RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2596-14T2
STATE OF NEW JERSEY IN THE INTEREST OF I.P.,
A Juvenile. __________________________
Submitted October 18, 2016 – Decided March 1, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. FJ-20- 1128-14.
Joseph E. Krakora, Public Defender, attorney for appellant I.P. (Michele A. Adubato, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
I.P.1 appeals from an adjudication of delinquency for acts
which, if committed by an adult, would constitute second-degree
1 Pursuant to Rule 1:38-3(d), we use initials to protect the identity of the juvenile and minors involved in these proceedings. robbery, N.J.S.A. 2C:15-1(a). I.P. was sentenced to a one-year
probationary term along with conditions.
On appeal, I.P. raises the following arguments:
POINT I
THE VICTIM'S IDENTIFICATION OF THE JUVENILE MADE UNDER THE IMPERMISSIBLY SUGGESTIVE PROCEDURES UTILIZED BY SCHOOL PERSONNEL SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE ADJUDICATION OF DELINQUENCY OF I.P. FOR SECOND[-]DEGREE ROBBERY WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE AND MUST BE VACATED.
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
I.
On the first day of trial, Judge Robert Kirsch conducted an
evidentiary hearing on I.P's Wade2 motion to suppress the victim,
J.G.'s out-of-court identification of I.P. on the basis that it
was impermissibly suggestive. The State presented testimony from
J.G. and Mario Mendo, a security guard at the school J.G. attended.
The defense presented testimony from the school's vice-principal,
Wilnes Jilus.
2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
2 A-2596-14T2 At approximately 7:30 a.m. on May 2, 2014, while J.G., then
seventeen years old, was walking to school, two high school-age
males on bicycles rode past him and then returned to confront him.
J.G. immediately recognized one of them, who was standing less
than a foot away in front of J.G., as a former classmate who sat
in front of him in English class the previous 2012-2013 school
year. However, J.G. did not know his name. The former classmate
asked J.G. if he had his school-issued iPad, and J.G. handed over
his book bag, which the other male took and pulled out the iPad.
When the former classmate demanded the device's password, J.G.
initially gave him an incorrect password, but J.G. revealed the
correct password after he threatened to punch J.G. After the iPad
was unlocked, the two males rode away on their bikes. As J.G. ran
to school, he briefly turned around and saw his former classmate
shake hands with a current schoolmate, whose name he also did not
know.
Upon arriving at school, J.G. reported that a former classmate
stole his iPad. J.G. did not know his name, but mentioned that
I.W., a current student at the school, might know him because she
sat next to him in their English class and constantly had arguments
with him. I.W. was summoned to Jilus' office, and when questioned,
she did not remember who sat next to her in the English class.
3 A-2596-14T2 J.G. next recalled that right after the incident he saw the
individual who robbed him shake hands with a current student, who
attended J.G.'s school. J.G. was then asked to look through a
binder containing the school's student photo identification cards
(student IDs), and identified T.H. as the student who greeted his
assailant. T.H. was brought to Jilus' office, and acknowledged
to Mendo that when he walked to school that morning he had spoken
to someone he only knew as Loco. However, I.W. subsequently told
Mendo that Loco's first name was I. J.G. was not present during
Mendo's conversations with I.W. or T.H.
With that information, Mendo surmised that Loco's real full
name was I.P., and retrieved a student ID binder to show J.G. a
picture of I.P. Mendo flipped through the binder that contained
between ten to twelve student IDs per page, until he stopped on a
page, and J.G. immediately identified I.P. with "one-hundred-
percent" certainty as the person who robbed him. The police were
notified, and later that day, J.G. confirmed his identification
of I.P. when a detective showed J.G. the same student ID that he
picked out earlier.
At the hearing, J.G. identified I.P. in-court and confirmed
his out-of-court identification of I.P. as the individual who
robbed him. J.G. testified that, at the time of the five-minute
4 A-2596-14T2 long incident, I.P. had on "a grey crew neck and [wore his hair
in] short little dreads, [which were] sticking out[.]"
Jilus' testimony for the defense established that the
school's records revealed J.G. and I.P. were in English class
together for only eight days during the fall of the 2012-2013
school year. Jilus also stated that after J.G. described the
former student who robbed him, he believed I.P. was the culprit,
whereby he showed J.G. only I.P.'s student ID. J.G. then
identified I.P. as the person who robbed him.
Following the parties' summation, Judge Kirsch rendered an
oral decision denying I.P.'s Wade motion. The decision was
confirmed in a comprehensive written Statement of Reasons issued
on July 24, 2014. After analyzing the admissibility of out-of-
court identifications as set forth in State v. Henderson, 208 N.J.
208 (2011), and State v. Chen, 208 N.J. 307 (2011), the judge
determined that the school officials who conducted the
identification procedures "are not 'government' or 'police' actors
for the purpose of determining the admissibility of the
identification evidence." He further reasoned that the conduct
by Jilus and Mendo, as private actors was "not optimal" but they
did not show I.P.'s student ID to J.G. under "highly suggestive
circumstances" such that the identification was unreliable, and
5 A-2596-14T2 the kind of harm that is guarded against by Chen, supra, 208 N.J.
at 327.
Nevertheless, the judge still decided to conduct an
evidentiary hearing to determine the reliability of J.G.'s
identification of I.P. After assessing the system and estimator
variables prescribed in Henderson, supra, 208 N.J. at 288-89, the
judge determined that J.G.'s identification of I.P. was reliable.
In particular, he found that: J.G. had ample opportunity to observe
I.P. as he stood a foot away and did not shield his appearance
during the five-minute robbery; J.G. immediately recognized I.P.
as a former classmate despite not knowing his name; and J.G.
identified I.P.
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RECORD IMPOUNDED
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-2596-14T2
STATE OF NEW JERSEY IN THE INTEREST OF I.P.,
A Juvenile. __________________________
Submitted October 18, 2016 – Decided March 1, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. FJ-20- 1128-14.
Joseph E. Krakora, Public Defender, attorney for appellant I.P. (Michele A. Adubato, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
I.P.1 appeals from an adjudication of delinquency for acts
which, if committed by an adult, would constitute second-degree
1 Pursuant to Rule 1:38-3(d), we use initials to protect the identity of the juvenile and minors involved in these proceedings. robbery, N.J.S.A. 2C:15-1(a). I.P. was sentenced to a one-year
probationary term along with conditions.
On appeal, I.P. raises the following arguments:
POINT I
THE VICTIM'S IDENTIFICATION OF THE JUVENILE MADE UNDER THE IMPERMISSIBLY SUGGESTIVE PROCEDURES UTILIZED BY SCHOOL PERSONNEL SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE ADJUDICATION OF DELINQUENCY OF I.P. FOR SECOND[-]DEGREE ROBBERY WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE AND MUST BE VACATED.
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
I.
On the first day of trial, Judge Robert Kirsch conducted an
evidentiary hearing on I.P's Wade2 motion to suppress the victim,
J.G.'s out-of-court identification of I.P. on the basis that it
was impermissibly suggestive. The State presented testimony from
J.G. and Mario Mendo, a security guard at the school J.G. attended.
The defense presented testimony from the school's vice-principal,
Wilnes Jilus.
2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
2 A-2596-14T2 At approximately 7:30 a.m. on May 2, 2014, while J.G., then
seventeen years old, was walking to school, two high school-age
males on bicycles rode past him and then returned to confront him.
J.G. immediately recognized one of them, who was standing less
than a foot away in front of J.G., as a former classmate who sat
in front of him in English class the previous 2012-2013 school
year. However, J.G. did not know his name. The former classmate
asked J.G. if he had his school-issued iPad, and J.G. handed over
his book bag, which the other male took and pulled out the iPad.
When the former classmate demanded the device's password, J.G.
initially gave him an incorrect password, but J.G. revealed the
correct password after he threatened to punch J.G. After the iPad
was unlocked, the two males rode away on their bikes. As J.G. ran
to school, he briefly turned around and saw his former classmate
shake hands with a current schoolmate, whose name he also did not
know.
Upon arriving at school, J.G. reported that a former classmate
stole his iPad. J.G. did not know his name, but mentioned that
I.W., a current student at the school, might know him because she
sat next to him in their English class and constantly had arguments
with him. I.W. was summoned to Jilus' office, and when questioned,
she did not remember who sat next to her in the English class.
3 A-2596-14T2 J.G. next recalled that right after the incident he saw the
individual who robbed him shake hands with a current student, who
attended J.G.'s school. J.G. was then asked to look through a
binder containing the school's student photo identification cards
(student IDs), and identified T.H. as the student who greeted his
assailant. T.H. was brought to Jilus' office, and acknowledged
to Mendo that when he walked to school that morning he had spoken
to someone he only knew as Loco. However, I.W. subsequently told
Mendo that Loco's first name was I. J.G. was not present during
Mendo's conversations with I.W. or T.H.
With that information, Mendo surmised that Loco's real full
name was I.P., and retrieved a student ID binder to show J.G. a
picture of I.P. Mendo flipped through the binder that contained
between ten to twelve student IDs per page, until he stopped on a
page, and J.G. immediately identified I.P. with "one-hundred-
percent" certainty as the person who robbed him. The police were
notified, and later that day, J.G. confirmed his identification
of I.P. when a detective showed J.G. the same student ID that he
picked out earlier.
At the hearing, J.G. identified I.P. in-court and confirmed
his out-of-court identification of I.P. as the individual who
robbed him. J.G. testified that, at the time of the five-minute
4 A-2596-14T2 long incident, I.P. had on "a grey crew neck and [wore his hair
in] short little dreads, [which were] sticking out[.]"
Jilus' testimony for the defense established that the
school's records revealed J.G. and I.P. were in English class
together for only eight days during the fall of the 2012-2013
school year. Jilus also stated that after J.G. described the
former student who robbed him, he believed I.P. was the culprit,
whereby he showed J.G. only I.P.'s student ID. J.G. then
identified I.P. as the person who robbed him.
Following the parties' summation, Judge Kirsch rendered an
oral decision denying I.P.'s Wade motion. The decision was
confirmed in a comprehensive written Statement of Reasons issued
on July 24, 2014. After analyzing the admissibility of out-of-
court identifications as set forth in State v. Henderson, 208 N.J.
208 (2011), and State v. Chen, 208 N.J. 307 (2011), the judge
determined that the school officials who conducted the
identification procedures "are not 'government' or 'police' actors
for the purpose of determining the admissibility of the
identification evidence." He further reasoned that the conduct
by Jilus and Mendo, as private actors was "not optimal" but they
did not show I.P.'s student ID to J.G. under "highly suggestive
circumstances" such that the identification was unreliable, and
5 A-2596-14T2 the kind of harm that is guarded against by Chen, supra, 208 N.J.
at 327.
Nevertheless, the judge still decided to conduct an
evidentiary hearing to determine the reliability of J.G.'s
identification of I.P. After assessing the system and estimator
variables prescribed in Henderson, supra, 208 N.J. at 288-89, the
judge determined that J.G.'s identification of I.P. was reliable.
In particular, he found that: J.G. had ample opportunity to observe
I.P. as he stood a foot away and did not shield his appearance
during the five-minute robbery; J.G. immediately recognized I.P.
as a former classmate despite not knowing his name; and J.G.
identified I.P. with one hundred percent certainty. Citing State
v. Herrera, 187 N.J. 493, 509 (2006), the judge found that J.G.'s
"prior familiarity with [I.P.] was a crucial factor in establishing
the overall reliability of the identification." Thus, Judge Kirsch
decided that the identification was admissible because I.P. did
not satisfy his burden of proving there was a substantial
likelihood of irreparable misidentification.
Immediately after the Wade motion was denied, the trial
commenced and continued on two additional hearing dates. Testimony
presented by the State's witnesses, J.G., Mendo, and Jilus, need
not be summarized as it mirrored the testimony they provided during
the motion hearing. T.H., who did not testify at the hearing but
6 A-2596-14T2 did for the State at trial, bolstered the State's evidence against
I.P. by stating that he greeted I.P. while walking to school the
morning of the incident.
I.P. did not testify, but presented an alibi defense through
the testimony of his mother and thirteen-year-old sister, both of
whom claimed that I.P. was home when the alleged robbery occurred
at 7:30 a.m. They stated, respectively, that on the morning in
question, I.P. was home, having just woken up, when the mother,
sister, and I.P.'s two brothers left the house at 7:35 a.m. or
7:40 a.m. to go work or school. The mother testified that normally
the children would have left the house twenty minutes earlier to
go to school, but she woke-up almost two hours late that particular
day. The mother also claimed that at 8:15 a.m. or 8:20 a.m., she
spoke to I.P. on the home's telephone landline when she called
from the restaurant she owned and operated. She further testified
that after she received a call later that morning from the
detective investigating the robbery, she called I.P. at home and
he told her that he had been home all morning. I.P.'s mother and
sister also claimed that at the time, he did not wear his hair in
"dreads."
Also testifying on behalf of I.P. was his former probation
officer who supervised him prior to the incident. She stated that
7 A-2596-14T2 when she saw I.P. a month before the robbery, his hair was neither
in dreadlocks nor in short braids, but was "close to his head."
On August 5, 2015, Judge Kirsch issued an order and written
decision adjudicating I.P. of delinquency for acts which, if
committed by an adult, would constitute second-degree robbery. He
found that the State's witnesses gave credible, compelling, and
corroborating testimony regarding the identification of I.P. as
one of individuals who robbed J.G. In particular, the judge noted
that based upon J.G.'s specific recall of details that his iPad
was taken from him with threats of bodily injury; he was a "candid
and credible witness, and accord[ed] his testimony great weight."
He also stressed that T.H., who bore no animus towards I.P. and
had no motive to implicate I.P., gave credible testimony confirming
J.G.'s contention that T.H. shook hands with I.P. moments after
the robbery took place.
With respect to I.P.'s witnesses, the judge did not assign
much credibility to their testimony concerning I.G.'s hairstyle
and I.G.'s whereabouts the morning of the robbery. The probation
officer was not able to specify I.P.'s hairstyle on the date of
the robbery. I.P.'s mother and sister, unlike the State's
witnesses who corroborated J.G.'s testimony, had a motive for not
telling the truth – they did not want I.P. adjudicated delinquent.
Moreover, the judge found that their "testimony was not credible
8 A-2596-14T2 given the hectic nature of their morning routine, especially while
running late[,]" and significantly, they could not account for
what I.P. did after they left him in the house to go to school or
work.
On the day the written decision was filed, and after the
parties reviewed it, I.P. made an oral motion for a new trial
pursuant to Rule 3:20-1, arguing that the court's ruling was
against the weight of the evidence. Judge Kirsch denied the motion
for the reasons he found I.P delinquent in his written decision.
Subsequently, on August 20, 2015, I.P. was sentenced to twelve
months of probation conditioned on completion of the Voorhees
Residential Program.
II.
On appeal, I.P. contends Judge Kirsch erred in not suppressing
J.G.'s out-of-court identification because the school officials'
showing J.G. a single photo, without having him view other student
IDs, was impermissibly suggestive. He asserts the police
compounded the situation by also showing the one photo, rather
than conducting an independent identification process in
accordance with the Attorney General Guidelines.3 I.P. argues
3 Although not specifically cited, I.P. was apparently referring to Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (April 18, 2001), http://www.state.nj.us/lps/dcj/agguide/photoid.pdf .
9 A-2596-14T2 that, since identification was the key issue in the case, admitting
the "[out-of-court] identification . . . mandates reversal of the
adjudication of juvenile delinquency." In addition, I.P. argues
the judge's adjudication is not supported by sufficient credible
evidence and he should have granted his motion for a new trial.
He cites the lack of evidence corroborating that he robbed J.G.,
the credibility of his alibi witnesses, and the impermissibly
suggestive identification procedure.
We have considered I.P.'s contentions in light of the record
and applicable legal principles, and conclude they are without
sufficient merit to warrant a discussion in a written opinion. R.
2:11-3(e)(2). We discern no abuse of discretion in the admission
of the out-of-court identification of I.P., and conclude that the
adjudication of delinquency was supported by credible evidence.
We affirm substantially for the reasons expressed by Judge Kirsch
in his thorough written decisions.
Affirmed.
10 A-2596-14T2