RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0537-15T4
IN THE INTEREST OF L.C.,
A JUVENILE.
___________________________
Submitted April 26, 2017 – Decided July 31, 2017
Before Judges Fuentes, Gooden Brown and
Farrington.
On appeal from the Superior court of New
Jersey, Chancery Division, Family Part, Union
County, Docket Nos. FJ-20-691-15, FJ-20-790-
15, FJ-20-842-15, FJ-20-855-15 and FJ-20-918-
15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison S. Perrone, Designated
Counsel, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (N. Christine Mansour,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
The juvenile, L.C., challenges identification evidence
introduced by the State during a bench trial before Judge Robert
A. Kirsch as too suggestive, unreliable and unpersuasive to support
the adjudications of delinquency. L.C. also argues that the
Court's weighing of the dispositional factors does not support the
length of the sentence. For the reasons which follow, we affirm.
L.C. was adjudicated delinquent for acts which, if committed
by an adult, would constitute four counts of first-degree armed
robbery and related aggravated assault and weapons offenses,
specifically four counts of armed robbery, a first degree offense
in violation of N.J.S.A. 2C:15-1; four counts of possession of a
weapon for an unlawful purpose, a second degree offense in
violation of N.J.S.A. 2C:39-4a; four counts of aggravated assault,
a fourth degree offense in violation of N.J.S.A. 2C:12-1b(4);
three counts of unlawful possession of a weapon, a second degree
offense in violation of N.J.S.A. 2C:39-5b; and one count of
attempted armed robbery, a second degree offense in violation of
N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-1, for which he received an
aggregate five-year sentence to Jamesburg.
The charges stemmed from a robbery spree over several days,
during which L.C. robbed owners and employees of small business
establishments at gunpoint using a silver revolver with tape on
the handle. The evidence presented by the State consisted of in-
court and out-of-court eyewitness identifications, video
surveillance footage and still photographs derived therefrom, a
mask found on L.C.'s person, and a loaded silver revolver with
tape on the handle recovered in proximity to L.C.
2 A-0537-15T4
On appeal, L.C. argues:
POINT I
THE ADJUDICATION OF DELINQUENCY MUST BE
REVERSED BECAUSE THE STATE'S UNRELIABLE AND
SUGGESTIVE IDENTIFICATION EVIDENCE DOES NOT
SUPPORT A FINDING THAT THE JUVENILE WAS A
PARTICIPANT IN THE ROBBERIES.
POINT II
A CORRECT WEIGHING OF ALL FACTORS DOES NOT
SUPPORT THE IMPOSITION OF A FIVE-YEAR TERM OF
INCARCERATION.
We first address L.C.'s arguments that the State's
identification evidence does not support a finding that L.C. was
a participant in the robberies. L.C. was arrested on March 9,
2015, after attempting to commit the last of a series of armed
robberies involving multiple small businesses.
At trial, testimony was adduced showing that on March 8, 2015,
an African-American youth, later identified as L.C., entered the
Scarlet Grocery store wearing a mask, which covered the lower
portion of his face up to the bridge of his nose. He was dressed
in all black. His appearance caused the store employee, Melvin
Flores, to be suspicious. After standing at the ATM, L.C. walked
toward Flores, pulled out a silver revolver and pointed it at
Flores' head. Thereafter, according to the other employee, Carlos
Abreu, he pointed the gun at Abreu, at which time Abreu threw
himself to the ground and banged on the freezer door, after which
3 A-0537-15T4
L.C. ran out of the store. The employees did not hand over any
money, nor did they initially report the incident to the police.
On the following day, a heavyset African-American woman came
in with an African- American juvenile, later identified as L.C.'s
co-juvenile. The woman surveyed the store, bought some candy and
gum and left with the African-American male. According to Flores,
the juvenile was wearing a gray hoodie with white tassels. Flores
followed them out of the store and observed them in front of a
house conversing. Shortly thereafter, another African-American
man entered the store, with his hands in his waistband and wearing
a mask on his face up to the bridge of his nose. Flores told
Abreu to hit the alarm and the man fled. Flores and Abreu observed
the two men, and the woman, running down Fifth Street.
The police arrived in approximately two to three minutes in
response to the alarm. Officer Rodney Dorilus testified that on
March 9, he was working in the municipal court, and had left for
lunch when he heard the radio broadcast of an armed robbery at 75
Fifth Street. A description was given of two men and a woman and
the direction they were last seen proceeding. He decided to head
toward the location in a marked police vehicle. He saw the three
suspects crossing East Jersey toward Sixth Street. They were
walking rapidly when he first saw them, but when they observed the
marked vehicle they slowed down and were walking casually.
4 A-0537-15T4
The officer testified that he called for additional units which
arrived within a minute as the three suspects started to split up.
Officers Leonardo Nunes, Rogerio Alves and several other units
arrived at the scene. Officer Dorilus detained the woman, Alves,
the co-juvenile, and Officers Victor Matos and Nunes detained L.C.
Officer Dorilus identified the co-juvenile in court as the
individual wearing the gray hoodie and L.C. as the other African-
American youth. On cross-examination, the officer testified that
there were no other groups of individuals who matched the
description of the individuals involved in the robbery in the
vicinity of the arrest. The three were patted down and placed in
separate radio cars. Flores and Abreu were taken to the scene of
the arrest approximately ten or fifteen minutes later, where they
individually viewed the three suspects one-by-one. Both Flores
and Abreu identified all three individuals.
Flores testified that the police told him nothing prior to
conducting the identification procedure. He identified the co-
juvenile first. He further testified that the person who walked
into the store on March 9 with the woman, was not the person who
pointed the gun at him on March 8. Abreu was driven to the
location by the police, about a three-minute drive. During the
drive, he testified the police told him they were going to take
him to the people they "had nabbed" one by one so he could identify
5 A-0537-15T4
them. Abreu testified the people were handcuffed, behind the
patrol car, while he was sitting in the patrol car about 20-22
feet away. He identified, in court, the co-juvenile as the person
who accompanied the female into the store on March 9, and L.C. as
the person who had pointed the weapon at him on March 8.
On cross-examination, Abreu testified that the individual who
pointed the gun at him wore all black clothing. He recognized L.C
in part because of the clothes he wore, because L.C. wore the same
clothes on March 8 and 9. Abreu, who testified that he was
previously the owner of the Scarlet Grocery, stated the store had
approximately ten video surveillance cameras. The surveillance
videos introduced into evidence corroborated the identifications.
After the identification, the suspects were taken to
headquarters for booking. Flores and Abreu were taken to police
headquarters to give statements. Abreu, a native of the Dominican
Republic, understands "a little bit" of English, but cannot read
English. Abreu in his statement said, "Yes. He (the co-juvenile)
was outside today, but he had the gun yesterday." Flores, a native
of El Salvador, was interviewed by Detective Michael Gonzalez.
Detective Gonzalez is fluent in Spanish and testified that Flores
was nervous and said he feared retribution. The questions were
asked in Spanish and both answers and questions were recorded in
English. In court, Detective Gonzalez identified the co-juvenile
6 A-0537-15T4
and noted he was wearing a gray pullover hoodie with white draw
strings. He also identified L.C. in court as wearing a black
short sleeve shirt. He testified he was familiar with both
juveniles from previous interactions.
Detective Gonzalez testified on cross-examination that Flores
indicated in his statement that on the day after the robbery, only
L.C. came into the store, and L.C. had been the one with the gun
on March 8. According to Flores, the co-juvenile, dressed in gray
with white draw strings, never came into the store on March 9.
When questioned during cross-examination about his statement,
Flores stated that he did not recall his response to the question:
"When you arrived at the scene where the possible suspects were,
did you identify anyone there?" to which his answer was, "Yes.
There were three shown to me separately. I identified the two
that were in the store -- the girl and black male that came inside
with his hand in his waistband. Then the other guy that was
waiting for them outside." Flores affirmed on cross-examination
that it was L.C. who came in with the gun, that he was nervous the
day he gave the statement, and that he had trouble understanding
the detective's questions. He further testified the co-juvenile
did not have a weapon on either day.
Abreu testified that on March 9, a woman and a young man
wearing a gray hoodie came into the store and bought candy. The
7 A-0537-15T4
two left and then a male came into the store who Abreu thought was
the same individual who had just been in with the female. The
alarm was pushed and the police arrived in seconds. He and Flores
told the police the direction in which the people had gone.
Officer Leonardo Nunes testified he heard the radio broadcast
and responded to the vicinity looking for suspects fitting the
description of the robbers. He heard Officer Dorilus call for
backup and went to the area of Sixth Street and Broadway. He
testified that Officer Dorilus had the female detained, and told
him to get the other suspect who was walking away. This suspect
was an African-American man wearing a black hoodie and had hair
coming out from under the hoodie. He held the suspect by the
front of his pants and patted him down "everywhere except his
privates" and handcuffed him. He stayed with the individual
through the identification process. Officer Nunes identified L.C.
as the suspect he detained.
After checking Officer Matos' police vehicle and finding it
empty, Officer Nunes placed L.C. in the rear of the car and
followed Matos to police headquarters. Officer Matos observed
L.C. moving about in the back of the car. When Officer Matos took
L.C. out of his vehicle, he found a silver revolver with white
tape on the handle on the floor. Officer Matos alerted Officer
Nunes to the gun, which Officer Nunes removed from the vehicle.
8 A-0537-15T4
The gun had two bullets in it. No one else had been in the
passenger compartment that day. Officer Nunes spoke to Flores and
Abreu after finding the weapon and asked them in Spanish to
describe the weapon. They described a revolver and specifically
stated it had white tape on the handle. After they described the
weapon, Officer Nunes showed them the gun, which had been found
in Officer Matos' vehicle, and both Flores and Abreu simultaneously
identified the gun. The gun and the bullets were produced in
court and Officer Nunes identified it as the one he recovered from
Officer Matos' vehicle and identified by Flores and Abreu.
Officer Alves testified that he was at the lineup. He is
fluent in Spanish. He testified that he told Flores and Abreu
that "we have possible suspects obtained here based upon your
descriptions. Tell me yes or no if they were involved." He
testified that the "Two of them were very excited. Not scared,
but excited when they saw . . . the suspects." When asked to
describe how they were excited, he stated, "Describe how they were
excited. Very certain of what they saw. They were trying to get
their message out. Yeah, yeah, yeah. That -- kind of excited."
Officer Alves testified that he processed both L.C. and the
co-juvenile. He identified a black ski mask and a black cotton
hat as having been taken from L.C., whom he identified in the
court room. He further testified L.C. gave a home address which
9 A-0537-15T4
is five or six blocks from the Scarlet Grocery. L.C. was wearing
a black hooded sweatshirt, black sweatpants and black boots. He
also testified at the time of the arrest the co-juvenile was
wearing a gray sweatshirt with matching gray pants and black
sneakers.
As a result of the arrests in connection with the Scarlet
Grocery robbery, an investigation was conducted of similar recent
robberies in the area. The investigation revealed that on March
5, 2015, L.C. robbed the Bienvenido a Elin Deli, also located in
Elizabeth. The store has four surveillance cameras, two of which
were recording on that day. The owners, Rafael Rosario and his
wife Luz Jimenez, were both working at the time of the robbery.
On the day in question, Rosario testified he had been
assisting a customer when a young African-American man, "tall"
wearing a hoody which he removed, and a "nice haircut" 16 or 17
years old came into the store, and asked if he sold "loosies".
Rosario told him no and he left. While he continued assisting the
customer, a second African-American man came into the store, shook
snow off his feet, said hello to Jimenez and then pointed a gun
at her. Rosario described it "like a .38," "shiny and silver
like", "a revolver". The person holding the gun was a "young guy,
about 14, 15, 17 years old. He was black, wearing a black hooded
sweatshirt and black pants." He was "skinny". Rosario gave him
10 A-0537-15T4
the money in the register and a laptop. Rosario testified that
he observed the person run straight on Fifth and then turn onto
South Park.
Rosario called the police and gave the responding officers a
copy of the surveillance video. Approximately one week later, a
police officer arrived at the store and showed Rosario photographs
of potential suspects. However, he was unable to make an
identification. On March 27, 2015, Rosario went to the police
station where he gave a statement. He was unable to identify L.C.
as one of the persons who robbed him. Jimenez identified the co-
juvenile as the one wielding the gun.
Officer Alexander Blanco testified at the trial. On March
5, he was on duty on Fifth Street when he received a call from
dispatch about a robbery and responded in approximately one minute.
He found the owner outside the store, obtained a description which
matched the one he had received from dispatch and proceeded north
on Fifth toward the area of South Park and Court Street. Officer
Blanco watched the surveillance video with Rosario and his wife,
and realized there were two suspects. He broadcast the information
from the video over the police radio, took cell phone pictures of
the surveillance video images and sent them by text to other police
units.
11 A-0537-15T4
When L.C. and the other suspected juvenile were arrested on
March 9, Blanco requested the arresting officers to send him a
picture of the juveniles. The picture showed the co-juvenile
wearing the same gray sweat shirt with white draw strings as he
did in the Bienvenido a Elin Deli video. Blanco testified he was
wearing the same sweatshirt in court. Blanco also testified that
the co-juvenile had a distinctive haircut: "It had a straight line
across the forehead." He further testified that he saw the co-
juvenile and L.C. in the holding cell on March 9, and he noticed
that L.C. had bushy eyebrows, the same as the person in the
surveillance video.
On March 7, Nicholas Haddad, son of the owner of the Elizabeth
Truck Stop, was robbed at gun point by an African-American man in
black clothing wearing a ski mask. The truck stop has sixteen
surveillance cameras, fourteen of which were working. Four cameras
recorded the robbery. Haddad testified he was working the seven
a.m. to four p.m. shift. At approximately 2:35 p.m., he was taking
out the trash when an African-American man wearing all black clothes
came in and asked for Newport 100 cigarettes. Haddad left the trash
and walked back to the front of the store. He went around the
counter to retrieve the cigarettes. When he turned around, the man
had a silver gun in his face. The assailant told Haddad to give
him cash from the first register which amounted to approximately
12 A-0537-15T4
$150.00. He then demanded cash from a second register which was
empty. The assailant then demanded Haddad's license and wallet,
which Haddad did not have on him. Finally, the assailant demanded
the sixteen or seventeen packs of Newport 100 cigarettes that Haddad
had left. The man then put the gun down the front of his pants and
left. Haddad followed the man out the door and watched him go right
toward Sixth Avenue. The incident was captured in the surveillance
video.
On March 9, the police came to the Truck Stop and Haddad
recounted the facts of the robbery. On March 12, Haddad brought
videos and stills from the cameras at the Truck Stop to his initial
interview with Detective Gonzalez. Haddad returned to police
headquarters on March 18 to view a photo array. The photo array
consisted of six photographs, the target, L.C., and five other
photographs. The array was prepared by Detective Gonzalez, but
conducted by Detective Wlazlowski. Haddad identified the individual
portrayed in picture number 4 as the robber. Picture number four
was a photograph of L.C.
We are required to accept the findings of a trial judge
following a bench trial unless "they are so manifestly unsupported
or inconsistent with the competent, relevant and reasonably credible
evidence as to offend the interests of justice." S.D. v. M.J.R.,
415 N.J. Super. 417, 429 (App. Div. 2010) (quoting Cesare v. Cesare,
13 A-0537-15T4
154 N.J. 394, 412 (1998)). In State v. Henderson, 208 N.J. 208
(2011), our Supreme Court set forth a non-exhaustive list of system
variables to be considered and evaluated in determining whether an
out of court identification has been tainted.
Prior to trial, Judge Kirsch held a Henderson hearing with
regard to the March 8 and 9 incidents and, after evaluating the
system variables set forth in State v. Henderson, supra, declined
to suppress the identification evidence in a decision set forth on
the record on June 5, 2015. Judge Kirsch found the in and out of
court identifications made by Haddad and Flores, in combination
with the videos and still photographs in evidence, and the physical
evidence recovered from L.C.'s person and the police vehicle in
which he was transported, established beyond a reasonable doubt
that L.C. was the individual involved in each of the subject
incidents.
We find the State met its burden, and the burden thereafter
shifted to the defense to prove a very substantial likelihood of
irreparable misidentification. We find the fact finding and
credibility determinations of the trial court to be amply supported
by the record. For the reasons stated by Judge Kirsch in his
decision, declining to suppress the identification testimony, and
his written decision of June 5, 2015, finding L.C. committed four
14 A-0537-15T4
counts of armed robbery together with related weapons and assault
charges, the adjudications of delinquency are affirmed.
We turn to L.C.'s argument that the court did not correctly
assess and weigh mitigating and aggravating factors, thereby
imposing an excessive sentence. Although L.C. had no prior
adjudication, he had previously been in residential treatment on
more than two occasions and failed to complete the programs. The
psychological evaluations in L.C.'s Juvenile Pre-Disposition Report
support the custodial sentence, as do the findings of the trial
judge placed upon the record. Pursuant to N.J.S.A. 2A:4A-43(c)(3):
The court may fix a term of incarceration
under this subsection where:
(a) The act for which the juvenile was
adjudicated delinquent, if committed by an
adult, would have constituted a crime or
repetitive disorderly persons offense;
(b) Incarceration of the juvenile is
consistent with the goals of public safety,
accountability, and rehabilitation and the
court is clearly convinced that the
aggravating factors substantially outweigh
the mitigating factors as set forth in section
25 of P.L.1982, c.77 (C.2A:4A-44).
For the reasons set forth by the trial judge, we find no abuse of
discretion.
Affirmed.
15 A-0537-15T4
IN THE INTEREST OF L.C., A JUVENILEÂ (FJ-20-691-15, FJ-20-790-15, FJ-20-842-15, FJ-20-855-15AND FJ-20-918-15, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion