STATE OF NEW JERSEY v. ISAIAH HUNTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5004-04T45004-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISAIAH HUNTER,

Defendant-Appellant.

_________________________________

 

Submitted September 10, 2007 - Decided

Before Judges Lintner, Parrillo and Sabatino.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

03-10-1054 and 03-10-1055.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Uniman, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Bart T. East, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In October 2003, a Union County Grand Jury returned Indictment No. 03-10-1055, charging defendant Isaiah Hunter with third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count One); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Two); third-degree aggravated assault (bodily injury), N.J.S.A. 2C:12-1b(2) (Count Three); second-degree aggravated assault (attempt to cause serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count Four); second-degree aggravated assault (attempt to cause serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count Five); third-degree aggravated assault (attempt to cause bodily injury), N.J.S.A. 2C:12-1b(2) (Count Six); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (Count Seven); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Eight); and second-degree witness tampering, N.J.S.A. 2C:28-5a (Count Nine). A Union County Grand Jury also returned Indictment No. 03-10-1054, charging defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.

Defendant's pretrial motions to dismiss both indictments and for a Wade hearing were denied. A jury trial commenced on October 5, 2004. On October 6, 2004, the jury returned its verdict, finding defendant guilty on Counts One, Two, and Three and not guilty on the remaining charges on indictment 03-10-1055. After defendant's first motion for new trial was denied, he entered a plea of guilty to indictment 03-10-1054 charging him with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.

Defendant's second motion for new trial was denied, following which the judge imposed a five-year term on the Count One conviction, a seven-year term with three and one-half years of parole ineligibility on the Count Two conviction and a five- year term on the Count Three conviction. The terms for each count were run concurrently with one another. On the guilty plea, the judge imposed a concurrent seven-year term with a five-year parole disqualifier. Defendant appeals. The State concedes that the judgment of conviction on Indictment 03-10-1055 failed to reflect defendant's 1003 days of jail credit. We affirm defendant's conviction but remand for correction of the judgment on Indictment 03-10-1055 to reflect defendant's 1003 days of jail credit.

On March 8, 2000, Benjamin Walker had a barbeque at his house on 969 West Third Street in Plainfield. At approximately 3:30 p.m., Walker saw Mack Brown and defendant arguing in the street. Walker knew defendant for approximately twelve years from high school. Walker testified that he watched the two men walk up the street approximately one block to a park. Although Walker did not see what happened at the park, he stated that Brown beat up defendant and that "[b]y the time [Walker] got to the middle of the block [Brown] was already coming back." On cross-examination, Walker stated that "[i]t was obvious" that Brown had "beaten up" defendant because Brown "was chanting 'Yo.' He knocked him out two punches." From that, Walker figured Brown had won.

Walker and Brown returned to Walker's house. Walker did not see where defendant went. Later, however, while standing on his porch, Walker saw defendant riding a bike up West Third Street towards his house. At the same time, Brown was standing by a fire hydrant located on the corner of the intersection at West Third Street and Monroe Avenue, in front of Walker's house. From a distance of twenty feet away, Walker saw defendant "kind of stumble[] off the bike" and "start[] shooting." According to Walker, defendant pointed an automatic gun at Brown from a distance of ten feet and fired two shots. The first shot missed but the second shot hit Brown "[b]ecause he fell." After defendant shot Brown, he ran south on Monroe Avenue. Walker ran through his house and saw defendant running through two backyards. Walker then ran back to the front "grabbed [Brown] . . . got in the car and . . . went to the hospital."

Walker gave a statement at police headquarters on the day of the shooting. On March 10, 2000, he went to the Plainfield Police Department and met with Detective George Jimenez. Detective Jimenez showed Walker a photo array from which Walker identified defendant as the shooter. Out of the six photos displayed, Walker recognized two other individuals besides defendant. Initially, Walker told the police that "Alwal" shot Brown and clarified at trial that Alwal was defendant's "street name."

On cross-examination, defendant brought out that Walker's March 8 statement did not indicate that the shooter was riding a bicycle. Although Walker's March 8 statement indicated that he did not know why Alwal shot Brown, he testified at trial that "[t]he shooting was due to disrespect."

On the morning of March 21, 2000, Walker saw two men in front of his house. The men asked Walker why he was "ratting" and "telling on Alwal." Walker responded by denying having talked to detectives and told the men to "[k]eep going." Walker then "kept going on with [his] daily routine" when he noticed defendant and another individual in a nearby alleyway. Walker stated that defendant and the other individual pointed guns at him and as Walker ran through a gate, he heard seven to ten shots. Walker continued to run to a nearby park and did not return home. Although Walker did not immediately report this incident to the police, he did inform them about it in a May 2003 statement given to the Union County Prosecutor's Office.

The only other witness at trial was Detective George Jimenez of the Plainfield Police Department. Jimenez and his partner, Detective Larry Brown, "heard an open radio broadcast of shots fired at the area of Monroe and West Third Street and that the victim had been transported to Muhlenberg Hospital . . . ." Jimenez and Detective Brown went to Muhlenberg Hospital where Jimenez spoke with Brown. Brown told Jimenez that "he had been shot in the knee and he briefly described the actor . . . as a tall, light skinned black male." Brown told him that he did not know who shot him. He did not indicate the shooter's name nor that he had had a fight with the person who shot him.

Jimenez went to the scene where police had located two shell casings and a bullet. No fingerprints were ever taken off the shell casings because he "sen[t] the shell casings out for ballistics testing" and "didn't want to disturb them prior to that." Jimenez and Detective Brown conducted a neighborhood canvass but did not locate any witnesses. They learned that Walker was a witness to the shooting and had been transported to headquarters, where he had given a statement.

The following day, Jimenez and Detective Brown returned to the scene and spoke with several people. After obtaining defendant's name as a possible suspect, Jimenez prepared a six-photo array, which included defendant's photo. Jimenez then went to Muhlenberg Hospital where he showed Brown the photo array. Brown "immediately identified [defendant] as the shooter . . . the person that shot him on March 8, 2000."

Jimenez corroborated Walker's testimony regarding the March 10, 2000, photo array at headquarters. On May 6, 2003, Detective Jimenez, who was then employed by the prosecutor's office, took the additional statement from Walker respecting both the March 8 and the alleged March 21, 2000, shootings.

On appeal, defendant raises the following points:

POINT ONE

THE COURT ERRED IN NOT DISMISSING THE INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT BY MISLEADING THE GRAND JURY.

POINT TWO

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL IN LIGHT OF COURT'S FAILURE TO GRANT DEFENDANT'S [CLAWANS] MOTION, WHERE THE WITNESS WAS NECESSARY TO ASSIST THE JURY IN PROPERLY EVALUATING FACTS REGARDING IDENTIFICATION.

POINT THREE

THE TRIAL COURT ERRED IN NOT ALLOWING DETECTIVE [JIMENEZ] TO TESTIFY TO STATEMENTS MADE BY [MACK] BROWN IN HIS POLICE REPORT AS BEING INADMISSIBLE HEARSAY.

POINT FOUR

THE COURT ERRED IN NOT DISMISSING THE INDICTMENT DUE [TO] UNREASONABLE DELAY IN THE STATE'S FILING FOR INDICTMENT.

POINT FIVE

THE COURT ERRED IN DENYING THE MOTION FOR A WADE HEARING TO DETERMINE THE LEGALITY OF DEFENDANT'S IDENTIFICATION.

POINT SIX

DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT SEVEN

DEFENDANT'S SENTENCE WAS EXCESSIVE AS JAIL CREDITS SHOULD HAVE BEEN APPLIED TO BOTH OFFENSES.

We address these issues seriatim.

Claiming that the State deliberately misled the Grand Jury by withholding exculpatory evidence that was the subject matter of a specific inquiry by a grand juror, defendant asserts that the judge erred in denying his motion to dismiss the indictment. The inquiry dealt with the over three-year time lapse between the alleged March 21, 2000, incident and Walker's report of it in May 2003. Jimenez was called back into the grand jury room after a concern was raised about the time delay. The following colloquy took place:

Q: Just to clarify, Mr. Walker came through with evidence of witness tampering this year to you?

A: Yes.

Q: Do you know why he waited that long to report it?

A: I don't recall.

Q: You don't recall the reason?

A: I believe he's afraid of the people that shot at him.

. . . .

Q: Originally on the day of the shooting, the defendant wasn't apprehended?

A: No, he was not.

Q: He was actually free for quite a while?

A: Yes, he was.

Q: Now, after Mr. Walker alleged that the defendant shot at him on the 21st, do you know if the defendant was captured at that time, or is he still out free?

A: Still out free.

Q: You didn't file a police report, correct?

A: No. I don't believe so.

Q: Did he lead you to believe he was afraid to file a police report?

A: Yes, he did.

. . . .

GRAND JUROR: I think what the question is when [defendant] shot [Mack] Brown, [Mack] Brown identified this guy then what happened this guy was never indicted then or never caught in three years?

[PROSECUTOR]: It was under investigation.

GRAND JUROR: When was he apprehended. . . .

THE WITNESS: I don't have that in front of me.

GRAND JUROR: Was it after or before Benjamin Walker gave a statement in May?

THE WITNESS: This year, it was before that.

GRAND JUROR: He was in custody when Ben Walker came to give a statement.

THE WITNESS: He was arrested. I'm not sure if he had been in actual custody at that time. He had been arrested and charged for that.

GRAND JUROR: For March 8, 2000, shooting.

A: Correct.

Defendant maintains that because he had been incarcerated from April 17, 2002, the State, through Jimenez's response, "skillfully misled" the grand jury by corroborating and bolstering Walker's credibility about his fearing defendant.

The principles are well settled. The purpose of the grand jury is to bring the guilty to trial and "to 'protect . . . the innocent from unfounded prosecution.'" State v. Hogan, 144 N.J. 216, 228 (1996) (quoting State v. Murphy, 110 N.J. 20, 29 (1988)). "An indictment will be dismissed only if it is 'manifestly deficient and palpably defective.'" State v. Cook, 330 N.J. Super. 395, 410 (App. Div.) (quoting State v. Wein, 80 N.J. 491, 501 (1979)), certif. denied, 165 N.J. 486 (2000). "'Whether an indictment should be dismissed or quashed lies within the discretion of the trial court. Such discretion should not be exercised except on the clearest and plainest ground and an indictment should stand unless it is palpably defective.'" State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994) (quoting State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)), certif. denied, 140 N.J. 277 (1995). On appeal, the trial judge's exercise of discretion should not be disturbed "unless it has been clearly abused." State v. Weleck, 10 N.J. 355, 364 (1952).

"[I]n establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Hogan, supra, 144 N.J. at 236. A prosecutor must "give the grand jury evidence in [his or her] possession which clearly exculpates a defendant, that is, evidence that directly negates a defendant's guilt." State v. Smith, 269 N.J. Super. 86, 93 (App. Div. 1993), certif. denied, 137 N.J. 164 (1994). "[T]he grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Hogan, supra, 144 N.J. at 236. The State is not required to provide the grand jury with evidence on behalf of an accused.

The grand jury's role is not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced. Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury.

[Id. at 235 (internal citation omitted).]

The standard "is intended to be applied only in the exceptional case in which a prosecutor's file includes not only evidence of guilt but also evidence negating guilt that is genuinely exculpatory." Id. at 237. Therefore, a prosecutor's duty to present such evidence "arises only if the evidence satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Ibid. Exculpatory evidence is that which "squarely refutes an element of the crime in question." Ibid. Moreover, our courts are directed to "act with substantial caution" before concluding that a prosecutor's decision not to provide such evidence is erroneous. Id. at 238. "[O]nly in the exceptional case will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment." Id. at 239.

Applying that standard, we are convinced that the judge properly applied his discretion in denying defendant's motion to dismiss the indictment. Whether defendant was incarcerated prior to Walker's decision to come forward with his allegations had no bearing on whether defendant actually committed the crime of tampering. It neither negated his guilt nor did it clearly exculpate his participation in the crime. Walker had moved from the area. There was nothing to indicate Walker was aware that defendant was incarcerated. Moreover, according to Walker's description of the March 21 incident, defendant was not alone but accompanied by another individual who wielded and fired a gun. Walker's delay in coming forward presented an issue of credibility respecting the March 21 incident, rather than one exculpating defendant, which the jury apparently resolved against the State. We need not intercede.

At the conclusion of Jimenez's testimony, the trial judge, referring to Brown, asked the prosecutor, "Don't we have another victim?" The prosecutor stated that he would not be called to testify. Defense counsel argued that a Clawans charge was necessary because he had "a problem with being prepared for a victim to be [present] and then holding off on certain matters or photos to be entered for that person and finding out at the last moment he's not going to be [present]." When the judge pointed out that defendant had a right to subpoena Brown, defense counsel responded, "[h]e's never been available to me, other than one phone conversation with the investigator." The judge then asked the prosecutor whether he knew where Brown was. After making contact with one of the prosecutor's detectives, the prosecutor advised the court and defense counsel where Brown was working that evening and where he could be contacted. The prosecutor also advised the judge that his office had had a lot of difficulty "all along" finding Brown. The Court then informed defense counsel that he could have his investigator serve a subpoena to appear the next day on Brown that evening at his place of employment.

The following day, both counsel advised the judge that Brown could not be found. Counsel had made arrangements to have the State present Brown at the Watchung Police Department. The State's investigator was told by Brown that he worked at the Shop and Stop Supermarket until 7:00 p.m. However, when the prosecutor and detective arrived at the supermarket at 6:30 p.m., Brown was not there. The store manager informed them that Brown had told him that he took care of the court proceedings and left at 5:00 p.m. The prosecutor informed the judge that Brown had apparently lied to the detective about when he would be at work. Denying defendant's request for a Clawans charge, the judge stated:

Obviously, Mr. Brown is in the environs and the fact that the State could find him and the Public Defender's investigator couldn't find him doesn't give rise to -- doesn't negate the fact that he was within [defendant's] power to produce, if found in an appropriate fashion.

So I don't think that that being the first prong of [Clawans] I find that [defendant] did have the power to produce him, as well as the State did, and I'll deny [defendant's] motion for a [Clawans] charge.

Rejecting defense counsel's argument that Brown had superior knowledge, the judge pointed out that, as a witness, Walker's testimony that he saw everything from a close distance negated Brown as a superior witness and, as such, Brown's testimony would be, at most, cumulative. He advised defense counsel that he could argue that Walker's testimony was not corroborated by Brown but not that the jury could draw an adverse inference. After having defense counsel read Brown's statement concerning the shooting into the record, the judge added:

I want the record to reveal the part of my ruling on the Clawans charge is that I didn't find the State had an intent to mislead the defense in this case, but I also want to make it perfectly clear, this does not prohibit you from commenting in your summation about the fact he's not here. I just won't give the judicial imprimatur of the charge to the jury. So I didn't want you to stay away from it completely because that wasn't part of the ruling.

On appeal, defendant argues that the judge erred in denying his request for a Clawans charge. He maintains: (1) Brown was within the power of the Prosecutor to produce; (2) Brown was in a superior position of knowledge; and (3) the State "shielded" the victim from the defense.

A Clawans charge allows the jury to draw an inference that the missing witness would have had evidence unfavorable to the party who would reasonably have been expected to produce them. Clawans, supra, 38 N.J. at 170-71. An adverse inference for the failure to call a witness is proper only if that witness was within the power of the party to produce and that his or her "testimony would have been superior" to that already produced with respect to the issue to be proven. Id. at 171. It is not proper if the witness is "available to both parties" or "for some reason unavailable" or if the witness's "testimony would be cumulative." Ibid. Clawans teaches that, procedurally, the request for the charge should be made, as it was here, at the close of an opponent's case to accord the party accused of non-production the opportunity to either call the witness or demonstrate to the court the reason for not calling the witness.

Here, defendant's investigator had made prior contact with Brown. Defendant could have subpoenaed him in advance of trial. Defendant never attempted to subpoena Brown. See United States v. DeLuca, 137 F.3d 24, 38 (1st Cir.) (noting that adverse inference was inappropriate where "defendant who did not even try to subpoena missing witness was engaged in after-the-fact 'gamesmanship,' i.e., attempting to gain the belated benefit of an evidentiary inference adverse to the government without venturing any risk that the missing witness's testimony might have been unfavorable to the defendant" (citing United States v. Spinosa, 982 F.2d 620, 633 (1st Cir. 1992))), cert. denied, 525 U.S. 874, 119 S. Ct. 174, 142 L. Ed. 2d 142 `(1998). The record here supported the judge's conclusion that the State made a good faith effort to produce Brown at the Watchung Police Department so that defense counsel could meet with him. Cf. State v. Farquharson, 280 N.J. Super. 239, 249-50 (App. Div.), certif. denied, 142 N.J. 517 (1995). The judge properly found, under the circumstances, that Brown was equally available or unavailable to the defense. See State v. Casey, 157 N.J. Super. 311, 313 (App. Div. 1978), certif. denied, 79 N.J. 490 (1979). Moreover, Brown's failure to cooperate and testify was not indicative that his testimony, if compelled, would have been adverse to the State. Instead, his reluctance to come forward appears to include the effect that it might have on his future well-being. See Casey, supra, 157 N.J. Super. at 316.

We also agree with the judge's conclusion that Brown's testimony concerning the March 8 shooting, rather than superior, would have been cumulative to the evidence provided by Walker. Finally, the defendant was permitted to and did argue Brown's absence in his closing argument. Even if we were to believe the judge erred in denying defendant's request for a Clawans charge, which we do not, any error was harmless beyond a reasonable doubt. R. 2:10-2.

Defendant next asserts that the judge erred in not permitting him to call Jimenez to have him review Brown's statement to show lack of identification. The judge denied the request, pointing out that defendant was seeking to admit hearsay. On appeal, defendant now contends that the judge erred because the statement in Jimenez's police report was not being offered for the truth of the statement but to "point out material inconsistencies claims in the witnesses' statements." Specifically, defendant wanted to show the difference between Brown's initial description of defendant and his subsequent identification of him when questioned by Jimenez at the hospital.

Defendant's contentions are devoid of merit. N.J.R.E. 803(a)(1) allows introduction of inconsistent statements as a hearsay exception "made by a person who is a witness at a trial or hearing," and N.J.R.E. 607 permits the reading of prior inconsistent statements to impair credibility of a testifying witness. Brown did not testify at the trial.

Defendant now claims, for the first time on appeal, that the statement attributed to Brown in Jimenez's police report is admissible to establish Brown's state of mind (motive to lie) and as a verbal act. Our review of the record convinces us that these contentions are merely disguises intended as a vehicle to show minor inconsistencies in Brown's statement to attack credibility. Brown's statements did not disclose any intent on his part to perform a future act, thus qualifying as a good faith statement of a declarant's state of mind under N.J.S.A. 803(c)(3); see also State v. Downey, 206 N.J. Super. 382, 390 (App. Div. 1986). Nor did they describe any legal act that may be considered a "verbal act." See Ringwood Assocs., Ltd. v. Jack's of Route 23, Inc., 166 N.J. Super. 36, 42-43 (App. Div. 1979); see also State v. Kaufman, 118 N.J. Super. 472, 474 (App. Div.) (defendant's oral threat admissible as verbal act to prove offense of threatening the life of another), certif. denied, 60 N.J. 467 (1972); State v. Smith, 113 N.J. Super. 120, 138-39 (App. Div) (letter to defendant informing him that he was being sent a package of marijuana deemed admissible to prove defendant's guilty knowledge in prosecution for possession of narcotics), certif. denied, 59 N.J. 293 (1971); Hagopian v. Fuchs, 66 N.J. Super. 374, 383 (App. Div. 1961) (citing as an example of a verbal act "an oral promise which is part of an alleged contract"). The statements were excludable as hearsay.

Defendant next asserts that the judge should have dismissed the indictment based upon an unreasonable delay in presenting the charges to the grand jury. The offenses were alleged to have been committed on March 8 and March 21, 2000. Defendant was arrested on April 17, 2002, and indicted on October 7, 2003. Defendant conceded before the motion judge that the delay was "[n]ot the fault of the prosecutor," but instead due to Walker's failure to come forward on the witness tampering charge. He also argued that the delay prejudiced his defense on the tampering charge because it adversely affected his ability to find witnesses. Denying defendant's motion, the judge pointed out:

Prejudice to the defendant is pretty much hypothesis here. I mean, the fact that admittedly this is a Dodge City in this part of Plainfield, where guns are fired almost on a daily basis, it becomes difficult for any particular citizen, who is not directly involved in an incident, to remember any given incident within a month or two afterwards.

And the fact is that there is not prosecutorial misconduct here, and [defense counsel] candidly admits that, but says that the victim basically generated the delay and it has affected his client. But the reason for the victim generating the delay was a continuing investigation, wasn't it . . .

the victim . . . was scared or something

. . . . Well, it would be anomalous to hold that a[n] actor could frighten a victim so that he would not come forward, and then allow that actor to benefit from those very actions. We know from one of the counts of the indictment that, in point of fact, there is an allegation that he attempted to harass a witness and tamper with a witness.

So, I don't think he should benefit from that type of activity now, just like killing your parents and then throwing yourself on the mercy of the Court for being an orphan. It doesn't work that way. So, [defendant's motion to dismiss the indictments] will be denied.

We abide by the federal standard when determining whether there is a due process violation as the result of an excessive pre-indictment delay. State v. Townsend, 186 N.J. 473, 488 (2006). "That standard requires the defendant to show: (1) the State's delay in seeking the indictment was a deliberate attempt to gain an advantage over him, and (2) the delay caused defendant actual prejudice in his ability to defend the charge." Id. at 489. Those criteria were not established here. As we previously pointed out, defendant conceded that there was not prosecutorial misconduct. Moreover, while arguing prejudice in general, he failed to meet the "actual prejudice" factor by offering the names of the witnesses or the "content of their testimony" or how their testimony would help the defense or his efforts to locate those persons. See, e.g., Townsend, supra, 186 N.J. at 489.

Defendant argues in Point V that the trial judge erred by denying his motion for a Wade hearing. He maintains, as he did before the trial judge, that the array shown to Walker was unduly suggestive because Walker knew some of the individuals in the array, thus offering fewer choices. He also questions the ability of Walker and Brown to view the defendant at the time of the shooting and the timing of the identification procedure, claiming that Brown was given time to confer with other witnesses before identifying defendant's photograph.

When evaluating the admissibility of an out-of-court identification, the court employs a two-part test. State v. Madison, 109 N.J. 223, 232 (1988). First, it considers whether the identification procedure was in fact unnecessarily suggestive. Id. at 232. Second, if the court finds that the procedure was suggestive, it must then evaluate whether the identification was sufficiently reliable for admission, despite the suggestiveness of the procedure. Ibid. A defendant who seeks to exclude an out-of-court identification must demonstrate by a preponderance of the evidence that the "pretrial identification was so suggestive as to result in a substantial likelihood of misidentification." State v. Hurd, 86 N.J. 525, 548 (1981), overruled by State v. Moore, 188 N.J. 182 (2006). A court may bypass determining the suggestibility of a particular identification procedure if "the totality of the circumstances reflected in the record demonstrates the reliability of [the witness's] identification independent of the photographic identification procedure." State v. Little, 296 N.J. Super. 573, 579-80 (App. Div.), certif. denied, 150 N.J. 25 (1997).

The judge correctly found that there was nothing presented by defendant to meet his threshold of proof that the photographic array was unnecessarily suggestive. The mere fact that two individuals, as well as defendant, were known to Walker did not render the photographic array procedurally suggestive. Even if we were to determine that the photographic identification procedure was suggestive, which we do not, we are satisfied, under the totality of circumstances, that the other out-of-court identifications were reliable. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972). Indeed, Walker, who knew defendant for a significant period of time, had an unobstructed view of the shooting from only twenty feet away. Defendant's contention to the contrary lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Likewise devoid of merit is defendant's contention that the judge erred in denying his motion for new trial. Defendant's challenge to the sufficiency of the evidence is essentially directed at the credibility of eyewitness Walker, who described the conduct and made an in-court identification. Matters of credibility are within the exclusive dominion of the jury. State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960); see also State v. Locurto, 157 N.J. 463, 474 (1999). When viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).

As previously noted, the State concedes defendant's final point that the judgment on Indictment 03-10-1055 does not reflect his 1003 days of jail credits for his incarceration between April 17, 2002, and January 13, 2005. Accordingly, we affirm the judgments of conviction but remand for correction of
the judgment on 03-10-1055 to add defendant's jail credits.

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

Because the alleged victim is Brown, we refer to Detective Larry Brown as Detective Brown.

State v. Clawans, 38 N.J. 162 (1962).

Defense counsel did comment on Brown's absence in his summation, stating:

I want you to focus on the fact that you've been instructed that what you learned about this case has come from that stand and from the people who take that stand. It's incumbent upon the State to produce witnesses in order to bring to you what happened.

Who do they call? Benjamin Walker was called, a detective was called. Brown? Not called, not here, not here to share, not here to be cross-examined, not here for you to see, to understand, to comprehend, to consider. So it all goes back to Mr. Walker.

The judgment on defendant's guilty plea to the charge of certain persons not to possess weapons correctly reflects the jail credits.

(continued)

(continued)

25

A-5004-04T4

October 3, 2007