Attempted Burglary Suspect Showup Identification Not Unduly Prejudicial
- February 12, 2015
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Joseph Volpe was indicted for attempted burglary and convicted of third-degree attempted burglary after a woman, Marwa Mohamad, witnessed him attempting to pry open her kitchen window screen while another individual distracted her by ringing the doorbell of the residence. When the homeowner saw Volpe, it was at close range as she moved a curtain aside to see him standing immediately before her. The description Mohamad offered the 9-1-1 operator was a “heavyset man, with light skin, possibly Hispanic, and black hair” who was wearing a black sweatshirt. Officers in the area hearing the broadcast description discovered Volpe hiding in a nearby wooded area wearing a black t-shirt and also located a black sweatshirt nearby. Officers brought Volpe to Mohamad’s residence in the back of a marked police car and wearing handcuffs where she identified him from a distance of approximately 30 feet, through a window of her residence while he remained in the rear of the patrol car with the rear window lowered. In State v. Volpe, a Wade hearing was conducted with regard to Mohamad’s identification of Volpe and the court did not find the identification to be unreasonably suggestive. (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967)). At trial, Mohamad gave testimony regarding the identification. Also, an officer transporting Volpe to the station from the identification offered testimony that Volpe was unemployed at the time of the alleged attempt. The State was not permitted to offer testimony about the defendant’s residence in a halfway house at the time of the alleged attempt. The NJ Appellate Division considered defendant’s claims regarding the propriety of the identification under the standard of Manson/Madison (Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.2d 140 (1977), State v. Madison, 109 N.J. 223 (1988)) wherein a two-prong test is to be employed to determine whether the identification was impermissibly suggestive and next whether there is a “substantial likelihood of misidentification.” In State v. Herrera, 187 N.J. 493 (2006) the court held one-on-one showups to be unduly suggestive but, under State v. Wilkerson, 60 N.J. 452 (1972), the benefits of accuracy of the victim’s memory more proximately to the event as well as allowing rapid police action were found to render such identifications permissible in some circumstances. The Manson court held reliability to be paramount in the determination of fairness and set forth five factors courts must assess as follows: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ 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 confrontation. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). After a thorough analysis, the Appellate division affirmed the trial court’s decision with regard to admissibility of the identification. The Appellate Division determined that the State’s testimony regarding defendant’s residence was simply offered to rebut testimony offered by the defendant regarding his residence. Although unemployment is typically inadmissible to prove motive (State v. Martini, 131 N.J. 176, 265-66 (1993), it may be admissible if specifically relevant to prove a fact in issue (State v. Rogers, 19 N.J. 218, 228-30 (1955)). Once a statement was made regarding Volpe’s employment status, the court admonished the prosecution to refrain from further mention thereof but offered no curative instruction. Nonetheless, the Appellate Division held the statement to be harmless error and not unfairly prejudicial to the defendant. Finally, Volpe challenged the sentence of the court based on misapplication of sentencing factors. With the prosecution’s request for an extended term, the range for sentencing would be three to ten years in this matter and the court agreed that the trial court misapplied the sentencing factors. Ultimately, although the conviction was affirmed, the matter was remanded for re-sentencing. Burglary charges are not often lightly sentenced as they involve the possibility of great physical harm when the intruder and the owner or dweller accidentally meet and both act in fear. If you are facing burglary charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, theft, robbery or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.