Opinion
DOCKET NO. A-2298-13T2
01-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KARLTON L. BAILEY, a/k/a CARLTON L. BAILEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 11-10-1650 and 12-09-1317. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Following a jury trial on Middlesex County Indictment No. 12-09-1317, defendant Karlton Bailey was convicted of first-degree robbery of Alex Mehea, N.J.S.A. 2C:15-1 (count two); second-degree robbery of Carlos Guerrero, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault of Mehea by purposely or knowingly causing bodily injury with a weapon, N.J.S.A. 2C:12-1b(2) (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count four); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). In a separate trial that followed immediately thereafter, the same jury convicted defendant of second-degree possession of a firearm by certain persons not to possess a firearm, N.J.S.A. 2C:39-7b(1), the single count of Indictment No. 11-10-1650.
Following denial of defendant's motion for judgment of acquittal notwithstanding the verdict (jnov) or, alternatively, a new trial, the judge imposed a sentence of thirteen years' imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two, and, after appropriate mergers, imposed concurrent sentences on the remaining counts of Indictment No. 12-09-1317. On Indictment No. 11-10-1650, the judge imposed a consecutive seven-year sentence with a five-year period of parole ineligibility.
Defendant raises the following points for our consideration:
POINT I
THE COURT MUST VACATE THE CONVICTION FOR POSSESSION OF A WEAPON BY A PREVIOUSLY CONVICTED PERSON BECAUSE THE STATE FAILED TO PROVE THAT BAILEY HAD BEEN CONVICTED OF AN ENUMERATED OFFENSE, AND THE JUDGE'S INSTRUCTIONS FAILED TO REQUIRE PROOF OF THAT ELEMENT OF THE CRIME. (Not Raised Below)
POINT II
BECAUSE THE COURT'S INDENTIFICATION CHARGE OMITTED CRITICAL FACTS AND PORTIONS OF THE MODEL CHARGE, AND WAS NOT PROPERLY TAILORED TO THE ISSUES IN A CASE WITH A SUGGESTIVE IDENTIFICATION, BAILEY IS ENTITLED TO A NEW TRIAL. (Not Raised Below)
POINT III
BAILEY'S CONVICTIONS FOR ARMED ROBBERY, POSSESSION OF A HANDGUN FOR AN UNLAWFUL PURPOSE AND CERTAIN-PERSONS NOT TO HAVE FIREARMS MUST BE REVERSED BECAUSE THE JUDGE DID NOT ADEQUATELY ANSWER JURORS' QUESTIONS REGARDING THE POSSIBILITY THAT THE SUSPECT POSSESSED A TOY OR REPLICA FIREARM.
A. The Judge's Answer to the Jury's Question Regarding a Toy Gun was Inadequate Because He Failed to Address the Armed-Robbery Count and Bailey Could Not Have Been Guilty of Armed Robbery if He Did Not Possess an Actual Deadly Weapon.
B. The Judge's Answers Failed to Adequately Address the Weapons Counts Because the Decision in State v. Gantt Reveals that a Toy or Replica Gun is Not a Firearm.
POINT IV
THE JUDGE COMMITTED PLAIN ERROR IN FAILING TO CHARGE POSSESSION OF AN IMITATION FIREARM AS A LESSER-INCLUDED OFFENSE OF POSSESSION
OF A FIREARM FOR AN UNLAWFUL PURPOSE. (Not Raised Below)In a separate pro se supplemental brief, defendant argues:
POINT V
THE COURT ERRED IN FAILING TO PROVIDE THE JURORS WITH THE OPTION OF CONVICTING BAILEY OF THIRD-DEGREE POSSESSION OF A HANDGUN. (Not Raised Below)
POINT VI
BAILEY IS ENTITLED TO A REMAND FOR RESENTENCING ON INDICTMENT 11-10-1650, BECAUSE THE JUDGE ERRONEOUSLY BELIEVED THAT THE SENTENCE ON THAT INDICTMENT WAS LEGALLY REQUIRED TO RUN CONSECUTIVE TO THE AGGREGATE SENTENCE IMPOSED ON INDICTMENT 12-09-1317. (Not Raised Below).
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and the sentences imposed on Indictment No. 12-09-1317. We vacate the sentence imposed on Indictment No. 11-10-1650 and remand the matter for re-sentencing.
BAILEY'S CONVICTION[S] . . . SHOULD BE REVERSED BECAUSE THE JUDGE MADE AN ERROR BY DENYING BAILEY A WADE HEARING.
POINT II
BAILEY'S CONVICTION[S] . . . MUST BE REVERSED BECAUSE THE STATE USED AN INADMISSIBLE PRIOR STATEMENT IN THE PRESENCE OF THE JURY TO IMPEACH [ITS OWN] WITNESS.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
I.
The State's case rested upon a video from a store surveillance camera that was played for the jury. It showed Guerrero and his friend Mehea walking along the street, with Guerrero holding onto his bicycle. A man, later identified as defendant, is seen approaching the pair from behind and putting his hand into Guerrero's back pocket. Guerrero testified that he had been drinking the entire night, knew something was taken from his back pocket but could not remember what it was, was unable to describe his assailant to officers, and failed to identify defendant at trial.
Also spelled "Mejia."
The video depicts Mehea pursuing defendant down the street and around the corner off-camera. At some point, Mehea re-emerges and is seen backing away from defendant, who abruptly charges toward him. Mehea continues to back away from defendant into the street with his arms raised. Defendant can be seen hitting Mehea in the face and rifling his pockets before fleeing the scene.
A woman, Myrna Ayala, is seen in the video walking towards defendant as he assaults Mehea. Ayala testified that after defendant fled the scene, she gathered change that had spilled from Mehea's pockets and called 911 to report his injury. The 911 call was played for the jury.
New Brunswick Police Officer Pedro Rodrigues and his partner, Joseph Nieves, were dispatched to the scene. When they arrived, they found Mehea on the curb bleeding from a semi-circular indentation on his nose. Mehea was transported to St. Peter's Hospital and treated for a broken nose and lacerations.
At the time of trial, Mehea had been deported to Honduras and was unavailable as a witness.
The officers secured the video from the surveillance camera, and Rodrigues played the recording in the detective bureau later that day. Detective Andrew Weiss identified defendant and Ayala, both of whom he knew from years of policing the neighborhood. At trial, Weiss viewed the videotape in the presence of the jury, describing its depiction of defendant, Ayala and the victims. At several points, Weiss noted a handgun in defendant's hand. Weiss later viewed a still photo from the surveillance video and, over defendant's objection, was permitted to circle the gun in defendant's hand with a marker.
Later that same afternoon, Weiss and the officers searched for defendant and found him in an abandoned house two blocks from the scene. Defendant was arrested and transported to the station where he waived his rights and provided a videotaped statement that was played for the jury. Defendant denied any involvement in the crimes.
Two days later, Weiss spotted Ayala on the street and drove her to headquarters to give a statement. Ayala admitted witnessing the incident and identified defendant, who she knew from the neighborhood as "Black Face," as being present at the scene. Ayala reported that defendant said "Bingo" when he saw Guerrero walking past with his bicycle. Ayala was shown a single photograph of defendant, identified him and signed the photo verifying her identification.
At trial, Ayala, who was serving a three-year sentence for robbery, was a reluctant witness. She testified that she was high on cocaine both at the time of the incident and two days later when she spoke to Weiss. Although present at the scene, she claimed to have not actually witnessed defendant rob Guerrero or Mehea. The parties stipulated that State Police records indicated defendant had never been issued a permit to carry or purchase a handgun.
Defendant did not testify or call any witnesses.
II.
Defendant raises for the first time on appeal several objections to the jury charge. He argues that the "judge's identification charge was one-sided" because it failed to address Guerrero's inability to identify defendant, Ayala's equivocal testimony and that Weiss identified defendant solely from the video. Defendant argues that the charge, which tracked Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identification," (eff. Sept. 4, 2012), omitted key portions regarding the suggestive circumstances under which Ayala made her out-of-court photo identification of defendant.
Additionally, because no firearm was ever recovered, defendant argues that the judge should have sua sponte charged possession of an imitation firearm, N.J.S.A. 2C:39-4(e), as a lesser-included offense under counts four and five, and third-degree possession of a firearm pursuant to N.J.S.A. 2C:39-5(b) as a lesser-included offense under count four.
It is axiomatic that "[j]ury charges must provide a 'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" State v. Singleton, 211 N.J. 157, 181-82 (2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). We apply plain error review in the absence of an objection. Id. at 182.
As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."We assess the allegation of error in light of "the totality of the entire charge, not in isolation." Ibid. While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." Singleton, supra, 211 N.J. at 182 (citing State v. Macon, 57 N.J. 325, 333-34 (1971)). Applying these standards, we find no plain error.
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).]
During the charge conference, without objection, the judge painstakingly reviewed those portions of the model charge on identification he would provide and those he intended to omit. Viewing the instructions as a whole, the jury clearly understood that Ayala and Weiss had identified defendant out-of-court and in-court, and their identification testimony "must be scrutinized carefully." The judge listed several factors the jury should consider in assessing the evidence. We also reject defendant's claim that the judge unfairly tailored the charge to the facts of the case by omitting evidence unfavorable to the State. Contrary to defendant's assertions, our review of the complete charge indicates that the judge did not misstate the evidence in any material way. In short, the identification charge as a whole "did not misinform the jury . . . and was neither ambiguous nor misleading." State v. R.B., 183 N.J. 308, 325 (2005).
The charge incorporates changes adopted as a result of the Court's decision in State v. Henderson, 208 N.J. 208 (2011). However, Henderson did not apply because the out-of-court identification procedure in this case preceded the Court's decision. See, e.g., State v. Micelli, 215 N.J. 284, 287 (2013). Defendant has not raised this issue on appeal, so we deem it waived. See State v. Galicia, 210 N.J. 364, 383 (2012) ("Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below."). In any event, the instructions as given most likely benefitted defendant.
As to defendant's other claims, "a court cannot charge the jury on a lesser-included offense 'unless there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Maloney, 216 N.J. 91, 107 (2013) (quoting N.J.S.A. 2C:1-8(e)). "'[W]hether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d) , and (2) that there be a rational basis in the evidence to support a charge on that included offense.'" Ibid. (emphasis added) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). Defendant's arguments regarding the instructions on the firearms offenses begins with the erroneous premise that possession of an imitation firearm, and third-degree possession of a handgun, were lesser-included offenses of the charged crimes.
N.J.S.A. 2C:1-8(d) provides:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:It is a fourth-degree crime for any person to "possess[] an imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose[.]" N.J.S.A. 2C:39-4(e). An "[i]mitation firearm" is defined as "an object or device reasonably capable of being mistaken for a firearm." N.J.S.A. 2C:39-1(v).
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) . . . ; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
[Ibid.]
However, an imitation firearm is qualitatively different than a "firearm," N.J.S.A. 2C:39-1(f), or a "handgun," N.J.S.A. 2C:39-1(k), both of which require that the device be capable of ejecting something. Therefore, possession of an imitation firearm is not a lesser-included offense of count four or count five because it does not satisfy the definition contained in N.J.S.A. 2C:1-8(d)(3).
Perhaps under the facts of this case, possession of an imitation firearm was a "lesser-related" charge, i.e., it "'share[d] a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment.'" Maloney, supra, 216 N.J. at 107 (quoting Thomas, supra, 187 N.J. at 132). However, courts are under no obligation to sua sponte provide charges on lesser-related offenses and may not do so without a defendant's consent. Id. at 107-08. Here, defendant never sought a charge on possession of an imitation firearm. In fact, during the charge conference, defense counsel objected to the judge including any reference to an imitation firearm in defining the elements of first-degree robbery.
The same rationale applies to defendant's argument regarding the unlawful possession of a handgun charge in count four. When the events charged in the indictment occurred, N.J.S.A. 2C:39-5(b) provided:
Any person who knowingly has in his possession any handgun . . . without first having obtained a permit to carry the same as provided in N.J.S. 2C:58-4, is guilty of a crime of the third degree if the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. Otherwise it is a crime of the second degree.One who possesses a BB gun, for example, possesses a qualitatively different handgun from one that causes a projectile to be fired "by the action of an explosive or the igniting of flammable or explosive substances." N.J.S.A. 2C:39-1(f). Contrary to the assertion in defendant's brief, the third-degree offense is not a lesser-included offense simply because it is found in the same section of the Criminal Code. Although related offenses, the judge was under no obligation to charge both absent defendant's request. In short, there was no plain error in the judge's instructions.
[Ibid.]
The Legislature has since amended the statute to provide:
(1) Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in [N.J.S.A.] 2C:58-4, is guilty of a crime of the second degree. (2) If the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person it is a crime of the third degree.
[N.J.S.A. 2C:39-5(b) (enacted as L. 2013, c. 113, effective Aug. 8, 2013)].
III.
Defense counsel primarily argued in summation that there was insufficient proof that defendant was the person seen on the video surveillance tape, citing a conflict between a description provided by Mehea and defendant's actual appearance. She further argued that, although defendant was arrested later that same day in a nearby abandoned building, no proceeds from the robbery or any gun were recovered.
During deliberations, the jury asked the judge to redefine "firearm," and if it was necessary to prove beyond a reasonable doubt that "the weapon . . . in the defendant's hand [was] an actual firearm; i.e., what if it could be a toy gun?" The judge redefined "firearm," but then asked the jury to advise if their question referred "to a specific portion of my charge, or a specific question or count." There was no objection.
The jury then asked as to counts four and five only: "Do we have to know beyond a reasonable doubt that the object in the perpetrator's hand is an actual working firearm as defined . . . as opposed to an object that could simulate and/or look like a gun; e.g., a non-firing replica, in order to vote guilty?" Both attorneys ultimately agreed that the judge should advise the jury that, for purposes of count four, the State must prove defendant possessed a "handgun" and again define that term; and, for purposes of count five, that the State must prove defendant possessed a "firearm" and again define that term. The judge did so.
In Point III, defendant takes issue with the judge's response to these jury questions. He contends that the judge failed to address the jurors' specific inquiry regarding a "toy gun" and argues that he could only be found guilty of first-degree robbery if he possessed a "deadly weapon." He also argues that the judge's response failed to adequately address counts four and five because a toy gun is not a "handgun" or a "firearm." The arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.
"It is firmly established that '[w]hen a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). "Further, if the jury's question is ambiguous, the trial court must clarify the jury's inquiry by ascertaining the meaning of its request." Ibid. (citing State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995)).
The judge and both attorneys fully understood that the consequences of possessing a simulated gun varied depending on which count the jury was considering. In other words, contrary to defendant's assertion on appeal, possession of a "toy" gun during the commission of a theft is sufficient to satisfy the elements of first-degree robbery, if the victim reasonably believed the "weapon" was "capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1(c); see also State v. Orlando, 269 N.J. Super. 116, 127 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). Defense counsel acknowledged this during colloquy with the judge. Therefore, the judge acted appropriately by asking the jury to clarify whether they were asking the question in the context of a specific offense or offenses. The jury quickly answered that its question related only to counts four and five.
Possession of a toy gun would not satisfy the elements of either count four or five, because a toy gun is not designed to "fire[] or eject[] any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing[.]" N.J.S.A. 2C:39-1(f). A toy gun, therefore, is not a firearm. State v. Gantt, 101 N.J. 573, 584-85 (1986) (citing State v. Ortiz, 187 N.J. Super. 44, 49-50 (App. Div. 1982)). However, the judge's re-instructions did not mislead or confuse the jury because the charge clearly and accurately defined the terms "handgun" and "firearm" in the context of counts four and five respectively.
Finally, recognizing distinctions among the various charges in the indictment, defense counsel specifically consented to the judge's course of asking for clarification first, and then instructing the jury as he did. Pursuant to the doctrine of invited error, "trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. A.R., 213 N.J. 542, 561 (2013) (emphasis added) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).
We find no basis to reverse defendant's convictions on these grounds.
IV.
During the charge conference, defense counsel indicated that defendant would not be stipulating as to prior convictions for predicate offenses listed in N.J.S.A. 2C:39-7b, but urged that the two certified judgments of conviction the State intended to introduce should be "redacted except for the date and the degree of the offense." The State called Investigator David Carmen of the Middlesex County Prosecutor's Office as its sole witness at the second trial. Carmen identified two certified judgments of conviction for defendant, testifying only as to the indictment numbers, the dates of conviction and the degrees of offenses. The judgments of conviction were redacted and admitted into evidence.
The judge then instructed the jury using Model Jury Charge (Criminal), "Certain Persons Not to Have any Firearms [N.J.S.A. 2C:39-7b(1)]," (revised June 13, 2005). In defining the elements of the crime, the judge told the jurors that the State needed to prove beyond a reasonable doubt that defendant "is a person who previously has been convicted of crimes of the third degree." The jury returned a guilty verdict.
In Point I, defendant contends his conviction for violating N.J.S.A. 2C:39-7b(1) must be reversed "[b]ecause the State failed to prove an element of the offense beyond a reasonable doubt," i.e., that he had been previously convicted of a designated predicate offense. He argues that many third-degree offenses are not predicate offenses under the statute, and, because the judge identified the prior convictions as only "third-degree offenses," defendant was denied his due process right to have the State prove each and every element of the crime beyond a reasonable doubt. State v. Medina, 147 N.J. 43, 48-49 (1996).
In State v. Brown, 180 N.J. 572, 575-76 (2004), the defendant was convicted at a trial in which the State chose to try the single certain persons count. Rejecting the defendant's challenge to a unitary trial, the Court held, "[w]e are in accord with the majority view that the elements of an offense should be tried in a unitary trial in which prejudice is minimized by appropriate curative jury instructions." Id. at 582. The Court further said "that any potential for prejudice can be ameliorated by the sanitization of the predicate offense." Id. at 584. The Court provided the following instructions: "if defendant stipulates to the offense, the jury need be instructed only that defendant was convicted of a predicate offense. If the defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment." Id. at 585.
The Model Jury Charge, supra, n.5, has incorporated Brown's instructions without regard to whether the trial is unitary or bifurcated, as it was here. Those instructions are troublesome, because in this case, defendant did not stipulate to one of the predicate crimes and no proof of any predicate crime was admitted before the jury. In short, defendant's argument raises serious concerns about the continued use of the Model Charge.
However, in this case, the judge specifically adopted the position urged by defense counsel, redacted the judgments of conviction and provided only the degree of the offenses to the jury. Any error now claimed was invited. A.R., supra, 213 N.J. at 561-62. We recognize that the invited error doctrine should not be applied mechanically, and invited errors may still require reversal if they "cut mortally into the substantive rights of the defendant . . . ." Corsaro, supra, 107 N.J. at 345. "If the doctrine would cause a fundamental miscarriage of justice, it will not be applied automatically." A.R., supra, 213 N.J. at 562 (quoting N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 342 (2010)).
Although defendant's contention raises serious concerns of a constitutional measure, we are convinced that no miscarriage of justice occurred. It is undisputed that defendant had committed two predicate offenses under N.J.S.A. 2C:39-7b(1). The State was fully prepared to introduce those convictions, but instead assented to defense counsel's request and the judge's ruling that the judgements of conviction be redacted and testimony be limited. Under the circumstances presented, we affirm defendant's conviction.
V.
In his pro se supplemental brief, defendant argues the motion judge, who was not the trial judge, erred in denying his request for a Wade hearing as to Ayala's out-of-court photo identification. He also contends that reversal is required because the State used Ayala's prior statement to impeach her at trial. We find no merit to either point.
There is "no automatic entitlement" to a Wade hearing. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). In State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985), we held that a defendant's right to a full Wade hearing requires at least "a threshold showing of some evidence of impermissible suggestiveness in all pre-charge police photographic array identification procedures." Accord State v. Cherry, 289 N.J. Super. 503, 517 (1995); State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b. 135 N.J. 3 (1994). The decision whether to hold a full hearing is left to the trial court's discretion based upon the totality of the circumstances. Ortiz, supra, 203 N.J. Super. at 522.
Although Henderson did not apply to the facts of this case, we note that Henderson has not altered the requirement that defendant first proffer some evidence of impermissible suggestiveness to be entitled to a hearing. Henderson, supra, 208 N.J. at 238. --------
Here, the motion judge recognized that Weiss presented Ayala with only defendant's photograph, which might "under normal circumstances . . . show suggestiveness." However, the judge noted that Ayala was "familiar with [defendant]" and knew his first name and street name. Looking "at the whole big picture," the judge decided no Wade hearing was required. We conclude the judge did not mistakenly exercise his discretion in this regard.
Because of Ayala's recalcitrance, the prosecutor intended to introduce the witness's prior statement as substantive evidence pursuant to State v. Gross, 121 N.J. 1, 15 (1990). However, Ayala reviewed the statement, indicated it refreshed her memory and began responding to direct questions. The prosecutor never sought to introduce the statement as substantive evidence.
Ayala was subjected to extensive cross-examination. Defendant points to portions of the prosecutor's re-direct and claims Ayala's prior statement was essentially read to the jury to rehabilitate her credibility. We disagree. The cited testimony reveals the prosecutor used the statement to refresh Ayala's recollection of events. We find no basis for reversal.
VI.
Although we affirm defendant's conviction and the sentences imposed on Indictment No. 12-09-1317, we conclude a remand is necessary regarding the sentence imposed on Indictment No. 11-10-1650. The judge mistakenly stated that the sentence "ha[d] to be a consecutive sentence, not concurrent." As a result, he failed to discuss or weigh the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), which guide the court's decision whether to impose concurrent or consecutive sentences.
Although we defer to the trial court's sentencing decisions upon review, that deference is premised, in part, upon the court's proper application of the statutory sentencing guidelines. State v. Lawless, 214 N.J. 594, 606 (2013) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). In this case, we are constrained to vacate the sentence imposed on defendant's conviction for violating N.J.S.A. 2C:39-7b(1), and remand the matter for re-sentencing. We express no particular opinion as to whether a consecutive sentence is appropriate.
Affirmed in part; the sentence imposed on Indictment No. 11-10-1650 is vacated, and the matter is remanded for re-sentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION