Attempted Burglary Suspect Showup Identification Not Unduly Prejudicial

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.

Conviction For Attempted Murder of Newark Police Officer Upheld On Appeal

Omar Bridges and two co-conspirators were charged, by an Essex County grand jury, with three counts of first-degree attempted murder (N.J.S.A. 2C:11-3 and 2C:5-1); three counts of second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)); third-degree unlawful possession of a weapon, a handgun (N.J.S.A. 2C:39-5(b)); second-degree possession of a weapon, a handgun, for an unlawful purpose (N.J.S.A. 2C:39-4(a)); second-degree unlawful possession of an assault firearm (N.J.S.A. 2C:39-5(f)); third-degree receiving stolen property (N.J.S.A. 2C:20-7); second-degree eluding (N.J.S.A. 2C:29-2(b)); and first-degree conspiracy to attempt to murder the occupants of a vehicle (N.J.S.A. 2C:5-2 and 2C:11-3). Bridges was ultimately convicted of the attempted murder of Newark Police Officer Patinho, aggravated assault on Officer Patinho, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, unlawful possession of an assault weapon, receiving stolen property and certain persons not to have weapons. For his participation in stealing a Jaguar, engaging in a shoot-out with occupants of another vehicle and the shooting of a police officer in the chase thereafter, Omar Bridges was sentenced to an aggregate 40-year prison term. Officer Pathino's testimony at trial was that he saw the shoot-out while on patrol and, upon turning on the squad car's lights, a Jaguar and Subaru fled in different directions with Pathino chasing the Jaguar. The chase through Newark lasted approximately two minutes at 90 to 100 miles per hour until the Jaguar went airborne crossing railroad tracks and sustained heavy damage. When the Jaguar came to rest, Officer Pathino exited the squad car and ordered the Jaguar's passengers to show their hands at which time the passenger shot Officer Pathino. Officer Gasavage exchanged fire and the vehicle's occupants fled on foot. On appeal in State v. Bridges, the Defendant claimed the trial court erred in denying his request for a Wade hearing with regard to Officer Pathino's photo identification of the Defendant. Although New Jersey took a more broad approach to pre-trial identification in State v. Henderson, 208 N.J. 208 (2011), the Appellate Division determined that, under the circumstances of the case, United States v. Wade, 388, U.S. 218 (1967) did not serve to extend exclusionary principles of pre-trial identification procedures to in-court trial identifications in Defendant's case. The Defendant next raised the point that the sentencing court did not perform an appropriate analysis under State v. Yarbough, 100 N.J. 627 (1985) which requires the court to consider six specific criteria in sentencing. The NJ Appellate Division agreed with the Defendant and remanded the matter to the sentencing court for a full statement of its reasons for imposing consecutive sentences as required under State v. Carey, 168 N.J. 413 (2001). If you are facing murder or other serious charges, you are facing a prison sentence which may last your entire life. You require an experienced criminal defense attorney to protect your rights and ensure that your are provided with the best possible defense. For more information about murder, weapons offenses, theft and other serious criminal offenses in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.