NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant, David Perez, appeals his conviction following a jury trial for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a weapon, N.J.S.A. 3C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was sentenced to an aggregate term of sixteen years in custody, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. None of the convictions were merged; all were declared to be subject to NERA.
On appeal, defendant raises the following issues:
I. THE PROSECUTOR'S MULTIPLE IMPERMISSIBLE STATEMENTS DURING SUMMATION CONSTITUTE PLAIN ERROR AND THIS COURT SHOULD REVERSE THE CONVICTION BELOW.
II. REVERSAL IS WARRANTED BECAUSE THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED AN IN-COURT IDENTIFICATION BASED ON A TAINTED OUT-OF-COURT IDENTIFICATION.
We affirm defendant's convictions and remand for resentencing, which the State concedes is required.
I.
The jury could have concluded from the evidence adduced at trial that on November 29, 2008, while the victim, Manuel Branco, was opening a check-cashing shop for a friend, defendant, a welder, used a modified metal framing square to break into Branco's van, where he hid. Branco returned, and while stopped at a light, defendant suddenly appeared, brandishing a gun and ordering Branco to drive onto the railroad tracks. Branco froze, and a tussle ensued while defendant sought to gain control of the vehicle. Failing, he got out, having taken Branco's cell phone and some checks at gunpoint. He then got into a waiting car containing two other individuals and sped away.
Following the incident, Branco drove to a nearby fire station, where firefighters reported the matter to the police. Branco stated that he knew defendant, a dark-skinned Hispanic man, from the neighborhood. Similarly, during the robbery, defendant confirmed that he knew Branco.
Thereafter, the police conducted a photo array pursuant to the Attorney General's guidelines, during which Branco identified defendant's photo as that of the perpetrator with eighty to ninety percent certainty. Branco positively identified defendant in court. Additionally, defendant's fingerprint was found on the framing square used to break into the van and left there by defendant. A video recording of the break-in depicted a person who resembled defendant, although a view of his face was not presented. Additionally, it was demonstrated at trial that defendant lived only two blocks from the location of the break-in.
Defendant did not testify on his own behalf. However, he offered witnesses to establish the alibi that he was working as an ironworker in a Newark shop crafting metal window guards at the time of the robbery. Testimony was also given that defendant's tool box, containing the carpenter square, "went missing" shortly before the day of the robbery.
II.
At trial, defense counsel presented the testimony of Pablo Villalona Jimenez, who gave a statement on May 1, 2009 to an investigator for defense counsel regarding the events of Saturday, November 29, 2008. The witness testified that on that Saturday, he had gone to his shop at 8:30 a.m. to pick up tools in order to complete a complicated project. Defendant and another man, Jaro Mendoza, were there working on a window project. When Villalona Jimenez returned to the shop between 4:00 and 4:20, the men were gone, but the project was complete and had been painted. On cross-examination, the prosecutor established that the statement given by Villalona Jimenez was in English, but that he spoke only Spanish. Villalona Jimenez then acknowledged that there was an interpreter present, but he did not know the interpreter's identity.
In her closing argument, the prosecutor argued that, although Villalona Jimenez was aware of defendant's arrest on December 12, 2008 within days of its occurrence, he did not offer an alibi until May 1, 2009 when he gave his statement. Similar comments were made with respect to another of defendant's alibi witnesses, his cousin and close friend, Jaro Mendoza.
Further, the prosecutor argued that the accuracy of Villalona Jimenez's statement could not be verified because the statement was written in English, whereas Villalona Jimenez spoke Spanish, and the interpreter had not been identified or called as a witness.
The prosecutor argued:
But here's the interesting thing about this statement, S-21. We have no idea who wrote S-21. We have no idea who this transcriber is. We know Mr. Villalona didn't write it. We know these aren't his words because he doesn't read, write or speak English. Who wrote this? Whose words are these? Who's the transcriber? Who's the interpreter? Why can't we judge their credibility.
No objection to these arguments was raised by defense counsel at trial.
On appeal, defendant claims that the prosecutor's attempt to impeach defendant's alibi because his witnesses did not promptly offer it and that her comments throwing into question the accuracy of Villalona Jimenez's statement constituted plain error. We disagree.
The Supreme Court has
consistently recognized that prosecutors are afforded considerable leeway in their closing arguments. State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 141 N.J. 525, 559 (1995). Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. Frost, supra, 158 N.J. at 82; Harris, supra, 141 N.J. at 559. However, "the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." Frost, supra, 158 N.J. at 83 (citing State v. Ramseur, 106 N.J. 123, 320 (1987)). Thus a prosecutor's duty is two fold: a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction. Ibid.; State v. Farrell, 61 N.J. 99, 105 (1972) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).
[State v. Smith, 167 N.J. 158, 177 (2001).]
The Court addressed the use of evidence that an alibi witness failed to come forward to exonerate a defendant in State v. Silva, 131 N.J. 438 (1993). There, the Court held that when a judge finds that
"silence may reasonably be viewed as inconsistent with [the witness's] testimony," State v. Marshall, 260 N.J.Super. 591, 598 (App. Div. 1992), the rules of evidence allow cross-examination on the prior inconsistency, and that a proper foundation is laid by asking whether
the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant [and] was familiar with the means to make the information available to law enforcement authorities * * *.
[Id. at 447-48 (quoting State v. Silva, 252 N.J.Super. 622, 629 (App. Div. 1991) and citing People v. Dawson, 406 N.E.2d 771, 777 n.4 (N.Y. 1980)).]
In this case, the proper foundation was laid by the prosecutor. With respect to Villalona Jimenez, it was established that defendant was an employee; that Villalona Jimenez had known him for twelve to fifteen years; and that the two men lived approximately two blocks apart. Villalona Jimenez testified additionally that he recognized that he had exculpatory evidence within days of defendant's arrest, which occurred on December 12, 2008, and at that time, he agreed to testify on defendant's behalf.
With respect to Mendoza, the prosecutor established that he and defendant were cousins and friends, known to each other for their entire lives. They had been working together since 1999. The prosecutor also established that, on the night before the robbery, Mendoza's girlfriend, Yolanda Lagos, was notified by the police that someone had unsuccessfully tried to force open a window in her residence. Mendoza offered to fabricate window guards for her on the following Saturday. Perez participated in the project, working until approximately 2:30 or 2:45 in the afternoon. The prosecutor additionally established that Mendoza became aware of defendant's arrest on charges of robbery, and at that time he was aware that he possessed exculpatory evidence of relevance to the police's investigation.
On redirect, defense counsel elicited testimony that Mendoza pulled up to defendant's residence to pick him up for work immediately after defendant had been arrested by the police. Although the police were still on the premises, Mendoza did not seek to exonerate defendant, finding the police not "inviting."
We conclude that the testimony that we have set forth laid a sufficient foundation to permit the prosecutor to impeach the alibi testimony of Villalona Jimenez and Mendoza in the fashion to which defendant objects. Thus, we decline to find plain error. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.
Additionally, we find no plain error in the prosecutor's argument that it was not possible to determine whether Villalona Jimenez's statement in English accurately represented his oral statement, given in Spanish, without examining the interpreter. The prosecutor did not request a missing witness instruction pursuant to State v. Clawans, 38 N.J. 162 (1962). Moreover, a fair reading of the prosecutor's argument suggests that she was not arguing that the interpreter would have testified that the statement was false. Rather, the prosecutor was merely seeking to cast doubt on the accuracy of what was written. We thus find no plain error.
III.
Defendant claims, as well, that reversible error occurred when the judge failed to give the exhibits to the jury during their second day of deliberation. However, they had the exhibits during the first day and did not request them on the second day. Further, they only deliberated for about one and one-half hours on the second day. And finally, what defendant complains most about is the absence from the jury room of D-3, the square bearing defendant's fingerprint. It is unclear to us what value could result from further examination of that inanimate object. No claim was made at trial that the square could not have been utilized in the manner the State contended. The only argument with respect to the square was that it had been taken from defendant before the events at issue.
IV.
Defendant also challenges the photo identification procedures utilized by the police in obtaining his identification as the perpetrator. He acknowledges that the police utilized an appropriate double-blind procedure in the photo identification process. However, he claims that the array was impermissibly suggestive, because it contained the picture of only one person from the neighborhood — defendant. However, our review of the record in the matter satisfies us that no testimony was given with respect to the locations of the residences of the five other persons included in the photo array. As a consequence, defendant's argument is not supported by the evidence.
Further, we are satisfied that the identification process employed by the police in this matter was not impermissibly suggestive under standards adopted by the Court in State v. Madison, 109 N.J. 223, 232 (1998). The array was selected by Police Officer Porfiero Dominguez following the identification of defendant's fingerprint on the square. He was included in the array, as were five other persons who resembled him in appearance. Dominguez called the victim, Branco, to ask him to view the array, but did not suggest to him that a likely suspect was included in it. The array was then shown in accordance with the Attorney General's guidelines by Detective Gerardo Rodriguez, an officer with no knowledge of the investigation, who was fluent in Spanish, Branco's native language. Rodriguez instructed Branco in Spanish as to the procedures to be undertaken, receiving a positive response when Branco viewed the fifth photo. At that time Branco stated that he was eighty to ninety percent positive in his response, and this information was conveyed to the jury. The sixth photo was also shown to defendant. Thus, the identification was unexceptionable.
V.
We agree with the State that the trial judge was mistaken in the manner in which she sentenced defendant and that the conspiracy and possession of a weapon for an unlawful purpose convictions should have been merged into the conviction for first-degree robbery. When the object of a conspiracy does not extend beyond the substantive offense, a conviction for conspiracy merges with the substantive crime. State v. Hardison 99 N.J. 379, 386 (1985); N.J.S.A. 2C:1-8a(2). Because the jury was instructed that the State contended defendant's purpose in possessing a gun was to rob Branco, that charge, as well, should have been merged with the armed robbery.
Defendant's conviction for unlawful possession of a weapon does not merge with the other weapons charge. State v. O'Neill, 193 N.J. 148, 163 n.8 (2007); State v. Latimore, 197 N.J.Super. 197, 215-16 (App. Div. 1984). However, that offense was, contrary to the judgment of conviction, not subject to NERA. N.J.S.A. 2C:43-7.2.
Defendant's convictions are affirmed. The matter is remanded for resentencing.
