NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1010-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES A. FLOOD,
Defendant-Appellant. ________________________
Submitted May 27, 2026 – Decided July 24, 2026
Before Judges Susswein and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 21-01-0032.
Jennifer N. Sellitti, Public Defender, attorney for appellant (James D. O'Kelly, Designated Counsel, on the brief).
Theodore N. Stephens II, Essex County Prosecutor, attorney for respondent (Shep A. Gerszberg, Assistant Prosecutor, of counsel and on the brief).
Defendant James Flood appeals the November 22, 2024 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. In December 2022, defendant pled guilty to aggravated
manslaughter and related charges arising from a 2020 home invasion and fatal
shooting. Defendant contends that his trial counsel rendered ineffective
assistance by failing to file a Wade/Henderson 1 motion to challenge the
admissibility of a witness's statement after the witness was shown video
surveillance screenshots of the masked culprits. After considering the record in
light of the governing legal principles, we affirm. We agree with the PCR court
that defendant has not established the grounds for an evidentiary hearing, much
less to vacate his guilty plea.
I.
We discern the following pertinent facts and procedural history from the
record. On February 20, 2020, at approximately 1:54 p.m., police responded to
a 9-1-1 call of a male who had been shot on the second floor of a Grove Street
apartment building in Irvington. The victim, Daquan Smith, was pronounced
dead at 2:28 p.m.
1 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A-1010-24 2 In the early hours of February 21, Quinton Sanguinette, who shared an
apartment with the victim, provided a statement to detectives Mike DiPrimio
and Dave Posada at the Essex County Prosecutor's Office (ECPO). Sanguinette
stated that he fell asleep in the living room and was awakened at approximately
12:40 p.m. by a loud bang. When he awoke, he saw two men in the doorway
and the victim lying on the floor with a gunshot wound. According to
Sanguinette, one of the men, later identified as Lawrence Lewis (Lawrence2),
was "large" and the other, later identified as defendant, was "smaller," a little
shorter than Sanguinette, who is about 5'8". Sanguinette told the detectives the
larger man was yelling, "Where it's at?" and the shorter man had a gun in his
hand. Both intruders were wearing ski masks, and the shorter one was wearing
all black, including black gloves and boots. While the ski masks obscured most
of their faces, Sanguinette stated that the smaller man's skin tone was visible
around his eyes. Sanguinette described the shorter man's skin as caramel
colored. The two intruders eventually ran out of the apartment and down the
stairs. Sanguinette attempted to give medical aid to Smith while another
roommate called the police.
2 Because Lawrence shares a surname with another witness, we refer to him and the witness by their first names. A-1010-24 3 Officers were able to secure video surveillance recordings taken outside
the apartment building. Those recordings show a blue Acura TL stop around
the corner from the building, and depict four individuals getting out of the car:
Lawrence, defendant, and two women—later identified as Lakirah Lewis and
Monique Clark. The video then shows Lakirah 3 get into the driver seat while
Lawrence, Clark, and defendant walk toward the Grove Street apartment
building. In the video, defendant is wearing black pants and a black shirt with
the word "BLACK" printed in white letters across the front of the shirt. A few
minutes later, the video shows Lawrence and defendant—their faces now
covered by masks—running from Grove Street apartment building towards the
waiting Acura. Defendant is seen wearing the same clothes as before. Both men
get into the Acura, which then drives away.
During his interview with the detectives, Sanguinette was shown two still
images extracted from the surveillance recording. The detectives asked
Sanguinette whether he "recognize[d] any of these photographs" and whether he
"recognize[d] anything" in each photo. In response to the first image, which
depicted an individual wearing a hooded sweatshirt standing by a car,
Sanguinette stated, "I don't know who that is," but identified the car as belonging
3 See note 2. A-1010-24 4 to the victim. In response to the second image, which depicted a man wearing
black pants, a black shirt with white writing, and a black mask, Sanguinette
stated, "[T]hat looks like the dude who was holding the gun."
On February 21, 2020, Clark provided a statement in which she identified
herself, Lakirah, and Lawrence in the surveillance recording and selected still
images from the footage. However, she did not identify defendant, and on
March 5, she failed to select defendant from a photo array. Also on February
21, Lakirah identified herself, Clark, and Lawrence in the surveillance
recording.
On March 6, detectives interviewed Reena Williams, who is Lakirah's
sister, Lawrence's aunt, and defendant's cousin. Williams told detectives that
Clark, Lakirah, and Lawrence came to her house the night of the incident and
that Lakirah told her that Lawrence and defendant came running back to the car
saying someone was shooting at them. Williams identified Lakirah and
Lawrence from police photos and stills from the surveillance video. She also
identified Lawrence's blue Acura. She did not, however, identify defendant.
On March 9, police interviewed Muneerah Murphy—a cousin of Lakirah,
Lawrence, and defendant. Murphy stated that defendant lived in Atlanta but was
staying with her in New Jersey around the time of the homicide. Murphy told
A-1010-24 5 detectives that she had not seen defendant since the month of the homicide and
did not know where he went after leaving her residence. Murphy identified both
defendant and Lawrence from police photos and surveillance video stills.
In January 2021, defendant was charged by indictment with conspiracy to
commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a)(1) (count one); first-degree
robbery, N.J.S.A. 2C:15-1(a)(1) (count two); felony murder, N.J.S.A. 2C:11-
3(a)(3) (count three); knowing/purposeful murder, N.J.S.A. 2C:11-3(a)(1)-(2)
(count four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count
five); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count six).
On December 2, 2022, defendant pled guilty pursuant to a negotiated plea
agreement to conspiracy to commit robbery, first-degree robbery, aggravated
manslaughter (downgraded from the indicted murder charge), and unlawful
possession of a handgun. As part of the plea agreement, the State agreed to
recommend a prison term of twenty-two years subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2, and to dismiss counts three and six of the indictment.
On February 3, 2023, defendant was sentenced in accordance with the plea
agreement.
A-1010-24 6 Defendant did not file a direct appeal. He filed the present PCR petition
in late December 2023. On November 22, 2024, the PCR court held oral
argument after which it denied defendant's petition without conducting an
evidentiary hearing, issuing a thirty-three-page written decision.
This appeal followed. Defendant raises the following contentions for our
consideration:
POINT I THE PCR COURT'S LEGAL AND FACTUAL CONCLUSIONS REGARDING SANGUINETTE'S STATEMENT WERE ERRONEOUS AND ITS CONCLUSION THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A WADE MOTION SHOULD BE REVERSED.
A. Issues With ECPO's Interview of Sanguinette and The PCR Court's Summary of Sanguinette's Interview.
B. The PCR Court's Erroneous Factual Conclusions.
C. The PCR Court's Erroneous Legal Conclusions.
D. The PCR Court Faulted Defendant For Not Supplying Information That Was Outside of the Record.
E. Defendant Has Established Both Prongs of the Strickland/Fritz Test.
POINT II THE GENERAL POLICY CONCERNS RELIED UPON BY THE PCR COURT WERE MISPLACED,
A-1010-24 7 LEGALLY IRRELEVANT AND COULD NOT PROPERLY SUPPORT THE DENIAL OF DEFENDANT'S PCR PETITION.
II.
We begin our analysis by acknowledging the legal principles governing
PCR petitions, starting with the scope and standard of review. We review a PCR
court's legal conclusions de novo. State v. Harris, 181 N.J. 391, 419 (2004).
Appellate review "of a PCR court's factual findings is 'necessarily deferential.'"
State v. Hernandez-Peralta, 261 N.J. 231, 246 (2025) (quoting State v. Nash,
212 N.J. 518, 540 (2013)), subject to an important caveat. When as in this case
the PCR court does not hold an evidentiary hearing, we review both the factual
inferences drawn from the record and any legal conclusions de novo. State v.
Balbosa, 481 N.J. Super. 497, 519 (App. Div. 2025). See also Nash, 212 N.J. at
540-41; State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020).
Furthermore, when applying de novo review, appellate courts "view the facts in
the light most favorable to the defendant." State v. Jones, 219 N.J. 298, 311
(2014).
There is support in the case law for the proposition that appellate courts
review a PCR court's decision on whether to proceed without an evidentiary
hearing for an abuse of discretion. See Balbosa, 481 N.J. Super. at 519-20
A-1010-24 8 (citing State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023)). 4 However,
given uncertainty as to the appropriate standard of review of a trial court's
decision on whether to hold an evidentiary hearing, we err on the side of caution
and review de novo whether defendant in this case has established the grounds
for an evidentiary hearing.
Turning to substantive legal principles, PCR serves the same function as
a federal writ of habeas corpus. Preciose, 129 N.J. at 459. PCR provides "a
built-in 'safeguard that ensures that a defendant was not unjustly convicted.'"
Nash, 212 N.J. at 540 (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).
When petitioning for PCR, a petitioner must establish, by a preponderance of
4 Applying an abuse-of-discretion standard to a PCR court's decision to deny a PCR petitioner's request for an evidentiary hearing appears to be in tension with the long-settled rule that we review de novo not only a trial court's interpretation of the law but also the legal "consequences that flow from established facts." State v. Gamble, 218 N.J. 412, 425 (2014). Cf. Balbosa, 481 N.J. Super. at 519 (stating that "we review both the factual inferences drawn from the record and any legal conclusions de novo" and that "[w]e review the PCR court's decision to proceed without an evidentiary hearing for an abuse of discretion."). Arguably, the question of whether a defendant has established a prima facie case in support of PCR—a critical inquiry in determining whether an evidentiary hearing is required—is a question of law, or at least a mixed question, that is, a legal consequence that flows from established facts. See R. 3:22-10(b); see also State v. Preciose, 129 N.J. 451, 462 (1992) (PCR courts "ordinarily should grant evidentiary hearings . . . if a defendant has presented a prima facie [case] in support of post-conviction relief.").
A-1010-24 9 the credible evidence, that they are entitled to the requested relief. Id. at 541.
To meet this burden, the petitioner must allege and articulate specific facts,
"which, if believed, would provide the court with an adequate basis on which to
rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
A defendant alleging ineffective assistance of counsel must satisfy both
prongs of the two-part test set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the New Jersey
Court in State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that
counsel's performance was deficient." Strickland, 466 U.S. at 687. Second, the
defendant must show that counsel's "deficient performance prejudiced the
defense." Ibid.
To meet the first prong of the Strickland/Fritz test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Counsel's
performance is held to a standard of "reasonableness under prevailing
professional norms." Id. at 688. Stated another way, "the defendant must show
that counsel's representation fell below an objective standard of
reasonableness." Ibid.; see also State v. Marshall, 148 N.J. 89, 156-57 (1997).
A-1010-24 10 Importantly for purposes of this appeal, when a PCR petitioner asserts that
their attorney was ineffective by failing to file a specific motion, they must
establish that the motion would have been successful. State v. O'Neal, 190 N.J.
601, 619 (2007). "It is not ineffective assistance of counsel for defense counsel
not to file a meritless motion." Ibid.; see also State v. Worlock, 117 N.J. 596,
625 (1990) ("The failure to raise unsuccessful legal arguments does not
constitute ineffective assistance of counsel.").5
The second Strickland prong requires that the petitioner show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Strickland, 466 U.S. at 687. Counsel's errors must
create a "reasonable probability" that the outcome of the proceedings would
have been different if counsel had not made the errors. Id. at 694. Our Supreme
Court emphasized in State v. Gideon that the second prong sets forth "an
exacting standard." 244 N.J. 538, 551 (2021) (quoting State v. Allegro, 193 N.J.
352, 367 (2008)). "Prejudice is not to be presumed;" rather, "[t]he defendant
must 'affirmatively prove prejudice.'" Ibid. (citing Fritz, 105 N.J. at 52, and
5 We note that a PCR petitioner's failure to establish that a motion to suppress would have been successful is also relevant, if not dispositive, with respect to the second prong of the Strickland/Fritz test, since a defendant would be hard pressed to show prejudice from the failure to file a motion that would have been denied. A-1010-24 11 quoting Strickland, 466 U.S. at 693). Further, to set aside a guilty plea based on
ineffective assistance of counsel, a PCR petitioner must demonstrate "a
reasonable probability that, but for counsel's errors, [the petitioner] would not
have pled guilty and would have insisted on going to trial." State v. Nunez-
Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v
DiFrisco, 137 N.J. 434, 457 (1994)).
Short of establishing entitlement to a new trial or to vacate a guilty plea,
a PCR petitioner may demonstrate that an evidentiary hearing is warranted to
develop the factual record in connection with an ineffective assistance claim.
Preciose, 129 N.J. at 462-63. As a general matter, a defendant's claim of
ineffective assistance of counsel "is more likely to require an evidentiary hearing
because the facts often lie outside the trial record and because the attorney's
testimony may be required." Id. at 462. However, a PCR petitioner is not
automatically entitled to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). Rule 3:22-10(b) provides in pertinent part:
[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.
A-1010-24 12 With respect to the first of these three requirements, "[a] prima facie case
is established when a defendant demonstrates 'a reasonable likelihood that
[their] claim, viewing the facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.'" State v. Porter, 216 N.J. 343,
355 (2013) (quoting R. 3:22-10(b)).
III.
We next apply these foundational PCR principles to the present facts. We
cut to the chase by addressing whether defendant would have prevailed in a
Wade/Henderson hearing had his trial counsel moved to suppress Sanguinette's
statement to the detectives. See O'Neal, 190 N.J. at 619. That leads us to
consider the law regarding out-of-court identification procedures.
A.
Chief Justice Rabner's unanimous opinion in Henderson is the seminal
eyewitness identification case in New Jersey. Drawing on social science studies
compiled by a Court-appointed Special Master, the Court examined the
vulnerabilities of human perception and memory, focusing on the circumstances
that can lead to misidentification. Henderson, 208 N.J. at 217-18. The Court
addressed various "estimator" variables (e.g., lighting conditions, distance, the
length of time the witness has to observe the perpetrator, stress during an
A-1010-24 13 encounter, and cross-racial effects) and "system" variables (i.e., the manner in
which police administer a photo array procedure) that can influence a witness's
ability to accurately identify a culprit. Id. at 247, 289-91.
With respect to system variables, the Court outlined best practices for
police when administering eyewitness identifications, noting that "[t]he way that
a live or photo lineup is constructed can . . . affect the reliability of an
identification" and "[p]roperly constructed lineups test a witness'[s] memory and
decrease the chance that a witness is simply guessing." Id. at 251. The Court
also outlined standards for showing a photo array to a witness, recommending,
for example, that police use a "double-blind" method to minimize the possibility
that the officer administering the array might unconsciously send cues to the
witness on which photo in an array depicts the suspected perpetrator. Id. at 248.
Importantly, the Court noted that deviations from the preferred procedures
do not categorically require suppression of the witness's statement and any
ensuing in-trial identification. Id. at 303. Rather, depending on the
circumstances, a tailored jury instruction may be sufficient to ensure the jury
does not overstate the significance of a positive eyewitness identification of the
defendant. See id. at 296-99 (describing how "enhanced instructions" can
suffice to avoid juror misconceptions).
A-1010-24 14 The Court also adopted a four-step analytical framework for deciding
whether to hold an evidentiary hearing and, if a hearing is warranted, whether
to admit or suppress an out-of-court identification at trial. "First, to obtain a
pretrial hearing," the Court held, "a defendant has the initial burden of showing
some evidence of suggestiveness that could lead to a mistaken identification."
Id. at 288. Only if a defendant makes that threshold showing does the trial court
proceed to the second step, in which "[t]he State must then offer proof to show
that the proffered eyewitness identification is reliable[,] accounting for system
and estimator variables." Id. at 289. However, at any time, the court may end
the hearing and conclude that the State has shown that defendant's initial
showing of suggestiveness is groundless. Ibid.
Under the third step, the defendant bears the ultimate burden at the hearing
"to prove a very substantial likelihood of irreparable misidentification." Ibid.
"Fourth, if after weighing the evidence presented a court finds from the totality
of the circumstances that defendant has demonstrated a very substantial
likelihood of irreparable misidentification, the court should suppress the
identification evidence." Ibid. The court nonetheless has the discretion to admit
the identification evidence with appropriate, tailored jury instructions. Ibid.
B.
A-1010-24 15 In applying these general principles to the matter before us, it bears
emphasis that the circumstances of the present "identification" procedure —in
which Sanguinette "identified" the masked perpetrator by clothing, build, and
skin tone—are unusual and outside the heartland of the concerns addressed in
Henderson. The Henderson analytical framework contemplates that the
eyewitness is being asked to identify a specific person by considering,
principally, the person's facial features. Much of the social science evidence on
which the Henderson Court relies addresses challenges to a witness's ability to
perceive and recall those features, see id. at 245-77, and Henderson did not
explicitly address the identification of masked perpetrators in the context of its
assessment of system variables.
The State argues, and the PCR court agreed, that Sanguinette's testimony
was more akin to identification of physical evidence, which generally does not
require a pretrial evidentiary hearing. It is well established in this regard that
the "due process concerns implicated in the pretrial identification of a person
are not present in the identification of physical evidence." State v. Jones, 224
N.J. 70, 93 (2016) (quoting State v. Delgado, 188 N.J. 48, 67 (2006)). This is
because "[t]he risks inherent in a misidentification of inanimate objects
produced in the thousands are not the same as the risks of misidentification of
A-1010-24 16 unique human beings." Delgado, 188 N.J. at 67 (quoting People v. Miller, 535
N.W.2d 518, 523 (Mich. Ct. App. 1995)). The Court in Delgado accordingly
declined to "mandate lineups and photographic arrays for cars and other
objects." Id. at 66.
We are not fully persuaded by the State's argument that Sanguinette was
essentially identifying physical evidence rather than a person. It can hardly be
disputed that police showed Sanguinette an image of a person, whom he
identified as one of the individuals he saw in his apartment. But it is also evident
that the present identification procedure falls outside the heartland of
Henderson's analytical framework, as Sanguinette did not identify defendant
directly—i.e., from a known photo of defendant included in an array—but rather
stated that the masked person in the surveillance still was one of the intruders
based on his clothing, build, and skin coloration. Stated another way,
Sanguinette did not identify defendant, but rather the perpetrator's clothing ,
height/build, and skin coloration. The fact that the home intruders in this case
were wearing masks is most logically treated as an estimator variable that may
have affected Sanguinette's ability to identify them.
Ultimately, we consider the present identification procedure to be a
hybrid, somewhere between the identification of a person and of purely physical
A-1010-24 17 evidence. That said, we elect to err on the side of caution and give defendant
the benefit of the Henderson framework for assessing whether an evidentiary
hearing was required and, ultimately, whether the out-of-court statement
Sanguinette made to police would have been inadmissible at trial. 6
6 Both parties in the matter before us rely on Jones to support their respective positions on whether and to what extent the Henderson analytical framework applies. However, we conclude that Jones is too factually distinct to provide much guidance here. In Jones, the police used a "showup" identification procedure rather than a photo lineup. 224 N.J. at 96. The police found a blue - and-white plaid jacket near the crime scene and suspected that the defendant had been wearing it at the time of the offense. Id. at 77. During the showup procedure, the witness first observed the defendant not wearing the jacket and did not recognize him as the perpetrator. Id. at 78. Police then placed the jacket on the suspect, and when the witness saw defendant wearing the jacket, she "realized it was him." Ibid.
The Court held the witness's identification of the suspect was governed by constitutional identification principles, not the principles governing identification of an inanimate object, because "[p]lacing a jacket on a person after his arrest and using that item of clothing during the eyewitness identification procedure when a witness is having difficulty identifying the suspect raises due process concerns." Id. at 96. The Court explained that "identifying an article of clothing that has been placed on a suspect during a showup" is fundamentally different from "merely show[ing] [the victim] the [clothing] they found in the vicinity near where defendant was located." Id. at 93. The Court concluded that the police orchestrated an impermissibly suggestive showup identification procedure. Id. at 96.
We are unpersuaded that Jones provides much guidance to help us resolve the matter before us. As we explain more fully in Section III.C, the present case raises none of the suggestibility concerns extant in Jones. The detectives simply presented Sanguinette with still images from a surveillance video recording.
A-1010-24 18 C.
In analyzing whether a hypothetical Henderson motion would have
succeeded, we begin by reiterating that "to obtain a pretrial 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. That evidence
must be tied to a system variable—that is, a variable "within the State's control."
Id. at 288-89, 248. We are satisfied that defendant has not established that
Sanguinette's statement was tainted by impermissible suggestiveness as to
render his "identification" unreliable.
Defendant first argues that the detectives improperly showed Sanguinette
a single photo, 7 rather than an array. The Court in Henderson recognized that
"mistaken identifications are more likely to occur when the suspect stands out
from other members of a live or photo lineup." Id. at 251 (internal quotation
marks and citation omitted). The Court explained, "Properly constructed
[photo] lineups test a witness'[s] memory and decrease the chance that a witness
is simply guessing." Id. at 251. The Court concluded that a photo array should
contain at least five innocent fillers, and that the lineup should be "comprised of
look-alikes." Ibid. But those requirements do not apply when, as in this case,
7 We note that defendant was actually shown two images. A-1010-24 19 the witness is asked only to identify clothing, build, and skin-tone. Indeed, it
begs incredulity to suggest that in these circumstances, police were required to
compile an array of masked men.
In this instance, moreover, the detective's question—"tell me whether or
not you recognize anything in this photo"—was neutrally phrased and did not
invite any particular response. In sum, we are unpersuaded that the absence of
a traditional array constituted sufficient evidence of suggestiveness so as to
require a Wade/Henderson hearing.
Nor are we persuaded by defendant's contention that the detectives
improperly "coached" Sanguinette into describing defendant's skin tone as
"caramel," thereby creating an "unreliable identification." Our review of the
transcript confirms that the detectives did not improperly coach Sanguinette, but
rather asked neutral clarifying questions:
[Detective Di Primio:] Okay. So what's—and what's he wearing?
[Sanguinette:] All black with a ski mask over his face.
[Detective Di Primio:] Okay. Now when you say a ski mask is there—can you see any skin? . . .
[Sanguinette:] Yeah. I see just a little bit of the eyes right here. Part of it. He's like—he's darker than me, but not too dark. . . .
A-1010-24 20 [Detective Di Primio:] Brownish, caramel color?
[Sanguinette:] Yeah. I don't really see too many brown. It was like caramel.
Defendant argues that Sanguinette was "struggling" to describe
defendant's skin tone and that Detective Di Primio provided a suggestion
"unprompted." We do not subscribe to defendant's interpretation of the
conversation. Rather, Sanguinette started to describe his own perception of the
skin tone, Di Primio asked a neutral clarifying question to help Sanguinette be
more precise, and Sanguinette responded based on his own memory—notably
rejecting Di Primio's first adjective ("brownish") in favor of "caramel."
Defendant also contends that Sanguinette's identification of the person in
the image was based on Di Primio's suggestive question earlier in the interview
about the suspect's shirt. After Sanguinette described the suspect's skin color,
Di Primio asked, "Was there anything—any writing on his shirt? Was there
anything distinct?" Sanguinette's reply was indiscernible.
Defendant argues that Di Primo asked this question knowing that he would
soon show Sanguinette an image of a person with visible writing on his shirt,
thereby setting the plate for Sanguinette to identify the person in the image as
the suspect. We conclude Di Primio's question was neutral, open ended, and did
not suggest any particular answer. It is common for a shirt to feature writing or
A-1010-24 21 other distinct graphics, and Di Primio was permitted to ask this basic, initial
question.
In sum, even accepting if only for the sake of argument that the Henderson
analytical framework applies in these circumstances, a timely motion for a
Wade/Henderson hearing would have failed because defendant cannot show
impermissible suggestiveness by the police.
IV.
Aside from failing to establish the first prong of the Strickland/Fritz test,
defendant also fails under the second prong. Defendant has not established a
reasonable probability that if he had somehow prevailed in suppressing
Sanguinette's statement, he would have declined the plea offer tendered to him
and proceeded to trial. See Nunez-Valdez, 200 N.J. at 139. As the PCR court
aptly noted, the State had substantial additional evidence of defendant's guilt,
including the surveillance footage and statements by defendant's cousins
Williams and Murphy implicating him in the crime. Furthermore, defendant's
plea offer was favorable, allowing him to avoid the thirty-years-to-life
mandatory sentence he was facing on the murder charge that was downgraded
pursuant to the plea agreement.
A-1010-24 22 To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
A-1010-24 23