Opinion
DOCKET NO. A-3461-12T2
09-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN J. BRIZAK, Defendant-Appellant.
Jay V. Surgent argued the cause for appellant (Weiner Lesniak, LLP, attorneys; John Vincent Saykanic and Mr. Surgent, on the brief). Danielle R. Pennino argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-04-00338. Jay V. Surgent argued the cause for appellant (Weiner Lesniak, LLP, attorneys; John Vincent Saykanic and Mr. Surgent, on the brief). Danielle R. Pennino argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Steven J. Brizak, appeals from his convictions related to the robbery of a CVS pharmacy. He argues the identification of him by the pharmacy's assistant manager was the sole evidence linking him to the crime, and that the judge erred by not holding a Wade hearing and by failing to suppress the identification evidence. Defendant also contends the prosecutor improperly vouched for the eye-witness in the State's closing statement, and that his conviction for first-degree robbery should have been downgraded to second-degree robbery. We affirm the convictions, but reverse and remand for reconsideration of the sentence.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
A Cumberland County Grand Jury returned an indictment charging defendant with Count One: first-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(2); Count Two: third-degree theft of movable property, in violation of N.J.S.A. 2C:20-3(a); Count Three: fourth-degree possession of an imitation firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(e); and Count Four: second-degree robbery, in violation of N.J.S.A. 2C:15-1.
Defendant's motion to suppress the out-of-court identification made by the CVS assistant manager was denied. During trial, the judge allowed the State to introduce the eyewitness's in-court identification as well as the video recording of the out-of-court identification of defendant. The jury returned a verdict of guilty on all counts.
At the sentencing hearing on March 15, 2013, defendant was sentenced to ten years for first-degree robbery under Count One; Count Four was merged with Count One; and concurrent terms of three years and eighteen months were imposed on Counts Two and Three. The judgment of conviction (JOC) was amended on April 15, 2013, to remove the reference to mandatory sentencing for Count Three.
Defendant appeals his convictions and his sentence. He raises the following points:
POINT IAlthough we denied defendant's motion for a continuance of bail pending appeal, the Supreme Court granted defendant's motion for bail, otherwise leaving jurisdiction with this court.
THE COURT BELOW (JUDGE []) MISAPPLIED THE APPLICABLE LAW AT THE TIME OF THE WADE HEARING MOTION; IN ADDITION, THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY WADE HEARING IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS; BOTH THE OUT-OF-COURT AND IN-COURT IDENTIFICATION SHOULD BE SUPPRESSED.
POINT II
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL AND ERRED IN ADMITTING (OVER THE DEFENDANT'S OBJECTION) THE "IDENTIFICATION TAPE" OF THE EYEWITNESS IDENTIFYING THE DEFENDANT'S PHOTOGRAPH CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10.
POINT III
THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 AS TO ALL THREE COUNTS AS THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT WAS THE PERPETRATOR; THE CONVICTIONS ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10.
POINT IV
THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-2 AFTER THE JURY VERDICT AS TO ALL THREE COUNTS SINCE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT WAS THE PERPETRATOR; THE CONVICTIONS ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10.
POINT V
THE PROSECUTOR'S SUMMATION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL; THE PROSECUTOR I) IMPROPERLY VOUCHED FOR SOLE EYEWITNESS AND VICTIM MS. [HARPER] AND II) IMPROPERLY EVOKED SYMPATHY FOR MS. [HARPER].
POINT VI
THE SENTENCING COURT ERRED IN NOT SENTENCING ONE DEGREE LOWER PURSUANT TO N.J.S.A. 2C:44-1f(2).
POINT VII
DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
We use a pseudonym to preserve her privacy.
I.
The first four points raised by defendant relate to the out-of-court and in-court identifications of defendant by the assistant CVS pharmacy manager, Terry Harper. On December 25, 2010, Harper waited on a man who came to the pharmacy counter and paid cash for two items. Following this transaction, the man slid a note across the counter telling her he was seeking oxycodone and hydrocodone. He said, "I'm not playing," and then lifted up his jacket and displayed what appeared to be a gun. Harper placed four or five bottles of 500 pills each of hydrocodone in a bag and handed them to defendant. The robber then jumped over the counter and left through a window. An imitation gun was found in the woods behind the store.
As noted above, we use a pseudonym to preserve her privacy.
Harper described the robber to the officer as a white male, age thirty to thirty-five, approximately five foot six or seven inches tall, with a pale complexion, wearing sunglasses, jeans, scarf, and a hooded jacket. She told the police that she recognized him as a prior CVS customer, and that his last name was Brizak. Harper retrieved the names of three male CVS customers with the last name Brizak from the CVS pharmacy computer system. One of these, whom we shall call Henry, was defendant's brother. Harper provided the three names to Detective Harris, a detective for the Vineland Police Department. Photographs of the male Brizaks were later obtained from the Department of Motor Vehicle (DMV). Filler photographs of non-suspects were obtained from the police department's computer system, based on Harper's physical description of the suspect. Using those photos, three arrays were created. Each of the three arrays contained a photo of one of the three male Brizaks and five other non-suspects.
A second detective, not directly involved in the investigation, Detective Kirchner, altered the background of the DMV photographs of the Brizaks to match the background of the filler photographs. Harris testified that Kirchner arranged the order of the photographs in the arrays; Kirchner, however, testified that he thought Harris had arranged the order. Regardless of who arranged the photographs, both officers saw the photo arrays before they were shown to Harper.
On January 13, 2011, Kirchner displayed the photo arrays to Harper at the police station. Harris was either in the room or in and out of the room. Nevertheless, the arrays were not displayed to the victim by Harris. Harper was not told that pictures of the Brizaks were included in the photographs. In the first photo array, Harper rated the picture of Michael Brizak as a "five to seven" on a certainty scale of one to ten, because she thought the picture looked very "similar" to the robber. Harper did not recognize anyone in the second photo array, which contained a picture of another male Brizak. Harper identified defendant, Steve Brizak, in the third photo array as the robber. Harper testified that she was "positive" and "very certain" when she made the identification of defendant. The identification procedure was video-recorded and depicted Harper starting to cry when she saw defendant's photograph.
At trial, Harper testified that her main job responsibility was customer service, and thus she was expected to recognize and address customers by name. She described previous limited interactions with defendant. She conceded that once the robber displayed what she thought was a gun, her focus was more on the weapon and safety than "on trying to identify his features." However, the imitation gun was displayed only briefly and was not pointed at her, and after she saw it, she "looked back up at his face." The pharmacy area was described as very well-lit. She again identified defendant in court, and confirmed her certainty of her identification.
Other than the imitation pistol, which could not be linked to defendant, Harris testified the only other physical evidence was a boot print left on the window of the pharmacy. Boots obtained from defendant, which Harris thought seemed like a match, were sent to the State Police Laboratory to determine if there was an exact match. The results were inconclusive.
When defendant filed the motion to suppress the victim's identification, he contended the identification procedure was impermissibly suggestive because the primary investigating officer involved in the investigation was present during the identification. A blind or double-blind procedure was not used, and defendant's photograph and his brother's photograph were both placed last in their respective arrays. The judge heard argument on the motion, and found that defendant did not meet the burden of showing the photo array was suggestive. Thus, the court determined a Wade hearing was not required. We agree that such a hearing was not necessary in this unusual factual scenario.
Pretrial Wade hearings are held to determine the admissibility of out-of-court identifications. In State v. Henderson, 208 N.J. 208 (2011), the Supreme Court revised the previously accepted framework for evaluating whether an out-of-court identification was reliable evidence.
The State concedes that it did not use a blind or double-blind procedure in administering the photo array, instead arguing that there was no taint because there were three suspects included in the arrays and the detectives had no vested interest in suggesting one of the three to the victim. Because of the concern that officers familiar with the suspects could inadvertently signal a witness who was not familiar with the subjects of the photos that one of the photos was of the perpetrator, the Henderson Court found that "the failure to perform blind lineup procedures can increase the likelihood of misidentification," 208 N.J. at 250, and included blind administration as one of the system variables to be considered in determining whether a pretrial hearing should be granted. Id. at 289-90.
Given the concerns expressed by the Court in Henderson and acknowledged in the Attorney General Guidelines, the non-blind administration of the photo arrays, including the presence of two police officers in the room who knew the identity of the three Brizak suspects, ordinarily would meet the threshold of some evidence of suggestiveness required for a Wade hearing. However, this was not an ordinary case. The victim knew and identified defendant as a former customer and supplied the police with his last name.
Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures I (2001), available at www.state.nj.us/lps/dcj/agguide/photoid.pdf (last visited March 17, 2015). --------
Regarding the reliability of the identification, Harper had an opportunity to view the robber at close range in a well-lit area. She was waiting on the man so he had her full attention. Although she testified that once she saw the gun, her focus was more on it than identifying the suspect; the gun was displayed briefly and was not pointed at her; and after she saw it, she "looked back up at his face." Further, the photo identification took place only a few weeks after the crime and Harper indicated she was 100 percent sure that defendant was the person that robbed her. Most significantly, Harper recognized the perpetrator as a member of the Brizak family and provided his last name on the day of the robbery before she was shown any photographs.
Harper's testimony that she rated the photo of Henry a seven because she thought the picture looked "very similar" to the robber does not undermine the identification because Henry is defendant's brother, and by his own admission, resembles him. Harper's emotional reaction to defendant's photograph and her certainty of the identifications in-court and out-of-court add to the reliability of her identification. Harper had the opportunity to view the robber before she knew there was a robbery. The close proximity and favorable lighting conditions, the short time between the crime and her level of certainty in the identification, all of which were testified to at the trial, support the admission of the identification.
It would have been necessary for defendant in a Wade hearing to "prove a very substantial likelihood of irreparable misidentification." Henderson, supra, 208 N.J. at 289. Given the circumstances in this case, that would not have been possible. If the matter was remanded for a Wade hearing and the proper analysis was conducted under the Madison or Henderson framework, there is no doubt the decision to admit the identification would be the same. Even if a hearing had been held, defendant could not show that the identification procedure was "impermissibly suggestive," or that the identification was so unreliable that there is "a very substantial likelihood of misidentification." State v. Madison, 109 N.J. 223, 232 (1998).
Defendant also argues that the video of the out-of-court identification should have been excluded because the prejudicial effect far outweighed any probative value; the identification procedure was improper; and the video constitutes improper bolstering of the witness. We disagree. An exception to the hearsay rule allows a prior statement of a testifying witness to be admitted at trial "provided it would have been admissible if made by the declarant while testifying and the statement . . . is a prior identification of a person made after perceiving that person if made in circumstances precluding unfairness or unreliability." N.J.R.E. 803(a)(3). Harper testified at the trial; therefore, the video was admissible under this rule as long as the identification was "made in circumstances precluding unfairness or unreliability." Ibid. For the reasons previously discussed, the identification was not unfair or unreliable.
Evidence that is otherwise admissible may still "be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. "The party seeking to preclude the admission of evidence pursuant to N.J.R.E. 403 has the burden of convincing the trial judge that the factors favoring exclusion substantially outweigh the probative value of the contested evidence." State v. Swint, 328 N.J. Super. 236, 253 (App. Div. 2000) (citing State v. Morton, 155 N.J. 383, 453 ( 1998)), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "Whether the probative value of the evidence is outweighed by the potential prejudice is a decision left to the discretion of the trial judge." Ibid. (citing State v. Carter, 91 N.J. 86, 106 (1982)). "On appellate review, the decision of the trial judge must be affirmed unless it can be shown that he palpably abused his discretion." Ibid. (citing Carter, supra, 91 N.J. at 106).
In Henderson, supra, 208 N.J. at 252, the Court stated that "all lineup procedures must be recorded and preserved in accordance with the holding in State v. Delgado, 188 N.J. 48, 63 (2006), to ensure that parties, courts, and juries can later assess the reliability of the identification." As the trial judge noted in this case, that statement "indicates that the Court had in mind that those identifications would be shown to a jury." Defendant argues that the video is prejudicial because it depicts the witness Harper crying and emotionally upset while viewing defendant's photograph. The trial judge recognized that Harper became emotional when she saw the photo. However, he also found the witness "identified the defendant as the perpetrator, with a high degree of confidence." The judge concluded there was no better way for the jury to evaluate the actual circumstances of the identification than to see the tape recording of what occurred. The judge articulated sufficient reasons for concluding that the probative value of the video was not outweighed by any prejudicial effect.
We discern no error in its admission. Defendant's claim of ineffective assistance of trial counsel is best reserved for post-conviction review. State v. O'Neil, 219 N.J. 598, 610 (2014). The other claims raised by defendant as to his trial and convictions are without sufficient merit to address in a written opinion. R. 2:11-3(3)(2).
II.
We now turn to the sentence imposed by the trial court. At sentencing, the judge rejected defendant's argument that he should have been sentenced on his first-degree robbery conviction as if it had been a second-degree offense. For the reasons that follow, we remand for reconsideration of defendant's contention.
In pertinent part, N.J.S.A. 2C:44-1f(2) states:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the
aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
In State v. Megargel, 143 N.J. 484, 504-05 (1996), the Court concluded that "the standard for downgrading an offense for the purpose of sentencing under section 44-1f(2) is two-pronged: first, the court must be 'clearly convinced' that the mitigating factors 'substantially' outweigh the aggravating ones, and second, the court must find that the 'interest of justice' demands that the sentence be downgraded." Id. at 504-505. The reasons justifying a downgrade must be "compelling" and, in addition to and separate from the mitigating factors that substantially outweigh the aggravating factors.
Here, the judge found aggravating factor nine, N.J.S.A. 2C:44-1a(9), and mitigating factors seven and nine, N.J.S.A. 2C:44-1b(7) and (9). The judge found the mitigating factors "only slightly outweigh[ed] the aggravating factors" and that the interests of justice did not "warrant a sentence of one degree lower" than the minimum sentence for a first-degree offense.
However, the judge went on to question whether N.J.S.A. 2C:44-1f(2) was even applicable in this case because a first-degree offense was involved. The judge then stated:
I think the Legislature clearly said that first-degree offenses have to be treated differently than second-degree offenses.
This is clearly a first-degree offense and it's clear that the Legislature has a preference for deterring crimes involving weapons and threats of harm during thefts. . . . [I]t's a Graves Act offense.
It's unfortunate for this gentleman that what he did fell into that category but in New Jersey, the primary consideration is the crime, not the individual. The punishment must fit the crime.
First-degree crimes must be treated different than second-degree crimes. The — — therefore, I don't believe it's appropriate to treat this sentence at one degree lower.
This was an incorrect statement of the applicable law. As set forth above, N.J.S.A. 2C:44-1f(2) specifically applies to first-degree offenses, including first-degree robbery.
On this record, we are unable to discern the impact the judge's statement had on his ultimate decision to deny defendant's request to be sentenced to a term appropriate for a second-degree offense as permitted by N.J.S.A. 2C:44-1f(2). We are therefore constrained to remand this matter to the trial court for resentencing.
On remand, the court shall consider anew the applicable aggravating and mitigating factors and then re-engage in the balancing of these factors in arriving at a sentence. The court shall also provide "[a] clear explanation" of the balancing of these factors in determining whether defendant should be sentenced under N.J.S.A. 2C:44-1f(2). See State v. Fuentes, 217 N.J. 57, 73 (2014). As required by State v. Randolph, 210 N.J. 330, 351-52 (2012), the court should consider defendant's situation as of the date of the resentencing. Due to the passage of time since the original sentence was imposed, an updated presentence report should be prepared for the court's consideration at the resentencing.
Defendant's convictions are affirmed. We remand for resentencing. 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