STATE OF NEW JERSEY v. ROBERTO CONDE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3324-06T53324-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROBERTO CONDE,

Defendant-Respondent.

___________________________________

 

Submitted June 5, 2007 - Decided June 28, 2007

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Criminal Division, Cumberland County, Indictment No. 06-04-00425-I.

Ronald J. Casella, Cumberland County Prosecutor, attorney for appellant (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

Philip H. Coyle, attorney for respondent.

PER CURIAM

On leave granted, the State appeals from the January 18, 2007, order of the Law Division, directing the State to conduct a pre-trial photo array with the victim of an armed robbery. We reverse.

On January 10, 2006, Edwin Martinez was robbed by two individuals, a male and a female, after they had unlawfully entered his automobile. The male perpetrator grabbed Martinez from behind and placed a knife to his neck, demanding that Martinez give him money. While the male held the knife to Martinez's neck, the female removed $30 from Martinez's pockets. After the two perpetrators left, Martinez immediately reported the incident to the police, informing them that the two perpetrators were Hispanic and described each by their gender, approximate age, height, skin complexion and clothing. When asked if he could recognize either of the two suspects, Martinez informed the police that he had seen the female in the past and even though he had never seen the male previously, he could probably identify the male if he saw him again. Following a computerized photo array, Martinez identified the female perpetrator as Luz Roman. However, Martinez was never shown a photo of defendant.

On January 11, 2006, Roman was arrested, brought to police headquarters, and interviewed. During her interview, Roman provided the police with a taped statement, identifying defendant as the second person involved in the robbery. Based on Roman's identification of defendant as the second perpetrator, defendant was arrested the same day; and when interviewed by police, defendant denied any knowledge of the robbery. On March 8, 2006, Roman provided a notarized statement to the Public Defender's Office, stating that defendant had not been involved in the robbery, and that she had lied to the police because she wanted "him out of the streets and away from drugs."

On April 26, 2006, a Cumberland County Grand Jury returned a four-count indictment, charging defendant and Roman with second-degree conspiracy to commit robbery and first-degree robbery (Counts One and Two, respectively); and charged defendant only in Counts Three and Four with third-degree possession of a weapon for an unlawful purpose and fourth-degree unlawful possession of a weapon, respectively. On May 22, 2006, defendant was arraigned. On July 5, 2006, Roman provided a recorded statement to Detective John Berry of the Cumberland County Prosecutor's Office, in which she again identified defendant as the second individual who had committed the robbery. On July 10, 2006, Roman pled guilty to an amended charge of third-degree theft in exchange for a five-year prison term. She also agreed to testify against defendant.

On September 21, 2006, defendant filed a motion seeking to compel a lineup, relying on Roman's March 8, 2006 "affidavit" in support of his position that there was a substantial question of identification. The motion was argued on December 19, 2006. On January 18, 2006, the motion judge issued a written decision granting the motion but limiting the discovery to a photo array, not a physical lineup. A confirming order was entered the same day.

On appeal, the State argues that the motion judge erred in directing that it must conduct a pre-trial photo array with the victim of the robbery, contending that defendant did not satisfy the three-prong test of State in the Interest of W.C., 85 N.J. 218, 226-27 (1981). Because we are satisfied the motion record was inadequate to support the judge's decision, we reverse.

An appellate court's scope of review of the trial court's determination is limited to whether the findings made by the trial judge could reasonably be reached on substantial, credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964). Stated differently, when the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the results, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Ibid.

Motions to compel the State to arrange for a pre-trial identification lineup to be viewed by the victim or witness of a crime "is a discovery mechanism which may lead to relevant material evidence and assist in preparation of the defense." W.C., supra, 85 N.J. at 221. "Although defendant has no constitutional right to pre-trial lineup discovery . . . , we have no doubt that a Court has the inherent power to order discovery when justice so requires." Ibid. (internal citations omitted). However, "[u]ninhibited discovery in criminal, unlike civil, proceedings cannot exist, primarily because defendant's constitutional privilege against self-incrimination limits reciprocal discovery in criminal matters." Id. at 221-22. Accordingly, whether the State should be compelled to have a victim or witness to a crime undergo a pre-trial lineup requires the trial court to exercise its discretion in "balancing the beneficial effects of discovery against its disadvantages." Id. at 224. As guidance in exercising such discretion, the Court provided trial courts with guidelines:

In deciding whether to grant a defendant's motion for a pretrial lineup, the trial court must consider and determine several matters. Though the circumstances will probably vary from case to case, certain guidelines should be followed. First identification must be a substantial material issue. The absence of materiality may be self-evident from the nature and circumstances of the alleged crime, identification not truly being in issue. The trial court should also consider the degree of doubt concerning the identification. Realistically, it may be so insubstantial that a lineup is not justifiable. Second, there must be a reasonable likelihood that a lineup would be of some probative value. In this respect the length of time between the crime and the arrest and the possibility that the defendant may have altered his appearance should be considered. It is common knowledge that memories often fade with the passage of time, and a shorter interval between the event and the lineup may increase the likelihood of accuracy. Third, the defendant's motion should be made as soon after arrest or arraignment as practicable. In the absence of good cause, a trial court would be justified in denying such a request on timeliness grounds alone.

[Id. at 226-27 (footnote omitted).]

The aforementioned three guidelines are not exclusive. Id. at 227. The court may also consider such items as "the burden imposed on the prosecution, the extent of inconvenience to prosecution witnesses, the inability or difficulty in having the witnesses appear, and the likelihood of subjecting witnesses to intimidation, unnecessary annoyance, harassment, or embarrassment." Ibid. Procedurally, the motion should "be heard and decided in a summary manner, based on affidavits, police reports, and other supporting documents." Id. at 228. The burden is on the defendant to satisfy the first three guidelines by a preponderance of the evidence. Ibid. As to the other factors, the burden is on the State to justify its position in those respects, "although the ultimate burden will remain on the defendant." Ibid. It is against these principles that we consider the State's appeal.

The State argues that defendant did not satisfy the first guideline of W.C., that is, establishing that identification is a substantial issue. Defendant counters that identification is a substantial issue because the truthfulness of Roman's statements of January 10, 2006, and July 5, 2006, identifying defendant as the co-perpetrator, is challenged by her March 8, 2006 "affidavit" that she provided to the Public Defender's Office, stating that the first statement given by her to the police was a lie.

Rule 1:6-6 provides that "[i]f a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . ." "An affidavit is a 'written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.'" Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 236 (1998) (quoting Black's Law Dictionary, (6th ed. 1990)). Accordingly, for a document to qualify as an affidavit "there must be present at the same time the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath. In re Educ. Assoc. of Passaic, Inc., 117 N.J. Super. 255, 267 (App. Div. 1971) certif. denied, 60 N.J. 198 (1972). "[S]peaking of the formal parts of an affidavit, it is said that the jurat must be signed by the officer with the addition of his title." Partridge v. Mechanics Nat'l Bank of Burlington, 77 N.J. Eq. 208, 211 (Ch. 1910), aff'd, 78 N.J. Eq. 297 (E. & A. 1910). A jurat is defined as "[t]he clause written at the foot of an affidavit, stating when, where, and before whom such affidavit was sworn." Black's Law Dictionary, supra, at 852.

Here, the March 8, 2006, statement provided by Roman to the Public Defender's Office does not qualify as an affidavit. The document is signed by Roman and bears a March 8, 2006 signing date. Although the document has a notary public stamp affixed, it does not contain a jurat, stating that Roman signed the affidavit under oath before the notary public. Also, the document reflects that the notary affixed her seal and signed the document on March 9, 2006, which on its face, indicates that Roman did not sign the document before the notary. Because the document does not qualify as an affidavit, it could not provide a sufficient basis for the judge to have determined that there was a recanting of Roman's prior statement, calling identification into question. Accordingly, we determine that the first prong of W.C. was not met.

We are also satisfied that defendant did not prove the third guideline of W.C., that is, that the motion was filed as soon as practicable after his arrest or arraignment.

Defendant was arrested on January 11, 2006, and when arraigned on May 22, 2006, he was represented by the Public Defender's Office. The motion was not filed until September 21, 2006, approximately three weeks after present counsel was assigned by the Public Defender's Office on August 30, 2006, notwithstanding that Roman's statement was provided to the Public Defender's Office on March 8, 2006. In finding good cause for the delay in filing the motion, the judge stated: "While I recognize that this event occurred on January 10, 2006, Mr. Conde was not indicted until April [26], 2006. Mr. Coyle [defense counsel] was not assigned to represent him until August [30], 2006, and filed his motion on September 21, 2006."

Because the motion judge failed to inquire why defendant, through the Public Defender's Office, had not filed the motion closer in time to the arraignment, rather than five months post, we are satisfied that the judge mistakenly exercised his discretion in determining that defendant had established "good cause" for not filing the motion until September 21, 2006.

"It has been observed that good cause takes 'its shape from the particular facts to which it is applied.'" Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997) (quoting Templeton Arms v. Feins, 220 N.J. Super. 1, 21 (App. Div. 1987) certif. denied, 109 N.J. 489 (1987)). Accordingly, "[w]hat constitutes good cause or delay will depend upon the circumstances." State v. Del Fino, 100 N.J. 154, 160 (1985). Generally, substitution of new trial counsel does not constitute good cause for extending the time period for pre-trial discovery. Packaging Industries, Ltd., v. Hayduchok, 94 N.J. Super. 494, 497-98 (App. Div.), certif. denied, 50 N.J. 87 (1967). So too in criminal proceedings. State v. Allaband, 134 N.J. Super. 353, 355 (App. Div. 1974).

Although we acknowledge that there may be specific reasons why a motion is not timely filed, particularly where a defendant is represented by the Public Defender "whose special administrative problems in making timely motions has been recognized as constituting good cause for enlargement of the time," State v. Boyd, 165 N.J. Super. 304, 310, f.n. 3 (App. Div. 1979), certif. denied, 85 N.J. 128 (1980), no particular reasons for the delay, other than the assignment of new counsel, was proffered to the trial court. Therefore, we conclude that defendant did not establish good cause for the delay in filing the motion.

 
Reversed.

(continued)

(continued)

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A-3324-06T5

June 28, 2007