STATE OF NEW JERSEY IN THE INTEREST OF S.R.A.

RECORD IMPOUNDED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6298-08T1

STATE OF NEW JERSEY

IN THE INTEREST OF

S.R.,

A Juvenile.

____________________________________________

Submitted May11, 2011 Decided June 10, 2011

 

Before Judges Fuentes and Newman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1904-09.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, on the brief).

 

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Juvenile, S.R., along with two co-juveniles, A.B. and A.S., were adjudicated delinquent for what would have been a second-degree robbery had the juveniles been adults. Only S.R.'s appeal is before us. We now affirm.

Testimony revealed the following scenario. Leaving his job as a welder at 4:30 p.m. on February 17, 2009, Luis Aguilar Sanchez went to Liberty Tax service in Neptune City. He only had $100 with him, which was not enough to retain the services of the income tax preparer. He then proceeded to return home to Asbury Park on his BMX bicycle. At approximately 7:00 p.m., as he rode his bicycle down Monroe Avenue, a group of six juvenile African-American males dressed in dark hoodies and jeans blocked his progress and virtually surrounded him. Money was demanded. Sanchez was knocked off his bicycle. The juveniles went through his pockets and took the $100 he had on him. One of the juveniles punched him on the right side of his face which left a bruise. His bicycle was taken.

Sanchez went to the Asbury Park police station and reported what happened. He described the juveniles by their clothing and their race. He thought he could identify them if he saw them again because he had seen their faces at close quarters, although the area was not well lighted. Police Officer Kamel Warraich drove Sanchez in a marked vehicle in the area of where the crime took place and other local streets. When the marked vehicle approached a group of juveniles, they dispersed and fled. Officer Warraich and Sanchez returned to the police station.

Shortly afterward, Detective Steven Ramseur, with Officer Warraich seated in the back seat, and Sanchez in the front passenger seat, drove the streets again in an unmarked vehicle. Near where the actual incident took place on Monroe Avenue, Sanchez saw three of the juveniles who had robbed him. Detective Ramseur asked Sanchez if he was sure and Sanchez responded that he was positive. Pulling the unmarked vehicle over, the detective and police officer got out of the vehicle, with Sanchez remaining behind. Sanchez left the vehicle and proceeded to walk to where the juveniles were standing. A.S. turned when he saw Sanchez, and said, "Poppy, poppy, your bike is up the street." Then S.R. turned and said that "all I did was take the bike and ride it up the street." The third juvenile, A.B., said nothing. Following those blurtedstatements, Detective Ramseur told Sanchez to "get back in the car."

A.S. proceeded to tell the officer where the bicycle was located in a yard down the street. Once more, according to Detective Ramseur, S.R. repeated that "all he did was take the bike and ride it up the street." Detective Ramseur recovered the bicycle, which was later identified by Sanchez as his.

The trial court combined the trial testimony with its Rule 104 hearing with the consent of all parties. The trial court then heard argument on the Wade and Miranda motions, respectively. The trial court applied the first prong under Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), which our Supreme Court confirmed its adoption of in State v. Herrera, 187 N.J. 493, 503-04 (2006). That is, whether the identification procedure was impermissibly suggestive. The trial court recognized that Sanchez was unable to make an in-court identification of S.R., although he identified the co-juveniles in court. However, Sanchez did identify S.R. out-of-court. The trial court found that there was nothing suggestive about the out-of-court identification when Sanchez spotted three of the six individuals who had robbed him. He had recognized A.S. and A.B. from having seen them around previously. During the second drive around, they had passed a number of juveniles without any identification. However, when they proceeded to the intersection of Prospect and Monroe Avenue, Sanchez pointed out, without any suggestion by the officers, three of the juveniles who had robbed him. The trial court concluded that there was no basis for an impermissible suggestive identification because there was no suggestion or prompting by the officers at any time during the drive-around.

The trial court went on to also consider the second prong under Manson, supra, requiring a finding that the identificationwas reliable, see Herrera, supra, 187 N.J. at 503-04, if a reviewing court were to disagree with his finding that the first prong of impermissible suggestion had not been met. The court acknowledged that while the description was general, Sanchez, nonetheless, could identify their faces because there was sufficient lighting and he saw them at close range. Sanchez demonstrated certainty at the time of the confrontation and responded to Detective Ramseur that he was a hundred percent sure when asked before they exited the vehicle. The identification was made between forty minutes to an hour after the robbery took place. The court was convinced that the second prong was satisfied, although the first prong had not even been met on the juvenile's challenge to the out-of-court identification.

The trial court pointed out that Sanchez was not asked to leave the car when the officers went to confront the juveniles. However, what A.S. blurted out and what S.R. said at the time were not statements that were barred by the Miranda decision. The trial court found that the comments made were spontaneous, "without any question." Even if A.S. and S.R. were in custody, A.S.'s indication of knowledge of where the bicycle was and S.R.'s admission that all he did was take the bicycle and drove it up the street were not the result of any police interrogation. Even if both A.S. and S.R. were detained, the court determined that there was "no need at that point in time to provide them their Miranda rights because they weren't being questioned."

The court also rejected the notion that Sanchez was an agent of the police. The trial court determined that Sanchez's actions were spontaneous and were not directed by any discussion or suggestions by the officers. The trial court denied the motion and concluded what A.S. and S.R. had said concerning the location of the bicycle and S.R.'s admission that he had driven the bicycle up the street were admissible.

The trial court, as a finder of fact, made the following decision in relevant part in adjudicating S.R. guilty of second-degree robbery by way of accomplice liability.

The totality of the circumstances of the victim's ability to see and recollect some of the group of six, and he had no doubt whatsoever with regard to [A.S.], he had no doubt whatsoever with regard to [A.B.], and with the confirmation of the presence of [S.R.], which substantiates him being there and the [victim] being a little reluctant because he didn't say that he actually got a good look at [S.R.]'s face. But he thought he was there, supplies the necessary proof beyond a reasonable doubt of the identity of three of the six who were there.

 

Now, with regard to [S.R.], I'm not relying just merely on the fact that he was present. Because the admission was more than that. The admission was, he's the one who took the bike and rode it away. Which occurred after the actions of the group surrounding the victim, demanding money, pushing him off, somebody pushing him off the bike, and the others continuing to aid and abet and be involved in . . . $100 being stolen from him, and his bike eventually being stolen from him.

On appeal, S.R. raises the following argument for our consideration:

POINT I

 

THE COURT ERRED IN ADJUDICATING JUVENILE DELINQUENT BECAUSE THE STATE'S PROOFS WERE INSUFFICIENT TO PROVE HIS IDENTIFICATION BEYOND A REASONABLE DOUBT.

 

Juvenile argues that the victim's out-of-court identification should have been suppressed because the law enforcement personnel failed to make a written record of the words exchanged between the identifying witness and the police. Defendant contends that State v. Delgado, 188 N.J. 48, 63 (2006), required that such a record be made and preserved like a "picture of a live lineup or a photographic array." We disagree because this was not an identification procedure conducted by the police.

Initially, we note that a trial court's "findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight'" and should not be disturbed where there is "sufficient credible evidence" to support the findings. State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Here, the out-of-court identification was not a traditional show-up where a suspect fitting the victim's description is in custody when the victim is asked to make an identification. Rather, the identification originated from Sanchez's spontaneous observation of individuals who participated in the robbery and pointed them out during the second drive-around.

The facts here are even more compelling than those considered by our Supreme Court in State v. Romero, 191 N.J. 59 (2007). There, the victim had been attacked at night by two individuals, and was able to see the face of one of his attackers before they fled. Id. at 63-64. Several days later, the victim saw the defendant walking past his house, and immediately telephoned the police. Id. at 64. When the police responded, the victim furnished a description of the clothing the defendant was wearing. Id. at 64-65. The victim and the police canvassed the neighborhood in a police vehicle looking for the man described by the victim. Ibid. Unable to locate the defendant, the officers drove the victim to his house. Id. at 65. Five minutes later, the police saw the defendant, who matched the description that the victim had just provided, and arrested him. Id. at 77.

Approximately ten minutes later, the police returned to the victim's house with the defendant. They told him that someone fitting the description he had earlier given them was in the backseat of the patrol vehicle. Id. at 65, 77-78. The victim immediately recognized the defendant as the person who had attacked him. Id. at 65, 78. When the officers asked if he was sure that the defendant was the person who had attacked him, the victim answered in the affirmative. Id. at 65.

Because the identification procedure had "originated from the victim's own observation of someone he believed was his assailant," our Supreme Court upheld the identification as not impermissibly suggestive. Id. at 78. Important to this appeal, the Court also commented that had the victim and the police officers observed the "defendant walking down the street when they were canvassing the neighborhood together, that would not have constituted an impermissibly suggestive show[-]up." Ibid. The Court further considered the identification "sufficiently reliable under the totality of the circumstances." Id. at 79. The victim had "ample opportunity" to view his assailants, observed him only a few days after the incident, and identified the defendant "without police intervention." Ibid.

By contrast, Sanchez saw three of the individuals who robbed him, pointed them out, assured Detective Ramseur that he was positive when asked and before the police pulled the car to a stop and then confronted the juveniles. Unlike Romero, the police did not pick up a suspect matching the victim's description and then show him to the victim. Sanchez was not asked to view a suspect. Sanchez told the police that these were three of the group of six who robbed him. This was not a show-up, but rather a showdown initiated by Sanchez.

T

his out-of-court identification was made less than an hour after the robbery took place. Sanchez was able to see all six of the juveniles who had attacked and robbed him. After A.S. had blurted out that the bicycle was up the street, S.R. admitted that all he did was take the bicycle up the street. S.R.'s admission of participation in the robbery reinforced Sanchez's out-of-court identification of S.R. S.R. was an accomplice to the other five individuals in the commission of the robbery. Accordingly, we find there is sufficient credible evidence to support the trial court's findings. See Adams, supra, 194 N.J. at 203. There is nothing impermissibly suggestive in this out-of-court identification. The identification itself was reliable under the circumstances. Judge Eugene Iadanza properly adjudicated S.R. a delinquent on this second-degree robbery charge.

Affirmed.