies. When he arrived, he met Douglas, who told him the suspect was inside the house. Reed was waiting when the officers arrived.

Douglas knocked on the front door and identified himself as a police officer. He saw defendant "peek out, [and] go back in, and out of sight." After "a long time," Herman Joseph opened the door and identified himself as defendant's father. When Douglas told him about the arrest warrant, the father allowed the officers to enter and search his house. They found defendant hiding in the attic and arrested him. Defendant was handcuffed and taken outside where a detective asked Reed to identify him, which she did. According to Reed, defendant's father asked if his son did "this" to her, and she said yes and walked away.

Testifying on behalf of defendant, Herman said that he and his son owned a limousine and messenger service and that on the day of the robberies, he had returned home from a job at JFK airport between 7:30 and 8:00 a.m., where he spoke with his son around 8:30 or 9:00 a.m. Around that time, one of Herman's friends, Clarence Walker, stopped by, and let defendant drive his new car around the block. Afterwards, the three men went inside the house. Walker confirmed that when he left Herman's house at 9:55 a.m., defendant was still there. According to Herman, his son left the house between 10:15 a.m. and 10:30 a.m. to go to the car wash.

That evening, after the officers had searched his house and were leaving with his son, Herman noticed a lady with rollers in her hair walking across the street. When he asked her why she had falsely accused his son, she replied, "[O]h, that's not the one." When asked why he did not go to the Newark PD to give his version of events, he replied that he told the detective at his house that the police had the "wrong guy" but that they were so busy looking for his son they did not let him say anything. He also did not believe it was necessary, explaining: "When the police lock you up, they got [their] mind made up anyway." Herman maintained, however, that his son did not commit the armed robbery, explaining: "We in a business. Why would [defendant] have to go and rob"?

Defendant did not testify. At the request of defense counsel, however, he stood and opened his mouth for the jury to see his teeth. At summation, defense counsel commented that defendant did not have any gold teeth. Evidently crediting the State's account, the jury found defendant guilty of the three armed robberies and related weapons offenses.

I

On appeal, as at trial, one of the principal issues concerns the victims' out-of-court identifications. Below, defendant challenged their admissibility at a Wade4 hearing, during which the same evidence was adduced as at the later trial, and as recounted earlier in this opinion. At the conclusion of the Wade hearing, the court denied defendant's motion to suppress, finding that, under the totality of circumstances, the photo retrieval system was neither scientifically unreliable, impermissibly suggestive nor invalidated by police failure to record and retain the photographs viewed by the witnesses. On appeal, defendant launches the same multi-faceted attack, arguing:

A. THE DEFENDANT'S RIGHT TO DUE PROCESS AS

GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION AND ART. 1, PAR. 1 OF THE NEWJERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO LAY A PROPER FOUNDATION SHOWING THAT THE "PHOTO RETRIEVAL" DEVICE IS SCIENTIFICALLY RELIABLE AND ITS OPERATOR WAS SUITABLY QUALIFIED.

 

B. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION AND ART. 1, PAR. 1 OF THE NEWJERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO RECORD AND DOCUMENT THE OUT-OF-COURT IDENTIFICATION EVIDENCE AND PROCEDURE.

 

C. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION AND ART. 1, PAR. 1 OF THE NEWJERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE.

A.

We reject the contention the State had to establish the scientific reliability of the photo retrieval system used to obtain the out-of-court identifications in this case or prove its operation by expert testimony. As to the former, the system is not newly devised or novel technology heretofore untested and unscrutinized. Statev. Harvey, 151 N.J. 117, 167-68 (1997), cert. denied, 528 U.S. 1085, 145 L. Ed. 2d 683, 120 S. Ct. 811 (2000). Indeed, courts routinely accept the use of computerized photographic databases. State v. Janowski, 375 N.J. Super. 1 (App. Div. 2005). As to the latter, a judgment about the system may be made without the need for expert testimony.

N.J.R.E. 702 governs the admission of expert testimony. This rule provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." This rule has three requirements:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

 

[State v. Jenewicz, 193 N.J. 440, 454 (2008).]

 

Here, the State established through the testimony of Rodriguez and Douglas how the photo retrieval system operated, how they entered identifiers into the system, what descriptions they received from the victims, and what identifiers they input into the system for each victim. Because a computer system with large numbers of randomly selected photographs used for investigative purposes is essentially a mug shot book, Janowski, supra, 375 N.J.Super. at 8-9, the subject matter was not beyond the ken of an average juror, and expert testimony was not required to establish its reliability. See State v.Kelly, 97 N.J. 178, 209 (1984) (noting "[t]he primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge"); State v.Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000) ("A factfinder should not be allowed to speculate without the assistance of expert testimony in an area where the average person could not be expected to have sufficient knowledge or experience.").

In any event, there is no evidence to support defendant's claim that the photo retrieval system is unreliable. On the contrary, Rodriguez explained that after he entered a description into the computer database, "it would set up photos with people similar to the description given." Douglas testified that the photo retrieval system was not difficult, and that he had entered identifiers thousands of times. Moreover, defendant had ample opportunity to cross-examine both officers on the photo retrieval system and their qualifications to operate it.

Nevertheless, defendant argues that the court erred by admitting the photographs because the photo retrieval system lacked a proper foundation. N.J.R.E. 801(e) defines a photograph as a "writing." To be admissible, a writing must be authenticated. Statev. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). UnderN.J.R.E.901,"[t]herequirementofauthentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." This rule "does not require absolute certainty or conclusive proof. The proponent of the evidence is only required to make a prima facie showing of authenticity." Mays, supra, 321 N.J.Super. at 628. After making a prima facie showing, the writing is admissible and the jury decides the ultimate question of authenticity. Ibid. "A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993).

The authentication of photographic evidence requires a witness to verify that it accurately reflects its subject, and to identify or state what the photograph shows. State v. Wilson, 135 N.J. 4, 14 (1994). Any person with knowledge of the facts represented in the photograph may authenticate it. Ibid. To authenticate a photograph, a witness's testimony must establish that:

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.

 

[Id. at 15 (citation omitted).]

 

A trial court decides the preliminary question of whether a photograph is sufficiently accurate to justify its admission. Ibid.

The State satisfied these elements. The prosecutor showed the photographs retrieved from the computer to Rodriguez, who testified that: the photographs accurately represented the man whom Munroe and Hernandez identified as the perpetrator of the robbery on the date in question; he printed the front and side views of the photographs; at his request, each victim signed and dated the backs of the photographs she selected; and defendant was the man identified by each of them. Douglas similarly testified that the photograph shown to him at trial was the one Reed selected from the photo retrieval system, that he printed two views of the photographs, that Reed signed and dated the backs of them, and that the man in the photographs was defendant. These photographs were admitted without objections.

Reed and Munroe also authenticated the photographs by testifying that they depicted the man who had robbed them, that they had selected the photographs from the computerized database, that they had signed and dated the backs of them, and that defendant was the man represented in the photographs. Likewise, Hernandez recalled looking at photographs on the computer, and verified her signature on the backs of two printed copies even though she did not remember signing them. Thus, the photographs were properly authenticated and made available to the jury.

B.

Defendant next contends his due process rights were violated by a procedure that failed to record the out-of-court identifications and preserve the photographic array. He

complains that the witnesses could have gone back and reviewed photographs a second time, and the system could have included more than one photograph of defendant.

In State v. Delgado, 188 N.J. 48, 58 (2006), the Court addressed the issue of whether the police had a duty to record the details of out-of-court identification procedures. It found no constitutional violation, and concluded that the trial court properly admitted the photographic identifications. Id. at 58-68. Specifically, it held that the failure to make a detailed record of the out-of-court identification procedure did not deny the defendant a fair trial because there was full disclosure before his trial through such sources as police reports and Wade testimony. Ibid. The Court, however, exercised its supervisory powers under Article VI, Section 2, Paragraph 3 of the New Jersey Constitution "to require that, as a condition of the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Id. at 63. It explained that a verbatim account of any exchange between the police and a witness should be reduced to a writing and, if not feasible, a detailed summary of the identification should be prepared. Ibid.; see also Statev. Earle, 60 N.J. 550, 552 (1972) ("[E]nforcement authorities should . . . make a complete record of an identification procedure if it is feasible to do so, to the end that the event may be reconstructed in the testimony.").

Generally, when a photographic identification is made or attempted, the photographs shown to the witness should be recorded. Earle, supra, 60 N.J. at 552; Janowski, supra, 375 N.J. Super. at 6. A photographic array is constructed by the police, and typically contains a small number of photographs that the officer personally presents to a witness to confirm or eliminate suspects. Janowski, supra, 375 N.J. Super. at 7-8. When the police prepare these arrays, they typically have someone in mind. Id. at 7.

"While photographic arrays must be preserved to be admissible, the use of mug shot books to develop an as-yet-to-be-determined suspect does not require that all the photographs viewed in the mug shot books be preserved." Id. at 6 (citing State v.Ruffin, 371 N.J. Super. 371, 395 (App. Div. 2004)). As explained in Janowski, mug shot books contain large numbers of randomly selected photographs that are already assembled and kept for the purpose of investigation, not confirmation, and are a resource "'shown to witnesses as a matter of course to see if a suspect [can] be found.'" Id. at 6-8 (quoting Ruffin, supra, 371 N.J.Super. at 395) (alteration in original). The failure of law enforcement officers to preserve these photographs does not require suppression of a victim's out-of-court identification, where there is no evidence that they acted in bad faith. Id. at 8-9; Ruffin, supra, 371 N.J. Super. at 397-98 (holding failure to preserve books of photographs used in pretrial identification procedure did not require suppression of out-of-court identification, where record did not establish that the books were destroyed or withheld in bad faith or with the intent to subvert the defendant's rights).

Likewise, a collection on a computer of large numbers of randomly selected photographs, which are kept for the purpose of investigation and shown to witnesses as a matter of course to see if a suspect can be found, is essentially a mug shot book. Janowski, supra, 375 N.J. Super. at 6-9 (holding photographs from large computerized database shown to victim before police created a small photo array were the equivalent of a mug shot book, which need not be preserved). Thus, the failure to retain all photographs in a computer system viewed by a victim is not fatal to the admission of an out-of-court identification. Id. at 9.

Moreover, even if photographs viewed by the victim on a computer are construed as an array, the failure to retain them "does not automatically result in the suppression of an out-of-court identification." Ibid. "Instead, such an omission, if not explained, should be weighed in deciding upon the probative value of the identification." Ibid. (citing Earle, supra, 60 N.J. at 552).

Here, the victims were shown a large, albeit unknown, number of photographs as part of the investigation to find the suspect. Although the officers did not document the procedure or save the computer search, there is no evidence that either officer acted in bad faith. The record also does not indicate that any of the victims were pressured into selecting a photograph of defendant or anyone else. To the contrary, at the Wade hearing Douglas testified that he never saw defendant prior to this incident, and Rodriguez indicated that he did not know anything about defendant except that the inclusion of his photograph in HIDA meant that he had a prior arrest. Both officers described the same identification procedure, and stated that they left the victims alone to view the computerized images while they returned to their desks. The three victims independently selected photographs of defendant, and reported their findings to the sergeant. Moreover, defendant was not denied a fair trial by the lack of a detailed record of the out-of-court identification procedure because he knew about the identifications before trial, and had the opportunity to fully explore the identification procedure during questioning of Rodriguez and Douglas at the Wade hearing.

 

 

C.

In the third prong of his attack, defendant argues that the out-of-court identifications were impermissibly suggestive. We disagree.

It is well-established that an out-of-court identification procedure that was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" violates due process. Simmons v. UnitedStates, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968); Statev. Herrera, 187 N.J. 493, 502 (2006). To determine the admissibility of eyewitness identifications, New Jersey courts adopted the two-prong test articulated by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). Herrera, supra, 187 N.J. at 504; State v. Madison, 109 N.J. 223, 232 (1988); State v.Cook, 330 N.J. Super. 395, 417 (App. Div.), certif. denied, 165 N.J. 486 (2000).5 Under the Manson/Madison test, a court must first determine whether the identification procedure used by the State was impermissibly suggestive. Madison, supra, 109 N.J. at 232; State v. Adams, 194 N.J. 186, 203 (2008). This prong asks "'whether the choice made by the witness represents his [or her] own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" Adams, supra, 194 N.J. at 203 (quoting 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)). If yes, the court must decide "'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" Id. at 203 (quoting State v. Romero, 191 N.J. 59, 76 (2007)).

To determine reliability, a court must consider:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

 

[Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]

 

See Adams, supra, 194 N.J. at 204-06 (holding out-of-court procedures were suggestive but reliable, because all witnesses had the opportunity to view the defendants during the robbery, no defendant wore a mask, the lighting was good or adequate, the witnesses paid attention, and the photographic identifications were conducted within two days of the incident).

Here, the three victims arrived separately at the police station, and did not speak to each other throughout the identification process. Rodriguez and Douglas gave them the same instructions. The officers did not discuss any details of the robbery or question the witnesses about the suspect prior to the identifications. At the time, they did not know the identity of the perpetrator, and were unaware of defendant. They entered into the computer only the information given to them. Each victim viewed the computerized display alone and uninterrupted, and there is no suggestion that either officer did anything to lead them to select a certain photograph. The officers told the victims simply to view the photographs and let the sergeant know if they recognized the suspect. Although there was some conflicting testimony at trial between Rodriguez and Hernandez about the number of photographs viewed, there is nothing in the record to suggest that Rodriguez pressured Hernandez to continue looking for photographs of defendant. Because neither Rodriguez nor Douglas made any attempt to influence the victims to choose defendant's photograph, there is no evidence to support the claim that the out-of-court identifications were impermissibly suggestive.

Moreover, the out-of-court identifications were reliable. All three victims had the opportunity to view defendant during the robbery, and testified that they got a good look at him. Defendant was not wearing a mask, and the salon was well lit. All three witnesses gave similar descriptions of the suspect to Rodriguez and Douglas as reflected in their statements.6 Moreover, the photographic identifications were made within hours of the incident.

II

Defendant also takes issue, for the first time, with the lack of a cross-racial identification charge because Hernandez is Hispanic and he is African-American. There is no merit to this argument.

At the close of the jury charge, the court stated outside the jury's presence that it had considered the possibility of an instruction on cross-racial identification but decided against it because there was no cross-racial issue, explaining that there were two African American victims, and one Hispanic of color, "not a white Hispanic." Counsel did not object or request a cross-racial identification charge.

Because defendant did not object to the jury instructions at trial, the plain error standard applies. R. 2:10-2; see also State v. Burns, 192 N.J. 312, 341 (2007). "Inthecontextofajurycharge,plainerrorrequiresdemonstrationof'[l]egalimproprietyinthechargeprejudiciallyaffectingthesubstantialrightsofthedefendantsufficientlygrievoustojustifynoticebythereviewingcourtandtoconvincethecourtthatofitselftheerrorpossessedaclearcapacitytobringaboutanunjustresult.'"Burns,supra,192N.J.at341(quotingStatev.Jordan,147N.J.409,422(1997)).

"A cross-racial identification occurs when an eyewitness is asked to identify a person of another race." State v.Cromedy, 158 N.J. 112, 120 (1999). A court should give a cross-racial jury instruction only when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 116, 132 (holding reversible error not to give cross-racial instruction where identification by white female sexual assault victim of the African-American male defendant was critical, and was not corroborated by any forensic evidence or other eyewitness account); cf. State v. Harris, 357 N.J. Super. 532, 538 (App. Div. 2003) (affirming court's denial of application for cross-racial instruction where identification of the black defendant by a white witness was corroborated by another witness who was also black).

The cross-racial instruction requires jurors to consider "'[t]he fact that an identifying witness is not of the same race as . . . defendant, and whether that fact might have had an impact on the accuracy of the witness's original perception, and/or the accuracy of the subsequent identification.'" State v.Walker, 417 N.J. Super. 154, 159 (App. Div. 2010) (quoting Model Jury Charge(Criminal), "Identification: In-Court and Out-of-Court Identifications" (2007)). It also requires jurors to "'consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a difference race.'" Ibid.

Our courts recognize that the term "Hispanic" does not describe a race, but rather is a cultural term, an ethnic identification. Romero, supra, 191 N.J. at 68; Statev. Valentine, 345 N.J. Super. 490, 496 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). As explained in Valentine, "Hispanics are of different races, i.e. African-American, Caucasian, Native-American, or Asian." Valentine, supra, 345 N.J. Super. at 497. Our courts do not require a cross-racial identification charge tailored to ethnicity. Romero, supra, 191 N.J. at 66, 72 (holding cross-racial charge was not warranted in robbery prosecution where the defendant was Hispanic Caucasian and the witness-victim was non-Hispanic Caucasian); Valentine, supra, 345 N.J.Super. at 496-97 (holding Cromedy did not require a "cross-ethnic" jury instruction). In some instances, however, a cross-racial charge may be warranted as between Hispanics and African-Americans. State v. Walton, 368 N.J. Super. 298, 305-06 (App. Div. 2004) (holding court's decision not to give the requested Cromedy instruction was prejudicial error, where witness and the defendant were of different races and ethnicities, and the robber's identity was a central issue).

Here, the court concluded that Hernandez was a Hispanic of color, and defendant did not dispute this conclusion at trial and does not challenge this finding on appeal. Because the record does not establish that defendant and Hernandez were of different races, a cross-racial identification charge was not required.

Moreover, although identification was an important issue in the case, there was independent corroboration of Hernandez's identification of defendant. Both Munroe and Reed, who, like defendant, were African-American, identified him out-of-court and in-court as the man who committed the robberies. As noted, they observed defendant in the well-lit salon, and Reed also followed him afterwards. All three victims gave similar descriptions of defendant to law enforcement officers and made their out-of-court identifications on the same day as the robberies.

Additionally, the court instructed the jury on the proper use of out-of-court and in-court identifications. These instructions included the following language required by the Romero Court in out-of-court identification charges:

"Although nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification."

 

[Romero, supra, 191 N.J. at 75-76 (quoting ModelJury Charge (Criminal), Identification: Out-Of-Court Identification (2007)).]

 

Under the circumstances, we find no error in the lack of a cross-racial identification charge.

III

Defendant's last identification-related challenge concerns the preclusion of his so-called expert from testifying about the photo retrieval system. This argument also lacks merit.

In granting the State's motion to bar defense expert's testimony, the court found no evidence to suggest defendant's expert had "any experience, other than his opinion," with the particular photo retrieval system viewed by the victims, and noted that he had not previously testified as an expert in this particular area. Noting, further, that it was inappropriate for an expert to testify about the accuracy of identifications, the court ruled that jurors should use a common sense approach to understanding this evidence.

We have already determined that expert testimony was not necessary to establish the reliability of the procedure employed in this case. Regardless, defendant fails to offer any specific legal authority in support of his argument or to provide facts of record to refute the court's finding that his expert was not qualified to testify about the particular identification procedure used. As such, there was no error in barring the defense expert's testimony.

In addition to identification-related issues, defendant also raises the following arguments for our consideration:

IV. THE DEFENDANT'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION AND ART. 1, PAR. 1 OF THE NEWJERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DISCHARGE THE JURY AFTER REPORTS THAT DEADLOCKED JURORS HAD STOPPED DELIBERATING WHILE OTHER JURORS WERE ATTEMPTING TO PERSUADE WITH EXTRANEOUS MATTERS. (Partially Raised Below).

 

A. THE TRIAL COURT SHOULD HAVE DISCHARGED THE JURORS OR MADE INQUIRY ABOUT THEIR ABILITY TO CONTINUE DELIBERATIONS.

 

B. THE TRIAL COURT'S INSTRUCTION TO THE JURORS ADVISING THEM TO CONTINUE THEIR DELIBERATIONS WAS ERRONEOUS AND PREJUDICIAL. (Not Raised Below).

 

C. THE VERDICT GIVES RISE TO THE APPEARANCE OF IMPROPRIETY. (Not Raised Below).

 

V. THE DEFENDANT'S RIGHT TO DUE

PROCESS AS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEYCONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S BLATANTLY LEADING, IMPROPER, AND HIGHLY PREJUDICIAL QUESTIONING OF A KEY STATE'S WITNESS. (Not Raised Below).

 

VI. THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION AND ART. 1, PAR. 1 OF THE NEWJERSEY CONSTITUTION BY THE STATE'S EVIDENCE SHOWING THAT THE DEFENDANT WAS MOTIVATED TO COMMIT THE THEFT BECAUSE HE WAS DESTITUTE. (Not Raised Below).

 

VII. THE DEFENDANT'S RIGHT TO DUE PROCESS AS

GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION AND ART. 1, PAR. 1 OF THE NEWJERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below).

 

VIII. THE SENTENCE IS EXCESSIVE.

 

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

 

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

 

C. THE CONVICTIONS FOR POSSESSION OF A FIREARM WITH THE INTENT TO USE UNLAWFULLY AGAINST THE PERSON OF ANOTHER MERGES WITH THE CONVICTIONS FOR ROBBERY.

 

IV

In his multi-faceted challenge to the conduct of jury deliberations, defendant argues that the judge wrongly instructed the deadlocked jury to continue deliberations; issued an erroneous Czachor7 charge; and failed to ascertain the extent of possible juror violations of the court's instructions. We disagree.

Some background is in order. Following the close of evidence and the rendering of instructions in a six-day trial, jury deliberations began at 2:55 p.m. on October 20, 2009. Within one hour, the jurors asked the court for a re-charge on first-degree robbery. At 4:25 p.m., they sent the court a second note stating: "[W]e are unable to come to a unanimous decision. Please provide further instruction." Because the jury had been deliberating for only one-and-a-half hours, the court found no need to give any supplemental charges at that time. Counsel agreed. The court then advised the jury that it had not been deliberating that long, and ended deliberations for the day with the direction to return in the morning.

Deliberations resumed at 9:20 a.m. on October 21, 2009. From 12:05 p.m. to 1:30 p.m., the court re-read testimony at the jury's request. At 3:35 p.m., the jurors sent another note, asking: "We are unable to come to a unanimous decision, what should we do?" The court advised counsel that it would prefer to send the jury home without an Allen8 charge, explaining that the jurors had been deliberating for only a little more than eight hours over two days, and she wanted them to give the case their full consideration. If the jury were unable to reach a decision the next day, the court said it would ask counsel again about giving the charge. Counsel for both parties agreed, with defense counsel explaining: "I think that that might be the best alternative. I really do not want them given an Allen charge at . . . what would be 3:45 in the afternoon."

The court then told the jury that "[w]hat we're gonna do is exhale. I'm going to break for the day, let you all go home. Again, no further discussion, do not talk about this with anybody else and we're gonna start fresh and new in the morning." Before releasing the jurors, however, the court gave them an opportunity to ask additional questions and received two more. The first note asked: "If a person has a decision and they're sticking to it 100 percent what's the next step." The court believed this was the same question as earlier and told counsel that it would give the same answer. The second note read: "[W]e need you to define the instruction law as to what should be or shouldn't be considered." The court considered this question more confusing and advised counsel that it needed clarification. Counsel did not object.

The court then asked the jury to redefine the second question and be more specific. The jury never responded, and at 4:00 p.m., the court recessed and sent the jurors home for the day.

The jury continued deliberations on October 22, 2009. At 12:30 p.m., the court received another note, stating: "Deliberation is not been [sic] conducted by all 12 jurors. Opinions other than testimony are being used to sway decisions." Defense counsel argued that an Allen charge might be necessary, but later argued that the verdict would be tainted if the jury considered information "outside the framework of this trial," and that any charge would be insufficient. The court determined that the question required clarification, and gave the following instruction:

Members of the jury, I've gotten your--that statement not a question indicating that deliberations is [sic] not being conducted by all 12 jurors. Let's start right there. First of all, each of the 12 jurors must deliberate in order for there to be a verdict, because the verdict must be a unanimous verdict by all 12 jurors, so let's start from there.

 

The second part of your question indicates opinions other than testimony are being used to sway decision. As Itold you before asjurors it is yourduty [to] weigh . .. the evidence, calmlyand without passion,prejudice or sympathy. Anyinfluence caused by theseemotions has the potentialto deprive both thestate and the defenseof what you promisedthem, a fair andimpartial trial by fairand impartial jurors.

 

Also, speculation, conjecture and other forms of guessing play no role in your performance in your duty as deliberating jurors.

 

Now I am going to ask Madam Foreperson and the rest of you to return to the jury room to answer this question. Has there been any outsideconsideration other than testimony or evidence that has been presented . . . during this trial in this deliberation? I would ask that you go back in, answer that question in writing and return to the jury room after. If you do not understand it then ask and I will clarify it for you. But I am asking that one, I don't want to know who is and who's not deliberating, I don't want to know the numbers or any of that. My question isclearly has there beenany outside considerationthat has been discussedthat has [affected] yourability to come toa fair and impartialconclusion. Answer that question and return. We will sit here and wait for your answer.

 

[(emphasis added).]

 

After the court asked the jurors whether there had been any "outside consideration other than testimony or evidence" that affected their ability to reach a fair and impartial conclusion, the jury sent another note at 1:15 p.m., asking the court to "please explain outside consideration." In response, the court gave a supplemental instruction, in accordance with Czachor,9 supra, 82 N.J. at 404-07, specifically explaining:

Ladies and gentleman, as I explained to you earlier you can use your common sense, knowledge and everyday experiences to determine whether something is probable, logical or reasonable. But you cannot draw from any information other than testimony or evidence that has been presented here at trial in making your determination in your deliberation.

 

It is your duty as jurors to consult with one another and to deliberate with the view to reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence

. . . with your fellow jurors.

 

In the course of your deliberation do not hesitate to reexamine your own views and change your own opinion only ifyou're convinced that they[sic] are erroneous. But do not surrender your honest convictions as to weight or sense of the evidence solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict.

 

You are not partisans, you[']re judges, judges of the facts and I'm going to ask that you go to lunch, you're gonna come back and, ladies and gentlemen, you will continue deliberation. At that point the Court will hear any questions that you may have at that point . . . .

 

[(emphasis added).]

 

Defense counsel voiced no objection to the supplemental jury charge. Thereafter, the jury returned a unanimous verdict.

In its decision denying defendant's motion for a new trial, the court reviewed the communications from the jury during its deliberations, and concluded that it properly exercised its discretion to require further deliberations after the jury announced its inability to reach a unanimous verdict, that it provided a suitable Czachor instruction, and that the granting of a mistrial was not warranted. Specifically, the court found no abuse of discretion on October 20, 2009, explaining that the note did not indicate the jury was definitely deadlocked and that one-and-a-half hours was not a reasonable time to deliberate given the length of trial, the multiple witnesses, and the serious nature of the charges. The court also denied the motion with respect to its decision on October 21, 2009, finding that a Czachor instruction was not necessary at that time. Considering the length and complexity of the trial, the serious nature of the crimes, the number of witnesses, and the duration and quality of jury deliberations, it concluded that a reasonable time had not yet passed.

The court also rejected the argument that it should have discharged the jury after receiving the note about a juror "sticking with [a decision] one hundred percent," and another note inquiring about "outside considerations." It found that these notes were received within five minutes of each other, and that a mistrial was not necessary to avoid improper pressure on the dissenting juror in light of its instruction for more specificity and the fact that the jury then reached a verdict without providing any clarification.

Likewise, the court rejected the argument that a mistrial was required after it was informed that "deliberations were not being conducted by all twelve jurors" and that "other opinions [we]re being used to sway decisions." The court concluded that the jury's notes were in the form of statements, not questions, that counsel had agreed with its instructions, and that clarification was necessary because not all opinions, such as use of common sense, were barred from jury deliberations. Moreover, when asked to explain "outside consideration," the court determined that it had properly exercised its discretion by responding with the Czachor instruction. It found no information to suggest the jurors were exposed to extraneous information. We agree with these determinations and reject defendant's contentions to the contrary.

A trial court has broad discretion to declare a mistrial due to a deadlocked jury and its decision may be reversed only for an abuse of discretion. State v. Paige, 256 N.J. Super. 362, 381 (App. Div.), certif.denied, 130 N.J. 17 (1992). However, where a defendant did not ask the court below to question the jury about its ability to reach a decision, or object to a supplemental charge until he moved for a new trial after the verdict, the plain error standard applies. R. 2:10-2. Under that standard, a court must disregard an error unless it is "clearly capable of producing an unjust result[.]" R. 2:10-2.

A.

 

A jury's declaration of its inability to reach a verdict does not require the court to immediately grant a mistrial. Statev. Banks, 395 N.J. Super. 205, 218 (App. Div.), certif. denied, 192 N.J. 598 (2007). Before declaring a deadlock, a court has discretion to require a jury to deliberate for a reasonable time. Statev. Figueroa, 190 N.J. 219, 235 (2007); Czachor, supra, 82 N.J. at 407; Statev. Adim, 410 N.J. Super. 410, 423 (App. Div. 2009). To determine what constitutes a reasonable period of deliberations, a court should weigh all relevant circumstances, including the length and complexity of the trial. Czachor, supra, 82 N.J. at 407; Adim, supra, 410 N.J. Super. at 424. While a court generally should inquire of the jury whether further deliberation will likely result in a verdict, it is not always necessary to do so. Figueroa, supra, 190 N.J. at 226, 237, 239-40 (refusing to fault court for requiring jury to continue deliberations without further inquiry where jurors had deliberated for less than two hours the first day and four hours the second day).

It is not unreasonable for a court to order further deliberation when a jury has not yet reached the point at which agreement is impossible. State v. Harris, 156 N.J. 122, 184 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). For example, a jury may not regard itself as deadlocked when it sends a note to the court asking for suggestions. See ibid. (holding court did not err by ordering jury to spend one more morning in deliberation, where jurors had deliberated for approximately six hours over three days, and their note stated the deadlock conditionally); State v.Ramseur, 106 N.J. 123, 301-03 (1987) (holding no abuse of discretion in remanding matter to jury for further deliberations in penalty phase, where the jury's note indicated that it was split but also asked for instructions), cert.denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

Here, we perceive no error in directing the jury to continue its deliberations during the first two days of deliberations. While the jury on both occasions indicated that it was unable to reach an unanimous decision, it never said that it would be impossible to do so. Instead, the jury notes asked the court for suggestions. Specifically, on day one of deliberations, the jury asked the court to "provide further instruction," and on day two it asked "what should we do?"

Moreover, on day one, the jury deliberated for one-and-a-half hours, which included time listening to a recharge, and on day two for approximately five-and-a-half hours, which included one-and-a-half hours listening to the read back of testimony. While it is unclear how long the jury deliberated on day three, the record indicates that it sent notes to the court at 12:15 and 1:15 p.m., and returned a verdict sometime after lunch. Thus, the jurors only deliberated over portions of three days. Given that there were seven counts involving serious charges and multiple witnesses, we perceive no abuse of the court's discretion in directing the jury to continue its deliberations without further inquiry.

B.

Nevertheless, defendant faults the court for failing to discharge the jury after receiving a note stating that some jurors were not participating in deliberations and that opinions other than testimony were being used to sway decisions. As to the latter, a mistrial will almost always be required when a jury is exposed to extraneous information after deliberations have begun. State v.Hightower, 146 N.J. 239, 264 (1996). A court, however, must be satisfied that extraneous information was conveyed, that the jury considered it, and that the information did not jeopardize the fairness of the defendant's trial. State v.Harris, 181 N.J. 391, 504-05 (2004) (holding, because there was no evidence that jury considered extraneous information, it was not necessary for court to interview the jury post-verdict), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

In this case, there was insufficient evidence to require the jury's discharge. First and foremost, the court never received a response to its request for clarification as to whether any outside considerations affected the ability of jurors to reach a fair and impartial conclusion. Second, clarification was necessary because not all opinions are barred from jury deliberations, for example, jurors may apply their own common sense. See Statev. Perez, 177 N.J. 540, 553 (2003) (holding that a jury was entitled to apply its common sense and experiences in evaluating the meaning of the defendant's statements). Third, no juror came forward during or after the trial to say that he or she, or any other member of the jury, had considered extraneous information, and there was no affidavit indicating any juror did so. Harris, supra, 181 N.J. at 504-05. Fourth, and most significant, after receiving the note, the court gave an instruction, without objection, clearly and expressly prohibiting the jury from considering any information "other than testimony or evidence that has been presented here at trial . . . in your deliberations."

This explicit charge simply reiterated and reaffirmed directives repeatedly related to the jury in the court's opening and closing instructions and in various admonitions throughout trial explaining their role as fact-finders; that the facts are to be determined based solely on the evidence both direct and circumstantial admitted at trial; that extraneous influences and outside considerations must not enter into their deliberations; that the evidence must be weighed without passion, prejudice or sympathy; and that speculation, conjecture, and guessing must play no role in the performance of their duty. Accordingly, the jury was given ample instruction and guidance as to what to consider and not to consider in arriving at a fair verdict. We presume, of course, the jury abided by these directives, State v. Loftin, 146 N.J. 295, 390 (1996) (citing State v.Manley, 54 N.J. 259, 271 (1969)), and the record is barren of any reason for us to assume otherwise. Given the lack of any evidence that extraneous information was improperly considered by the jury, the court's response was a proper one and any further inquiry on its part was simply not indicated.

 

C.

With respect to his challenge to that portion of the supplemental charge dealing with unaniminity, defendant contends for the first time on appeal10 that the court wrongly implied that the jurors were compelled to reach a verdict. Again we disagree.

A court's supplemental instruction may not be coercive. Ramseur, supra, 106 N.J. at 300-05. A coercive supplemental instruction "'to a jury that has expressed its inability to agree' would improperly influence the members to return a unanimous verdict." State v. Marshall, 173 N.J. 343, 352 (2002) (quoting Ramseur, supra, 106 N.J. at 313), cert. denied, 507 U.S. 939, 113 S. Ct. 1306, 112 L. Ed. 2d 694 (1993). Given the "weighty role" trial judges play in courtroom dynamics, "even a general inquiry by the judge about deliberations may present the possibility of coercion." Figueroa, supra, 190 N.J. at 238, 240.

The Court in Czachor developed guidelines for trial courts in the event of jury deadlock in criminal cases. Czachor, supra, 82 N.J. at 404; State v. DiFerdinando, 345 N.J. Super. 382, 392 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). It held that the conventional deadlocked jury charge sanctioned in Allen, supra, 164 U.S. at 501, 17 S. Ct. at 157, 41 L. Ed. 2d at 531, was coercive and did not "permit jurors to deliberate objectively, freely, and with an untrammeled mind." Czachor, supra, 82 N.J. at 402. Instead, the Czachor Court recommended use of the model charge suggested under the American Bar Association standards (ABA standards), which read:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

 

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or the for the mere purpose of returning a verdict.

 

You are not partisans. You are judges judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

 

[Id. at 405-06 n.4 (citing Commentary to

5.4(a), ABA Standards, at 146-47).]

This Court-approved instruction was later incorporated into a model charge. See Model Jury Charge(Criminal), Final Charge: Further Jury Deliberations at 24 (2004). A supplemental charge to a deadlocked jury that violates the directives of Czachor constitutes reversible error. See Figueroa, supra, 190 N.J. at 240-43 (holding supplemental charge was coercive by failing to remind jurors not to surrender their honest convictions and by suggesting deliberations might continue through rest of week and into weekend); Adim, supra, 410 N.J. Super. at 426-30 (holding supplemental instruction deviated from Czachor because it omitted the sentence explaining the relationship between collective deliberations and individual judgment, and conveyed a negative implication about juror capacity by referring to the simplicity of the case and evidence).

The supplemental instruction issued below was not coercive. Unlike Figueroa, supra, 190 N.J. at 242-43, there is no evidence that the charge coerced any dissenting juror to reach a verdict with which he or she did not honestly agree. The court reminded the jurors not to surrender their own convictions, and did not imply they would be forced to deliberate indefinitely. Also, unlike Adim, supra, 410 N.J. Super. at 426, the court included the sentence explaining the relationship between collective deliberations and individual judgment, and did not convey negative implications about juror capacity. Thus, the court's supplemental instruction conformed to the charge recommended in Czachor, supra, 82 N.J. at 405 n.4, and did not constitute reversible error.

D.

Finally, defendant asserts that a juror who had unsuccessfully asked for a discharge for family reasons had an interest in reaching a prompt verdict, and "could easily have been persuaded by an extraneous matter." The juror's note, which the court opened in connection with the motion for a new trial, advised the court that the juror had to conduct a workshop in North Carolina on October 27, 2009. Defense counsel, however, did not object to this juror's presence during deliberations, and counsel for both parties agreed with the court's decision to keep the note sealed until the end of the case.

There is no evidence indicating that this juror could not reach a fair verdict, that he or she was a dissenting juror, or that he or she relied on extraneous information. Moreover, the jury rendered its unanimous verdict on October 22, 2009, five days before the juror's workshop.

In sum, the court properly exercised its discretion to order the jury to continue deliberations without further inquiry; did not coerce the jury with its Czachor charge; and adequately assured that extraneous matters were not considered.

V

Defendant also argues it was error to admit evidence that he was destitute. Specifically defendant points to the following exchange that occurred during the direct examination of Douglas:

[Prosecutor]: And when you sat [Reed] down, what did you do?

 

[Douglas]: I was sitting at my desk.

 

[Prosecutor]: Did you at any point interact with [Reed]?

 

[Douglas]: Not until she called me.

 

[Prosecutor]: And why what was the purpose of her calling you?

 

[Douglas]: She told me that she recognized one of the persons in the picture from . . . I believe she what she stated was that it was the same guy that she saw begging for quarters along Hawthorne Avenue, I believe it was, and it's the same guy.

 

[Prosecutor]: More specifically, what else did she state regarding

[Douglas]: That this was the person that had robbed the salon, the person that had robbed it.

 

Because no objection was made at trial, the plain error standard applies. R. 2:10-2. Additionally, the failure to object to this testimony at trial indicates that defense counsel did not believe the remark was prejudicial at the time it was made. State v.Timmendequas, 161 N.J. 515, 576 (1999), cert.denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Evidence of a defendant's lack of money is generally inadmissible to establish a motive to commit a crime for financial gain. State v.Mathis, 47 N.J. 455, 469-72 (1966), rev'don other grounds, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971); State v. Terrell, 359 N.J. Super. 241, 245-48 (App. Div.), certif.denied, 177 N.J. 577 (2003); State v.Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978). "The introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form." Terrell, supra, 359 N.J. Super. at 247. Evidence of a defendant's unemployment, however, may be admissible if it is relevant to a fact in issue, was already introduced into evidence, or plays no role in the jury's determination of guilt. Statev. Jones, 364 N.J. Super. 376, 386 (App. Div. 2003) (holding testimony that the defendant told the police he was unemployed was relevant because he was dressed in the uniform of a security guard at the time of his arrest); Statev. Farr, 183 N.J. Super. 463, 468-69 (App. Div. 1982) (holding no error where State questioned the defendant as to his employment status and financial obligations because the defendant had already placed this evidence before the jury); State v. Robinson, 139 N.J.Super. 58, 63 (App. Div. 1976) (holding introduction of evidence of the defendant's poverty did not violate Mathis because references to his impecuniosity played no part in the jury's determination of guilt and his conviction for first-degree murder), certif. denied, 75 N.J. 534 (1977); Statev. Copeland, 94 N.J. Super. 196, 202 (App. Div. 1967) (holding prosecutor's allusion to the defendant's impecuniosity was not an influential factor leading to his conviction for entering a building with intent to steal).

Here, the statement by Reed was introduced because it was relevant to the reliability of her out-of-court identification of defendant as the perpetrator of the robbery, not to demonstrate a motive for the crime. Mathis, supra, 47 N.J. at 471-72. It, therefore, was material to a fact in issue.

Moreover, the prosecution did not make an issue of defendant's financial situation, or portray him as destitute. The prosecutor did not ask Rodriguez any follow-up questions about what Reed observed, and immediately returned to questioning the officer about the identification procedure. Likewise, he did not question Reed about her prior observations of defendant. He did not refer to defendant's financial situation in his opening statement or summation, or suggest that defendant committed the robberies because defendant needed money. To the contrary, defendant's father testified that he and his son owned a successful limousine and messenger service, and that his son had no financial reason to commit a robbery. Under these circumstances, the admission of Reed's statement about seeing defendant begging for quarters did not constitute error, much less plain error "clearly capable of producing an unjust result[.]" R. 2:10-2.

VI

Defendant contends his sentence was excessive and that the court erred in failing to merge his second-degree weapons convictions with his first-degree armed robbery convictions.

Defendant's aggregate eighteen-year term with eighty-five percent parole ineligibility does not shock our conscience, Statev. Roth, 95 N.J. 334, 364 (1984), especially in light of his extensive criminal record which includes prior arrests for robbery and drug offenses, and six other convictions, together with the fact that defendant committed the current robberies while out on bail.

That said, the convictions for possession of a handgun for an unlawful purpose should merge into the robbery convictions, because the evidence at trial established that defendant possessed the handgun with the purpose to commit the robberies. See Statev. Diaz, 144 N.J. 628, 636 (1996) ("When the only unlawful purpose in possessing the gun is to use it to commit the substantive offense, merger is required."); State v. Loftin, 287 N.J.Super. 76, 111-12 (App. Div.), certif. denied, 144 N.J. 175 (1996) (holding that absent a special verdict by the jury indicating a finding of a purpose broader than to murder and rob, the defendant's conviction for possession of a firearm with a purpose to use it unlawfully must merge with his conviction for burglary, robbery or murder).

Conversely, however, defendant's conviction for unlawful possession of a handgun does not merge with his other convictions. See State v. DeLuca, 325 N.J.Super. 376, 392-93 (App. Div. 1999) ("Because the gravamen of unlawful possession of a handgun is possessing it without a permit, it does not merge with a conviction for a substantive offense committed with the weapon."), aff'd asmodified, 168 N.J. 626 (2001).

In addition, there are discrepancies between the court's oral sentence and the judgment of conviction (JOC). The court's oral sentence failed to impose the mandatory five years of parole supervision on the armed robbery convictions, which appeared in the amended JOC, N.J.S.A. 2C:43-7.2(c), and therefore the sentence must be remanded to correct this oversight. Also, the court awarded defendant 774 days of jail credit, whereas the JOC and amended JOC awarded him 776 days. Accordingly, the matter must also be remanded to conform the JOC to the oral sentence, State v.Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005), and to reflect proper merger of offenses.

VII

Defendant's remaining contentions are without merit and warrant no discussion in this opinion. R. 2:11-3(e)(2).

VIII

The matter is remanded for resentencing to reflect the appropriate merger and unmerger of offenses and to amend the judgment of conviction in accordance with this opinion. The judgment of conviction is affirmed in all other respects.

 

1 Rodriguez did not know how many photographs the HIDA system retrieved after he entered descriptive terms called "identifiers." He also did not know whether defendant had been previously arrested, except for the fact that his photograph was in the system.

Rodriguez was not required to keep a separate written record of identifiers entered into the computer, but explained that descriptions given to him by the victims were recorded in their statements. He also was not required to watch the victims as they viewed the photographs, or keep track of how many times they went back and forth between pictures.

2 At trial, Hernandez was unable to make an in-court identification of defendant.

3 Like Rodriguez, Douglas did not make a written record of the identifiers he entered in the computer because he was not required to write them down except as part of the victim's statement. Nor did he document the time when Reed started or finished the identification process, or how many photographs she viewed. He also did not record how many times she observed a photograph or moved between screens, or watch her as she sat at the computer. When asked if he had received any training in the use of the photo retrieval system, he replied no. Douglas had never seen defendant prior to this incident.

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

5 In State v. Henderson, 208 N.J. 208, 285-293 (2011), the Court revised the Manson/Madison test for evaluating eyewitness identification evidence in criminal cases. The new rule of law, however, applies to future cases only. Id. at 300-02. Because the court below decided this matter in 2009, the Henderson rule does not apply.

6 While defendant contends that Munroe described the assailant as light-skinned and Hernandez said he was dark, the record actually reflects that Hernandez described the suspect as a
"thin black male." Reed also described the suspect as having "light brown skin."

7 State v. Czachor, 82 N.J. 392 (1980).

8 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); see also Czachor, supra, 82 N.J. at 394-402 (holding Allen charge was coercive, and prohibiting its use in criminal trials in New Jersey).

9 The court referred to the instruction as an Allen charge, as both counsel and the court had done summarily before.

10 Given the lack of an objection, the court may infer that his counsel "perceived no prejudice in the charge given." State v. Mays, 321 N.J. Super. 619, 630 (App. Div.), certif. denied, 162 N.J. 132 (1999). To prevail, defendant must demonstrate plain error, meaning error "clearly capable of producing an unjust result." R. 2:10-2. To be sure, "errors which impact substantially and directly on fundamental procedural safeguards, and particularly upon the sensitive process of jury deliberations, are not amenable to harmless error rehabilitation." Czachor, supra, 82 N.J. at 404. The question, therefore, is "whether the supplemental instruction has improperly influenced the dissenting jurors to change their votes." Figueroa, supra, 190 N.J. at 238.