Police Shoot-Outs, Consecutive Sentences, and In-Court Identification

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

On June 25, 2014 this blog discussed the Yarbough criteria for sentencing as set forth in State v. Yarbough, 100 N.J. 627 (1985). In short these included:

1. No free crimes (defendant must be sentenced for each crime they are found guilty of committing).
2. Reason for consecutive v. concurrent sentence must be explained.
3. Factors to consider when deciding between consecutive and concurrent sentences include whether the crimes were independent of each other, involved separate acts, were committed at different times or locations, and if there were multiple victims among others. The more distinguishable the crimes are from each other, the stronger the case is for a consecutive sentence.
4. Successive terms for the same offense should be greater than the punishment was for the first one.
5. Lastly it used to be the case that the aggregate sentence could not be longer than the sum of the longest possible sentences for the two most serious offenses. Or in other words, if the possible prison time for the two most serious offenses added up to 40 years, the consecutive sentences added up could not be longer than that. This is no longer the case as N.J.S.A. 2C:44-5(a) provides that there should not be a limit on the cumulation of consecutive sentences.

The case this blog discusses today is State v. Bridges, decided July 2, 2014 in the Superior Court of New Jersey, Appellate Division. The basic facts of the case are that Newark police encountered two vehicles involved in a shoot-out and pursued one of the vehicles, which was stolen, and the defendant was found guilty on charges related to shooting at the officers with a TEC-9 (a type of semi-automatic weapon). The defendant’s first convictions and sentence were reversed on direct appeal. At the defendant’s retrial he was found guilty of attempted murder, aggravated assault, 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. At sentencing the court merged the aggravated assault and possession of a weapon for an unlawful purpose charges with the attempted murder charge. Merger occurs when there is a lesser charge that is directly related to a greater charge. So in this case shooting at the police officer constituted aggravated assault, but attempted murder is a greater offense, and since both charges resulted from the same action they were merged into one. The trial judge also merged third-degree unlawful possession of a weapon and second-degree possession of a weapon for an unlawful purpose which may seem to make sense under merger doctrine but is precedentially impermissible for reasons this blog will not consider. The defendant contended that under Yarbough a consecutive sentence for possession of an assault firearm cannot be imposed and the Appellate Division agreed, reversing his sentence on that charge only because proper explanation was not provided. While the State did argue that possession of an assault firearm is a per se (in and of itself) violation of the law no matter what, because both possession offenses were based on possession of the same gun, imposition of a consecutive sentence without proper explanation is questionable.

Very Substantial Likelihood of Irreparable Misidentification

The defendant also contends that he was improperly identified as the shooter in the first place because the first victim-identification occurred two years after the crime and inside the courtroom. When it comes to identification by a victim, the burden is on the defendant to prove a very substantial likelihood of irreparable misidentification. The court will apply a two-part test in which they consider whether the identification process used was “impermissibly suggestive” and then whether that procedure resulted in a “very substantial likelihood of irreparable misidentification.” It is true that an in-court identification has many of the same problems as a one-on-one show up identification (where a victim is shown one suspect vs. a line-up). In an in-court identification, the suspect is already a defendant and the victim knows that the State believes it has enough evidence to successfully prosecute him. However the distinctive difference between the two is that the defendant in court has legal representation whereas a suspect does not. Thus, the relevant case law that offer defendant’s some protection against show-up identification does not apply to this case.