STATE OF NEW JERSEY IN THE INTEREST OF L.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2904-07T42904-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF L.A.,

a Juvenile.

_________________________________

 

Submitted October 28, 2009 - Decided

Before Judges Stern and Graves.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2299-07.

Yvonne Smith Segars, Public Defender, attorney for appellant L.A. (Michael Confusione, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent State of New Jersey (Sara B. Liebman, Assistant Prosecutor, of counsel; Kimberly Donnelly, on the brief).

PER CURIAM

On May 17, 2007, when L.A. was seventeen years old, he was charged with juvenile delinquency for committing acts which, if committed by an adult, would have constituted first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count three). Following a four-day trial, the court entered an adjudication of delinquency on August 13, 2007. On September 4, 2007, the court sentenced L.A. to three concurrent three-year terms at the Jamesburg Training School for Boys.

On appeal, L.A. raises the following points for our consideration:

POINT I

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE APARTMENT SHOULD HAVE BEEN GRANTED.

POINT II

A WADE HEARING SHOULD HAVE BEEN CONDUCTED BELOW IN LIGHT OF THE SUGGESTIVE OUT-OF-COURT IDENTIFICATION OF THE JUVENILE DEFENDANT BY THE ALLEGED VICTIM (PLAIN ERROR).

POINT III

THE EVIDENCE AND FINDINGS WERE NOT SUFFICIENT TO SUSTAIN THE DELINQUENCY FINDING BELOW, WARRANTING VACATION HERE.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CASE BECAUSE OF [A] DISCOVERY VIOLATION.

POINT V

THE SURVEILLANCE VIDEO THE STATE PRESENTED WAS NOT PROPERLY AUTHENTICATED AND SHOULD NOT THEREFORE HAVE BEEN CONSIDERED AT TRIAL.

POINT VI

DEFENDANT'S SENTENCE IS EXCESSIVE.

After reviewing these arguments in light of the record and applicable law, we affirm.

On May 17, 2007, at approximately 10:00 a.m., Elizabeth police officers responded to a 9-1-1 call reporting an armed robbery of a store by two black males who had handguns and masks. Upon arriving at the scene, the police learned that a store employee, Pierre Fanfan (Fanfan), had followed the robbers after they left the store. When the officers located Fanfan about two blocks from the store, he told them he had seen the robbers run into a house. He also told the police: "I was in the store, two people [came] in and they took my money. One of them [had] a gun and the other one [had] a knife."

The officers told Fanfan to remain outside and they entered the multi-family house through the front door, which was open, into a common hallway. Upon entering the residence with their weapons drawn, the police announced their presence, and walked up the stairs looking for the suspects. On the third floor, they found L.A. opening a door to one of the rooms, "sweating profusely," and attempting to button a dress shirt. L.A. claimed he was dressing for a job interview. Through the open door, the police saw another male, I.G., lying face-down on a mattress dressed only in his underwear, and a pile of cash "towards the window at the other side of the room."

The officers conducted a protective sweep to determine whether any other individuals who could pose a danger to them were present. During the sweep, they observed "crumpled up" bills in different denominations "thrown about" the room, "a large pile of cash in the corner," and a black hooded mask and items of black clothing on the floor.

The officers also found a third person in a separate room on the third floor, Dahens Lucien (Lucien), who informed them that he lived there and that his brother's girlfriend, Aziana Thermitus (Thermitus), was in the shower. When she came out, she told the police she saw I.G. holding a gun in his right hand while he walked up to the third floor with L.A. The police then handcuffed L.A., I.G., and Lucien and detained them in the hallway.

Speaking in Creole, Lucien asked Thermitus to get his cell phone so he could call his father. According to Lucien, L.A. then spoke to him in Creole and said he and I.G. had just committed a robbery. I.G. then told Lucien and Thermitus in Creole to be quiet and not to snitch. At L.A.'s trial, Lucien was "100 percent positive" that L.A. was the same person who admitted to the robbery.

The police had been in the house for about five minutes when Fanfan entered and walked up to the third floor hallway. He immediately identified L.A., I.G., and Lucien as the robbers. Fanfan then screamed "there's the gun" and rushed toward an area under a desk in the hallway, where the officers located a gun. Fanfan was "positive" that it was the gun used in the robbery. He also identified the clothing scattered around the room as the clothing the robbers were wearing.

The police seized several items as evidence, including the gun, $437 in cash, a black hooded mask, the clothing, and a personal identification card bearing L.A.'s name and photograph. The State initially charged L.A., I.G., and Lucien with the robbery, but later determined Lucien was not involved and dismissed the charges against him.

Prior to trial, L.A. moved to suppress the items seized by the police. The court denied the motion and L.A. proceeded to trial. The court's reasons for denying the motion to suppress included the following:

Here I find the initial entry of the police officers into the structure was reasonable. . . . there's an armed robbery that occurred minutes earlier involving a handgun and another weapon. They were immediately directed to a building . . . They have no way of knowing who was in the building, whether or not there are several ways out of the building, whether or not citizens might be in immediate danger, what was stolen or whether or not evidence could be destroyed, hidden or discarded. Notwithstanding their ability to obtain the search warrant eventually[,] their circumstances are indeed exigent.

Covering the front and back door only may or may not prevent escape, we don't know. But certainly armed robbers in a private home requires immediate action which police officers must be given the opportunity to take. It is reasonable to believe that the suspects knew that they were being chased and that they needed to act quickly . . . to escape, hide evidence, or cover their trail. The gun was indeed discarded. There's no question that the offense was serious and there's . . . reason to believe that the suspects might still be armed when the police entered.

In reviewing a motion to suppress, we must uphold the trial court's factual findings so long as they are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We may only disturb a trial court's findings if "they are so clearly mistaken that the interests of justice demand intervention and correction." Id. at 244.

Moreover, it is well settled that all warrantless searches and seizures are presumptively unreasonable. Id. at 246. A warrantless search is valid only if supported by probable cause and falls within one of the few well-delineated exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13, 19-20 (2004). In this instance, the State contends the exigent circumstances exception applies because the police reasonably believed that immediate action was necessary to apprehend the individuals who had just committed an armed robbery. See State v. DeLuca, 168 N.J. 626, 632-34 (2001); State v. Cooke, 163 N.J. 657, 676 (2000); State v. Alvarez, 238 N.J. Super. 560, 567-72 (App. Div. 1990). We employ a "fact-sensitive, objective analysis" when determining whether exigent circumstances justify a warrantless search. State v. Nishina, 175 N.J. 502, 516-17 (2003) (citing DeLuca, supra, 168 N.J. at 632).

Exigent circumstances may justify a warrantless search where a suspect is armed with a gun because of "the special significance of the existence of firearms and the threat to public safety which they represent." State v. Wright, 213 N.J. Super. 291, 295 (App. Div. 1986), certif. denied, 118 N.J. 235 (1989). Similarly, when police respond to a crime in progress, the increased level of urgency and physical danger to the officers and the public may constitute exigent circumstances. Alvarez, supra, 238 N.J. Super. at 569-70.

When the circumstances justify a warrantless entry, the police may "'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises," but may not use the sweep as a "pretext to search for evidence." State v. Henry, 133 N.J. 104, 118 (1993) (internal citations omitted). Under the plain view doctrine, the police may also seize an item within their sight when: (1) they are legally in a position to view the item; (2) the discovery of the evidence is inadvertent; and (3) they have probable cause to associate the item seized with criminal activity. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). That is what happened here.

According to the information provided to the police, two armed suspects fled to a nearby house after robbing a store. The police arrived on the scene within minutes of the robbery, and they had reason to believe the individuals who entered the house were armed, dangerous, and in possession of money they had stolen. The officers had no way of knowing how many people were inside the house, whether they were in danger, whether evidence would be destroyed, or whether there were any potential exits that had not been secured. Based on these facts, the trial court properly determined that exigent circumstances justified the warrantless entry into the house and rooms on the third floor.

Because the entry was lawful, the seizure of the items in plain view on the third floor was justified. When L.A. opened the door to the apartment, the police observed I.G. inside. After viewing another person in the apartment, the officers lawfully performed a protective sweep to determine whether the area contained any other persons who might pose a danger to their safety. Henry, supra, 133 N.J. at 118. Therefore, the police were legally in a position to observe items in plain view in the apartment. Bruzzese, supra, 94 N.J. at 236. Under these circumstances, the record fully supports the trial court's determination that the warrantless entry into the house and apartment and the seizure of evidence was lawful.

L.A. also argues a Wade hearing was required to ensure that the victim's identification was not impermissibly suggestive. Because L.A. did not request a Wade hearing at trial, we may not reverse on that basis unless we find plain error "clearly capable of producing an unjust result." R. 2:10-2.

A pretrial identification is admissible unless it was the product of suggestive procedures creating a "very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253). To obtain a Wade hearing to contest an out-of-court identification, the defendant must make a threshold showing of "impermissive suggestiveness." State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). Even if an identification procedure is impermissibly suggestive, the identification may be admitted into evidence if it is reliable. See State v. Herrera, 187 N.J. 493, 503-04 (2006) ("The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification."). "The essential question is whether there was sufficient reliability in the identifications to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." State v. Adams, 194 N.J. 186, 204 (2008).

One-on-one show-up identifications at or near the crime scene are "inherently suggestive" because "the victim can only choose from one person, and, generally, that person is in police custody." Herrera, supra, 187 N.J. at 504. However, identifications made at a crime scene or soon thereafter "are likely to be accurate, taking place . . . before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." State v. Wilkerson, 60 N.J. 452, 461 (1972) (citing United States v. Perry, 449 F.2d 1026, 1032-34 (D.C. Cir. 1971)).

The law permitting but disfavoring show-up identifications, however, assumes an out-of-court identification initiated by the police rather than the witness. In contrast, "[a] chance encounter provoking spontaneous recognition, whether occurring in the street, or in the station house, does not come within the strictures of the Wade rule." Id. at 462 (internal citations omitted).

In this case, Fanfan independently recognized L.A. shortly after the robbery while the events were fresh in his memory. Moreover, the out-of-court identification was not initiated by the police, it did not occur in response to any questions or instructions from the police, and there were no actions by the officers that could have tainted the identification. Under these circumstances, there was no showing that the victim's identification was impermissibly suggestive, and there was no need for a hearing to weigh "the suggestive nature of the identification against the reliability of the identification." Herrera, supra, 187 N.J. at 503-04.

With regard to Fanfan's mistaken identification of Lucien as one of the robbers, the court found "any confusion in the [victim's] identification [was] insignificant" because "the events were traumatic, he was involved in a chase," and the perpetrators "wore masks and hoods." The judge found Fanfan was a credible witness and, based on his testimony, the court concluded that L.A. had "actual or constructive possession of a knife and/or handgun" during the robbery and possessed the weapons "for the purpose of using them unlawfully against Mr. Fanfan." That credibility determination is supported by the record and it is entitled to our deference. Locurto, supra, 157 N.J. at 470-71.

We conclude from our examination of the record that the trial court correctly applied the controlling legal principles and that L.A. received a fair trial and an appropriate sentence. L.A.'s remaining arguments do not warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

 

The Jamesburg Training School for Boys is now called the New Jersey Training School.

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

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A-2904-07T4

RECORD IMPOUNDED

April 9, 2010