NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3068-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GIRISH MENON,
Defendant-Appellant.
Argued May 8, 2019 – Decided June 4, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 16-09- 0905.
Robin Kay Lord argued the cause for appellant.
Jennifer Bentzel Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Scott A. Coffina, Burlington County Prosecutor, attorney; Nicole Handy, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM After a bench trial, defendant Girish Menon was convicted of first-degree
robbery, N.J.S.A. 2C:15-1(a)(1).1 On January 26, 2018, defendant was
sentenced as a second-degree offender to five years imprisonment, subject to
eighty-five percent parole ineligibility pursuant to the No Early Release Act.
See N.J.S.A. 2C:43-7.2 and N.J.S.A. 2C:44-1(f)(2). He appeals and we affirm.
The following facts and circumstances are derived from the record. A
person driving a dark Lexus sedan displayed a gun to a gas station attendant at
a Wawa store in Maple Shade, demanding all the money in the register. The
attendant described the person, later identified as defendant, as Hispanic or
lighter skinned African American, with some facial hair, and wearing a baseball
cap.
The attendant acknowledged during defendant's trial that it was difficult
to determine the assailant's ethnicity. During the sentence, family members
1 Defendant was also convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(2). At sentencing, the State requested the dismissal of those counts because of "operability issues." A fourth count charging him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) was dismissed prior to trial. The day of sentence, the State also indicated that a pending indictment for driving while suspended would be dismissed in light of defendant's term of imprisonment. A-3068-17T4 2 discussed the fact defendant had been brought to this country from India at age
four.
The robbery occurred in a well-lit area. Because the robber did not leave
the vehicle, the attendant did not observe him head-on, and was not "real face-
to-face."
When the attendant explained he could not access the money in the
register because it was a drop safe, accessible only to security, the assailant
drove away. The attendant attempted to write down the license plate number,
but only recalled the letters "GVN" because the plate was obstructed by plastic.
Defendant was the primary driver of a brown Lexus sedan, bearing license plate
number V31-GBN.
The surveillance footage of the incident showed a dark Lexus sedan, but
did not display the number on the vehicle's license plate or the driver's features.
During a photo array at the police station, the attendant asked to see two
photographs a second time. After the array was reshuffled, he identified
defendant's photograph, stating he was eighty percent certain the man in the
photo was the robber. Defendant was then in the custody of another police
department, and was interviewed after the administration of Miranda2 warnings.
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-3068-17T4 3 At trial, the attendant identified defendant, explaining that he considered eighty
percent certainty to be quite high, and only reduced it from complete certainty
because he was so conscious of the importance of the identification.
When defendant's vehicle was searched pursuant to a warrant, an "airsoft"
handgun only capable of discharging plastic pellets was recovered hidden under
a fabric liner in the trunk. The officer who recovered the weapon stated that the
handgun had been modified, by removing the orange tip on the barrel, to look
like an actual firearm.
At trial, defendant called an alibi witness who testified that on the night
of the crime, she and defendant were at her home watching two televised
basketball games. She denied any romantic attachment to defendant, claiming
they were just friends who regularly watched sports games together. After the
games, defendant spent the evening, and the alibi witness drove him home the
following morning. When asked if she knew anything about defendant's airsoft
gun, she responded that defendant put his airsoft handgun in his trunk after the
Mount Laurel police told him to keep it there. The alibi witness also said that
she never saw defendant wearing a baseball cap.
A-3068-17T4 4 The judge found the police officers who testified to be credible. He noted
that the attendant saw defendant during the course of the pretrial Wade3 hearing,
thus he did not put "much weight on the in-court identification[.]" The attendant
also displayed "some hesitancy" when he identified defendant from the photo
array, based on his review of the identification video. He further noted that
despite being asked on cross-examination about his identification being made
with eighty percent certainty, the attendant was confident and considered it to
be "a high number."
The judge relied on the additional evidence, such as that defendant drove
a car similar in appearance to that described by the attendant, finding the
difference between a dark brown Lexus and a black Lexus minimal. He said:
"The other evidence is that [the victim] said he got a partial plate that was GBN.
Mr. Menon has a Lexus, dark-colored, with partial plates GBN. So that is
something I do put a substantial amount of weight on."
The judge added the assailant's ethnic background was not as important as
the attendant's description, including "a five o'clock shadow." Defendant's skin
tone was similar to that described by the attendant, and the video taken of his
3 United States v. Wade, 388 U.S. 218 (1967). A-3068-17T4 5 statement after arrest showed him with a five o'clock shadow. The judge
considered the similarity in appearance to be "significant as well."
The judge also found "significant" the fact that a gun was found hidden in
the trunk of defendant's vehicle. He described the location of the gun as being
"concealed underneath the . . . manufacturer's carpet. So the weapon was
concealed and it was concealed in such a manner to hide it from detection." The
judge did not find credible the alibi witness's testimony that defendant placed
the gun in his trunk on the advice of the local police department. He also
observed that the gun was accessible from the inside interior of the back seat of
the vehicle. Thus he placed "a lot of weight on" the fact that the gun was found
in the Lexus, and the manner in which it was hidden.
On appeal, defendant raises the following points:
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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-3068-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GIRISH MENON,
Defendant-Appellant.
Argued May 8, 2019 – Decided June 4, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 16-09- 0905.
Robin Kay Lord argued the cause for appellant.
Jennifer Bentzel Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Scott A. Coffina, Burlington County Prosecutor, attorney; Nicole Handy, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM After a bench trial, defendant Girish Menon was convicted of first-degree
robbery, N.J.S.A. 2C:15-1(a)(1).1 On January 26, 2018, defendant was
sentenced as a second-degree offender to five years imprisonment, subject to
eighty-five percent parole ineligibility pursuant to the No Early Release Act.
See N.J.S.A. 2C:43-7.2 and N.J.S.A. 2C:44-1(f)(2). He appeals and we affirm.
The following facts and circumstances are derived from the record. A
person driving a dark Lexus sedan displayed a gun to a gas station attendant at
a Wawa store in Maple Shade, demanding all the money in the register. The
attendant described the person, later identified as defendant, as Hispanic or
lighter skinned African American, with some facial hair, and wearing a baseball
cap.
The attendant acknowledged during defendant's trial that it was difficult
to determine the assailant's ethnicity. During the sentence, family members
1 Defendant was also convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(2). At sentencing, the State requested the dismissal of those counts because of "operability issues." A fourth count charging him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) was dismissed prior to trial. The day of sentence, the State also indicated that a pending indictment for driving while suspended would be dismissed in light of defendant's term of imprisonment. A-3068-17T4 2 discussed the fact defendant had been brought to this country from India at age
four.
The robbery occurred in a well-lit area. Because the robber did not leave
the vehicle, the attendant did not observe him head-on, and was not "real face-
to-face."
When the attendant explained he could not access the money in the
register because it was a drop safe, accessible only to security, the assailant
drove away. The attendant attempted to write down the license plate number,
but only recalled the letters "GVN" because the plate was obstructed by plastic.
Defendant was the primary driver of a brown Lexus sedan, bearing license plate
number V31-GBN.
The surveillance footage of the incident showed a dark Lexus sedan, but
did not display the number on the vehicle's license plate or the driver's features.
During a photo array at the police station, the attendant asked to see two
photographs a second time. After the array was reshuffled, he identified
defendant's photograph, stating he was eighty percent certain the man in the
photo was the robber. Defendant was then in the custody of another police
department, and was interviewed after the administration of Miranda2 warnings.
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-3068-17T4 3 At trial, the attendant identified defendant, explaining that he considered eighty
percent certainty to be quite high, and only reduced it from complete certainty
because he was so conscious of the importance of the identification.
When defendant's vehicle was searched pursuant to a warrant, an "airsoft"
handgun only capable of discharging plastic pellets was recovered hidden under
a fabric liner in the trunk. The officer who recovered the weapon stated that the
handgun had been modified, by removing the orange tip on the barrel, to look
like an actual firearm.
At trial, defendant called an alibi witness who testified that on the night
of the crime, she and defendant were at her home watching two televised
basketball games. She denied any romantic attachment to defendant, claiming
they were just friends who regularly watched sports games together. After the
games, defendant spent the evening, and the alibi witness drove him home the
following morning. When asked if she knew anything about defendant's airsoft
gun, she responded that defendant put his airsoft handgun in his trunk after the
Mount Laurel police told him to keep it there. The alibi witness also said that
she never saw defendant wearing a baseball cap.
A-3068-17T4 4 The judge found the police officers who testified to be credible. He noted
that the attendant saw defendant during the course of the pretrial Wade3 hearing,
thus he did not put "much weight on the in-court identification[.]" The attendant
also displayed "some hesitancy" when he identified defendant from the photo
array, based on his review of the identification video. He further noted that
despite being asked on cross-examination about his identification being made
with eighty percent certainty, the attendant was confident and considered it to
be "a high number."
The judge relied on the additional evidence, such as that defendant drove
a car similar in appearance to that described by the attendant, finding the
difference between a dark brown Lexus and a black Lexus minimal. He said:
"The other evidence is that [the victim] said he got a partial plate that was GBN.
Mr. Menon has a Lexus, dark-colored, with partial plates GBN. So that is
something I do put a substantial amount of weight on."
The judge added the assailant's ethnic background was not as important as
the attendant's description, including "a five o'clock shadow." Defendant's skin
tone was similar to that described by the attendant, and the video taken of his
3 United States v. Wade, 388 U.S. 218 (1967). A-3068-17T4 5 statement after arrest showed him with a five o'clock shadow. The judge
considered the similarity in appearance to be "significant as well."
The judge also found "significant" the fact that a gun was found hidden in
the trunk of defendant's vehicle. He described the location of the gun as being
"concealed underneath the . . . manufacturer's carpet. So the weapon was
concealed and it was concealed in such a manner to hide it from detection." The
judge did not find credible the alibi witness's testimony that defendant placed
the gun in his trunk on the advice of the local police department. He also
observed that the gun was accessible from the inside interior of the back seat of
the vehicle. Thus he placed "a lot of weight on" the fact that the gun was found
in the Lexus, and the manner in which it was hidden.
On appeal, defendant raises the following points:
POINT I THE TRIAL JUDGE'S FINDING OF GUILT WAS NOT BASED ON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.
POINT II DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL JUDGE'S FINDING OF GUILT.
A-3068-17T4 6 Defendant's second point in the body of the brief, as opposed to the table of
contents, is framed as follows:
DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
I.
We review a bench trial by looking for "sufficient credible evidence in the
record to support the judge's determination." State ex rel. R.V., 280 N.J. Super.
118, 121 (App. Div. 1995). This standard of review requires the judge to "find
the facts and state its conclusions of law thereon in all actions tried without a
jury" and ultimately, "enter or direct the entry of the appropriate judgment." R.
1:7-4(a).
Moreover, a trial court sitting without a jury must "state clearly its factual
findings and correlate them with the relevant legal conclusions." State v.
Locurto, 157 N.J. 463, 470 (1999) (quoting Curtis v. Finneran, 83 N.J. 563, 570
(1980)). "When the reviewing court is satisfied that the findings and result meet
this criterion, its task is complete and it should not disturb the result, even
though it has the feeling it might have reached a different conclusion were it the
trial tribunal." Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
The reviewing court should only reverse, if it determines that the trial court's
A-3068-17T4 7 findings and legal conclusions were "so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice[.]" Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974).
Defendant contends that the judge simply did not have sufficient credible
evidence in the record for conviction because the attendant mistook the letters
on the suspect's license plate. The judge said the attendant observed the letters
"GBN," when he actually told police it read "GVN." Despite the confusion,4 the
license plate the attendant recorded was substantially similar to defendant's
plate. More significantly, the description of the vehicle and the dark color was
accurate.
The judge placed little weight on the attendant's in-court identification,
but great weight on his initial description of the assailant, which matched
defendant's appearance at the time of arrest. The judge placed the greatest
weight on the fact, and manner in which, the modified airsoft gun was hidden in
the trunk of the car. The placement of the gun in the car indicated the owner
intended to hide it from view completely.
4 The difference in sound between "V" and "B" is not so great. It is possible that the judge's seeming confusion was an error by the transcriber. A-3068-17T4 8 If the trial court misspoke, assuming that is what occurred, by saying GBN
instead of GVN, it does not nullify the judge's entire analysis on the evidence.
Defendant operated a dark Lexus, his appearance matched the description of the
assailant, and hidden in the trunk of the Lexus beneath the manufacturer's lining,
police found an airsoft gun modified to look like a real handgun.
An appellate court will typically "give deference to the trial court that
heard the witnesses, sifted the competing evidence, and made reasoned
conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015). Here,
the court did not err in rendering a verdict, after making credibility findings,
which placed significance on certain facts over others. An appellate court
should not disturb a trial court decision that "state[s] clearly its factual findings
and correlate[s] them with the relevant legal conclusions" even if "it might have
reached a different conclusion were it the trial tribunal.” Locurto, 157 N.J. at
470, 471. A finding of guilt in light of the facts as found by the trial judge does
not offend the interests of justice.
II.
Defendant also contends that the State's identification evidence was
insufficient for a finding of guilt because the State failed to prove identity
beyond a reasonable doubt, and the identification was too unreliable and
A-3068-17T4 9 unpersuasive to support the trial court's determination. As we have already said,
however, the judge did not place great weight on the attendant's identification
of defendant in court. He did, however, rely on the attendant's identification of
defendant and description of his appearance when arrested. Although it is true
that defendant is neither Hispanic nor a light-skinned African American, his skin
tone and facial hair was accurately described by the eyewitness. The eyewitness
also identified the color of defendant's car and a partial license plate.
The judge did place a reasonable amount of weight on the attendant's
selection of defendant's photograph from the array, which was conducted in a
manner he found in compliance with the attorney general guidelines and the
requirements of State v. Henderson, 208 N.J. 208 (2011). Therefore, the judge's
decision that the State had proven defendant guilty beyond a reasonable doubt
of the robbery was supported by sufficient credible evidence in the record,
including a sufficiently reliable eyewitness identification.
Affirmed.
A-3068-17T4 10