STATE OF NEW JERSEY v. MICHAEL HUBBARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3031-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL HUBBARD,

Defendant-Appellant.

_________________________________________________

March 10, 2011

 

Submitted January 11, 2011 Decided

 

Before Judges Payne, Baxter and Koblitz.

 

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

07-03-0686.

 

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jacqueline E.

Turner, Assistant Deputy Public Defender,

of counsel and on the brief).

 

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent

(Jane D. Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Michael Hubbard, appeals his conviction, following trial by jury, of second-degree robbery, N.J.S.A. 2C:15-1, and his sentence of eight years in prison subject to the eighty-five percent period of parole ineligibility specified in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant argues:

POINT I

 

THE TRIAL JUDGE ERRED IN ADMITTING THE OUT-OF-COURT IDENTIFICATIONS OF THE WITNESSES AND THE RESULTING TAINTED IN-COURT IDENTIFICATIONS.

 

POINT II

 

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

 

We affirm.

Evidence presented by the State at trial established that, on the morning of September 26, 2006, Tonya Miller was walking her students from their day-care center in Newark to the playground. To ensure the safety of the students, they were holding onto a rope, with Miller at the head of the line, and her assistant at its foot. As they progressed down the sidewalk, Miller saw defendant approaching her and the children. Unlike most passersby, he did not pass on the street side of the group, but rather on the inside. As he passed Miller, defendant grabbed the chain around her neck. Miller fell to the ground as the result of defendant's action, and she received a scratch on her neck. She did not seek medical treatment for the neck injury.

Robert Jones, who was talking to a used car salesman at a business located next to the day-care center, heard Miller cry out "my chain, my chain" and, looking around, he saw defendant running down the street. Jones and the used car salesman attempted to apprehend defendant, following him in a car and then on foot. Eventually, defendant turned in their direction, and after first saying that someone else had stolen the chain, "charged after" his pursuers and threw the chain at their feet. Jones returned with the chain to the day-care center and gave it to Miller.

In the meantime, Police Officer Antoine Baskerville, while unsure of the precise crime committed, had taken up the attempt to apprehend defendant, who was eventually stopped by a truant officer. Defendant was then arrested by Officer Baskerville, who placed him in handcuffs in the back of his cruiser and returned to the scene of the robbery. There, two showup identifications occurred that were later the subject of a Wade1 hearing to determine the admissibility of the identifications at trial. Both were ruled admissible, and testimony regarding them was presented to the jury. A conviction for second-degree robbery resulted.

I.

On appeal, defendant has not challenged the conduct of the trial itself, but only the result of the Wade hearing that took place in the matter. At that hearing, the testimony of Officer Baskerville was offered by the State and the testimony of Jones was offered by the defense.

Officer Baskerville testified that he first learned that a robbery had occurred when a person in a car pointed to an individual wearing a hoody and jeans who was running down the street and stated that the individual had just robbed a young lady. Officer Baskerville gave chase, and defendant was eventually cornered by a truant officer who had observed the police action. Officer Baskerville then arrested defendant and returned with him to the scene of the robbery. He stated on direct examination:

[A]s I pulled up in front of that the location, which is the day care center, a male individual walked up to me stating that, "Did y'all catch the person?" I said "What person?" He said, "The person that robbed the young lady that works here." I said, "Yes" I said, "I'm not sure, I have to go inside and find out."

 

[The] individual said, "Well, I got a chain." So I went and looked, he came up to me the individual said that he retrieved the young lady's item, which was a chain.

 

And I said, "Well, I don't know if that's the individual in the back of the car or not, but you can " [H]e said, "Well, I'm going to take a look and see." He came up to the vehicle, said, "Yeah, that's him. That's the individual I stopped and I retrieved the chain back from."

 

According to Baskerville, he did not suggest to Jones that the person in the back of the police cruiser was the perpetrator; Jones told him that fact. The identification occurred approximately forty-five minutes after the robbery had taken place.

With respect to Miller, Officer Baskerville recounted that she was initially in "a state of shock," and that she refused to leave the day-care facility for identification purposes. After an hour and a half, Miller's husband arrived and, accompanied by him, Miller left the building. According to Officer Baskerville: "I had to show her that he was in custody, in cuffs in the back seat of the vehicle" and that he could not cause her additional harm. Miller, clinging to her husband, then "took a glance at [the vehicle's occupant] real quick, started crying, and frantically retract[ed] her hand [and] told her [husband] to, "[t]ake me away, that's him, that's him."

On direct examination, the officer denied suggesting to Miller that defendant was the person that had robbed her. However, on cross-examination, he stated that he informed Miller that: "We may have a possible suspect." Additionally, on cross-examination, Officer Baskerville confirmed that Miller had taken "a nice glance" at defendant, and that Baskerville knew "she got a good look at the gentleman."
The officer stated that the robbery had occurred between 10:00 and 10:20 in the morning. Defendant was apprehended and returned to the day-care center approximately forty-five minutes later, at which time Jones' identification was made. Miller's identification followed in approximately one and one-half hours.

Robert Jones was called as a witness by the defense. Jones testified that, after the police returned to the day-care center with defendant, they called him back from the car dealership, and an officer asked him: "Is this the guy?" "Is this the guy that you seen like that you got the chain back from?" Jones responded "yes." Jones did not recall initiating the conversation with the police by asking if they had apprehended the person who had snatched the chain.

Jones recounted that Miller, although hysterical, also looked in the cruiser and identified defendant as the perpetrator.

Miller did not testify at the hearing. The defense sought to call her as a witness, but when faced with an objection by the State, the request was withdrawn.

At the conclusion of the hearing, the trial judge, relying on State v. Madison, 109 N.J. 223 (1988) and Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), ruled the identifications by Jones and Miller were admissible. In doing so, the judge considered the testimony of Officer Baskerville "and specifically Mr. Jones," and weighed that testimony in light of the factors identified in Biggers2 as significant the opportunity of the witness to view the defendant at the time of the crime; the witness' degree of attention; the accuracy of the witness' description of defendant; the level of certainty demonstrated by the witness at the time of confrontation; and the length of time between the crime and the confrontation.

In that connection, the judge found:

[W]ith respect to factor one, the opportunity of the witness to view the defendant, Mr. Jones testified that he pursued Mr. Hubbard and that at some point in time Mr. Hubbard turned and actually charged at him and his companion and threw a gold chain at them, and he testified in court that the person who did that is seated at counsel table, the defendant.

 

He also testified that, on the showup with Mr. Hubbard in the back of the patrol car, he identified Mr. Hubbard as the perpetrator. His degree of attention, I believe it's sufficient to sustain his identification.

 

He demonstrated a level of certainty, in fact identifying the defendant here in court today, and the length of time between the crime and confrontation w[as] minimal.

 

Weighing these facts, the judge found under a totality of the circumstances that "the identification process was not so suggestive as to taint the out-of-court identification so much so that the defendant was denied due process." The judge found further that there was sufficient evidence of reliability to outweigh any corrupting effect of suggestiveness. The judge concluded:

The State has met its burden of clear and convincing evidence that the identifications by the witnesses had a source independent of any police conducted identification procedures. And the witness' recollections were reliable.

 

Although the judge ruled admissible the identification provided by Miller, he did not find any facts relating to it or independently analyze its reliability.

In recently reviewing the procedures for determining the admissibility of out-of-court identifications, the Supreme Court has stated:

First, a reviewing court must "ascertain whether the identification procedure was impermissibly suggestive." [State v.] Herrera, 187 N.J. [493,] 503 [(2006)]. If it was impermissibly suggestive, that does not end the inquiry. Next, a court must determine "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 503-04. Although "one-on-one showups are inherently suggestive" and we said in Herrera that "only a little more is required in a showup to tip the scale toward impermissibly suggestive," nevertheless, "standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Id. at 504. Each showup setting must necessarily stand or fall on its own unique facts.

 

[State v. Romero, 191 N.J. 59, 76-77 (2007).]

 

The identification procedures used in this case employed such one-on-one showups. However, the record does not support the conclusion that the showups were "impermissibly" suggestive. In this regard, we have considered Officer Baskerville's comments when obtaining the identifications from Jones and Miller. At most, Jones and Miller were informed that the police had a possible suspect in the back of the police vehicle. They were not told the circumstances of defendant's arrest or anything else that would have led them to believe that independent evidence discovered by the police linked defendant to the crime. Compare State v. Herrera, 187 N.J. 493, 506 (2006) (comments by the police that defendant was found in the victim's car and that the victim would be taken to identify him were impermissibly suggestive).

After considering the factors set forth in Biggers, supra, 409 U.S. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411, we further find that the totality of the evidence supports the conclusion that the showups were reliable. See also Herrera, supra, 187 N.J. at 503. In doing so, we recognize that "[t]he findings of the trial judge as to reliability of witnesses are entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.) (citing 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); State v. Scott, 236 N.J. Super. 264, 167 (App. Div. 1989)), certif. denied, 178 N.J. 250 (2003).

Considering first the identification by Jones, we note that he had the opportunity to view defendant from the back as he and the employee of the car dealership pursued him by car and on foot. He viewed him from the front when defendant turned, appeared ready to charge, and then threw the chain to the ground. That defendant was in fact the culprit and not an innocent person mistakenly pursued by Jones was established by his possession of Miller's chain.

A period of only forty-five minutes elapsed between the time of the crime and the time when defendant was returned by Officer Baskerville to the scene. Thereafter, Jones identified defendant as the perpetrator without hesitation. Although, at hat point, defendant was sitting, cuffed, in the back of Baskerville's police vehicle, the fact that defendant was viewed when seated in a police cruiser with his hands cuffed does not render the identification procedure per se improper and unconstitutional. Id. at 327. In the circumstances presented, we find the reliability of the identification to have been strong.

As we have noted, the trial judge did not make factual findings with respect to the identification by Miller. Nonetheless, it is evident that Miller had an opportunity to view defendant close-up when he took her chain, and the record demonstrates that her identification, made within one and one-half hours of the crime, was equally as certain as that of Jones. Thus, we find that the judge's determination that the recollections of both witnesses were reliable had factual support. We thus conclude that defendant did not meet his burden of "demonstrating 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 on other grounds, State v. Moore, 188 N.J. 182 (2006); State v. King, 390 N.J. Super. 344, 360 (App. Div.), certif. denied, 190 N.J. 394 (2007); State v. Janowski, 375 N.J. Super. 1, 9 (App. Div. 2005). No error appears in the admission of the out-of-court identifications for consideration by the jury.

II.

At sentencing, the trial judge denied the State's motion for imposition of an extended term sentence pursuant to N.J.S.A. 2C:44-3a, despite defendant's eligibility for such a sentence, having committed three prior indictable drug offenses. As we have stated previously, the judge imposed an eight-year custodial sentence, subject to NERA. The judge found as aggravating factors three (the risk that defendant would commit another offense), six (the extent of his prior record) and nine (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). The judge found no mitigating factors.

On appeal, defendant argues that the sentence was excessive, given the nature of the crime. We decline to disturb it, finding no abuse of discretion by the trial judge.

When reviewing a claim of an excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). As the Bieniek Court stated:

The [New Jersey Code of Criminal Justice] was designed to promote [consistency in sentencing] by providing courts with a system for "structured discretion" in sentencing. State v. Roth, 95 N.J. 334, 345 (1984). And, we have "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code and defined by us . . . , they need fear no second-guessing.'" State v. Ghertler, 114 N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365).

 

[Ibid.]

 

If the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for that imposed by the trial judge. Id. at 608.

In this case, defendant points to no mitigating factors that the trial judge overlooked, and to no aggravating factors that were improperly cited. His argument is only that the robbery at issue was relatively minor in nature. However, the record supports the conclusion that, while defendant's actions may have appeared trivial from his perspective, his conduct seriously impacted the victim, causing her emotional turmoil that continued at the time of trial more than a year after the robbery took place a matter that was noted by the trial judge. In these circumstances, we find no abuse of discretion in sentencing.

Affirmed.

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

2 409 U.S. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.