STATE OF NEW JERSEY v. DAVID PROCTOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3949-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID PROCTOR,

Defendant-Appellant.

_________________________________________________

February 17, 2011

 

Submitted October 19, 2010 Decided

 

Before Judges Payne and Koblitz.

 

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

06-12-03781.

 

Yvonne Smith Segars, Public Defender,

attorney for appellant (John A. Albright,

Designated Counsel, of counsel and on the brief).

 

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent

(Luanh L. Lloyd, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant, David Proctor, appeals from his convictions for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; and third-degree unlawful restraint, N.J.S.A. 2C:13-2a, as a lesser included offense of first-degree kidnapping. He appeals as well from his sentence of ten years in custody, subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal defendant raises the following arguments:

POINT I

 

THE TRIAL COURT ABUSED ITS DISCRETION BY DEPRIVING THE DEFENDANT OF THE OPPORTUNITY TO ESTABLISH THAT OUT-OF-COURT IDENTIFICATIONS BY MCGEE WERE UNRELIABLE.

 

A. Any Improper Identification Procedures With Respect To Witness Scales Constituted "Some Evidence" To Warrant Further Inquiry Into The Procedures Used With Witness McGee, Because They Were Linked By The Same Investigation And Indictment (Prior To Severance Of Counts).

 

B. The Record Shows That The Preliminary Inquiry Into The Identification Procedures Used By Police, Permitted By The Trial Court, Was Grossly Insufficient, Thereby Depriving Proctor Of Due Process Of Law.

 

POINT II

 

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

 

A. The State Did Not Present Any Evidence That McGee Was Removed A Substantial Distance From The Place Where She Was Found.

B. The Trial Court Committed Prejudicial Error Clearly Capable Of Producing An Unjust Result In Overcharging The Jury On Kidnapping And By Including Kidnapping As An Element Of Robbery.

 

POINT III

 

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

 

POINT IV

 

THE IMPOSED AGGREGATE TEN-YEAR SENTENCE WITH AN EIGHTY-FIVE PERCENT PAROLE DISQUALIFIER PURSUANT TO THE NO EARLY RELEASE ACT IS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

 

I.

 

The record discloses that defendant, along with two female companions, Bernette Cochran and Patricia Reese,1 engaged in a conspiracy to commit robbery upon Audrey McGee. McGee testified that, on August 12, 2005, while walking to work, she was accosted by a black woman who sought directions to The Brownstone, told her that she was to meet an attorney there in order to receive a substantial inheritance from her brother, and eventually showed her a bundle of "money" in her purse. The woman was soon joined by another, and the three engaged in a conversation regarding the location of The Brownstone and other matters. As the conversation continued, defendant approached and ordered McGee to get into his car, pushing her toward the car as he did so. McGee complied, sitting in the passenger seat of defendant's brown Lincoln Town Car, which she described as having a stationary rag top. The two other women took seats in the rear. The doors were then locked. As defendant drove off, he placed his hand inside his jacket and demanded that McGee give him her jewelry, her money, and anything else that she had. McGee complied, relinquishing two pairs of earrings, a necklace, a gold wedding ring, a ruby ring, and approximately $300 to $400 in cash the proceeds of her most recent pay check. Defendant placed the items in a scarf, handed the scarf to one of the women seated in the back seat, and permitted McGee to leave the car. During the incident, which was short in duration, McGee was transported in the car for approximately one-half block. She testified that, while confined to the car, she was "scared" and that, upon viewing defendant with his hand in his jacket, she did not know if he had a weapon but that she "didn't take any chances."

Following the robbery, McGee went to work and then reported the incident to the police, providing the police with a description of the three individuals and the Lincoln Town Car. However, the three perpetrators were not caught for approximately one month. Their arrest, on March 15, 2006, occurred when they were seen by Bloomfield Police Sergeant Joseph Krentz driving in the center of Bloomfield in the Lincoln. Subsequently, on March 21, 2006, McGee identified all three individuals after being shown photo arrays.

At trial, defendant took the stand and denied ever seeing McGee or pushing her into his car. He admitted ownership of the Lincoln.

II.

On appeal, defendant first contends that the trial judge erred in failing to hold a Wade2 hearing to explore the reliability of McGee's identifications. We disagree.

In State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985), we noted that such a hearing is not mandated by the United States Constitution merely upon defendant's demand. Id. at 521 (citing Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed. 2d 549 (1981)). We held that a hearing need be held only after the proffer by defendant of "'some evidence' of impermissible suggestiveness." Id. at 522 (citing Watkins, supra, 449 U.S. at 350, 101 S. Ct. at 659, 66 L. Ed. 2d at 557 (dissenting opinion of Brennan, J.)). "[S]uch determination may be made by the trial judge as a matter of discretion under the totality of the circumstances." Ibid.

We find no abuse of discretion in this case. Prior to trial, and after receipt of the State's discovery, defense counsel offered no evidence relating to McGee to support a claim that the procedures utilized by the Bloomfield police in connection with her photo identifications had been suggestive. Instead, counsel argued that the potential for suggestiveness could be inferred from the grand jury testimony of Ronisha Scales, another victim of defendant's conduct who, according to counsel, had testified that after she had been unable to identify defendant in photographs shown to her, his picture was identified by the police officer conducting the photo identification procedure. However, counsel did not offer Scales's grand jury testimony and did not establish that the photo identification procedures allegedly utilized with Scales were conducted by the same officer or officers who sought the identifications from McGee, or even whether the identifications occurred in the same station house. We thus find no abuse of discretion in the judge's determination not to conduct a Wade hearing.

Further, we conclude that if any error took place, that error did not prejudice defendant, since McGee testified at trial to the manner in which she made her identifications, and nothing in her testimony supported a claim that the procedures utilized were suggestive or that McGee's identifications were not reliable. State v. Romero, 191 N.J. 59, 76 (2007). A review of McGee's trial testimony confirms that she was given written photo display instructions, which she signed, and then shown photographs, one-by-one, and after each, was asked if she could identify the person portrayed. In describing the process, McGee testified: "He just said, is that the one . . . he let me pick, and that's what I did." An identification of defendant and the two women resulted.

III.

Defendant next argues that the trial judge abused her discretion in failing to grant a judgment of acquittal on the charge of kidnapping at the close of the State's case, and that she erred by overcharging the jury on kidnapping and including kidnapping as an element of robbery.

Defendant was charged with kidnapping under N.J.S.A. 2C:13-1b, which provides:

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with . . . the purpose[]:

 

(1) To facilitate commission of any crime or flight thereafter.

 

On appeal, defendant focuses on the element of asportation and argues that McGee was not removed a "substantial distance" when she was driven by defendant for approximately one-half of a block in his car. However, the trial judge did not base her ruling on that element, but rather, on whether McGee had been unlawfully confined for a "substantial period." In that connection, the judge held that whether McGee had been held for the requisite period was a factual issue for the jury to determine.

We find no error in the judge's analysis. As the Court recognized in State v. La France, 117 N.J. 583 (1990), determining whether a victim has been confined for a "substantial period" requires a "qualitative judgment" regarding the nature of the confinement. Id. at 593. "[O]ne is confined for a substantial period if that confinement 'is criminally significant in the sense of being more than merely incidental to the underlying crime,' and that determination is made with reference not only to the duration of the confinement, but also to the 'enhanced risk of harm resulting from the [confinement] and the isolation of the victim [or others]. That enhanced risk must not be trivial.'" Id. at 594 (quoting State v. Masino, 94 N.J. 436, 447 (1983)).

In the present case, McGee was forced to enter a car occupied by three persons reasonably considered by her to be criminals. She was confined by defendant's act of locking the doors, and in that manner, she was isolated from members of the public who might have come to her aid. Further, she was made to believe that defendant was armed and dangerous. McGee's fright, her concern regarding a potential weapon, and the fact that she was locked in a car with defendant and his two associates were all factors causing McGee to promptly relinquish the jewelry and cash that defendant demanded.

That defendant's conduct constituted a kidnapping was not accepted by the jury, which found instead that defendant had committed criminal restraint. Nonetheless, we find the evidence, when viewed in a light most favorable to the State, was sufficient to present a jury issue under the standards set by the Court in State v. Reyes, 50 N.J. 454, 458-59 (1967).

Having found sufficient evidence in the record for the jury to have convicted defendant of kidnapping, we reject defendant's argument that the judge engaged in overcharging when she instructed the jury on the elements of that crime and included the commission or threat of kidnapping in her robbery charge. While defendant is correct that the judge did not give an asportation charge, as we have noted previously, she determined in light of the evidence that a charge regarding confinement for a substantial period, only, was warranted. The omission thus did not constitute error.

IV.

At a pretrial suppression hearing in the matter, the judge held that the police's warrantless search of defendant's car after he had been arrested and the car had been towed violated the Fourth Amendment. For that reason, she admitted into evidence only those items that were in plain view of the police a crack pipe, a hypodermic needle, and defendant's distinctive fedora hat. On appeal, defendant argues that these items should have been suppressed as well, because Sergeant Krentz lacked the reasonable articulable suspicion that an offense had been committed that would have justified his stop of defendant's car. See State v. Amelio, 197 N.J. 207, 211 (2008) (stating standard), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).

The Supreme Court has stated:

We have noted that the "[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002) (citing State v. Citarella, 154 N.J. 272, 279 (1998)). The standard requires "'some minimal level of objective justification for making the stop'" State v. Nishina, 175 N.J. 502, 511 (2003) (citation omitted). "When determining if the [police] officer's actions were reasonable," the court must consider the reasonable inferences that the police officer is entitled to draw "'in light of his experience.'" State v. Arthur, 149 N.J. 1, 8 (1997) (citation omitted). "Neither 'inarticulate hunches' nor an arresting officer's subjective good faith can justify an infringement of a citizen's constitutionally guaranteed rights. Rather, the officer 'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Ibid. (alteration in original) (citations omitted). Moreover, the court should scrutinize the reasons for the particularized suspicion. State v. Davis, 104 N.J. 490, 505 (1986).

 

[Amelio, supra, 197 N.J. at 212.]

 

At the suppression hearing held in this matter, Sergeant Krentz testified that he was seated in a marked patrol car near the New Jersey Transit rail station in Bloomfield at 12:10 p.m. when he saw a brown Lincoln with out-of-state plates for which the police had been searching for approximately one month as the result of a flimflam occurring at 100 Llewellyn3 Avenue in Bloomfield. In connection with that incident, a video record existed that Krentz had viewed. The video provided "numerous" pictures of the suspect vehicle as well as of the woman tried with defendant for the same crimes against McGhee, Benette Cochran. In addition, a crossing guard had provided a description of the vehicle and its occupants, including the fact that the vehicle was a Lincoln Town Car with Illinois plates, occupied by a black male and two black females. The crossing guard gave the license plate as Illinois 7623882. As a result of this incident, a patrol alert had been issued by the police and was known to Krentz.

Krentz said that after he had seen defendant's vehicle and its occupants and noticed that it had Illinois plates, he pulled behind it and activated his lights, causing the vehicle to stop. Upon recognizing Cochran and determining that defendant's description matched that of the Lincoln's driver, Krentz arrested all three of the car's occupants.

We find Krentz's testimony sufficient to have established that his stop of defendant's car was based upon a reasonable suspicion that the car's occupants were involved in criminal activity. We recognize that the Illinois license plate of the car stopped by Krentz bore the numbers 7623882 rather than the 7623383 set forth on the patrol alert. However, we do not find that divergence to have been sufficient to have undercut the other strong evidence that Krentz had identified the correct vehicle. As a consequence, we reject defendant's Fourth Amendment challenge.

V.

As a final matter, defendant claims that his sentence is excessive. In sentencing, the trial judge invoked aggravating factors three (the risk of reoffense), four (the seriousness of the offense, which involved a breach of the public trust or misuse of a position of trust), six (the extent of defendant's prior criminal history), and nine (the need for deterrence). N.J.S.A. 2C:44-1a(3), (4), (6), and (9). We find factors three, six and nine to have been amply supported by defendant's lengthy criminal record, involving conduct in multiple states extending back to the late 1960s. The State has conceded the inapplicability of factor four in this case. We therefore remand the matter for resentencing, without expressing any view as to the appropriate length for defendant's sentence.

Defendant's convictions are affirmed; the case is remanded for resentencing.

1 Cochran was tried with defendant on the same charges. At some point, Reese failed to appear in court and, at the time of trial, was subject to a bench warrant.

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

3 The transcript states "Luellyn" Avenue, but there is no such street in Bloomfield.