STATE OF NEW JERSEY v. RAMIL ROBINSON

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMIL ROBINSON,

Defendant-Appellant.

________________________________________________

February 13, 2015

 

Submitted January 26, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-06-1143.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen J. Natoli, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

After a bench trial, defendant Ramil Robinson was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Defendant appeals his conviction and sentence. We affirm.

I.

On February 17, 2012, at around 2:30 a.m., Andrew Gomez was walking home from a convenience store. Gomez, a professional wrestler, was listening to music on his MP3 player when an assailant jumped on top of him and punched him repeatedly. During the scuffle, Gomez dropped the MP3 player on the ground. At one point, Gomez repositioned himself about three feet away from the assailant, whom he described as a black male, about six feet tall, with long hair, a beard, and missing teeth. Gomez also noted that the assailant was wearing a brown jacket. He testified that the area was illuminated by street lights.

The assailant demanded money from Gomez. In response, Gomez stated that he did not have any money. The assailant then threw down his jacket, challenging Gomez to a fight. Noticing Gomez's MP3 player on the ground, the assailant picked it up and placed it in his pocket. Carrying his jacket, the assailant ran away.

When Gomez returned home, he called the police and described the assailant and his MP3 player, which was black and silver with white headphones. Gomez's brother and the police began searching for the assailant. Gomez's brother was the first to find the assailant, and he subsequently contacted the police.

Officers noticed that the suspect matched the description given by Gomez and was using a black and silver MP3 player with white headphones. Gomez was asked to come to police headquarters so that he could identify the suspect, who was alone in a holding cell. Gomez's brother accompanied him to the police station. Once at the station, Gomez identified defendant as his assailant. Gomez also identified the MP3 player as his own. The identifications took place approximately thirty minutes after the attack.

Although defendant did not request a Wade hearing,1 the trial court found it prudent to examine the standards for identification because the case "hinges upon an eyewitness identification made by a victim." The trial court recognized that single-suspect show-up identifications are inherently suggestive. Nevertheless, in applying the framework outlined in State v. Henderson, 208 N.J. 208, 288-93 (2011), the trial court found that the identification was reliable

Testimony indicated that Gomez was told by police, the defendant may or may not [have] been the person that robbed him which weighs in favor of the State because it partially mitigates the inherent suggestiveness of the show-up.

. . . .

Here, Mr. Gomez testified he was able to view his assailant face to face for about a minute. A full minute is significantly longer than a fleeting glimpse and sufficient here to weigh in favor of the identification's reliability.

. . . .

Further, supporting the identification's reliability is Gomez's testimony that the area . . . was well lit and the distance between he and his assailant was just a few feet when they were face to face.

. . . .

[A] witness' age bears on the reliability of an identification. There's an own-age bias meaning that witnesses are better at recognizing people of their own age than people of other ages. It's a minor fact but one [that] nonetheless weighs in favor of the identification's reliability because the defendant and Gomez appear to be somewhat similar in age.

. . . .

Here, about [thirty] minutes elapsed between the crime and the identification. This supports the reliability of the identification.

The trial court did note, however, that there was a cross-racial identification in this case, which weighs against the identification's reliability. Considering these factors, the trial court found "the overall reliability of the identification made by Gomez to be high."

In finding defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1, the trial court explained

It would stretch credibility to accept this coincidence that there was another six foot tall, black male with a beard, missing teeth, wearing a brown jacket, dark sweater and dark jeans in the vicinity that attacked Gomez and the defendant [happened] to be walking in the same direction that the assailant had fled while carrying an identical MP3 player.

The trial court also found that the State proved, beyond a reasonable doubt, that the MP3 player in evidence belonged to Gomez.

In convicting defendant of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), the trial court explained

There was sufficient testimony to conclude beyond a reasonable doubt that [Gomez's] assailant inflicted significant bodily injury. The assailant attacked Gomez from behind, jumped on his back, struck him in the head repeatedly with sufficient force to cause significant cuts and bruising to his face and force him to his knees.

At sentencing, the State moved for a discretionary extended-term sentence pursuant to N.J.S.A. 2C:44-3(a). Defendant's criminal history contains seven indictable convictions, including a conviction for unlawful possession of a machine gun, N.J.S.A. 2C:39-5(a), and a conviction for terroristic threats, N.J.S.A. 2C:12-3(b). The trial court found that it was appropriate to grant the State's application for an extended-term sentence under the totality of the circumstances.

In determining the length of the sentence, the trial court found aggravating factors three, the risk of re-offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's criminal record, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). The trial court did not find any mitigating factors.

After finding that the aggravating factors outweighed the non-existent mitigating factors, the trial court sentenced defendant to fourteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The trial court also imposed a three-year period of parole supervision following defendant's release under NERA.

On appeal, defendant raises four points

point i

the judge below erred in finding that defendant was properly identified, warranting reversal.

point ii

the judge below erred in finding that an extended term sentence was appropriate, warranting reversal.

point iii

the judge below erred in finding that defendant was guilty of aggravated assault, warranting reversal.

point iv

the sentence is excessive.

II.

Appellate review affords great deference to the factual findings of the trial court, which are upheld if those findings were based on sufficient credible evidence in the record. State v. Campfield, 213 N.J. 218, 229-30 (2013). Appellate review is plenary, however, with respect to determinations of law. Id. at 230.

A.

Defendant's first argument is that the trial court erred in finding that the show-up identification was reliable. Specifically, defendant contends that the trial court failed to account for the effect third-party non-State actors have on the reliability of eyewitness identifications.

In Henderson, supra, 208 N.J. at 217, the Court explained that advances in scientific research question the legal framework used in assessing the reliability of eyewitness identifications. The Court accordingly modified the framework used in analyzing eyewitness identification evidence to account for those advances. Id. at 288-93.

"First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification." Id. at 288. If a defendant satisfies this initial burden, then the State must "offer proof to show that the proffered eyewitness identification is reliable." Id. at 289.

Some system variables used to determine whether there is evidence of suggestiveness include: (1) whether the witness received any feedback during the identification procedure; (2) whether a show-up was performed more than two hours after the event; (3) whether the police warned the witness that the suspect in the show-up may not be the perpetrator; and (4) whether law enforcement determined that the witness spoke with a third-party private actor about the identification. Id. at 290.

If there is proof of suggestiveness, then a court should consider the above system variables as well as a non-exhaustive list of estimator variables, including (1) the duration of the event witnessed, (2) the distance between the perpetrator and the witness, (3) how much time elapsed between the event and the identification, and (4) whether the case involves a cross-racial identification. Id. at 291-92.

The trial court properly acknowledged the inherent suggestiveness of the one-on-one show-up, so the only issue here is whether the trial court properly examined the reliability of the identification under the second prong of Henderson.

The trial court recognized that the police never told Gomez that the person in the holding cell was his assailant. Gomez testified that the police presented him with his MP3 player, which was acquired from the suspect, after he identified defendant as his assailant. The trial court also noted that Gomez was able to view his assailant for approximately one minute in well-lit conditions. Moreover, only thirty minutes elapsed from the incident to the identification, further bolstering the reliability of the identification.

Although the trial court did not examine whether Gomez discussed the identification with his brother, a third-party private actor, no single variable of the Henderson framework is dispositive. See Henderson, supra, 208 N.J. at 292 (explaining that the factors are not exclusive and are not designed to "hamstring" police departments or limit a trial court's review of generally accepted scientific research).

We are satisfied that the trial court appropriately applied the Henderson framework in determining that the identification was reliable under the totality of the circumstances. In addition, the strong corroborative evidence linking defendant to the assault mitigates any danger posed by eyewitness identifications. See State v. Salaam, 225 N.J. Super. 66, 70 (App. Div.) (explaining that compelling circumstantial evidence was highly corroborative of the witness's account, reducing the chance that the defendant's conviction was due to a mistaken identification), certif. denied, 111 N.J. 609 (1988).

B.

Defendant next argues that the trial court erred in imposing an extended-term sentence. We disagree.

Extended-term sentences are permissible if "[t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender." N.J.S.A. 2C:44-3(a). The statute defines a persistent offender as

a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[Ibid.]

If a defendant qualifies as a persistent offender, then we will not overturn an extended-term sentence unless the trial court abused its discretion. State v. Bauman, 298 N.J. Super. 176, 211 (App. Div.), certif. denied, 150 N.J. 25 (1997).

Defendant's criminal history contains several convictions for crimes he committed at different times as an adult. The latest in time of these crimes occurred in December 2009, well within the ten-year requirement under the statute. Therefore, defendant meets the definition of a persistent offender.

Defendant, age thirty-one at the time of the crime, was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Because he is also a persistent offender, it was not error to impose an extended-term sentence.

C.

Defendant's third argument on appeal is that the trial court erred in convicting him of third-degree aggravated assault because there was no evidence of significant bodily injury.

A person is guilty of third-degree aggravated assault if he or she "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury[.]" N.J.S.A. 2C:12-1(b)(7). "Significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d).

Gomez testified that defendant jumped on top of him and repeatedly hit him, causing Gomez to fall to his knees. Gomez explained that blood was coming down his face and that he was in shock during the attack. Gomez sustained cuts and bruises on his face, hands, and knees.

At the very least, the record demonstrates that defendant attempted to cause significant bodily injury by repeatedly hitting Gomez and stunning him. It is irrelevant that Gomez refused medical treatment because the focus of the inquiry is on "the nature and extent of the injury rather than on the effectiveness of medical treatment . . . ." State v. Turner, 246 N.J. Super. 22, 27-28 (App. Div.), certif. denied, 126 N.J. 335 (1991). Therefore, we find no basis to disturb the trial court's finding of guilt on the third-degree aggravated assault charge.

D.

Defendant's final argument is that his sentence is excessive. Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). "In determining the appropriate sentence to impose within the range, judges first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The trial court's assessment of the aggravating and mitigating factors must be based on sufficient credible evidence in the record. Ibid.

The trial court explained that defendant's seven indictable convictions "illustrates a pattern of criminal behavior" resulting in a substantial risk that defendant will commit another offense. Defendant's presentence report supports the trial court's finding that aggravating factor three, the risk of re-offense, was appropriate.

In determining defendant's sentence, the trial court attached a "minimal amount of weight" to aggravating factor six, the extent of defendant's criminal record. The trial court noted that defendant has "a significant and serious prior criminal history that involved assault behavior, theft, drug charges, [and] possession of a .25 caliber semi-automatic pistol."

With respect to aggravating factor nine, the need to deter, the trial court found that there is "an absolute need to deter [defendant] and others from further involvement in the criminal justice system." The trial court explained that the severity of the crime against Gomez created a need to protect society and deter defendant from future criminal acts.

We are satisfied that the trial court qualitatively assessed the relevant aggravating and mitigating factors in determining defendant's sentence. Defendant's sentence is not excessive.

Affirmed.

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