NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1872-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HASSAN TODD, a/k/a ABDUAL TODD, JIHAD BEAL, JERMAINE COLEY, QUAMIR WILLIAMS and HAS,
Defendant-Appellant. ________________________
Argued December 15, 2021 – Decided September 1, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-12-4130.
Morgan A. Birck, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Morgan A. Birck, of counsel and on the briefs).
Caitlinn Raimo, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Caitlinn Raimo, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant was convicted of first-degree murder,
N.J.S.A. 2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b)(1); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1). He was sentenced to an aggregate term of sixty-five
years of imprisonment, subject to an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43 -7.2.
The convictions stemmed from the fatal shooting of Elijah Roberts and
wounding of Tyre Sorbino in front of a Newark pizzeria. Defendant was arrested
after two witnesses identified him as the shooter from photo arrays. One of the
eyewitnesses, Asya Thomas, Roberts's girlfriend, was with Roberts at the time
of the shooting, and knew defendant. Detective Yolanda Holmes, the lead
detective, secured surveillance footage of the shooting, interviewed the
eyewitnesses, and obtained a search warrant for defendant's aunt's home. The
search uncovered a jacket belonging to defendant that matched the one worn by
A-1872-19 2 the shooter as depicted in the surveillance footage. At trial, both eyewitnesses
testified, and Holmes narrated the surveillance footage, identifying defendant as
the shooter three separate times and identifying the seized jacket as matching
the one worn by defendant in the footage. No forensic evidence or weapon
linking defendant to the crimes was presented to the jury.
On appeal, in his counseled brief, defendant raises the following points
for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING A WADE[1] HEARING.
POINT II
THE JURY INSTRUCTION ON IDENTIFICATION, WHICH OMITTED AN INSTRUCTION REGARDING THE NON-RECORDED CONVERSATION BETWEEN AN EYEWITNESS AND LAW ENFORCEMENT REGARDING THE PHOTO ARRAY PROCEDURE, DID NOT ADEQUATELY EXPLAIN THE RELEVANT FACTORS OF ASSESSING THE RELIABILITY OF THE OUT-OF-COURT IDENTIFICATIONS. (NOT RAISED BELOW).
POINT III
THE LEAD DETECTIVE GAVE IMPROPER LAY- WITNESS OPINION TESTIMONY AS TO CRUCIAL
1 United States v. Wade, 388 U.S. 218 (1967). A-1872-19 3 IDENTIFICATION DETAILS. (NOT RAISED BELOW).
POINT IV
THE SENTENCE IS EXCESSIVE AS THE TRIAL COURT FAILED TO FIND A MITIGATING FACTOR SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD.
In a pro se supplemental brief, defendant makes the following arguments:
THE JURY INSTRUCTIONS W[ERE] INADEQUATE AND DEFECTIVE AND DENIED [DEFENDANT] HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
[DEFENDANT'S] CONVICTIONS SHOULD BE REVERSED BECAUSE [THE] PROSECUTOR IMPROPERLY INFLAMED THE JURY BY TRYING TO GET THE JURY TO SYMPATHIZE WITH THE VICTIM AS [O]PPOSED TO JUST ARGUING THE FACTS OF THE CASE.
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE IDENTIFICATION PROCEDURE WAS SUGGESTIVELY TAINTED BY THE STATE'S KEY WITNESS BEING TOLD TO REMEMBER THE PHOTO NUMBER THAT DEFENDANT WAS IN PRIOR TO VIEWING THE PHOTO ARRAY.
A-1872-19 4 POINT IV
[DEFENDANT'S] CONVICTIONS MUST BE REVERSED BECAUSE OF THE CUMULATIVE ERROR THAT OCCURRED DURING HIS TRIAL.
Because of the impermissible lay opinion testimony of the lead detective, we
reverse the convictions and remand for a new trial.
I.
After defendant's motion for a Wade hearing challenging the admissibility
of Thomas's out-of-court identification was denied, a six-day jury trial was
conducted in September 2019, during which the State produced twelve witnesses
consisting of civilian and law enforcement witnesses, including the
eyewitnesses, the surviving victim, a crime scene investigator, a ballistics and
firearm identification expert, and the medical examiner. We glean these facts
from the trial record.
At approximately 5:45 p.m. on September 22, 2018, an argument occurred
on Ridgewood Avenue in Newark between Roberts and another individual.
Maryanne Pollard, who knew Roberts from the neighborhood, lived on
Ridgewood Avenue and observed the argument from her front porch. Roberts
called his girlfriend, Asya Thomas, who came to help calm Roberts down.
Thomas and Roberts then walked down the block to Avon Avenue and turned
A-1872-19 5 the corner toward the Brick City Oven pizzeria, at which point Pollard lost sight
of them.
A few minutes later, Pollard saw a truck pull up with four people inside.
The driver handed the front seat passenger a bag containing a gun, and the
passenger, who was wearing a black hooded coat, walked towards the pizzeria.
Thomas and Roberts were talking with friends, including Sorbino, in front of
the pizzeria when the shooter approached them and shot Roberts in the chest.
The gathering immediately dispersed. While hiding behind a wall, Thomas
looked out and saw Roberts laying on the pavement as the shooter stood over
him and continued to shoot. The shooter eventually retreated behind a parked
car, still shooting at Roberts before fleeing.
Once the shooting stopped, Thomas ran to Roberts, but he was
unresponsive. Police were alerted by 911 calls and ShotSpotter,2 and responded
along with paramedics. Roberts was later pronounced dead at University
Hospital from "[m]ultiple gunshot wounds," having been shot a total of fifteen
times. Sorbino, who had been shot in the leg, was treated at the hospital and
released. Although Sorbino saw a "black hoodie" prior to the shooting, he could
not identify the shooter.
2 The ShotSpotter system alerts officers to a location where shots were fired. A-1872-19 6 Detective Yolanda Holmes responded to the scene half an hour after the
shooting occurred. Holmes served as the lead detective and, in that capacity,
observed the scene, interviewed witnesses, and canvassed the neighborhood for
surveillance cameras. After locating surveillance cameras, Holmes viewed and
downloaded the footage that depicted the shooting as well as the shooter's initial
flight. During the investigation, Holmes reviewed the footage multiple times.
Holmes interviewed Thomas the evening of the shooting and obtained a
nickname for the shooter, which Holmes matched to a "government" name.
Thomas testified she was familiar with defendant from having seen him "a
couple of times." However, when presented with her prior statement to police
to refresh her recollection, Thomas acknowledged she had told police she had
previously seen defendant "about ten times."
Two days after the shooting, Holmes asked Thomas to participate in a
recorded photo array identification procedure, which was conducted by a
double-blind administrator.3 Nine days after the shooting, Holmes arranged for
3 A double-blind administrator is one who does not know who the suspect is or where the suspect's photograph is positioned in the photo array. State v. Henderson, 208 N.J. 208, 248 (2011). The double-blind best practice established in Henderson reduces the possibility that the officer who is administering the identification procedure will suggest to the witness, even unconsciously, which photo in the array depicts the suspect. Id. at 248-49. A-1872-19 7 Pollard to be administered a recorded double-blind photo array identification
procedure. Thomas and Pollard each identified defendant as the shooter from
the photo arrays presented to them. Holmes had compiled the photo arrays so
that all six photos in each array depicted men with tattoos on their faces, similar
to defendant's.
After Thomas's identification, Holmes obtained a search warrant for
defendant's aunt's house. During the execution, officers found "a black jacket
with a hood" in one of the bedrooms. Defendant's aunt indicated that the jacket
belonged to defendant. Holmes believed that the jacket matched the one she had
observed in the surveillance footage. After Pollard's identification, defendant
was arrested.
At trial, the surveillance footage was played for the jury, with Holmes
narrating what it depicted. On three separate occasions during cross-
examination, Holmes referred to the shooter in the video by defendant's first and
last name, "Hassan Todd." Holmes also testified on direct examination that the
jacket seized from defendant's aunt's home was "the same jacket . . . depicted in
the surveillance video" "worn by Hassan Todd." The jacket was never tested
for DNA or gunshot residue and although law enforcement recovered eight shell
casings from the scene that were fired from the same gun, the gun used in the
A-1872-19 8 shooting was never recovered. Additionally, no fingerprints were found at the
scene, either on recovered shell casings or parked vehicles.
After the jury returned its verdict, defendant was sentenced to a term of
sixty-five years' imprisonment, subject to NERA, on the murder conviction; a
concurrent ten-year term, subject to NERA, on the aggravated assault
conviction; and a concurrent ten-year term, with a five-year period of parole
ineligibility, each on the weapons offenses. A memorializing judgment of
conviction was entered on December 5, 2019, and this appeal followed.
II.
In Point III of his counseled brief, defendant argues the lead detective
offered "impermissible lay-opinion testimony" which "improperly invaded the
jury's role as ultimate fact-finder." According to defendant, "Holmes's opinion"
of "whether [defendant] was the shooter in the video and whether the coat in the
video was the same as the one recovered from [defendant's aunt's] house"
"strayed far beyond the bounds of proper fact testimony by a police officer" and
improperly bolstered Thomas's and Pollard's identification testimony.
Because defendant did not object at trial, we apply a plain error standard
of review and will reverse only if the errors were "clearly capable of producing
an unjust result." R. 2:10-2; see also State v. R.K., 220 N.J. 444, 456 (2015)
A-1872-19 9 (explaining an "error will be disregarded unless a reasonable doubt has been
raised whether the jury came to a result that it otherwise might not have
reached"). We also recognize that "[a] trial court's evidentiary rulings are
entitled to deference absent a showing of an abuse of discretion, i.e., there has
been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015)
(quoting State v. Harris, 209 N.J. 431, 439 (2012)).
When the issue has arisen of what is and what is not permissible narration
of video footage that captures an incident not witnessed in real time, the question
has focused on whether a specific comment by the narrator is purely factual or
is a lay opinion. See State v. Singh, 245 N.J. 1, 14-15 (2021). Accordingly, the
Court has evaluated the admissibility of narration testimony under N.J.R.E. 701.
See State v. Sanchez, 247 N.J. 450, 466 (2021); Singh, 245 N.J. at 14; see also
State v. Lazo, 209 N.J. 9, 20-24 (2012).
In Singh, the Court squarely addressed lay opinion testimony relating to
video surveillance recordings. 245 N.J. at 4. The defendant in that case
challenged testimony from a detective who had twice referred to the person
shown in the surveillance video as "the defendant." Id. at 18. The detective
further commented that the sneakers worn by the suspect in the surveillance
A-1872-19 10 video looked like sneakers found on defendant the night he was arrested. Id. at
19.
The Court began its analysis by examining the purpose and boundaries of
N.J.R.E. 701, which provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it:
(a) is rationally based on the witness' perception; and
(b) will assist in understanding the witness' testimony or determining a fact in issue.
The Court in Singh determined that it was error for the trial court to allow
the detective to refer to the suspect in the video as "the defendant" but ultimately
concluded that those fleeting references were harmless. Id. at 17. The Court
also concluded that there was no error in allowing the detective to testify that
the sneakers he saw in the video were like the sneakers the defendant had been
wearing on the night he was arrested. Id. at 17-19. The Court reasoned that
although "the jury may have been able [on its own] to evaluate whether the
sneakers were similar to those in the video[, that] does not mean that [the
detective's] testimony was unhelpful. Nor does it mean that [the detective's]
testimony usurped the jury's role in comparing the sneakers." Id. at 20.
A-1872-19 11 In Sanchez, the Court focused on whether a parole officer could offer a
lay opinion identifying the defendant as a suspect in a still-frame image taken
from a surveillance video. 247 N.J. at 458. Specifically, the Court considered
whether it was an improper lay opinion for a "parole officer, who had met with
[the] defendant more than thirty times as she supervised him on parole, [to tell]
a detective investigating a homicide and robbery that [the] defendant was the
individual depicted in a photograph derived from surveillance video taken
shortly after the crimes." Ibid.
In analyzing that issue, the Court compiled a non-exhaustive list of four
factors to consider in determining whether lay opinion testimony will assist the
jury in a case. Id. at 473. Those factors include (1) "the nature, duration, and
timing of the witness's contacts with the defendant"; (2) "if there has been a
change in the defendant's appearance since the offense at issue"; (3) " 'whether
there are additional witnesses available to identify the defendant at trial '"; and
(4) "the quality of the photograph or video recording at issue." Id. at 470-73
(quoting Lazo, 209 N.J. at 23). The Court stressed that no single factor will be
dispositive. Id. at 473-74 (citing Lazo, 209 N.J. at 20-24). The Court in Sanchez
ultimately determined that the parole officer's testimony was based on her
A-1872-19 12 perceptions of having met with the defendant more than thirty times and,
therefore, her testimony was admissible and helpful to the jury. Id. at 475.
Although Lazo did not involve narration of surveillance video footage, the
Court considered "whether it was proper for a [detective] to testify at trial about
how and why he assembled a photo array" which he showed "to the robbery
victim, whose eyewitness identification was the only evidence linking defendant
to the offense." 209 N.J. at 12. The Court held that the detective's opinion that
defendant's arrest photo was included in the array because it "closely resembled
a composite sketch of the assailant" could not "pass muster under Rule 701." Id.
at 24. The Court reasoned that the detective "had not witnessed the crime and
did not know defendant," and the detective's opinion "was not based on prior
knowledge" but "stemmed entirely from the victim's description." Ibid.
The Court further expounded that there was no "change in appearance that
the officer could help clarify for the jurors" who "could have compared the photo
and the sketch on their own." Ibid. The Court stressed that "[i]n an
identification case, it is for the jury to decide whether an eyewitness credibly
identified the defendant." Ibid. "Neither a police officer nor another witness
may improperly bolster or vouch for an eyewitness' credibility and thus invade
the jury's province." Ibid. The Court concluded that because the identification
A-1872-19 13 was "the sole basis for defendant's conviction," the error in admitting the
detective's testimony was not harmless and required reversal of defendant's
conviction. Id. at 27.
In State v. Watson, 472 N.J. Super. 381, 404-05 (App. Div. 2022), we
recently considered the standard for determining if police video-narrated
testimony was properly admitted. After reviewing New Jersey Supreme Court
precedent, we held there is no categorical, per se rule that prohibits video
narration testimony. Id. at 445. "Rather, the critical fact-sensitive issue to be
decided on a case-by-case, indeed, question-by-question basis is whether a
specific narration comment is helpful to the jury and does not impermissibly
express an opinion on guilt or on an ultimate issue for the jury to decide." Ibid.
In Watson, we distilled general principles related to lay witness opinion
testimony and adapted those principles to the specific context of a "play-by-
play" narration of video recordings. Id. at 449-450. We recognized certain
principles that were already clearly established. For example, we pointed out
that existing case law made it "clear that it is impermissible for a police witness
to testify at trial as to a defendant's guilt or an ultimate issue to be decided by
the jury." Id. at 458. "Relatedly, the law also is clear that there are significant
restrictions on when a police witness may offer a lay opinion on whether
A-1872-19 14 defendant is the person shown in a video recording or screenshot in cases where
the identity of the culprit is at issue." Ibid. We pointed out that an objective
description of what is depicted in a video will generally be admissible, but
subjective commentary needs to be carefully analyzed. Id. at 463. In that regard,
we drew "a fundamental distinction between narration testimony that objectively
describes an action or image on the screen (e.g., the robber used his elbow to
open the door) and narration testimony that comments on the factual or legal
significance of that action or image (e.g., the robber was careful not to leave
fingerprints)." Id. at 462.
The critical inquiry in defining the scope of permissible video-narration
testimony is the second prong of N.J.R.E. 701: "whether the narration testimony
would be helpful to the jury by shedding light on the determination of a disputed
factual issue." Id. at 464. "If the jury needs no assistance to fully understand
the contents of the video, then narration commentary would tread upon the role
of the jury under N.J.R.E. 701 analysis." Ibid. Ultimately, in Watson, we
identified six factors to guide trial courts in safeguarding the province of the
jury from unwarranted intrusion by narration. Id. at 466. Those factors include:
(1) if the video-narration testimony would provide helpful background context;
(2) if the testimony would explain the duration of the video and be focused on
A-1872-19 15 isolated events or circumstances; (3) if a narrative comment would pertain to a
fact in dispute; (4) if a narrative comment would be based on an inference or
deduction supported by other facts in evidence; (5) the clarity and resolution of
the video recording; and (6) whether the narration testimony would be helpful
in focusing the jury's attention if a video is complex or contains distracting
images. Id. at 466-69.
Here, for much of her testimony, Holmes referred to the individual
depicted in the surveillance video and still-frame images from the video as "the
shooter." However, on four separate occasions, Holmes identified the shooter
in the surveillance video as defendant, "Hassan Todd." First, when the
prosecutor questioned Holmes about the black hooded jacket she seized while
executing a warrant at defendant's aunt's house, the following ensued:
[PROSECUTOR]: Okay, and how do you recognize that black jacket?
[HOLMES]: That's the same jacket matching the description depicted in the surveillance video --
[PROSECUTOR]: Okay, is that --
[HOLMES]: -- worn by Hassan Todd.
[PROSECUTOR]: Is that the jacket that you seized from [defendant's aunt's home]?
[HOLMES]: Yes.
A-1872-19 16 During cross-examination, when questioned about Thomas's location in
relation to the shooter, while the surveillance video played, Holmes explained:
[HOLMES]: [Thomas] stops, right behind this red sign right here. There's a . . . little corner. She stops there for a second and she looks at Hassan Todd.
[DEFENSE COUNSEL]: Well --
[HOLMES]: Then she continues running.
When defense counsel continued to probe Holmes on Thomas's location
in relation to the shooter, Holmes again responded: "when [Thomas] got to the
top of MLK, Hassan Todd was still shooting." Later, still disagreeing with
defense counsel's characterization of Thomas's ability to identify the shooter
based on her location, Holmes noted:
And keep in mind . . . Hassan Todd was not wearing the hood over his head when he approached the corner. When he . . . stopped shooting and was going back, running, that's when in the video you will see he [puts the hood up]. So everyone has a clear view of his face.
Holmes's references to the shooter as "Hassan Todd" clearly constitutes
impermissible lay opinion testimony. The testimony violates N.J.R.E. 701's
prescriptions because Holmes's testimony that the shooter in the video was
defendant was not "rationally based" on Holmes's own "perception" as N.J.R.E.
701 requires. Holmes was not present at the scene when the shooting occurred,
A-1872-19 17 did not witness the incident firsthand, and did not know defendant. Holmes first
viewed the incident on surveillance footage afterwards. Critically, her opinion
about the shooter's identity was not based on any prior knowledge of defendant
but stemmed from Thomas's and Pollard's identification of defendant. As a
result, Holmes's opinion testimony improperly bolstered the eyewitnesses'
credibility and impermissibly expressed an opinion on the identity of the
shooter. Holmes's testimony also failed to comport with N.J.R.E. 701 because
the jury was just as competent as Holmes to form a conclusion about the identity
of the shooter in the video. Given the absence of any evidence in the record of
a change in appearance, the jury needed no assistance to determine whether the
shooter in the video was in fact defendant and whether defendant wore the seized
jacket in the footage. Holmes's testimony therefore invaded the province of the
jury as the ultimate trier of fact.
The Singh Court found that admission of two "fleeting" references to
"defendant," which "appear[ed] to have resulted from a slip of the tongue" in
narrating the surveillance video, did not amount to plain error. 245 N.J. at 18.
Here, Holmes's references were neither fleeting nor a slip of the tongue. The
Singh Court also determined that the "testimony regarding the sneakers was
proper" because the detective "had first-hand knowledge of what the sneakers
A-1872-19 18 looked like because he saw defendant wearing them on the night of his arrest."
Id. at 5. Here, Holmes had no first-hand knowledge of defendant wearing the
jacket.
Because defendant did not object to the testimony, we must determine
whether the errors were "clearly capable of producing an unjust result" to
warrant reversal. R. 2:10-2. In deciding whether reversal was warranted in
Singh, the Court evaluated "'the overall strength of the State's case.'" 245 N.J.
at 13 (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)). There, the
officers apprehended the defendant shortly after the robbery occurred and
observed defendant dropping a machete – the robbery weapon – and the robbery
proceeds while fleeing. Id. at 18. Although the Court concluded that the error
withstood plain error scrutiny given the "significant" "circumstantial evidence
of the robber's identification," the Court stressed "that in similar narrative
situations, a reference to 'defendant,' which can be interpreted to imply a
defendant's guilt . . . should be avoided in favor of neutral, purely descriptive
terminology such as 'the suspect' or 'a person.'" Ibid.
Here, the State's case rested on Thomas's and Pollard's identifications and
eyewitness testimony, the black jacket, and the surveillance footage. Notably,
three of Holmes's four references to defendant as the shooter came during a
A-1872-19 19 contentious back-and-forth with defense counsel about the ability of Thomas to
obtain a clear view of the shooter. There was no weapon recovered, no forensic
evidence, and no ballistics evidence tying defendant to the crime. As the judge
noted, "[t]he identification of the person who shot the deceased is the crux of
the case." Because the State's case hinged on identification, we are satisfied that
the repeated improper bolstering of the credibility of the identification testimony
by the lead detective assigned to investigate the case was clearly capable of
producing an unjust result. R. 2:10-2. Thus, we are constrained to reverse the
convictions and remand for a new trial.
Based on our decision, we need not address defendant's remaining
arguments. However, for the sake of completeness, we briefly address
defendant's contention that he was entitled to a Wade hearing based on Thomas's
remarks during the photo identification procedure and law enforcement's failure
to comply with Rule 3:11(c)(10) in conducting the identification procedure, both
of which demonstrated suggestiveness that may have tainted the identification.
It is undisputed that when she was first shown the photo array, Thomas
exclaimed: "Oh God, they told me to remember the number of the picture." In
admitting the identification testimony and denying defendant's request for a
hearing, the trial judge acknowledged that the statement was "a little odd"
A-1872-19 20 because "she was told to remember the number of one of the photos."
Nonetheless, the judge concluded that the "statement in a vacuum does not, in
this [c]ourt's estimation warrant a full hearing." The judge noted there was
nothing "to suggest that [Thomas] was somehow told to identify a particular
number, or a particular photo." Instead, in assessing the reliability of her
identification testimony, the judge relied heavily on the fact that Thomas knew
defendant.
The double-blind administrator conducting the identification procedure
did not ask Thomas to explain who she spoke to or why she was told to remember
a number. At trial, Thomas confirmed that she had spoken to Holmes prior to
the identification procedure. Holmes also testified that she spoke with Thomas
about the procedure before her identification. Despite the clear showing that a
conversation occurred between Thomas and Holmes about the identification
procedure before it was administered, there was no recording or account of that
interaction as prescribed under Rule 3:11(c)(10), requiring law enforcement
officers to record "the identity of any individuals with whom the witness has
spoken about the identification procedure, at any time before, during, or after
the official identification procedure, and a detailed summary of what was said. "
A-1872-19 21 The Henderson Court "held that when defendants can show some evidence
of suggestiveness tied to a system variable, they are entitled to explore all
relevant system and estimator variables at a pretrial hearing to try to challenge
the admissibility of the identification." State v. Anthony, 237 N.J. 213, 226
(2019) (citing Henderson, 208 N.J. at 288-93). In Anthony, the Court
"modif[ied] the Henderson framework" to make clear that "a defendant will be
entitled to a pretrial hearing on the admissibility of identification evidence
if . . . Rule 3:11 [is] not followed and no electronic or contemporaneous,
verbatim written recording of the identification procedure is prepared." 237 N.J.
at 233. "[D]efendants need not offer proof of suggestiveness in order to obtain
this remedy." State v. Guerino, 464 N.J. Super. 589, 619 (App. Div. 2020)
(citing Anthony, 237 N.J. at 233-34). Law enforcement's inability to provide
the information "should not deprive defendants of the opportunity to probe about
suggestive behavior that may have tainted an identification." Anthony, 237 N.J.
at 233. Here, because Rule 3:11(c)(10) was not followed, we agree that
defendant presented sufficient evidence to justify a Wade hearing. However,
we express no view on the outcome of the hearing.
Our disposition does not require us to address defendant's sentencing
arguments.
A-1872-19 22 Reversed and remanded for a new trial. We do not retain jurisdiction.
A-1872-19 23