NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0194-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRIS E. LEBRON, a/k/a ERIC LEBRON,
Defendant-Appellant. _______________________
Submitted October 23, 2024 – Decided January 24, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 19-04- 0370 and 19-06-0580.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Tried to a jury, defendant Chris E. Lebron appeals from the Law Division's
July 26, 2022 amended judgment of conviction for two counts of distribution of
controlled dangerous substances (CDS). 1 Specifically, defendant challenges the
trial court's March 13, 2022 order denying his motion to suppress witness Ricky
Rodriguez's photographic identification of him. We affirm.
I.
On September 27, 2018, Jeffrey Pindale was found deceased in the
basement of his home. Pindale's death was determined to be caused by the
effects of cocaine and fentanyl, with heroin as a contributory cause.
That same night, police observed Rodriguez in his parked car one street
over from Pindale's house and arrested him on an outstanding warrant. During
the search of Rodriguez's car, officers found two crack pipes, six needles and
wax folds containing a substance later confirmed to be heroin. Rodriguez was
subsequently charged with CDS offenses, arrested and taken into custody.
1 Although defendant's notice of appeal also lists the July 19, 2022 judgment of conviction for third-degree possession of CDS under indictment number 19-06- 00580, his merits brief does not address this conviction and sentence. Because he did not properly raise any arguments relating to this indictment, we consider them waived. State v. L.D., 444 N.J. Super. 45, 56 n.7 (App. Div. 2016) ("[A]n issue not briefed is waived.") A-0194-22 2 While at the police station, Rodriguez overheard one of the arresting officers
say Pindale was deceased.
The next day, after Pindale's family told officers Rodriguez had been in
the house with Pindale the night before, officers interviewed Rodriguez after
administering Miranda2 warnings. Rodriguez admitted he drove Pindale to
purchase what he assumed to be a rock of cocaine, although he did not see the
drugs.
Rodriguez denied purchasing drugs for Pindale or seeing him with a bag
of heroin the night before. He said that while at Pindale's house, he ate pizza,
cut Pindale's hair, and then left. When asked whether he used heroin, Rodriguez
indicated he "barely" used and was trying to wean himself off the drug. When
detectives asked who his supplier was, Rodriguez did not provide a name and
instead, said it was "just some old guy" who was "very secluded," whom he did
not want to "rat out."
About two months later, officers arrested Rodriguez on another
outstanding warrant and brought him in for further questioning because they
believed he had not been truthful during his previous interview. After re-
administering Miranda warnings, an officer again questioned Rodriguez about
2 Miranda v. Arizona, 384 U.S 436 (1966). A-0194-22 3 Pindale's death, specifically inquiring about contacts in his phone. Rodriguez
identified one phone number as belonging to someone he knew as "Gordie," the
"old guy" he referenced in the previous interview, from whom he bought heroin.
Rodriguez then identified another of his suppliers as someone he knew as
"Brazzy."3 Rodriguez only knew Brazzy by his street name and social media
profile and was unaware of his real name.
At this point, the officer left the interview room for about three minutes
and returned with a photograph of defendant. He placed the photo on the table
in front of Rodriguez and asked, "Who is that?" to which Rodriguez replied,
"That's Brazzy." The officer asked Rodriguez if he was certain that was Brazzy,
to which Rodriguez responded affirmatively. The officer then asked, "That's
who you bought the crack [from] for [Pindale] that night?" to which Rodriguez
answered, "Yeah." Rodriguez did not admit to purchasing heroin for Pindale
the night of his death and, at defendant's trial, Rodriguez admitted he was not
completely honest during this interview.
3 Defendant's street name, Brazzy, is also referred to as Brazy and Brazie in the record. A-0194-22 4 A month later, an officer questioned Rodriguez further. This time, the
officer did not read Rodriguez Miranda warnings and instead advised Rodriguez
he was not under arrest and was free to leave whenever he chose to.
Rodriguez then admitted he purchased blue heroin and crack cocaine from
Brazzy and brought it to Pindale's house the night he died. Although at trial
Rodriguez testified he also used the heroin, he told police during this interview
that he did not. He said Pindale began "messing" with the heroin in the bathroom
and it appeared that he ingested it. Rodriguez said he left the house because he
did not want to see Pindale use heroin, since the last time Pindale used drugs he
had fallen asleep high in Rodriguez's car. Rodriguez said as he left the house,
Pindale was heading into the bathroom with the heroin.
On April 24, 2019, a Cumberland County grand jury returned an
indictment charging defendant with first-degree strict liability for a drug-
induced death, N.J.S.A. 2C:35-9(a); and two counts of third-degree distribution
of CDS, N.J.S.A. 2C:35-5(b)(3) and (5).
Prior to trial, defendant filed an omnibus motion seeking, among other
relief, suppression of Rodriguez's photographic identification of him. Judge
A-0194-22 5 Robert G. Malestein granted defendant's request for a Wade/Henderson4 hearing
and, after hearing testimony, entered an order denying the motion.
In his oral decision, the judge first outlined the framework for a
Wade/Henderson hearing. First, "to obtain a pretrial hearing, a defendant has to
show and has the initial burden of showing some evidence of suggestiveness that
could lead to a mistaken identification." He explained he granted defendant's
request for a hearing because "there's always a possibility . . . when [a detective]
show[s] just one single photograph to one person, it's suggestive." Once a
defendant makes a threshold showing, the State then has "the obligation to offer
proof to show that the proffered eyewitness identification is reliable." The
burden then shifts to "defendant to prove a very substantial likelihood of
irreparable misidentification." If the totality of circumstances demonstrates "a
very substantial likelihood of irreparable misidentification, the court should
suppress the identification evidence."
The judge then found the identification here was "a confirmatory
identification, which . . . is not considered suggestive" under State v. Pressley,
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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-0194-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRIS E. LEBRON, a/k/a ERIC LEBRON,
Defendant-Appellant. _______________________
Submitted October 23, 2024 – Decided January 24, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 19-04- 0370 and 19-06-0580.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Tried to a jury, defendant Chris E. Lebron appeals from the Law Division's
July 26, 2022 amended judgment of conviction for two counts of distribution of
controlled dangerous substances (CDS). 1 Specifically, defendant challenges the
trial court's March 13, 2022 order denying his motion to suppress witness Ricky
Rodriguez's photographic identification of him. We affirm.
I.
On September 27, 2018, Jeffrey Pindale was found deceased in the
basement of his home. Pindale's death was determined to be caused by the
effects of cocaine and fentanyl, with heroin as a contributory cause.
That same night, police observed Rodriguez in his parked car one street
over from Pindale's house and arrested him on an outstanding warrant. During
the search of Rodriguez's car, officers found two crack pipes, six needles and
wax folds containing a substance later confirmed to be heroin. Rodriguez was
subsequently charged with CDS offenses, arrested and taken into custody.
1 Although defendant's notice of appeal also lists the July 19, 2022 judgment of conviction for third-degree possession of CDS under indictment number 19-06- 00580, his merits brief does not address this conviction and sentence. Because he did not properly raise any arguments relating to this indictment, we consider them waived. State v. L.D., 444 N.J. Super. 45, 56 n.7 (App. Div. 2016) ("[A]n issue not briefed is waived.") A-0194-22 2 While at the police station, Rodriguez overheard one of the arresting officers
say Pindale was deceased.
The next day, after Pindale's family told officers Rodriguez had been in
the house with Pindale the night before, officers interviewed Rodriguez after
administering Miranda2 warnings. Rodriguez admitted he drove Pindale to
purchase what he assumed to be a rock of cocaine, although he did not see the
drugs.
Rodriguez denied purchasing drugs for Pindale or seeing him with a bag
of heroin the night before. He said that while at Pindale's house, he ate pizza,
cut Pindale's hair, and then left. When asked whether he used heroin, Rodriguez
indicated he "barely" used and was trying to wean himself off the drug. When
detectives asked who his supplier was, Rodriguez did not provide a name and
instead, said it was "just some old guy" who was "very secluded," whom he did
not want to "rat out."
About two months later, officers arrested Rodriguez on another
outstanding warrant and brought him in for further questioning because they
believed he had not been truthful during his previous interview. After re-
administering Miranda warnings, an officer again questioned Rodriguez about
2 Miranda v. Arizona, 384 U.S 436 (1966). A-0194-22 3 Pindale's death, specifically inquiring about contacts in his phone. Rodriguez
identified one phone number as belonging to someone he knew as "Gordie," the
"old guy" he referenced in the previous interview, from whom he bought heroin.
Rodriguez then identified another of his suppliers as someone he knew as
"Brazzy."3 Rodriguez only knew Brazzy by his street name and social media
profile and was unaware of his real name.
At this point, the officer left the interview room for about three minutes
and returned with a photograph of defendant. He placed the photo on the table
in front of Rodriguez and asked, "Who is that?" to which Rodriguez replied,
"That's Brazzy." The officer asked Rodriguez if he was certain that was Brazzy,
to which Rodriguez responded affirmatively. The officer then asked, "That's
who you bought the crack [from] for [Pindale] that night?" to which Rodriguez
answered, "Yeah." Rodriguez did not admit to purchasing heroin for Pindale
the night of his death and, at defendant's trial, Rodriguez admitted he was not
completely honest during this interview.
3 Defendant's street name, Brazzy, is also referred to as Brazy and Brazie in the record. A-0194-22 4 A month later, an officer questioned Rodriguez further. This time, the
officer did not read Rodriguez Miranda warnings and instead advised Rodriguez
he was not under arrest and was free to leave whenever he chose to.
Rodriguez then admitted he purchased blue heroin and crack cocaine from
Brazzy and brought it to Pindale's house the night he died. Although at trial
Rodriguez testified he also used the heroin, he told police during this interview
that he did not. He said Pindale began "messing" with the heroin in the bathroom
and it appeared that he ingested it. Rodriguez said he left the house because he
did not want to see Pindale use heroin, since the last time Pindale used drugs he
had fallen asleep high in Rodriguez's car. Rodriguez said as he left the house,
Pindale was heading into the bathroom with the heroin.
On April 24, 2019, a Cumberland County grand jury returned an
indictment charging defendant with first-degree strict liability for a drug-
induced death, N.J.S.A. 2C:35-9(a); and two counts of third-degree distribution
of CDS, N.J.S.A. 2C:35-5(b)(3) and (5).
Prior to trial, defendant filed an omnibus motion seeking, among other
relief, suppression of Rodriguez's photographic identification of him. Judge
A-0194-22 5 Robert G. Malestein granted defendant's request for a Wade/Henderson4 hearing
and, after hearing testimony, entered an order denying the motion.
In his oral decision, the judge first outlined the framework for a
Wade/Henderson hearing. First, "to obtain a pretrial hearing, a defendant has to
show and has the initial burden of showing some evidence of suggestiveness that
could lead to a mistaken identification." He explained he granted defendant's
request for a hearing because "there's always a possibility . . . when [a detective]
show[s] just one single photograph to one person, it's suggestive." Once a
defendant makes a threshold showing, the State then has "the obligation to offer
proof to show that the proffered eyewitness identification is reliable." The
burden then shifts to "defendant to prove a very substantial likelihood of
irreparable misidentification." If the totality of circumstances demonstrates "a
very substantial likelihood of irreparable misidentification, the court should
suppress the identification evidence."
The judge then found the identification here was "a confirmatory
identification, which . . . is not considered suggestive" under State v. Pressley,
232 N.J. 587, 592-93 (2018). The judge explained "[a] confirmatory
4 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A-0194-22 6 identification occurs when a witness identifies someone he or she knows from
before but cannot identify by name, which is precisely what occurred here."
Rodriguez provided a street name, which police knew was associated with
defendant. An officer retrieved defendant's photograph from their in-house
database, showed the photograph to Rodriguez, and asked him who it was. The
judge found there was nothing suggestive about this procedure because the
police "were just confirming whether or not Brazzy was the person that was
pictured . . . , and . . . Rodriguez was able to confirm that that's the person that
he was talking about."
Because defendant had not "established a very substantial likelihood of
irreparable misidentification," the judge denied the motion to suppress.
A jury trial was conducted on various dates in February and March 2022.
The jury acquitted defendant of count one, strict liability for a drug -induced
death, but found him guilty of counts two and three, distribution of CDS. On
July 7, 2022, defendant entered a guilty plea to possession of CDS on a second
unrelated indictment.
On July 19, 2022, defendant was sentenced to four years for each count of
distribution of CDS, and three years for possession of CDS, with all counts to
run concurrently.
A-0194-22 7 On appeal, defendant raises the following issue for our consideration:
THE ADMISSION OF RODRIGUEZ'S SHOW-UP PHOTOGRAPHIC IDENTIFICATION OF DEFENDANT VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE FEDERAL AND STATE CONSTITUTIONS.
II.
In reviewing a grant or denial of a motion to suppress, we "must uphold
the factual findings underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record." State v. Lamb, 218
N.J. 300, 313 (2014). Factual findings are accorded deference because they "are
substantially influenced by [the trial court's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). Therefore, the trial court's findings on the admissibility
of identification evidence are "entitled to very considerable weight." State v.
Farrow, 61 N.J. 434, 451 (1972). A finding that the identification procedures
were reliable should not be disturbed unless it fails the sufficient credible
evidence standard of review. State v. Adams, 194 N.J. 186, 203 (2008).
A pretrial identification procedure must comply with the due process
clause of the Fourteenth Amendment. Stovall v. Denno, 388 U.S. 293, 302
A-0194-22 8 (1967). Accordingly, an identification lineup may not be conducted in a manner
"so unnecessarily suggestive and conducive to irreparable mistaken
identification that [the defendant is] denied due process of law." Ibid.
A pretrial identification is admissible at trial unless it is the product of
suggestive procedures creating a "very substantial likelihood of irreparable
misidentification." State v. Madison, 109 N.J. 223, 232 (1988) (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)).
The purpose of a Wade/Henderson hearing is for the trial court to
determine whether an identification procedure created a substantial likelihood
of irreparable misidentification, such that the identification was unreliable and
should be suppressed at trial. Wade, 388 U.S. at 229-30; Henderson, 208 N.J.
at 289.
To establish entitlement to a pretrial Wade/Henderson hearing, "a
defendant has the initial burden of showing some evidence of suggestiveness
that could lead to a mistaken identification." Henderson, 208 N.J. at 288. The
evidence must be tied to some system variable—usually law enforcement
conduct—and not an estimator variable. Id. at 288-89. System variables are
factors over which the State has control, such as how the array was constructed,
the pre-identification instructions given, and the recording of a victim's
A-0194-22 9 confidence level in the identification before any confirmatory feedback. Id. at
248-61. Estimator variables are factors over which the legal system has no
control, such as stress, duration of the witness's observation of the suspect,
distance and lighting, and similar factors that could impact the accuracy of the
identification. Id. at 261-72. If a defendant fails to show some evidence of
suggestiveness tied to a system variable, there is no need to consider estimator
variables because evidence of reliability is a fact issue for the jury. Id. at 290-
91.
Next, the State must offer proof the eyewitness identification was reliable.
Id. at 289. If the State makes that showing, the ultimate burden is "on the
defendant to prove a very substantial likelihood of irreparable
misidentification." Ibid. In this third part of the test, the court must consider
the relevant system and estimator variables to determine whether a defendant
has met this burden. Madison, 109 N.J. at 239; Henderson, 208 N.J. at 291.
However, as the judge found here, a confirmatory identification is not
considered suggestive. Pressley, 232 N.J. at 592. "A confirmatory identification
occurs when a witness identifies someone he or she knows from before but
cannot identify by name." Id. at 592-93 (citing Nat'l Research Council,
Identifying the Culprit: Assessing Eyewitness Identification 28 (2014)
A-0194-22 10 ("Confirmatory Photograph: Police will, on occasion, display a single
photograph to a witness in an effort to confirm the identity of a perpetrator.
Police typically limit this method to situations in which the perpetrator is
previously known to or acquainted with the witness.")). "For example, the
person may be . . . someone known only by a street name." Pressley, 232 N.J.
at 593 (citing Identifying the Culprit at 22).
We are satisfied the judge's order denying the motion to suppress the
confirmatory photograph identification was supported by credible evidence.
Rodriguez identified one of his suppliers as Brazzy, whom he did not know by
his actual name. Police, aware defendant went by the name Brazzy, showed his
photo to Rodriguez and asked the open-ended, non-suggestive question, "Who
is that?" to which Rodriguez replied, "That's Brazzy." Nothing in the record
here demonstrated any evidence of suggestiveness in the photographic show-up
that would have resulted in a substantial likelihood of mistaken identification.
Therefore, we discern no abuse of discretion that would warrant disturbing the
judge's decision.
Affirmed.
A-0194-22 11