NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3718-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DYRELLE VENABLE,
Defendant-Appellant. _________________________
Submitted December 12, 2019 – Decided October 6, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-07-0973.
Joseph E. Krakora, Public Defender, attorney for appellant (Seon Jeong Lee, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D. Defendant Dyrelle Venable appeals from a January 22, 2018 judgment of
conviction of first-degree robbery and related charges, as well as the sentence
imposed for those convictions. We affirm.
I.
We summarize the facts adduced at trial. On the night of December 9,
2015, the victim and his friend walked to a Jersey City convenience store. They
passed a group of men on the sidewalk with whom they had a brief verbal
exchange. One remarked that the victim had a new cellphone.
A short time after leaving the store, the victim and his friend were
surrounded by several assailants. One pointed a gun at the pair, demanding they
turn over their property. A second held a gun to the back of the victim's head.
The victim gave the gunman in front of him his cellphone. He was then struck
in the face with a gun and fell to the ground. The assailants fled.
On a call to 911, the victim told the dispatcher he had been robbed by
seven men. He told responding officers he had been robbed by three men
wearing sweatpants and grey hoodies with the hoods up.1 He reported that the
1 At trial, the victim testified he was robbed by four men. The discrepancy in the victim's accounts of the number of robbers was highlighted by defendant at trial and is a basis for his arguments that the victim's testimony was unreliable and the verdict is against the weight of the evidence. A-3718-17T4 2 man who took his phone was wearing a black jacket with a stripe over his hoodie.
The victim stated he was robbed by the men he and his friend had encountered
on the sidewalk earlier that evening.
The next morning, the victim saw three of the assailants in a parking lot.
He recognized the suspect who had taken his phone, saw his face, and noticed
he was wearing the grey hoodie and black jacket he wore during the robbery.
The victim did not say anything to the men and did not call police.
Five days later, the victim went to the police station to attempt to identify
the suspects. There were two detectives present: Brian Glasser, who was
investigating the robbery, and Jorge Santana, who had no involvement in the
investigation. Most of the victim's interactions with the two were captured on
video.
The video recording depicts Santana showing the victim two arrays of six
photographs each. Defendant's photograph was in one of the arrays. A
photograph of a co-defendant was in the other. The victim did not identify
anyone, explaining he could not identify the suspect who took his phone because
his face was obscured during the robbery.
Glasser thereafter entered the room and asked the victim to view video
surveillance recordings from the convenience store and nearby locations on the
A-3718-17T4 3 night of the robbery. The victim left the room with Glasser and their interaction
was not captured by the video recording. However, the system captured a faint
recording of some of their conversation. In addition, Glasser
contemporaneously documented their off-camera interaction.
While with Glasser, the victim confirmed that one of the video recordings
he was shown depicted the men he and his friend encountered shortly before the
robbery. One of the men wore a black jacket with a stripe over a hoodie. The
faces of the men were obscured. The victim also confirmed that another video
recording captured him interacting with the group. The victim identified himself
and his friend in another recording walking away from the store while being
followed by three men.
The victim returned to the room in which he had been shown the photo
arrays. Glasser again asked him to step out of the room. The second interaction
also was not recorded. The detective showed the victim still photographs from
the surveillance videos with the faces of the suspects blurred. The victim
ultimately told Glasser he could identify the suspect who stole his phone at
gunpoint, but had not done so because he feared retaliation from defendant, who
he had seen in his neighborhood. He stated that the suspect's photograph was in
one of the arrays he had been shown earlier and agreed to view the arrays again.
A-3718-17T4 4 Prior to viewing the photo arrays for a second time, the victim was visibly
upset and crying. He was joined by Santana. Their subsequent interaction was
captured on video. The detective stated he was aware the victim had told Glasser
he could identify his assailant and was willing to view the photo arrays again.
Santana showed the victim the same two photo arrays he had previously been
shown. The victim identified defendant as the suspect who robbed him at
gunpoint and stated that although he did not see defendant's face during the
robbery, he saw his face the day after when he encountered him in a parking lot.
He did not identify a suspect in the second photo array, which included a
photograph of a co-defendant who appeared in the surveillance video recordings
and still photographs shown to the victim.2
Officers arrested defendant after a search of his bedroom uncovered
evidence linking him to the robbery, including a loaded handgun. A grand jury
indicted defendant, charging him with first-degree robbery, N.J.S.A. 2C:15-1;
second-degree unlawful possession of a weapon on December 9, 2015, the day
of the robbery, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for
an unlawful purpose on December 9, 2015, N.J.S.A. 2C:39-4(a); first-degree
2 Santana showed the victim a third photo array which included a photograph of a suspect developed by Glasser after his conversations with the victim. The victim did not identify a suspect in the third photo array. A-3718-17T4 5 conspiracy to commit robbery, N.J.S.A. 2C:5-2; and second-degree unlawful
possession of a weapon on December 14, 2015, the day of the search, N.J.S.A.
2C:39-5(b).3
Before trial, defendant moved pursuant to United States v. Wade, 388 U.S.
218 (1967), to suppress the victim's out-of-court identification. He argued it
was inherently suggestive for Glasser, after the victim did not pick anyone from
the two photo arrays, to show him the video recording and still photos from the
night of the robbery and suggest his assailants were depicted in that evidence.
In addition, defendant argued the two detectives introduced the idea of the
victim being in fear of him as the reason he was not identified in the first viewing
of the arrays. The State opposed the motion. The trial court issued a detailed
written decision denying the motion without holding an evidentiary hearing.
The court's decision is discussed in further detail below.
The jury convicted defendant of first-degree robbery, first-degree
conspiracy to commit robbery, and second-degree unlawful possession of a
weapon on December 14, 2015, the day of the search. The jury acquitted
defendant of second-degree unlawful possession of a weapon and second-degree
3 Additional counts of the indictment are not before us. A-3718-17T4 6 possession of a weapon for an unlawful purpose on December 9, 2015, the day
of the robbery.
At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-
1(a)(3) (risk that defendant will commit another offense), six, N.J.S.A. 2C:44-
1(a)(6) (extent of defendant's prior criminal record and the seriousness of the
offenses of which he has been convicted), and nine, N.J.S.A. 2C:44-1(a)(9)
(need to deter defendant and others). The court found no mitigating factors and
that the aggravating factors substantially outweighed the nonexistent mitigating
factors.
For first-degree robbery, the court sentenced defendant to a twelve-year
term of incarceration with an eighty-five-percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as
concurrent terms of five years' imprisonment, with an eighty-five-percent period
of parole ineligibility for first-degree conspiracy to commit robbery, and five
years' imprisonment with a forty-two-month period of parole ineligibility for
second-degree unlawful possession of a weapon.
This appeal follows. Defendant makes the following arguments.
POINT I
THE COURT ERRED IN DENYING THE MOTION FOR A WADE HEARING BECAUSE DEFENDANT
A-3718-17T4 7 DEMONSTRATED SOME EVIDENCE OF IMPERMISSIBLY SUGGESTIVE METHODS EMPLOYED BY THE POLICE TO OBTAIN THE VICTIM'S OUT-OF-COURT IDENTIFICATION OF DEFENDANT IN A PHOTO ARRAY AND THIS CREATED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.
A. THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A WADE HEARING.
B. THE COURT ERRED IN ADMITTING AS RELIABLE THE VICTIM'S OUT-OF-COURT IDENTIFICATION OF DEFENDANT IN THE PHOTO ARRAY, A PRODUCT OF TAINTED SYSTEM VARIABLES AND MANY ESTIMATOR VARIABLES THAT BRING INTO DOUBT THE VICTIM'S PERCEPTION AND MEMORY.
POINT II
[THE VICTIM], WHO IDENTIFIED DEFENDANT AS A ROBBER, PROVIDED INCONSISTENT AND INCREDIBLE TESTIMONY ABOUT HAVING SEEN DEFENDANT'S FACE DURING THE ROBBERY AND, THEREFORE, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III
THE JURY CHARGE ON FIRST-DEGREE ARMED ROBBERY WAS NOT SUFFICIENTLY TAILORED IN THAT IT DID NOT EXPLICITLY INSTRUCT THE JURY THAT IT MUST FIND DEFENDANT NOT GUILTY IF IT FOUND THAT HE WAS NOT ARMED, WHICH HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST OUTCOME AND RESULTED IN INCONSISTENT VERDICTS.
A-3718-17T4 8 POINT IV
DEFENDANT'S 12-YEAR SENTENCE WITH 85% NERA PAROLE INELIGIBILITY IS UNDULY EXCESSIVE IN LIGHT OF THE PERTINENT MITIGATING CONSIDERATIONS THAT THE COURT FAILED TO WEIGH AT SENTENCING.
II.
In State v. Henderson, 208 N.J. 208 (2011), the Supreme Court established
a four-part test for conducting a Wade hearing to determine the admissibility of
an out-of-court identification. "First, to obtain a pretrial hearing, a defendant
has the initial burden of showing some evidence of suggestiveness that could
lead to a mistaken identification." Id. at 288. "That evidence, in general, must
be tied to a system – and not an estimator – variable." Id. at 288-89.
Second, if the court finds a defendant has met the hearing threshold, "[t]he
State must then offer proof to show that the proffered eyewitness identification
is reliable[,] accounting for system and estimator variables. . . ." Id. at 289.
"[T]he court can end the hearing at any time if it finds from the testimony that
defendant's threshold allegation of suggestiveness is groundless." Ibid.
Third, the defendant bears the ultimate burden "to prove a very substantial
likelihood of irreparable misidentification." Ibid. "Fourth, if after weighing the
evidence presented a court finds from the totality of the circumstances that
A-3718-17T4 9 defendant has demonstrated a very substantial likelihood of irreparable
misidentification, the court should suppress the identification evidence." Ibid.
The Henderson Court provided a non-exhaustive list of nine system
variables affecting the reliability of an identification that are created or
controlled by law enforcement. Id. at 289-90. Those variables include several
relevant here: (1) "[d]id the witness receive any information or feedback, about
the suspect or the crime, before, during, or after the identification procedure ?";
(2) "[d]id the witness view the suspect more than once as part of multiple
identification procedures?"; (3) "[d]id police use the same fillers [non-suspect
photographs] more than once?"; and (4) "[d]id the eyewitness initially make no
choice" from the photo array? Id. at 290. The Court also listed thirteen
estimator variables, outside the control of law enforcement, that could influence
the reliability of the identification and which should be considered at the hearing
once defendant has made a showing of some evidence of suggestiveness that
could lead to a mistaken identification. Id. at 291-92.
The parties have divergent views of how the trial court resolved
defendant's motion. Defendant argues that despite finding he made a showing
of some evidence of suggestiveness that could lead to a mistaken identification,
the trial court did not hold a hearing on his motion. Instead, he argues, the court
A-3718-17T4 10 reviewed the video and audio recordings of the victim's interactions with the
detectives, police reports, system variables, and estimator variables and
determined based on the totality of the circumstances that the victim's out-of-
court identification was reliable. In doing so, defendant argues, the trial court
blurred the four-part Henderson analysis and made a reliability determination
without giving him the opportunity to create a record through the examination
of the victim and detectives, particularly with respect to what transpired outside
of the view of the video recording when the victim met with Glasser.
The State, on the other hand, argues the trial court reviewed defendant's
proffer and concluded he failed to make a showing of some evidence of
suggestiveness that could lead to a mistaken identification. Thus, the State
contends, the trial court correctly denied defendant's request for a hearing on the
reliability of the out-of-court identification.
We have carefully reviewed the trial court's written opinion. Despite a
number of references to the totality of the circumstances standard, and to
estimator variables, both of which are applicable only after a defendant's initial
showing of suggestiveness has been made, we conclude that the core of the trial
court's decision is its conclusion that defendant failed to make the necessary
showing to warrant a hearing.
A-3718-17T4 11 After describing in detail the video and audio recordings of the victim's
interactions with the detectives, the court concludes "[b]ased on the totality of
the circumstances, the evidence in the record does not provide some evidence
that the identification was not actually that of the victim or was imposed upon
him so that a substantial likelihood of irreparable misidentification can be said
to exist." Da53. This holding incorporates two conflicting standards: "totality
of the circumstances" and "some evidence."
The trial court's explanation of the evidence on which it relied to reach its
conclusion is enlightening:
As [v]ictim himself confirms, he could not see the faces of the actors in the surveillance video and the faces in the stills were blurred. Further, it is clear from a review of the video that Detective Glasser did not plant the idea of fear of retaliation or fear for his life in [v]ictim's mind. When he is asked if he is trying to say he is scared, [v]ictim responds that he would rather leave the United States than see the men again because he is afraid they will kill him. Victim is adamant throughout the interview that he is afraid and that is why he does not want to proceed. It is only after the Detective asks him, if he was not concerned about retaliation, could he have identified someone in the array that [v]ictim admits he could have made an identification and did not. Upon a second viewing of the array, he picks out [d]efendant's photo upon seeing it. He[,] however, does not identify anyone in the second and third photo array[s], both of which contained photos of the co- defendant and [an]other suspect. At this time, the [c]ourt finds that the photo array procedure does not
A-3718-17T4 12 rise to the level of suggestiveness warranting suppression.
Having acknowledged that he was not challenging the photo arrays or the
manner in which they were administered, defendant relied on the victim's
interaction with Glasser during which he viewed the video recordings and still
photographs from the night of the robbery to make his initial showing of
suggestiveness. The trial court evaluated precisely that evidence and determined
it did not establish suggestiveness warranting a hearing.
There is sufficient support in the record for the trial court's determination.
The video recording establishes the victim selected defendant from the photo
array without prompting from the detectives. In addition, it is the victim who
volunteers that, although he recognized defendant during his first viewing of the
photo array, he did not identify him out of fear. The victim's emotional distress
and crying can be seen on the recording. His review of the surveillance
recordings and still photographs, although off camera, can be heard and was
memorialized in a written report. The victim confirmed on video that he, and
not the detectives, identified his assailant in the recordings from the night of the
robbery. The victim noted that he could not see defendant's face in the recording
and still photographs, but could identify him from the clothing he wore. The
victim also did not identify the co-defendant or other suspect, both of whom
A-3718-17T4 13 appeared in the recordings, in the second and third photo arrays, corroborating
the court's conclusion the victim was not subject to suggestion by the detectives.
The trial court's written discussion of estimator variables was superfluous
to its analysis. We do not view that portion of the trial court's opinion to
undermine the validity of its determination that defendant failed to satisfy the
first prong of the Henderson test and was not, therefore, entitled to a hearing or
suppression of the out-of-court identification. The estimator variables discussed
in the trial court's opinion, including the victim's opportunity to see defendant
during the robbery, the level of stress involved, and the short duration of the
event, were available subjects of cross-examination at trial, as were the victim's
prior inconsistent statements about whether and when he saw defendant's face .4
III.
N.J.S.A. 2C:15-1 sets forth the elements of robbery. The statute provides:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
4 At trial, for the first time, the victim testified he saw defendant's face during the robbery. A-3718-17T4 14 (3) Commits or threatens immediately to commit any crime of the first or second degree.
.....
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
[N.J.S.A. 2C:15-1.]
As noted above, defendant was charged with first-degree armed robbery.
Second-degree robbery was not included as a lesser-offense. The court, without
objection from defendant, issued jury instructions that were nearly identical to
the model jury instructions for first-degree robbery. Of note, the instructions
included the following passage:
A section of our statute provides that a robbery is a crime of the second degree, except that it is a crime of the first degree if the actor is armed with or uses or threatens the immediate use of a deadly weapon. In this case, the State must prove beyond a reasonable doubt that the defendant was armed with, used or threatened the immediate use of a deadly weapon while in the course of committing a robbery. Armed with a deadly weapon means that the defendant possessed and had immediate access to a deadly weapon.
The judge also defined "deadly weapon," "serious bodily injury," and
"possession" – all required elements of first-degree robbery. At the conclusion
A-3718-17T4 15 of the charge for first-degree robbery, the court, again quoting the model charge,
instructed the jury as follows: "to summarize, if you find that the State has not
proven beyond a reasonable doubt any one of the elements of the crime of
robbery, as I have defined that crime to you, then you must find the defendant
not guilty."
Defendant argues the jury charge on first-degree robbery was confusing
and did not make sufficiently clear to the jury that it must find defendant not
guilty of robbery if it found he was not armed. He argues the instructions
resulted in inconsistent verdicts, given he was found guilty of first-degree
robbery, but acquitted of the two weapons offenses relating to the robbery.
It is well-settled that “[a]ccurate and understandable jury instructions in
criminal cases are essential to a defendant's right to a fair trial.” State v.
Concepcion, 111 N.J. 373, 379 (1988). However, "[i]f 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." State v.
Singleton, 211 N.J. 157, 182 (2012). Therefore, "the failure to object to a jury
instruction requires review under the plain error standard." State v. Wakefield,
190 N.J. 397, 473 (2007).
As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge
A-3718-17T4 16 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."
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).]
The mere possibility of an unjust result is not enough to warrant reversal of a
conviction. State v. Jordan, 147 N.J. 409, 422 (1997). "The error must be
considered in light of the entire charge and must be evaluated in light 'of the
overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)
(quoting Chapland, 187 N.J. at 289).
"[W]e must read the charge as a whole." State v. Townsend, 186 N.J. 473,
499 (2006). "[T]he prejudicial effect of an omitted instruction must be evaluated
in light of the totality of the circumstances including all the instructions to the
jury, [and] the arguments of counsel." Ibid. (alteration in original) (quoting
State v. Marshall, 123 N.J. 1, 145 (1991)). A defendant is entitled to a charge
that is "accurate and that does not, on the whole, contain prejudicial error." State
v. Labrutto, 114 N.J. 187, 204 (1989). "The test to be applied . . . is whether the
charge as a whole is misleading, or sets forth accurately and fairly the
controlling principles of law." State v. Baum, 224 N.J. 147, 159 (2016) (quoting
State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)).
A-3718-17T4 17 We are satisfied that the court clearly explained to the jury the elements
of first-degree robbery and the State's obligation to prove those elements beyond
a reasonable doubt. In addition, the court adequately instructed the jury with
respect to the State's obligation to prove that defendant was armed with, used or
threatened to use a deadly weapon.
Nor do we agree with defendant that the inconsistent nature of the jury
verdicts warrants reversal of his convictions. The Supreme Court has held "that
a jury may render inconsistent verdicts so long as there exists a sufficient
evidential basis in the record to support the charge on which the defendant is
convicted." State v. Banko, 182 N.J. 44, 46 (2004).
There is sufficient support in the record on which a jury could find that
defendant was armed with, used, or threatened the use of a deadly weapon while
committing the robbery. The victim testified defendant pointed a gun at him
and he said so in his 911 call immediately after the robbery. In addition, a search
of defendant's bedroom produced a gun, which was the basis for his conviction
of the weapon possession offense relating to December 14, 2015.
IV.
We review defendant's sentence for abuse of discretion. State v. Pierce,
188 N.J. 155, 166 (2006). We must affirm a sentence "unless (1) the sentencing
A-3718-17T4 18 guidelines were violated; (2) the aggravating and mitigating factors found by the
sentencing court were not based upon competent and credible evidence in the
record; or (3) 'the application of the guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to shock the judicial conscience.'" State
v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth,
95 N.J. 334, 364-65 (1984)).
The sentencing court must examine the aggravating and mitigating factors
enumerated in N.J.S.A. 2C:44-1(a) and (b). Each factor found by the court must
be relevant and supported by "competent, reasonably credible evidence." Id. at
72 (quoting Roth, 95 N.J. at 363). The court then must conduct a qualitative
balancing of the factors to determine the appropriate sentence. Id. at 72-73. One
"reasonable" approach is for the court to begin its analysis in the middle range
for the offense at issue and determine whether the factors justify departure above
or below the middle range. Id. at 73 (quoting State v. Natale, 184 N.J. 458, 488
(2005)).
Defendant does not challenge the three aggravating factors found by the
trial court. He argues that the court erred by not considering his age at
sentencing. Defendant was eighteen when he committed the robbery. The
record establishes, however, that the State, in light of defendant's age, requested
A-3718-17T4 19 a sentence of fifteen years, the middle of the first-degree range. The trial court
imposed a shorter sentence of twelve years. We find defendant's remaining
arguments concerning his sentence to be unconvincing and conclude the length
of his sentence does not shock the judicial conscience.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3718-17T4 20