Opinion
DOCKET NO. A-4562-11T4
06-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY WILLIAMS, a/k/a GREG WILLIAMS, KAREEM WILLIAMS, GREGORY WILLIIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-01023. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
In a seven-count indictment, defendant Gregory Williams was charged with first-degree robbery, N.J.S.A. 2C:15-1 (counts one and five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts two and six); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts three and seven); and second-degree robbery, N.J.S.A. 2C:15-1 (count four). The indictment alleged that, over an eight-day period in August 2008, Williams committed a series of three robberies. In 2009, the court severed the indictment by victim into three groups, as follows: (1) Irma Basqsuez and Lucia Hercules (counts one, two, and three); (2) Damien Johnson (count four); and (3) Maurio Ruiz-Garrido (Ruiz) (counts five, six, and seven).
The victim is referred to in the record as both Ruiz and Ruiz-Garrido. We refer to him in this opinion as Ruiz to distinguish him from his cousin, Patty Garrido, who testified at a pre-trial hearing.
Wade hearings on counts one through three were conducted by Judge Robert J. Mega on various dates between November 2009 and September 2010. Defendant was then tried on and acquitted of those counts, which are not the subject of this appeal.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Judge William A. Daniel conducted Wade and N.J.R.E. 404(b) hearings on counts five through seven on November 9, 15, 16, 17, and 29, 2011. In addition to being the victim of the August 19, 2008 robbery charged in count four, by happenstance Johnson had also witnessed the August 26 robbery of Ruiz charged in counts five through seven. The court found the identifications of defendant made by Ruiz and Johnson admissible. However, the court did not permit Johnson to testify about anything that occurred during his August 19 robbery at the trial of the Ruiz robbery.
Following a December 2011 jury trial, defendant was convicted on counts five through seven. At sentencing on March 8, 2012, Judge Daniel identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging count six into count five, the court imposed an extended term forty-two-year prison sentence, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count five. Defendant received a concurrent eighteen-month prison term on count seven.
On March 12, 2012, defendant pled guilty to count four, charging him with second-degree robbery arising from his theft of Johnson's bicycle. On March 16, the court imposed a concurrent seven-year prison term with an eighty-five percent parole disqualifier pursuant to NERA.
Defendant (through counsel) raises three points on appeal:
POINT I
BY PRECLUDING DEFENDANT FROM CROSS-EXAMINING RUIZ[] ON HIS POTENTIAL BIAS DUE TO THE U-VISA PROGRAM, THE JUDGE COMMITTED REVERSIBLE ERROR. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, ¶ 10.
POINT II
THE USE OF AN UNQUALIFIED SPANISH INTERPRETER AND THE INCLUSION OF ONLY TWO OTHER BALD MEN IN THE ARRAY VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM SUGGESTIVE POLICE IDENTIFICATION PROCEDURES THAT CREATE A VERY SUBSTANTIAL LIK[ELI]HOOD OF IRREPARABLE MISIDENTIFICATION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1.
POINT III
DEFENDANT'S SENTENCE WAS EXCESSIVE. U.S. CONST. AMEND VIII, XIV; N.J. CONST. ART. I, ¶¶ 1, 12.
Defendant raises eight additional points in his supplemental pro se brief, of which only the first two were raised at trial:
POINT I
DEFENDANT[']S [RIGHTS TO] DUE PROCESS [] AND EQUAL PROTECTION OF THE LAWS W[]ERE VIOLATED WHEN THE TRIAL COURT DID NOT SUA SPONTE BAR[:] (A) MAURO RUIZ[,] SINCE NO SEQ[U]ESTRATION HEARING UNDER N.J.R.E. 615 WAS HELD CAUSING CREDIBILITY ISSUES THAT REQUIRED A MISTRIAL BE GRANTED; AND (B)
DAMIAN JOHNSON'S IDENTIFICATIONS[, SINCE] BOTH WERE IMPERMISSIBLY SUG[G]ESTIVE, [DEFENDANT] DID NOT COMMIT THE CRIME, [DEFENDANT] IS HELD FALSELY IMPRISONED, [AND] MISIDENTIFICATION[S] EXIST. (Partially Raised Below.)
POINT II
DEFENDANT'S [RIGHTS TO] DUE PROCESS [] AND EQUAL PROTECTION OF THE LAW[S] W[]ERE VIOLATED WHEN THE TRIAL COURT [FAILED TO] HOLD[] A N.J.R.E. 404(B) HEARING, EXPOSED DEFENDANT TO A PREJUDICIAL JOINDER OF OFFEN[S]ES THAT W[]ERE SEVERED AT [THE] PRE-TRIAL STAGE[,] AND [] REQUIRED SEPARATE TRIALS, [] ALLOW[ING] THE "SUG[G]ESTIVE" TESTIMONY OF DAMIAN JOHNSON'S IDENTIFICATION [] TO [RESULT IN] MULTIPLE PUNISHMENT. (Partially Raised Below.)
POINT III
DEFENDANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION [OF] THE LAWS WHEN THE TRIAL COURT . . . BARRED THE DEFEN[S]E [FROM] EXERCIS[ING] FULL CONFRONTATION RIGHTS DURING TRIAL, [WHICH] PREJUDICED [DEFENDANT] DUE TO BIAS, [AND] CAUSING [A] FAULTY AND IMPROPER JURY CHARGE [AS] TO IN-COURT AND OUT-OF-COURT IDENTIFICATION[S] OF DEFENDANT. (Not Raised Below.)
POINT IV
DEFENDANT WAS DENIED DUE PROCESS AT [] TRIAL [WHEN DEFENDANT WAS] OVERCHARG[ED] ON A LESSER INCLUDED OFFENSE. (Not Raised Below.)
POINT V
DEFENDANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW[S WHEN] THE SENTENCING COURT [] FAIL[ED] TO MERGE COUNT [SEVEN],
AND [PRONOUNCED] AN EX[C]ESSIVE SENTENCE. (Not Raised Below.)Having thoroughly reviewed the record, we find no merit in any of these contentions and we affirm defendant's conviction and sentence.
POINT VI
DEFENDANT'S CONSTITUTIONAL RIGHTS W[]ERE VIOLATED [WHEN DEFENDANT'S] INDICTMENT [WAS] RETURNED BY THE UNION COUNTY PROSECUTOR [RATHER THAN] BY THE GRAND JURY, [AND WHEN] THE TRIAL COURT PURSUED A CONVICTION ON [THE] "PRESUMPTIVE" OFFEN[S]ES IN THE PURVIEW OF N.J.R.E. 303(A) THAT CLEARLY W[]ERE "CONTRARY" TO ANY VIOLATION OF LAW. (Not Raised Below.)
POINT VII
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS, COMBINED WITH TRIAL COUNSEL'S OMISSI[]ONS, DURESS, AND PREJUDICE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below.)
POINT VIII
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. (Not Raised Below.)
I.
The facts involving count four are undisputed. On August 19, 2008, defendant approached Johnson, used force to take his bicycle, and then rode away, intending to keep the bike.
One week later, at approximately 10:00 p.m. on August 26, 2008, the Ruiz robbery occurred. The facts surrounding that incident, which form the basis of counts five through seven, are relatively straightforward and are aptly summarized in Judge Daniel's findings at the Wade hearing:
[] Ruiz was standing at the corner of Clinton Avenue and West Front Street in the City of Plainfield, New Jersey, waiting for a traffic light to change, when a person then unknown to him shouted something to him from behind. I think the word was "Yo." And [Ruiz] turned around and he was hit by this person on the side of his head.
He testified that he was then grabbed by this person and the person demanded money, and the person also had a knife on him. He grabbed [] Ruiz by his shirt, by the collars, and at one point took out a silver knife and put it against his stomach, demanded money. A struggle ensued, and [] Ruiz testified that he was able to somehow get free of . . . defendant.
The shirt that was being grabbed by [] defendant came off of [] Ruiz's body and he was able to get free of him and get away.
He testified that at the time this occurred, . . . he was approximately one-and-a-half feet from [defendant] when they . . . had this struggle, this encounter, and that he was looking at [defendant's] face and he didn't have anything on, such as a hat or a hoodie or anything like that, that would cover any portion of his face. He said he could see his face clearly. He said he was not under the influence of any drugs or he had not been drinking at all that evening.
He described the man later on . . . to the police as a tall black man with facial hair, a bit taller than him, [] Ruiz, and he also noticed that he had a bald head.
[] Ruiz went on to testify how someone came to his . . . aid and, ultimately, the police arrived at the scene. . . . He said the lighting conditions were — while it was dark out, there was a street light that lit up the area.
The following day, Ruiz selected defendant's photograph from a six-photo array at Plainfield police headquarters. Ruiz viewed the photographs one at a time. He told the administering officer that he was 100% certain of his identification. No one said or did anything suggestive during the identification process, nor did the officer congratulate him or say anything to him about the person he had selected.
Ruiz's cousin, Patty Garrido, translated for him during the photo-array identification procedure. At the Wade hearing she testified that she translated the instructions for Ruiz as the administering officer read them. Garrido testified that she translated accurately and honestly, and that Ruiz understood the instructions, which Ruiz also confirmed. Garrido, whose first language is Spanish, began high school in the United States in September 2006, and was eighteen years old when the photo array was conducted. She had worked in a sandwich shop, where she translated for her Spanish-speaking co-workers. Garrido testified that Ruiz selected and signed photograph number four because it depicted the man who robbed him, that no suggestive comments or movements were made while the array was conducted, and that Ruiz selected the photo on his own with no help or assistance.
Presented with "inconsistent testimony as to whether . . . Ruiz was told or perhaps not told that [] defendant's picture may not be amongst" those in the array, the trial court granted a full Wade hearing. After considering the police testimony, including that of Detective Michael Lucky, who administered the photo array, the court concluded that "Ruiz was told that the person who committed the crime may or may not be in the group, and the mere display of the photographs is not meant to suggest that the police believe the person who committed the crime is in the photographs."
Leslie Hudson was the lead detective on the case who had collected the photos and prepared the array. Hudson testified at the Wade hearing that "Detective Lucky had nothing to do with the investigation and didn't know whether [defendant's] photo was in [the] array." Lucky similarly testified that he was not aware of whether defendant's photo was in the array.
Judge Daniel found that the five filler photographs used in the array were "similar . . . for the most part" to defendant's photograph. Though only three of the six photographs depicted bald men, the judge concluded: "There's nothing unduly suggestive about the photos in and of themselves that were included in this array."
Judge Daniel found Ruiz's identification "sufficiently reliable to be admissible into evidence." The judge noted that "the framework for identification reliability is still that set forth in the Manson two-step test." The judge was also mindful of State v. Henderson, 208 N.J. 208 (2011), which had recently been decided but was not yet in effect. The judge recognized that the system variables and estimator variables identified in Henderson were "more extensive than the five factors referred to in [Neil] v. Biggers."
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
"For purposes of determining reliability in this case," Judge Daniel "focused on the [Neil] v. Biggers factors, as well as the estimator and system variables set forth in [] Henderson." The judge concluded:
[T]he [S]tate must offer proof to show the proffered eyewitness identification is reliable, taking into account system and estimator variables. The court did that, and the court concludes the ID is reliable.
. . . When we look at the estimator variables, [Ruiz] testified that he was under stress when he was being accosted by [defendant] on the night in question. He
also mentioned that he was afraid. He mentioned that [] defendant did have a knife and he actually saw the knife. He said it was a small knife, it was a silver knife.
However, under the circumstances, I still find that this witness had the opportunity to look at this defendant face to face for a considerable period of time, out on the street that night, on the night in question, in a well-lit area. There was nothing blocking his view as he looked at this man, face to face, one-and-a-half feet away from him.
The description that he gave of the defendant . . . turns out to be similar to the defendant's characteristics exhibited in the photograph that he was shown.
The witness's level of certainty certainly exists. Within . . . an approximate [twenty-four]-hour period, he was viewing the photographs and he indicated to the officer that he was . . . 100 percent certain that that was the person who he had the encounter with on the street that night.
There's nothing . . . in the record to indicate that this witness suffered from certain characteristics that would impede his ability to accurately perceive the defendant. There was nothing affecting his mental faculties, his visual capabilities. There's no evidence . . . of any memory decay between the . . . time of the incident and the viewing of the photographs.
The court recognizes the victim in this case is Spanish. The defendant is black. However, there is nothing that is presented in the record to indicate this cross-racial factor affected the reliability of the identification.
I look at the system variables, as well. This was a blind administration test. The person who showed the photos to . . . Ruiz, namely Detective Lucky, was not aware of whether [defendant's] photo was in the array. In fact, it's called a double blind.
Also, looking at other system variables, the pre-identification instructions appear . . . to have been adhered to. The line-up construction guidelines were adhered to. There's nothing in the record to indicate that there [were] . . . any impermissible suggestions made by the police, in this case Detective Lucky. The witness viewed the photographs one at a time.
The court notes that the accuracy of this identification, the ultimate admissibility of the identification should be determined based upon the totality of the circumstances.
There's nothing in the record . . . established by the defense to lead this court to conclude that there were impermissibly suggestive procedures employed by the police on this case or anyone else resulting in a very substantial likelihood of irreparable mis[-]identification.
The court recognizes it has a responsibility to ensure that evidence admitted at trial is sufficiently reliable to be of use to the jurors. The court finds the evidence in this case is sufficiently reliable to be submitted to the jury.
The court also found that in conducting the photo array the State adhered to the Attorney General Guidelines. Although "the identification procedure was not recorded verbatim, [] it did meet the requirements of State v. Delgado. There was a written record detailing the identification procedure employed, including the results thereof, the previewing instructions[,] and the results of the identification." Additionally, Judge Daniel found that Garrido "established to [the] court's satisfaction that she did interpret what was said accurately. There's nothing in the record to indicate otherwise."
Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures.
188 N.J. 48 (2006).
On September 11, 2008, Johnson also picked defendant's photo from a six-photo array. The lead detective, Hudson, selected the array photos, while Detective Edwin Maldonado administered the array. Maldonado had not been involved in the investigation, and was unaware that defendant was a suspect in the robbery or that his photo was included in the array. Johnson's identification of defendant was video-recorded.
Johnson, Hudson, and Maldonado testified at the Wade hearing. According to Johnson, on August 26, 2008, he came across two men who were fighting. Johnson observed that the larger black male was wielding a knife. Although it was dark, a bright street light illuminated the men. Johnson got a "good look" at the black male's face, and recognized him as the person who robbed him a week earlier. Johnson had also seen the suspect in the neighborhood before that prior altercation, and stated that "he was always around the area." Johnson was "sure" that defendant was Ruiz's attacker.
At the conclusion of the hearing Judge Daniel made findings as to each Henderson system variable. He concluded that Johnson's photo-array was administered in a "double[-]blind fashion" since Maldonado "did[ not] know if the suspect was in the array or who the suspect was in the array." The judge found that Maldonado complied with the Attorney General guidelines when reading the pre-identification instructions to Johnson, including instructions that the offending person "may not necessarily be in the array" and that Johnson "did not have to select any photo." Judge Daniel determined that the photo array shown to Johnson was "fair" in that it "included five fillers of men who pretty much looked like the suspect."
Judge Daniel recognized that Maldonado did provide some feedback to Johnson during the photo array, and that the testimony during the hearing was inconsistent, but concluded that this feedback was inconsequential:
I'm mindful of the fact that the witness viewed the six photos; looked at the first [three photos, and] shook his head in the negative [after each]. When he got to the fourth photo — and the photos were shown in a sequential fashion, not all simultaneously — it appears as though he moved in a little closer; he paused; he said, "Um," and then Detective Maldonado said, "Good." And the witness said, "Uh-huh, that's good, uh-huh," and then he moved on to the next photo, and the witness shook his head in the negative. And then the sixth photo, the witness shook his head in the negative. And then the detective appeared to ask him what number photo, and he said, "Four."
The word "good" — I viewed the DVD. I saw what occurred. The word "good," it's debatable whether that was made in a statement or in interrogatory form. It's subject to argument. [D]efendant argues this comment violated the Attorney General guidelines, and when taken together with another statement made by a Plainfield police officer to Mr. Johnson that this man, this suspect was involved in a previous robbery of a restaurant and he needed to be taken off the street and they needed his help, all amount to impermissible suggestiveness warranting the denial of the admission of this identification into evidence.
[The prosecutor] argued the word "good," when used by the officer only meant, are you done now, can we proceed on to the next photo. In fact, Detective Maldonado testified he said "good" to see if Mr. Johnson was ready to proceed on to photo number five.
. . . [The prosecutor] also argued that the statement by the Plainfield police officer was given to Johnson after Johnson
made the photo ID. In other words, Detective Hudson testified he was the Plainfield police officer who might have said something to Johnson about the suspect currently being involved in another robbery or being investigated about another robbery while taking Mr. Johnson back to work from the Plainfield Police Department after the viewing occurred.
. . . .
. . . [A]ny identification utilized by the Plainfield Police, such as Detective Maldonado saying "good" or a Plainfield police officer in this case, Detective Hudson, indicating that the defendant robbed a restaurant, that statement being said after the photo array was viewed by Mr. Johnson, did not result in a substantial likelihood of irreparable misidentification.
Judge Daniel then entered findings as to each Henderson estimator variable. He found that Johnson was not under stress when he observed defendant; that Johnson observed defendant "trying to slice" Ruiz with a knife; that the two men locked eyes for six seconds and were "a relatively short distance" apart; that the event occurred under "a bright streetlight;" that Johnson was not under the influence of drugs or alcohol; that Johnson's age was not a factor; that defendant was not disguised during the event; that "defendant's facial features were [not] altered between the time of the event and the identification procedures;" that there was no indication Johnson's memory of the event decayed prior to the photo array; that cross-race bias was not applicable; that Johnson had ample opportunity to view defendant at the time of the event; that there were no obstructions to Johnson's attention; and that Johnson was "100 percent" certain of his photo-array identification.
Ultimately, Judge Daniel allowed Johnson's out-of-court identification into evidence, limiting it "solely [to] his observations on the night in question." The judge found that, "under the totality of the circumstances, . . . the proffered eyewitness identification made by [] Johnson of [defendant] is sufficiently reliable so as to be admissible in evidence." The judge once again considered "the totality of the circumstances and the Manson[/]Madison factors, together with the Henderson factors, [and concluded that] the identification made by Mr. Johnson is sufficiently reliable and may be admitted into evidence." The court found
State v. Madison, 109 N.J. 223 (1988).
that [Johnson's] identification was made based on the observations he made of [defendant] at the time of the August 26, 2008 incident, and nothing in the record suggests that the identification he made during the photo array resulted from the words or conduct of a law enforcement officer.
On December 7, 2011, Judge Daniel conducted an N.J.R.E. 104(a) hearing on defendant's allegation that Ruiz positively identified him with the hope of receiving favorable treatment from the State, specifically placement in the U-Visa program. Ruiz denied that he was offered any form of favorable treatment in exchange for his testimony, including the possibility of entry into the U-Visa program. The court, employing an N.J.R.E. 403 analysis, determined that Ruiz's immigration status was irrelevant, and that its "limited probative value . . . is far outweighed by [the] unduly prejudicial [e]ffect it may have [on the] jury."
II.
In Point II of his counseled brief and Points II and III of his supplemental pro se brief, defendant argues that the positive identifications made by both Ruiz and Johnson were the product of unduly suggestive identification procedures and should have been suppressed. We disagree.
A "trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.' That is, the trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)); see also State v. Locurto, 157 N.J. 463, 470-71 (1999). Moreover, reviewing courts "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses." State v. Johnson, 42 N.J. 146, 161 (1964). In short, an appellate court appreciates that its "reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand." State v. Nash, 212 N.J. 518, 540 (2013).
This case was tried before the Supreme Court's ruling in Henderson, supra, 208 N.J. at 288-93, took effect, wherein the Court revised the State's framework for evaluating eyewitness identification evidence. Because Henderson applies "purely prospectively," we review the identification procedures here using the same two-part Manson/Madison standard employed by the trial court. Under that formulation, a court reviewing the admissibility of an out-of-court identification first ascertains whether the identification procedure was impermissibly suggestive, thereby testing "whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451). If the court finds the procedure impermissibly suggestive, it then decides "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." State v. Romero, 191 N.J. 59, 76 (2007) (citation and internal quotation marks omitted).
See id. at 220 (applying test prospectively, from September 4, 2012).
The factors a court considers in determining reliability include: "the opportunity of the [eye]witness to view the criminal at the time of the crime"; "the [eye]witness's degree of attention"; "the accuracy of [the eyewitness's] prior description of the criminal"; "the level of certainty demonstrated [by the eyewitness] at the confrontation"; and the length of "time between the crime and the confrontation." Adams, supra, 194 N.J. at 204 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154) (internal quotation marks omitted). A court is to weigh these factors against "the corrupting effect of the suggestive identification itself." Ibid. "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Ibid.
Judge Daniel carefully applied those precedents in determining to admit Ruiz's and Johnson's identifications of defendant. After having had the opportunity to see and hear Garrido, the judge found no evidence in the record to support a finding that she failed to translate the photo array procedure accurately. Although only three photos depicting bald men were included in the array, Hudson testified that he was unable to locate any others that fit the suspect's description. Moreover, all of the men shown in the photo array had facial hair in accordance with Ruiz's description of the suspect. Judge Daniel, who had the opportunity to hear the witness descriptions and view the array, found "nothing unduly suggestive about the photos in and of themselves that were included in this array."
Although the judge also addressed the various system and estimator variables identified in Henderson in his comprehensive decision, we decline to do so on appeal as defendant concedes that this case is governed by the standards in effect prior to Henderson.
--------
Johnson was previously familiar with defendant, who was "always around" the neighborhood. Additionally, defendant had confronted Johnson during the robbery that took place one week earlier. Then, on August 26, Johnson got a "good look" at defendant's face during his robbery of Ruiz, and was certain as to his identification. Even if Maldonado uttered the word "good" after Johnson's identification of defendant during the photo array, Maldonado was not involved in the investigation and was unaware that defendant was a suspect. Having heard the testimony and viewed the video of the identification procedure, Judge Daniel concluded that the comment was not so impermissibly suggestive as to impugn the reliability of the procedure, which was otherwise conducted in accordance with the Attorney General Guidelines. Those findings are "entitled to very considerable weight," Farrow, supra, 61 N.J. at 451, and on this record we find no basis to disturb them.
III.
In Point I of his counselled brief and Point III of his supplemental pro se brief, defendant argues that the trial court committed reversible error when it precluded defendant from cross-examining Ruiz as to his immigration status. The defense theory is that Ruiz had a "potential bias based on the hope of favorable treatment . . . particularly in connection with the federal U-visa program, which allows non-citizen victims of violent crimes to apply for a special visa."
For his part, during the N.J.R.E. 104(a) hearing to consider the admissibility of this evidence, Ruiz flatly denied defendant's allegations of bias flowing from his immigration status. In the end, the judge concluded that Ruiz's immigration status was irrelevant because it did not tend to prove or disprove a material fact, N.J.R.E. 401, and alternatively that any limited probative value it possessed was "far outweighed" by its prejudicial effect, N.J.R.E. 403.
We review a trial court's evidentiary rulings under an abuse of discretion standard. State v. McGuire, 419 N.J. Super. 88, 135 (App. Div.), certif. denied, 208 N.J. 335 (2011). A trial court's evidentiary rulings will not be disturbed on appeal absent a showing of a clear abuse of discretion, meaning a clear error in judgment. State v. J.A.C., 210 N.J. 281, 295 (2012).
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the State of New Jersey Constitution guarantee a criminal defendant the right to confront those who testify against him. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Cabbell, 207 N.J. 311, 328 (2011); State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002). The right to cross-examine a witness lies at the heart of the right to confrontation embodied in the Sixth Amendment. Gaikwad, supra, 349 N.J. Super. at 86. Impeaching the credibility of witnesses is one of the primary reasons for cross-examination. Id. at 87.
A defendant's right to confront his accusers, though guaranteed, is not absolute. State v. Harvey, 151 N.J. 117, 188 (1997). The right of confrontation is not a right to "'roam at will under the guise of impeaching credibility.'" Gaikwad, supra, 349 N.J. Super. at 87 (quoting State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991)). Relevancy and the necessity for a fair resolution of the issues are the key considerations. See State v. Garron, 177 N.J. 147, 171 (2003).
We have previously observed that a witness's immigration status "is very likely to trigger negative sentiments in the minds of some jurors." See Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 274 (App. Div. 2009). That said, where the probative value of disclosing the immigration status of a witness outweighs the likely prejudice to that witness stemming from such disclosure, a defendant's right to a fair trial by confronting a witness on that issue must prevail.
Here, defendant failed to establish that the limited probative value of cross-examining Ruiz on his immigration status substantially outweighed the likely prejudice that would result from disclosure. Consequently, we reject defendant's argument that the trial judge improperly excluded this line of questioning.
IV.
Defendant contends that his forty-two-year sentence with a NERA parole disqualifier is excessive. This argument requires little discussion.
As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'"Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
As noted, in sentencing defendant the court found significant the following aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6); and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.
The court appropriately pointed out several important considerations bearing on its sentencing analysis. First, the court noted that defendant had an extensive criminal history that included twelve prior indictable convictions. The court further noted that defendant had committed numerous violations of probation and parole. In addition, due to his prior record, defendant was eligible for a discretionary extended term sentence.
N.J.S.A. 2C:44-3(a) permits the court, at sentencing, upon application by the prosecuting attorney, to sentence a defendant convicted of a first-degree crime to an extended term. The defendant, at the time of the commission of the crime, must be twenty-one years of age or older, and must have been previously convicted on at least two separate occasions of two crimes. Ibid. The prior crimes must have been committed at different times, when the defendant was at least eighteen 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 ten years of the date of the crime for which the defendant is being sentenced. Ibid.
Once a defendant qualifies for the discretionary extended term, the range of the sentences the court may impose "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). This means that, here, the court could have sentenced defendant, who was convicted of first-degree robbery, to anywhere from ten years (the minimum for first-degree crimes) to life (the maximum extended term). The choice rests within the sentencing court's "sound judgment" after weighing aggravating factors (N.J.S.A. 2C:44-1(a)) against mitigating factors (N.J.S.A. 2C:44-1(b)). Pierce, supra, 188 N.J. at 168-69 ("[W]hether the court chooses to use the full range of sentences opened up to [it] is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public."). The choice, however, is subject "to reasonableness and the existence of credible evidence in the record to support the court's finding[s]." Id. at 169. On appeal, we will modify a sentence only if we find the sentencing judge abused his discretion. Id. at 169-70. We find no such abuse on this record.
V.
We have carefully considered the remaining arguments presented in defendant's pro se brief in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only the following brief remarks.
In Point VII, defendant asserts that the cumulative effect of the errors at trial deprived him of a fair trial. However, we are satisfied that none of the errors alleged by defendant, individually or cumulatively, warrant the granting of a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954).
To the extent that defendant seeks to raise a claim of ineffective assistance of counsel that lies outside the record before us, we shall refrain from resolving such ineffective-assistance claims here on direct appeal. Instead, we reserve such claims for a potential future application for post-conviction relief (PCR), where the record may be expanded with appropriate proofs outside of the trial transcripts. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION