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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4367-10T1

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

JERMAINE BELL,

Defendant-Appellant.

________________________________

October 16, 2012 Submitted September 19, 2012 - Decided

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-08-02874.

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Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM Tried by a jury, defendant, Jermaine Bell, was convicted of first-degree robbery, N.J.S.A. 2C:15-1; seconddegree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5c(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and conspiracy to commit robbery, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1. He received an aggravate term of fifteen years imprisonment, with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also assessed. Defendant appeals, and we affirm. According to the State's proofs, defendant conspired with co-defendants, Kyiem Walters and James Hall, to rob the Kentucky Fried Chicken (KFC) outlet in Pennsauken, where Hall worked. The two met a few days before and agreed to rob the KFC at the end of Hall's shift on April 26, 2009, which was a Sunday, the most profitable day of the week and a time when the manager would not be able to deposit the proceeds in the bank. At the meeting, defendant agreed to hold the gun during the robbery, put Hall in the freezer, remove the employees' cell phones, order everyone to get down, take the money and leave. Walter would accompany defendant and Hall arranged to keep in contact via phone, deleting each call after it was made. The robbery was executed according to plan. About ten minutes after the 10:00 p.m. closing, defendant entered the KFC brandishing a gun, and wearing a bandana over the bottom half of his face. He ordered everyone present -- the store manager Arlen Lopez, employees Anthony Perez and Hall, and one other person -- down on the ground. While defendant pointed the gun at Lopez, Walters, the darkerskinned robber who remained at the door, ordered Lopez to empty the safe. When Lopez explained that the safe was locked, the robbers took $92 from the cash register and fled. Police responded to Lopez's call and upon arrival were pointed in the direction the robbers fled. Walters had quickly changed clothes before continuing the flight across Route 130 and defendant had

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taken off his shirt, wrapped the gun in it, and threw it into the Cooper River tributary. The pair separated and proceeded en route toward Camden. Meanwhile, police had been given a description of the two by Perez and Lopez, the latter of whom had described the robber with the gun as light-skinned and with braided hair. The officers caught up with the men and detained them while Hall, Lopez and Perez were individually brought to the location for a show-up identification. Hall told the police that he could not see the suspects, but that one of the robbers had braids in his hair. Lopez identified both men as the robbers. As defendant was removed from the patrol car and illuminated with a light, Lopez said "it's got to be him," referencing his braids and light skin. Defendant and Walters were then arrested and transported to police headquarters where defendant denied any involvement in the robbery. Hall was arrested the next day, admitted his participation as the insider and eventually pled guilty to conspiracy to commit robbery, as did Walters. Both men implicated defendant in the scheme. The day after the robbery, police located the gun and discarded clothing. The gun was found in the tributary, wrapped in a shirt with a logo bearing the name of the company where defendant was employed. On appeal, appellant raises the following issues I. IT WAS ERROR NOT TO SUPPRESS THE OUT-OF-COURT SHOW-UP IDENTIFICATIONS OF MR. BELL.
1

II. DEFENDANT'S MOTION FOR AN AQUITAL WAS WRONGFULLY DENIED.

III. IT WAS ERROR NOT TO ALLOW DEFENDANT'S ALIBI WITNESS TO TESTIFY AND NOT TO ISSUE A BENCH WARRANT TO REQUIRE MR. PEREZ TO TESTIFY.

IV. DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

V. THE CUMATIVE EFFECT OF THESE ERRORS WARRANT A REVERSAL AND A NEW TRIAL.

VI. DEFENDANT'S SENTENCE WAS EXCESSIVE.

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We find no merit to issues I, II, III, V and VI; the ineffective assistance of counsel claim (issue IV) should be reserved for post-conviction relief (PCR) review. I. Defendant contends that Lopez's out-of-court identification was improperly admitted. We disagree. At the conclusion of the Wade hearing, the trial judge found that while the show-up identification of defendant was inherently suggestive as an impermissible "one[]-on-one[]," there was no likelihood of misidentification. The judge based his decision on, among other circumstances, the brief amount of time that elapsed between the crime and the identification; Lopez's ability to observe her assailant; her detailed description, which defendant fit; and the certainty of her identification. We agree with the court's ruling, which we review under an abuse of discretion standard. See State v. Morton, 155 N.J. 383, 453 (1998), cert. denied sub. nom, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.2d 306 (2001).
2

The two-step analysis for determining the admissibility of eyewitness identification evidence set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.2d 140 (1977), was adopted in New Jersey in State Madison, 109 N.J. 205 (1988). [A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.

[Madison, supra, 109 N.J. at 232 (citations omitted).]

As the Court noted, "reliability is the linchpin in determining the admissibility of identification testimony." Id. at 232 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). Thus, at a Wade

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hearing, the court first considers whether the identification procedure was "impermissibly suggestive," and if so, "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). The circumstances to be considered in this analysis include: (1) the "opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness's degree of attention"; (3) "the accuracy of his prior description of the criminal"; (4) "the level of certainty demonstrated at the time of the confrontation"; and (5) "the time between the crime and the confrontation." Madison, supra, 109 N.J. at 239-40 (internal quotation marks and citations omitted). These factors are to be weighed against "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. In this case, even assuming, as did the trial judge, that the one-on-one show-up was impermissbly suggestive, we agree with the judge that there was no substantial likelihood of an irreparable misidentification. Lopez had ample opportunity to view defendant as he was face-to-face with her during the armed encounter. Less than thirty minutes elapsed between the hold-up and the identification. The victim was unequivocal in her identification, which she made without any hesitation or suggestion by the accompanying police officer. Moreover, Lopez's physical description of her assailant matched defendant's distinctive appearance. Under the totality of circumstances, Lopez's out-of-court identification of defendant was properly admitted. II. Defendant next argues that the trial judge wrongly denied his motion for acquittal at the close of evidence. We disagree. Such a motion must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1, When a motion for judgment of acquittal is made, the trial judge must determine . . . whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
3

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
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On appeal, we use the same standard as the trial court to determine if the trial judge should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964). The evidence here was more than sufficient to warrant the results reached. Defendant's two coconspirators, Hall and Walters, both testified in explicit detail about defendant's involvement in the planning and execution of the robbery, and particularly as to his role as the sole gunman. Additionally, Walters testified as to defendant's discarding of the gun, which was found the day after the robbery, wrapped in a shirt bearing defendant's employer's logo. Lastly, Lopez clearly and definitely identified defendant as the individual who held her at gunpoint while he robbed the KFC, testifying that she would "never forget" defendant's eyes. Given the strength of the evidence, a reasonable jury could have found defendant guilty beyond a reasonable doubt. III. Defendant next argues that the trial judge erred in precluding the testimony of an alibi witness and in failing to issue a bench warrant for another witness, Anthony Perez. We reject both contentions as without merit. After the Wade hearing and just before commencement of trial, defense counsel at side bar identified for the first time a so-called alibi witness, Christina Clark, whose proffered testimony would be to place defendant at her home from 8:00 p.m. on April 25, 2009 to 9:00 p.m. on April 26, 2009. However, because the robbery occurred two hours after defendant's alleged departure from her home and because the witness could not account for defendant's whereabouts at the time of the robbery, the trial judge disallowed the testimony as irrelevant under N.J.R.E. 401. We discern no abuse of discretion in this ruling. See State v. Hess, 207 N.J. 123, 182-83 (2011). The proffer did not cover the time period of the crime and therefore may not truly be considered alibi evidence. State v. Mucci, 25 N.J. 423, 431 (1957). Moreover, despite his present contention on appeal, defendant never offered the witness for any other purpose than to establish an alibi for defendant. With regard to the absent witness, both the State and defendant subpoenaed Anthony Perez, but he never appeared. On the next to last day of trial, when defense counsel indicated that he could not reach

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Perez, the judge responded "[i]f you want a bench warrant I may have to issue one. The problem is I can't delay the case because you have a witness that's not willing to appear." Defense counsel attempted unsuccessfully to reach Perez throughout that day. Afterwards, having recessed early, defense counsel was allowed more time over the evening hours to produce the witness. The following day, August 12, 2010, defense counsel represented that he was unable to secure Perez, who had hung up on him the night before, and therefore was not calling Perez. Thus, contrary to defendant's contention on appeal, the judge was never asked to issue a bench warrant to enforce the subpoena served on Perez, as it was defense counsel who ultimately decided not to call the witness to testify. Accordingly, we find the trial court properly dealt with the potential testimony of both Clark and Perez. IV. Defendant also contends that he was denied the effective assistance of counsel and points to five instances of alleged deficient attorney performance that supposedly prejudiced the outcome of his trial. Because such claims involve allegations and evidence that lie outside the trial record, they are better suited for postconviction review, to which we defer, and therefore decline to entertain them on this direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). V. Defendant argues that the cumulative effect of the errors he alleges require reversal. For reasons already advanced, we find no error, much less cumulative error, warranting reversal. VI. Lastly, defendant challenges his mid-range fifteen-year NERA sentence as manifestly excessive, given his youth and lack of criminal record. We disagree. At sentencing, defense counsel argued mitigating factor two (no harm contemplated), N.J.S.A. 2C:44-1b(2), and mitigating factor eight (conduct was the result of circumstances unlikely to recur), N.J.S.A. 2C:441b(8). In addition, the twenty-year- old defendant spoke briefly and denied committing the armed robbery. In imposing sentence, the trial judge reasoned:

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There's no doubt that although your attorney argues you didn't contemplate harm, one only needs to know that "harm is a very broad term. It doesn't mean just physical harm. It means psychiatric or psychological harm and the fear that that ca[u]ses. Certainly pointing a large firearm, or any firearm for that matter, at somebody in close range, and not only you doing that and asking for money, but also eventually Mr. Walters coming in and saying shoot them if they don't cooperate, . . . certainly one would contemplate that that would cause a lasting effect. One would play it over in their minds. I think it's reasonable to consider someone would play that over in their minds time and time again.

....

Other mitigating factors, . . . a youthful defendant was substantially influence by someone more savvy . . . that's not the situation here.

....

In fact, if we recall the testimony, this relatively consistent from all the witnesses you were the one that came into the KFC. You came in alone and it was only after you were in there for a short time that Kyiem Walters finally came in because he was concerned about what was going on and became an active participant.

.... Subsequent thereto, when apprehending by the police, and you were apprehended independently of Kyiem Walters . . . when you were apprehended you didn't come clean to the officers . . . .

No remorse was shown, so that certainly is indicative of - - it militates against the conduct of the youthful defendant influenced by another. You were acting as an independent agent at that point in time. ....

I do find mitigating factor seven would be applicable. . . .

....

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When I take a look at the aggravating factors and how heavily I weigh that one aggravating factor, the need for deterrence, not only to deter you, but others engaging in like conduct, that receives heavy weight.

On the mitigating side, I will give you the benefit, as I said, that you have no [criminal] history, but place minimal weight on that.

When I weigh . . . the one aggravating factor with the substantial weight against the mitigating factor with very small eight, certainly the aggravating factors substantially outweigh the mitigating factors.

We find no abuse of discretion in rejecting mitigating factors two and eight or in attributing more weight to the need for deterrence, given defendant's lack of remorse and circumstances of the crime, than to his lack of a prior criminal record. In sum, the sentence imposed does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984). Affirmed.

1 At a pretrial hearing, Officer Jody Pasquale testified that when she brought Perez to the location where defendant was apprehended, Perez said "it looks like him, but I don't want to send the wrong guy to jail." 2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967). 3 On August 24, 2011, our Supreme Court announced a new standard for analyzing the reliability of eyewitness identifications, State v. Henderson, 208 N.J. 208, 218 (2011), but held that these "revised principles . . . will apply purely prospectively." Id. at 280.

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