STATE OF NEW JERSEY v. EDDYSON LEGRAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0567-05T40567-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDYSON LEGRAND,

Defendant-Appellant.

_____________________________________________________________

 

Submitted May 30, 2007 - Decided August 13, 2007

Before Judges Coburn and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-3802.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On December 13, 2004, an Essex County Grand Jury returned Indictment No. 04-12-3802, charging defendant, Eddyson Legrand, with the following crimes: first degree robbery, N.J.S.A. 2C:15-1 (count one); third degree aggravated assault with a handgun, N.J.S.A. 2C:12-1b(2) (count two); third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and second degree possession of a handgun with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a (count four). Following a trial in May 2005, a jury found defendant guilty of all charges. At sentencing, the court merged counts three and four with count one, and imposed on count one a prison term of fifteen years with an eighty-five percent parole disqualifier and on count three, four years in prison to be served concurrently with the sentence for count one.

Defendant now appeals from his June 24, 2005, judgment of conviction, and in his brief on appeal, he raises the following arguments:

POINT I: THE TRIAL COURT'S REFUSAL TO CHARGE CROSS-RACIAL IDENTIFICATION CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. U.S. CONST. AMENDS V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT II: BECAUSE THE ONLY ISSUE AT TRIAL WAS IDENTIFICATION, AND ESSER AND WATSON MADE OUT-OF-COURT IDENTIFICATIONS OF DEFENDANT VIA A "SHOW-UP" PROCEDURE, AND ESSER WAS TOLD THAT THE DEFENDANT WAS A "SUSPECT", DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO REQUEST A PRETRIAL WADE HEARING TO CHALLENGE THE IDENTIFICATION. U.S. CONST. AMENDS VI AND XIV; N.J. CONST., (1947), ART. I, PARS. 1 AND 10. (NOT RAISED BELOW).

POINT III: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

After careful consideration of defendant's arguments in light of the facts and applicable law, we affirm defendant's conviction and sentence.

Around 8:30 a.m. on August 9, 2004, Howard C. Esser, age sixty-six, was walking to his home on Bamford Place in Irvington. As he was walking, he noticed defendant riding a girl's bike and snaking back and forth down Bamford Place. Esser, who observed defendant for approximately forty to fifty seconds, thought defendant's actions were suspicious. During this period of time, Esser was able to see defendant's face and bike. After defendant rode past him and pulled behind a white van, Esser heard the sound of the bike dropping to the asphalt. Then defendant came around the van, stood about two or two and half feet away and, pointing a gun at Esser's forehead, demanded money. When Esser stated that he did not have any money, defendant struck him with the gun, knocking him to the ground. Esser began yelling for someone to call the police and attempted to defend himself. This episode lasted approximately forty seconds to a minute, during which time Esser was able to observe defendant's face and his gun, a revolver.

While the attack was occurring, Esser's neighbor, Cortney Watson, saw through his fence what seemed to be someone on top of something. Watson testified he assumed it was just kids playing but, when he saw the bike begin to move, Esser stood up with blood running down his face and Watson knew something was wrong. Believing the person on the bike to be the culprit, Watson got into his car and followed the bicyclist, later identified as defendant. Relying on his experience as a bail enforcement agent, Watson was able to follow defendant without being noticed. As he was following defendant, Watson saw him throw his jacket into a garbage can and also saw him discard his hat. The pursuit lasted for twenty to thirty minutes, during which time Watson called the police to have them respond.

Watson followed defendant to Linden Avenue and saw him enter a home. Police arrived on the scene and knocked on the door. The man who answered the door was not the person whom Watson had followed. It was defendant's brother, Jean Legrand. The police then brought defendant to the door and Watson immediately identified him as the person he had followed. Thereafter, the officers, with Watson's help, recovered the discarded jacket and hat. With permission, they also searched the home, but no weapon was recovered.

Officer Miles Brown was one of the officers who responded to the home. He noticed that defendant was sweating and his heart was beating fast. Once Watson had identified defendant as the person who had perpetrated the assault on Esser, another officer told Esser that they believed that they had a suspect. Esser was taken in a police vehicle to Linden Avenue, where he had the opportunity to view defendant. Esser positively identified defendant as his attacker.

At trial, defendant and his girlfriend testified that shortly before the police arrived on August 9, 2004, he had gone to the store to purchase cigarettes. He stated that he had only been gone for five to ten minutes. After he returned home, he was in his room beginning to undress when police officers came upstairs to his third floor attic bedroom and pushed open his door, shocking him and his girlfriend.

As his first point of error, defendant argues that the judge improperly refused to give a cross-racial identification charge to the jury. Defendant is black and the victim/eyewitness is white. Defendant argues that this constitutes reversible error because identification was a critical issue in the case and the identifications were allegedly uncorroborated. We disagree.

"[W]hen identification is a critical issue in the case, the trial court is obligated to give the jury a discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." State v. Cromedy, 158 N.J. 112, 128 (1999). Nevertheless, "[a] cross-racial instruction should be given 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 132. Cf. State v. Romero, 191 N.J. 59 (2007) (finding it was not reversible error for the trial court to refuse to give a Cromedy charge tailored to cross-ethnic Hispanic differences).

In declining to give the requested charge in this case, the judge stated that a cross-racial charge "is not to be given in every case where there are people of two different races. There's a question of whether there is, based upon all the facts of the case, some question as to whether there's a high possibility of a misidentification because of that factor."

In this case, Esser was not the only witness to the crime. Watson, who is black, witnessed defendant ride away from the scene of the crime. He followed defendant to his home, where defendant was apprehended by police. Watson's statement was corroborated by the recovery of defendant's discarded jacket and hat. Hence, his factual scenario is far different from that in Cromedy, where the victim identified her attacker eight months after the crime, where she had also failed to identify the defendant's photograph and where there was a lack of forensic evidence. That is simply not the case here. There was substantial credible evidence in the record to support the judge's refusal to give the charge, and consequently, his decision was not a clear abuse of discretion. State v. Cotto, 182 N.J. 316, 333 (2005). See generally, State v. Herrera, 187 N.J. 493, 503-04 (2006) (reaffirming the applicability of a two-step analysis under which the court must "first . . . ascertain whether the identification procedure is impermissibly suggestive and, if so, whether the impermissibly suggestive procedure was nevertheless reliable").

Defendant next contends that trial counsel's failure to request a Wade hearing based on the circumstances of the out-of-court identifications constituted ineffective assistance of counsel. However, New Jersey courts have "expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). As a result, "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Ibid. See R. 3:22-4(a). For these reasons, we decline to address defendant's ineffective assistance of counsel claims.

Finally, defendant argues that his sentence is manifestly excessive. When reviewing a sentence, we must determine if a sentencing court's findings are grounded in competent, reasonably credible evidence and that the court has applied correct legal principles in exercising its discretion. State v. Roth, 95 N.J. 334, 363-65 (1984). After making this determination, we will only modify the sentence if the application of the law to the facts is such a clear error of judgment that it "shocks the judicial conscience." Id. at 364.

Here, the judge found the need to deter defendant and others, N.J.S.A. 2C:44-1a(9) and that defendant should have known that Esser was over age sixty and particularly vulnerable, N.J.S.A. 2C:44-1a(12), as applicable aggravating factors. The judge noted defendant's lack of a criminal history, N.J.S.A. 2C:44-1b(7), was a mitigating factor. Defendant argues that the court should have also found that defendant's dependents would suffer excessive hardship due to his incarceration, N.J.S.A. 2C:44-1b(11). However, defendant has failed to show any greater hardship to his dependents than the dependents of any other person convicted of a serious offense.

After a careful balancing of the applicable aggravating and mitigating factors, the court imposed a sentence at the median of the range of possible sentences for a first degree crime. As the court's findings regarding aggravating and mitigating factors are supported by sufficient competent, credible evidence in the record, defendant's sentence falls far short of shocking the judicial conscience.

 
Affirmed.

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

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A-0567-05T4

August 13, 2007