STATE OF NEW JERSEY v. TARIQ THOMPSON (17-07-1891, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 2, 2022
• Docket: A-5288-17
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5288-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TARIQ THOMPSON, a/k/a TOWON COON, TARIK NELSON, and TAIRQ G. THOMPSON,

Defendant-Appellant. _______________________

Argued December 14, 2021 – Decided March 2, 2022

Before Judges Rothstadt, Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 17-07-1891.

Rochelle Watson, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Rochelle Watson, of counsel and on the briefs).

Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor; Lucille M. Rosano, of counsel and on the brief).

PER CURIAM

Defendant Tariq Thompson appeals from his June 13, 2018 conviction and

sentence that were entered after a jury found him guilty of second-degree

robbery, N.J.S.A. 2C:15-1(a)(2), and the disorderly persons offense of theft by

unlawful taking, N.J.S.A. 2C:20-3(a). Defendant received an aggregate

sentence of ten years, subject to an eighty-five percent period of parole

ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, he argues the following points.

POINT I

BECAUSE THE POLICE LACKED AN OBJECTIVELY REASONABLE BASIS FOR BELIEVING THAT 1207 SPRINGFIELD AVENUE WAS ABANDONED, THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS.

POINT II

THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE VICTIM'S IDENTIFICATION OR, ALTERNATIVELY, GRANTING THE REQUEST FOR A WADE [1] HEARING BECAUSE THERE WAS NO AUDIO, VIDEO, OR WRITTEN VERBATIM ACCOUNT OF THE IDENTIFICATION PROCEDURE, AND BASED ON THE LIMITED

1 United States v. Wade, 388 U.S. 218 (1967). A-5288-17 2 RECORD THAT DOES EXIST, THE SHOW-UP PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE.

POINT III

THE COURT ERRED IN PERMITTING THE VICTIM'S WIFE TO MAKE AN IN-COURT IDENTIFICATION OF DEFENDANT, WHERE SHE HAD NEVER PREVIOUSLY MADE AN OUT-OF- COURT IDENTIFICATION, BECAUSE IT WAS HIGHLY SUGGESTIVE AND UNRELIABLE.

POINT IV

THE TRIAL COURT ERRED (1) IN IMPOSING A TEN-YEAR SENTENCE FOR THIS SECOND- DEGREE ROBBERY, WHICH WAS AT THE LOW END OF THE SEVERITY SPECTRUM, AS FOUND BY THE JURY; (2) IN CONSIDERING DEFENDANT'S PRIOR ARRESTS; AND (3) IN GIVING SIGNIFICANT WEIGHT TO THE PSYCHOLOGICAL EFFECT OF THE INCIDENT ON DEFENDANT'S FAMILY.

For the reasons stated in this opinion, we conclude there is merit only to

defendant's contention about his entitlement to a Wade/Henderson 2 hearing. We

remand the matter to the trial court to conduct that hearing and, depending upon

the outcome, to determine whether to vacate defendant's conviction. In all other

aspects, we affirm.

2 State v. Henderson, 208 N.J. 208 (2011). A-5288-17 3 I.

The facts leading to defendant's conviction as developed at trial are

summarized as follows. On April 15, 2017, Jose Garro, accompanied by his

wife Joy3 and their young sons, went to a restaurant to pick up take-out food.

Joy parked in the rear parking lot of the restaurant shortly after midnight, and

remained in the car with the children, with the engine running and the headlights

on, while Jose ran into the restaurant to place the order.

As Jose walked toward the restaurant, a man, who Jose identified at trial

as defendant, approached him in the entryway and asked him for a cigarette .

Jose testified that although there was a "low level" of lighting, he could see

defendant's face. He described defendant as a short, black man with a beard,

who was wearing blue jeans and a blue baseball-style jacket with "letters" on it.

Jose told defendant that he did not smoke and continued into the restaurant.

After placing the order, Jose returned to the car and stood by the open

driver's side car window, talking to Joy. Joy noticed a man, who she identified

for the first time at trial as defendant, "walking around the parking lot, " but he

did not enter the restaurant. When Jose re-entered the restaurant, Joy saw

3 We refer to the victim and his wife by their first names to avoid any confusion caused by their common last name. No disrespect is intended. A-5288-17 4 defendant standing, facing the door to the restaurant. She described defendant

at trial as a short, African American male, who was wearing a dark navy blue

jacket with white lettering, which reminded her of a Yankees jacket.

A short time later, Jose walked out of the restaurant and then felt

"someone's presence" behind him. Defendant then pointed a black, semi-

automatic handgun at Jose's head, told him to walk slowly, and pushed him

toward the darkest part of the parking lot.

While standing "face to face," Jose told defendant that he did not want any

problems, explained that his family was nearby, and tried to push the gun away .

Defendant asked Jose whether he "believe[d]" he "was serious," and then pulled

the trigger and fired a shot towards Jose's feet. Jose was not sure whether

defendant "was trying to shoot at [him] or whether [defendant] was frightened,"

but insisted that he "did shoot [the gun]."

Jose told defendant to "calm down," and placed his brown leather wallet,

which he said contained $400 in cash, on the roof of a car. Defendant then told

Jose to turn around. Jose turned toward the ground and bent over because he

believed defendant was going to shoot him, but he then saw out of the corner of

his eye that defendant was walking away.

A-5288-17 5 During the encounter, Joy heard Jose yell, "Please stop my wife's right

over there." She also heard a "popping [noise] like firecrackers," which she

assumed was a gun, and then saw defendant walk by the driver's side of her car .

As defendant walked in front of her headlights, Joy saw him pull on a black ski

mask, with openings for his eyes and mouth, over his head.

Shortly thereafter, Jose returned to the car, "yelling and crying," and told

Joy "to chase after the guy." When Joy refused, Jose grabbed his phone out of

the car and ran after defendant.

Joy called 911 and during her call, which was played for the jury, she told

the dispatcher that her husband had been robbed in the parking lot of the

restaurant, by a short, African American man, wearing a navy blue jacket with

white lettering on it and blue jeans. She said she heard "one pop," and saw the

man pull a black mask over his face as he walked in front of her car.

At the same time, Jose also called 911 while he chased after defendant.

During his frantic 911 call, which also was played for the jury, Jose told the

dispatcher defendant shot at him on Springfield Avenue near a different

restaurant and took his wallet. Jose described defendant as a little, black male,

wearing a hat and black jeans.

A-5288-17 6 Jose testified that while he was on the phone with the dispatcher, he lost

sight of defendant, but a worker at the other restaurant directed Jose's attention

to a building located at 1207 Springfield Avenue. That building was adjacent

to a daycare center, across the street from the other restaurant, and close to a cell

phone store.

Jose then saw defendant, who was not wearing a ski mask, enter the small

alleyway adjacent to that building through the open gate. He did not follow

defendant into the alleyway, but instead remained by the entrance and waved

down Officer Steve Jean-Simon, of the Irvington Police Department, who at

1:12 a.m. had responded to the report of an armed robbery. Jean-Simon testified

that Jose was "very excited and very frantic," and said he had been robbed at

gunpoint by "a short black male wearing a dark-colored jacket and . . . jeans,"

who ran "through the alleyway of 1207 Springfield Avenue."

Jean-Simon and another responding officer, Sergeant Charles Capers,

searched the alleyway and backyard of 1207 Springfield Avenue, but did not

find anyone. Jean-Simon described the alleyway as just wide enough for a small

car to drive through, said the empty lot behind the building was strewn wi th "a

lot of trash and broken bottles," and that the building was not occupied . He

A-5288-17 7 thought defendant may have climbed over the chain-link fence that lined the

alleyway and escaped onto Stuyvesant Avenue.

Shortly thereafter, Officer Zhane Morgan, of the Irvington Police

Department, received a call directing all units to the area of Stuyvesant and

Lyons Avenues. The suspect was described as "[a] short black male, wearing a

varsity jacket and blue jeans." As Morgan drove down Lyons Avenue toward

Stuyvesant Avenue, she made eye contact with a man, whom she identified at

trial as defendant, and who fit the dispatch description, except that he was

wearing a red shirt, not a jacket. She saw defendant run and then hop over a

fence into the rear yard of the house at the corner of Lyons and Stuyvesant

Avenues.

Capers climbed over the fence and illuminated the area with his flashlight.

Morgan saw defendant lying on the roof of a shed and yelled to Capers, who

grabbed the man's foot and told him to get down. Capers described the man,

who he identified at trial as defendant, as a short, black male, wearing a red shirt

and jeans.

Capers testified that he decided to do a showup identification because less

than thirty minutes had elapsed between the robbery and the discovery of the

suspect on the roof. At Capers's direction, Jean-Simon, who had been searching

A-5288-17 8 for shell casings in the restaurant's parking lot with Jose, brought Jose to a

location near 665 Stuyvesant Avenue. Jean-Simons testified that he told Jose

they had "someone detained," who "may or may not be the person involved in

this robbery," and Jose had "no obligation to pick someone at this time ." Jose

testified at trial that the officer told him "we're going to see if we can recognize

a person who is, like, a suspect."

Upon arrival, they saw Morgan and Capers standing in the driveway with

defendant about one car length from the patrol car. When Jean-Simons shined

his spotlight on defendant's face, Jose "immediately became hysterical, started

crying," and said, "That's him. That's him. That's the guy that shot --." Jose

testified that he identified defendant as the person who had robbed him, but

admitted it was "a little bit confusing," because although he recognized

defendant's face, defendant was wearing a red shirt, and not a jacket. Defendant

was arrested and taken to police headquarters.

At approximately 2:54 a.m., Capers, Morgan, who was the department's

evidence technician, and Sergeant Steven Salvatoriello, of the Essex County

Sherriff's Office K-9 Unit, returned to 1207 Springfield Avenue to search for

evidence. Capers testified at trial that the building looked abandoned, the rear

door was unlocked, and that after they entered, they saw in plain view at the top

A-5288-17 9 of the stairs, a black and white varsity-style jacket, a handgun, a mask, and a

brown wallet. The handgun contained six .22 caliber hollow-point bullets. The

wallet contained Jose's identification and $138 in cash. At trial, Joy and Jose

identified the jacket as the one they saw defendant wearing, and Joy identified

the mask as the one she saw defendant wearing.

Linnea Schiffner, the State's DNA expert, testified that DNA testing could

not be performed on the jacket because the samples were not of high enough

quality but defendant's DNA (as a major contributor) was found on the mask,

along with the DNA of two other individuals, who were minor contributors .

On July 12, 2017, an Essex County grand jury indicted defendant for:

first-degree robbery, in violation of N.J.S.A. 2C:15-1 (count one); second-

degree unlawful possession of a weapon (handgun), in violation of N.J.S.A.

2C:39-5(b) (count two); possession of a firearm for an unlawful purpose, in

violation of N.J.S.A. 2C:39-4(a) (count three); second-degree aggravated

assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count four); third-degree

aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2) (count five); fourth-

degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(4) (count six);

fourth-degree possession of hollow-nose bullets, in violation of N.J.S.A. 2C:39-

3(f) (count seven); third-degree receiving stolen property (a handgun), in

A-5288-17 10 violation of N.J.S.A. 2C:20-7(a) (count eight); and third-degree theft by

unlawful taking, in violation of N.J.S.A. 2C:20-3(a) (count nine).

On January 8, 2018, the trial judge denied defendant's pre-trial motion for

a Wade/Henderson hearing that challenged the admissibility of Jose's out-of-

court identification of defendant. At the conclusion of a pre-trial hearing on

March 29, 2018, the judge also denied defendant's motion to suppress the

physical evidence—the handgun, jacket, mask, cigarette lighter, and wallet—

found during a warrantless search of 1207 Springfield Avenue that the State

alleged was an abandoned property. The judge denied the motion to suppress,

finding the State had proved by a preponderance of the evidence that the

property was abandoned, and the officers had a right to enter the building to

conduct the warrantless search.

Trial was conducted before a jury in April and May 2018. At the

conclusion of the trial the jury found defendant guilty of second-degree robbery

as a lesser included offense of count one, and disorderly persons theft as a lesser

include offense of count nine.

At defendant's sentencing on June 11, 2018, the judge denied the State's

motion for a discretionary extended term. The judge then sentenced defendant

on count one to a term of ten years, subject to an eighty-five percent period of

A-5288-17 11 parole ineligibility pursuant to NERA. The theft conviction (count nine) merged

into count one. On June 13, 2018, the judge issued a judgment of conviction.

This appeal followed.

II.

Defendant argues in Point I that the trial court erred in denying his motion

to suppress the items found during the warrantless search of 1207 Springfield

Avenue because the police lacked an objectively reasonable basis to believe that

the building was abandoned. We disagree.

A.

At the suppression hearing, defense counsel, citing State v. Randolph, 228

N.J. 566, 581 (2017), argued that defendant had automatic standing to challenge

the search of 1207 Springfield Avenue, which was not justified under an

exception to the warrant requirement. The State conceded defendant had

automatic standing because he was charged with a possessory offense, but

argued he had no reasonable expectation of privacy in the items he abandoned

in the common hallway of an abandoned building.

Salvatoriello was the only witness at the hearing. He testified that on

April 16, 2017, he received a call from the Irvington Police Department to report

to 1207 Springfield Avenue with a search dog. Upon arrival, at approximately

A-5288-17 12 2:20 a.m., Capers informed him that they had received a report that a suspect,

later identified as defendant, fired a handgun during a robbery on a nearby street.

The victim told the police that after he was robbed, he saw defendant enter the

alleyway on the side of the building located at 1207 Springfield Avenue.

Capers told Salvatoriello that defendant was arrested a short time later, on

Stuyvesant Avenue. At the time of his arrest, defendant was not wearing the

jacket seen during the robbery and did not have a handgun, and thus Capers

wanted Salvatoriello to search the courtyard behind 1207 Springfield Avenue

where he believed defendant may have disposed of those items.

Salvatoriello testified that the area surrounding 1207 Springfield Avenue

was commercial, and the building located at that address appeared to be an

abandoned commercial building. The sign on the front of the building read

"Tabernacle of Grace Apostolic Ministries," and listed the hours for church

services and other church events. He noticed the metal pull down gate at the

entry to the adjacent alleyway was rolled up.

Prior to conducting the search, Salvatoriello inspected the alleyway and

rear yard of 1207 Springfield Avenue and determined it was not safe for a canine

search because the "entire length was littered with broken glass." He testified

there was no lighting in the alleyway, the asphalt was "chopped up," and "[t]here

A-5288-17 13 was garbage and broken glass in the entire length of the alleyway ." The rear

fenced-in yard behind the building, which resembled a parking lot, was also

"littered with broken glass" and "piles of debris." Salvatoriello assisted Capers

in conducting a grid search of the yard and alleyway using flashlights, but they

found nothing of evidential value.

The officers then walked the perimeter of the building and tried to open

doors. The rear door to 1207 Springfield Avenue, which Salvatoriello described

as a solid "metal commercial type exterior door," was unlocked . There was a

lot of litter and debris in the area around the rear door, there were two broken

chairs next to the door, and there was a camera to the upper right of the doorway.

Upon entering the building through the unlocked door, Salvatoriello saw

what he described as a "commercial common stairwell." The interior of the

building "appeared very rundown," the stairs were "well worn, [and] some were

beat up," and there was a doorknob on the floor. To the left of the common

hallway was a secured doorway with a metal "clamshell" covering -- the type of

covering he said was placed on doors in "abandoned buildings."

Salvatoriello climbed the curved stairs to the second floor, immediately

followed by Capers. Before he reached the top of the second-floor landing, he

saw "in plain sight," a dark jacket, a handgun, a cigarette lighter, a mask or

A-5288-17 14 hoodie, and a wallet (later identified as Jose's wallet). He said that the second

floor was "[d]irty," the wood looked "[b]eat up," and he did not see anything

that would lead him to believe that anyone lived there. The officers called the

crime scene unit to photograph and collect the evidence.

Salvatoriello admitted that prior to entering the building he had not spoken

with the owners of 1207 Springfield Avenue or searched property records to

ascertain who owned the building. However, later in preparation for the

suppression hearing, he conducted a records search of deeds and tax records and

discovered that the property was listed as a class four property (a commercial

property), a bank had foreclosed on the property in 2017, purchased it at a

Sheriff's sale and then sold it to a private third-party.

After considering the testimony, the judge denied the motion, finding that

although defendant had standing to challenge the search, the State had proved

by a preponderance of the evidence that the property was abandoned, and thus

defendant had no expectation of privacy in the seized items. The judge found it

was "clear from the record that the property was abandoned" and that defendant

had no connection to the property, which had been foreclosed. The judge

reasoned that if the church had been operating, the gate to the alleyway would

A-5288-17 15 have been down to protect the area, and there would not have been so much glass

and debris on the ground.

The judge also found Salvatoriello's testimony was credible, noting the

officer's "demeanor seemed calm," he did not "try[] to deceive the [c]ourt," and

he appeared to answer the questions "honestly." Based on that testimony, the

judge found it was reasonable for the officers to search the alleyway, where it

was reported that defendant was seen after the robbery, and it was a "simple

estimate that the gun and the jacket were abandoned somewhere." It appeared

to be almost "an afterthought" to check the back door and find it was open.

"[T]he officer had an absolute right to go in a door that was unlocked," during

the course of a normal search.

B.

Our review of a grant or denial of a suppression motion is limited. State

v. Robinson, 200 N.J. 1, 15 (2009). We "defer to the fact findings of the trial

court, provided they are supported by substantial credible evidence in the

record . . . ." State v. Shaw, 237 N.J. 588, 607 (2019). "Deference to those

findings is particularly appropriate when the trial court has the 'opportunity to

hear and see the witnesses and to have the feel of the case, which a reviewing

court cannot enjoy.'" State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v.

A-5288-17 16 Elders, 192 N.J. 224, 244 (2007)). "A trial court's findings should be disturbed

only if they are so clearly mistaken 'that the interests of justice demand

intervention and correction.'" Elders, 192 N.J. at 244 (quoting State v. Johnson,

42 N.J. 146, 151 (1964)). "A trial court's legal conclusions, however, 'and the

consequences that flow from established facts,' are reviewed de novo." State v.

Ahmad, 246 N.J. 592, 609 (2021) (quoting State v. Hubbard, 222 N.J. 249, 263

(2015)).

"[T]he Fourth Amendment of the United States Constitution and Article

I, Paragraph 7 of the New Jersey Constitution guarantee '[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures . . . .'" Randolph, 228 N.J. at 581 (second alteration in

original) (quoting U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7). Warrantless

searches and seizures are presumptively unlawful. Shaw, 237 N.J. at 608. "To

overcome the presumption, the State has the burden of demonstrating the search

fell within a recognized exception to the warrant requirement." Ibid.

In addressing a constitutional challenge to a warrantless search and

seizure, courts consider whether the defendant has standing to pursue the

challenge, and if he has standing, whether the search or seizure was justified by

an exception to the warrant requirement. Randolph, 228 N.J. at 581. "For

A-5288-17 17 standing purposes, Article I, Paragraph 7 provides broader protection to the

privacy rights of New Jersey citizens than the Fourth Amendment." State v.

Brown, 216 N.J. 508, 528 (2014).

"Under New Jersey law, the State bears the burden of showing that

defendant has no proprietary, possessory, or participatory interest in either the

place searched or the property seized." Randolph, 228 N.J. at 582 (citing Brown,

216 N.J. at 528). 4 Significantly, a defendant charged with a possessory offense

of the evidence seized, as in this case, has automatic standing to challenge a

search or seizure, unless the State establishes an exception to that rule. Id. at

581, 585; State v. Lamb, 218 N.J. 300, 313 (2014); State v. Alston, 88 N.J. 211,

228 (1981). Courts "do not engage in a reasonable expectation of privacy

analysis when a defendant has automatic standing to challenge a search," such

an analysis is only applied "in determining whether a defendant has a protectible

Fourth Amendment and Article I, Paragraph 7 right of privacy in a novel class

of objects or category of places." Randolph, 228 N.J. at 583-84. See State v.

Armstrong, 463 N.J. Super. 576, 592 (App. Div.) (explaining that "the two

concepts — possessing a reasonable expectation of privacy and standing to

4 In contrast, "[u]nder federal law, the defendant has the burden of showing that he had a reasonable expectation of privacy that was violated by the police." Ibid. A-5288-17 18 challenge a search and seizure — are not congruent"), certif. denied, 244 N.J.

242 (2020).

There are three exceptions to the automatic standing rule in searches of

real property, that is, an accused will not have standing to challenge the search

of: (1) an "abandoned property," (2) "property on which he was trespassing," or

(3) "property from which he was lawfully evicted." Randolph, 228 N.J. at 585

(citing Brown, 216 N.J. at 527-29; State v. Hinton, 216 N.J. 211 (2013)). The

State bears the burden of proving the exceptions by a preponderance of the

evidence. Randolph, 228 N.J. at 585; Brown, 216 N.J. at 527-29.

"Ultimately, the focus must be whether, in light of the totality of the

circumstances, a police officer had an objectively reasonable basis to conclude

that a building was abandoned, or a defendant was a trespasser before the officer

entered or searched the home." Brown, 216 N.J. at 535-36. "[A] police officer's

sincere, good-faith but unreasonable belief that real property is abandoned will

not justify a warrantless search when a defendant has an apparent possessory

interest in that property." Id. at 531.

In Brown, the Court identified several factors to be considered, in light of

the totality of the circumstances, in determining whether a building was

abandoned. Id. at 532. In assessing whether an officer acted in an objectively

A-5288-17 19 reasonable manner, courts should consider whether the officer conducted a

records check of deeds, tax records, or utility records to identify the owner of

the property; the condition of the property; whether the owner or lessee has taken

measures to secure the building from intruders; and "an officer's personal

knowledge of a particular building and the surrounding area." Id. at 533-34.

"No one factor is necessarily dispositive, and the weight to be given to any factor

will depend on the particular circumstances confronting the officer." Id. at 532.

However, the Court in Brown cautioned that there is no "trashy house

exception" to the warrant requirement. Id. at 534. Thus, and even "dilapidated

housing, with interiors in disarray and in deplorable condition," may not be

abandoned. Ibid. The Court explained that

a police officer may be familiar with an unoccupied building with missing doors and broken windows, and an interior in utter shambles and lacking electricity, and reasonably conclude that the structure is abandoned. The decrepit condition of the exterior and interior of a building is a factor, but other circumstances will necessarily come into play. For example, the boarding of windows and bolting of doors of a shabby-looking building will suggest an intent to keep people out by a person exercising control over the property and therefore may be evidence that conflicts with abandonment.

[Ibid.]

A-5288-17 20 Applying that analysis, the Brown Court upheld the trial court's

suppression of gun and drug evidence seized through the warrantless search of

a dilapidated row house that the police apparently believed was abandoned. Id.

at 537-42. Over the course of two non-consecutive days, the officers had

conducted several hours of surveillance during daylight hours, and observed the

defendants use a key to unlock the padlocked front door of the house to enter

and retrieve a small item, presumably drugs, and hand it to a presumed buyer.

Id. at 538-39. The house was in a "deplorable condition," in that there were

broken windows, it was littered with trash bags filled with old clothes and soda

cans, and other items, and had a missing electric meter. Id. at 540.

However, both the front and back doors to the house were secured to keep

intruders out; the front door was padlocked and the back door, although off its

hinges, was propped shut from the inside. Id. at 540. Further, there was no

reliable or first-hand testimony regarding the long-term condition of the house,

nor any reasonable attempt by law enforcement to contact the owner or conduct

a records check, which the Court found, would not have "been difficult or unduly

cumbersome." Id. 540-42. Based on that evidence, the Court determined the

trial court's finding that the house was not abandoned for standing purposes was

supported by the record. Id. at 542. The Court held that "[t]he question to be

A-5288-17 21 answered is not whether the police have a subjective, good-faith belief that a

building is abandoned, but whether they have an objectively reasonable basis to

believe so." Ibid.

The Court in Randolph, 228 N.J. at 588, applying the principles in Brown,

affirmed our decision that the defendant in that case had automatic standing to

challenge the search of the apartment because the State failed to show it was

abandoned or the defendant was a trespasser. In that case, the outside door to

the three-story apartment building was locked and the officer was let in by a

first-floor tenant. Ibid. The door to the second-floor apartment had been left

ajar and before entering, the officer saw a couch and debris. Id. at 588-89. After

entering, the officer saw "another couch, Timberland boots, a pair of Nike

sneakers, a backpack, a television and video gaming system, and clothes draped

on a couch and strewn on the floor along with a cigarette pack, a soda bottle,

and mail [addressed to the defendant]." Id. at 589.

The Court in Randolph held "that, in light of the totality of the

circumstances, the police did not have an objectively reasonable basis to believe

that the second-floor apartment was abandoned." Ibid. During the surveillance,

the police observed an individual peering out the window of the second -floor

apartment, indicating the individual was either a resident or had been invited

A-5288-17 22 onto the premises. Id. at 588. Further, the "locked outside door was evidence

that the building's residents intended to keep the public from entering even the

common areas without invitation." Ibid. The Court found:

Regardless of the disarray in the apartment and the fact that it was not fully furnished, there were clear signs that someone occupied it. The police did not contact the landlord to determine whether the second- floor apartment had been leased, and nothing in the record indicates that the first-floor resident was asked about the status or possible occupants of the upstairs apartment. Nothing in the record suggests that defendant was not an invitee in the apartment, and indeed the State argued at trial that the mail addressed to defendant found inside the apartment was evidence of his presence in the apartment.

[Id. at 589.]

The Court in Randolph also set forth that:

Importantly, at the suppression hearing, the prosecutor did not argue that defendant lacked standing to challenge the search on the basis that the apartment was abandoned. Instead, the prosecutor contended that the police conducted a lawful search pursuant to the exigent-circumstances and protective-sweep exceptions to the warrant requirement. The trial court never addressed the substantive grounds on which the prosecutor attempted to justify the search. The trial court, moreover, did not apply our well-established principles governing standing. Rather, the court turned to the reasonable expectation of privacy test, typically used in federal courts, and then came to a conclusion— not supported by the evidence—that the apartment was vacant.

A-5288-17 23 [Ibid.]

The Court concluded that the trial court erred in its analysis and remanded for a

new suppression hearing, at which "the State and defendant should be afforded

the opportunity to present evidence concerning the prosecutor's claimed

justification for the warrantless entry and search." Id. at 590.

Here too, based on the possessory weapons charges, the central issue was

whether defendant had automatic standing to challenge the warrantless search

of 1207 Springfield Avenue. Defendant did not have standing if the building

was abandoned, or if he was a trespasser, because under those circumstances he

would not "have the requisite possessory or proprietary interest in the property

to object to the search." Brown, 216 N.J. at 529.

Applying the factors set forth in Brown, we conclude there was credible

evidence to support the trial judge's finding that based on the totality of the

circumstances the building was abandoned. That finding deprived defendant of

any standing to challenge the search.

First, unlike Brown, the officers had not conducted a surveillance of the

building and had not seen anyone enter the building by using a key to open a

locked door. Instead, the officers searched an alleyway, late at night, shortly

after the reported armed robbery, where they suspected defendant had

A-5288-17 24 abandoned the handgun. As the trial judge found, the officers checked the

backdoor to the building "almost as an afterthought," because they had not

located the handgun in the alleyway. An examination of the records on

ownership of the building at that late hour and given the need to quickly find an

abandoned loaded handgun would have been both difficult and unduly

cumbersome under these circumstances.

Second, the condition of the property and the failure to secure the premises

supported a finding of abandonment. Brown, 216 N.J. at 532. While searching

the alleyway the officers noticed that the owner of the property had not taken

measures to secure the building from intruders because the gate to the alley was

open and the backdoor was unlocked. Additionally, the officers had personal

knowledge that the building was in a commercial, not residential area, and their

determination that the building was an abandoned commercial building was

consistent with the building's appearance. There was no furniture, clothes,

shoes, blankets, food, or any other items in the building to indicate that anyone,

much less defendant, resided there or had any possessory interest in the

premises. The alleyway and backyard were filled with so much broken glass

and debris that it was not safe for a search dog, and thus, reasonably would also

not have been safe for residents. Those factors, the condition of the property ,

A-5288-17 25 and the officers' knowledge of the commercial nature of the area, support a

finding that the officers had an objectively reasonable basis to conclude that the

building was abandoned before they entered it or searched it.

Under the totality of the circumstances, we conclude the trial judge's

finding that the property was abandoned was supported by the substantial

credible evidence in the record. Shaw, 237 N.J. at 607. Because the building

was abandoned, defendant did not have automatic standing to challenge the

warrantless search and seizure. Therefore, the officers did not violate his

constitutional rights when they entered and searched the abandoned building,

and seized the items defendant left there, without a warrant.

III.

Defendant argues in his Point II that the trial judge erred in denying his

motion to suppress Jose's out-of-court identification or, alternatively, in denying

his application for a Wade/Henderson hearing because there was no audio,

video, or written verbatim account of the showup identification procedure, and

based on the limited record, the procedure was impermissibly suggestive . We

conclude the trial judge erred in not conducting a Wade/Henderson hearing on

the admissibility of the out-of-court identification. For that reason, we remand

the matter for the required hearing.

A-5288-17 26 A.

It was undisputed that no audio or video recordings were made of the

showup, nor was a contemporaneous written record prepared. Instead,

approximately three hours after the showup, at 4:43 a.m., Jean-Simone

completed a written "Showup Identification Procedures Worksheet ,"

documenting Jose's identification of defendant.

In the worksheet, the officer set forth the time and place where the

identification was conducted and the identities of the officers; checked the box

indicating he had instructed Jose that the actual perpetrator may or may not be

in the showup and he should not feel compelled to make an identification; and ,

set forth that Jose "became extremely emotional" when he saw defendant and

said, "[T]hat's him, that's the guy who tried to kill me." In the incident report,

prepared on that same date, Jean-Simon similarly wrote, "After placing the

spotlight on [defendant's] face and asking [Jose] if he recognized [defendant],

he became extremely emotional and stated[,] 'That's him that's the guy who tried

to kill me.'"

Defendant filed a pretrial motion for a Wade/Henderson hearing to

determine the admissibility of Jose's out-of-court identification. He argued the

identification procedure was impermissibly suggestive due to system variables

A-5288-17 27 (the inherently suggestive showup procedure conducted based on an anonymous

source), and the officer's failure to adequately record the procedure, including

any pre-identification instructions, violated Rule 3:11 and State v. Delgado, 188

N.J. 48 (2006). In support of the motion, defendant submitted the incident

report, an audio recording of Jose's testimony before the grand jury, and an audio

recording of Jose's statement. In her brief, defense counsel stated that she had

not received "any showup identification worksheet or report further

documenting communications between officers and [Jose] during the

procedure," and the incident report was the only record of the procedure .

The State opposed the motion and argued defendant had failed to meet his

burden of presenting some evidence of suggestiveness in a system variable, and

even if a hearing were granted, the motion to suppress should be denied because

"there [was] overwhelming indicia of reliability." The prosecutor did not submit

the worksheet to the trial judge but cited to Jose's grand jury testimony in which

Jose said he was "confident" in his identification, and the officer told him the

person they detained may or may not have committed the offense and he was

not compelled to make a selection.

The trial judge denied the motion for a Wade/Henderson hearing and

found that although "there are various elements of State v. Henderson, which

A-5288-17 28 may be argued to the [j]ury," it was clear from the testimony presented to the

grand jury and other submissions that it had "not risen to the level that a hearing

is required." There was a "very short period of time," about fifteen minutes,

between the incident and the identification. Although Jose was nervous and

under stress during the robbery, he was "clear and sure about the identification"

during his grand jury testimony. The judge did not address defendant's argument

that the officers violated Rule 3:11 and Delgado by failing to record the

identification procedure. The judge also made no reference to the worksheet

that, again, was not provided by the prosecutor.

Our "standard of review on a motion to bar an out-of-court-

identification . . . is no different from . . . [a] review of a trial court's findings in

any non-jury case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016)

(citing Johnson, 42 N.J. at 161). "The aim of the review at the outset is . . . to

determine whether the findings made could reasonably have been reached on

sufficient credible evidence present in the record." Ibid. (alteration in original)

(quoting Johnson, 42 N.J. at 162). In our review, we will defer to the trial court's

findings even when they are based solely on its review of documentary or video

evidence. State v. S.S., 229 N.J. 360, 381 (2017). Our "review of the trial court's

A-5288-17 29 application of the law to the facts, however, is plenary." Wright, 444 N.J. Super.

at 357.

A trial court may hold a Wade/Henderson hearing to determine whether a

pretrial eyewitness identification of a criminal defendant was properly

conducted and thus admissible under N.J.R.E. 803(a)(3). A hearing is not,

however, required in every case in which the State seeks to introduce such

evidence. The requirements for determining whether a defendant is entitled to

an evidentiary hearing are set forth in Henderson, 208 N.J. at 208 and State v.

Anthony, 237 N.J. 213 (2019). Also relevant are Delgado, 188 N.J. at 48 and

the provisions of Rule 3:11.

In Henderson, 208 N.J. at 287, the Court revised the Manson/Madison5

legal framework for evaluating eyewitness identification evidence, and

reaffirmed its ruling in Delgado, 188 N.J. at 63, that identifications conducted

by law enforcement officers must be recorded and preserved. Under the revised

framework, in order to obtain a hearing, "a defendant has the initial burden of

showing some evidence of suggestiveness that could lead to a mistaken

identification," tied to a "system variable." Henderson, 208 N.J. at 288-89.

5 Manson v. Brathwaite, 432 U.S. 98, 114 (1977), State v. Madison, 109 N.J. 223, 242 (1988). A-5288-17 30 "System variables" are "variables within the State's control," and include pre-

identification instructions and showups. Id. at 248, 250, 259-61. If a defendant

makes a threshold showing for a hearing, the burden shifts to the State to "offer

proof to show that the proffered eyewitness identification is reliable—

accounting for system and estimator variables . . . ." Id. at 289. "[E]stimator

variables are factors beyond the control of the criminal justice system," and "can

include factors related to the incident, the witness, or the perpetrator." Id. at

261.

At the hearing, however, "the ultimate burden remains on the defendant

to prove a very substantial likelihood of irreparable misidentification." Id. at

289. "[T]he court can end the hearing at any time if it finds from the testimony

that defendant's threshold allegation of suggestiveness is groundless." Ibid.

Last, "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.

Rule 3:11, Record of an Out-Of-Court Identification Procedure, was

adopted effective September 2012, in response to Henderson and Delgado.

Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:11 (2022). As

A-5288-17 31 initially adopted, and in effect at the time of this case, Rule 3:11(b), Method of

Recording,6 then provided:

A law enforcement officer shall contemporaneously record the identification procedure in writing, or, if feasible, electronically. If a contemporaneous record cannot be made, the officer shall prepare a record of the identification procedure as soon as practicable and without undue delay. Whenever a written record is prepared, it shall include, if feasible, a verbatim account of any exchange between the law enforcement officer involved in the identification procedure and the witness. When a written verbatim account cannot be made, a detailed summary of the identification should be prepared.

6 Rule 3:11, was amended effective June 8, 2020, two and a half years after the judge's decision in this case. Of particular note, subsection (b) now provides:

A law enforcement officer shall electronically record the out-of-court identification procedure in video or audio format, preferably in an audio-visual format. If it is not feasible to make an electronic recording, a law enforcement officer shall contemporaneously record the identification procedure in writing and include a verbatim account of all relevant verbal and non-verbal exchanges between the officer and the witness; in such instances, the officer shall explain in writing why an electronic recording was not feasible. If it is not feasible to prepare a contemporaneous, verbatim written record, the officer shall prepare a detailed written summary of the identification procedure as soon as practicable and without undue delay, and explain in writing why an electronic recording and a contemporaneous, verbatim written account were not feasible. A-5288-17 32 Rule 3:11(c), also adopted at the same time, specified that the record

should include, notably, the dialogue between the witness and officer who

administered the procedure, and a witness' statement of confidence, in his own

words, of the identification. Finally, Rule 3:11(d), provides:

If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure, and if it was feasible to obtain and preserve those details, the court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, and/or fashion an appropriate jury charge to be used in evaluating the reliability of the identification.

In October 2012, the Attorney General issued the model showup

worksheet at issue here.7 The worksheet was "designed to assist law

enforcement officers in documenting the procedures/results of showups," and to

"serve as a checklist to ensure that officers comply with all of the requirements

for eyewitness identification procedures established by Court Rule and New

Jersey Supreme Court case law." Showup Worksheet at 3. The worksheets are

required to be "prepared during the procedure, or immediately thereafter ." Ibid.

Officers were instructed that showups could not be conducted if more than two

7 Showup Identification Procedures Worksheet, N.J. Div. of Crim. Just. (rev. Oct. 1, 2012), https://www.nj.gov/oag/dcj/agguide/Eye-ID-Showup.pdf [hereinafter Showup Worksheet]. A-5288-17 33 hours had elapsed from the time of the incident, they were not to provide any

feedback to the eyewitnesses, and they were required to make a statement

regarding the eyewitness's level of confidence that the suspect was the

perpetrator. Ibid.

In March 2019, a year after the trial judge's decision in this case, the Court

in Anthony, 237 N.J. at 233, modified the Henderson framework, and held that

"a defendant will be entitled to a pretrial hearing on the admissibility of

identification evidence if Delgado and Rule 3:11 are not followed and no

electronic or contemporaneous, verbatim written recording of the identification

procedure is prepared." Ibid. Under those circumstances, a defendant "will not

need to offer proof of suggestive behavior tied to a system variable" to be

entitled to a Wade/Henderson hearing. Id. at 233-34. The Court stated "[t]his

approach supplements the other remedies listed in Rule 3:11(d)." Id. at 234.

In Anthony, the Court found the officers had not complied "with Rule 3:11

or Delgado in full" because they had not prepared an electronic recording of the

witness's out-of-court identification of the defendant, or a contemporaneous,

verbatim written account of the exchange between the witness and the officer

who administered the photo array. Id. at 235. Further, the State's reliance on a

three-page police department form to document the identification process did

A-5288-17 34 not create an adequate record, because without an electronic recording or

contemporaneous written account of the exchange, the record did not reveal the

full dialogue between the witness and the officer, Rule 3:11(c)(2), nor was the

witness's statement of confidence reflected in his own words, Rule 3:11(c)(9).

Id. at 236. The Court remanded the case for a Wade/Henderson hearing, even

though defendant had not presented evidence of suggestiveness, to allow

defendant to explore all relevant variables. Id. at 238.

Here, defendant argues on appeal that the officer failed to comply with

Rule 3:11 and Delgado, and thus, as clarified by Anthony, the trial judge should

have suppressed the identification evidence, or at a minimum, granted his

request for a Wade/Henderson hearing. We agree that a hearing was required.

The governing law at the time of the court's ruling in 2018, as to the

contents of the record of an out-of-court identification procedure, was set forth

in Delgado, 188 N.J. at 48 and Rule 3:11. In Delgado, 188 N.J. at 63, the Court

invoked its supervisory powers under Article VI, Section 2, Paragraph 3 of the

New Jersey Constitution to require "that, as a condition to the admissibility of

an out-of-court identification, law enforcement officers make a written record

detailing the out-of-court identification procedure, including the place where the

procedure was conducted, the dialogue between the witness and the interlocutor,

A-5288-17 35 and the results." Ibid. "When feasible, a verbatim account of any exchange

between the law enforcement officer and witness should be reduced to writing.

When not feasible, a detailed summary of the identification should be prepared."

Ibid. At that time, electronic recordation was advisable, but not mandated. Ibid.

Here, the officer filled out the worksheet, a form that is still in use today,

which was designed to comply with Rule 3:11 and Delgado. The officer

documented the time and place where the procedure was conducted, and the

exact words that Jose used when identifying defendant. However, as in

Anthony, the officer did not comply with Rule 3:11 or Delgado in full because

he did not record the identification or prepare a contemporaneous written

account. Anthony, 237 N.J. at 235. And reliance on the worksheet, which was

apparently not submitted to the trial court during the suppression motion, "did

not create an adequate record in other respects." Id. at 236. The worksheet did

not contain a verbatim account or a detailed summary of the dialogue between

the officer and Jose as required under Rule 3:11(c)(2). The officer simply

checked the box indicating he instructed Jose that the actual perpetrator may or

may not be in the showup, while Jose testified he was told before the

identification the police had a suspect.

A-5288-17 36 There is no per se rule barring identification evidence for failure to strictly

comply with Rule 3:11. State v. Green, 239 N.J. 88, 109 (2019); Anthony, 237

N.J. at 239; Henderson, 208 N.J. at 303. Instead, "[w]hen the record of an

identification 'is lacking in important details,' and it was feasible to preserve

them, Rule 3:11(d) affords a judge discretion, consistent with appropriate case

law, to bar the evidence, redact part of it, and/or 'fashion an appropriate jury

charge' if the evidence is admitted." Green, 239 N.J. at 109. "Indeed,

suppression should be the remedy of last resort, and judges should explain why

other remedies in Rule 3:11(d) are not adequate before barring identification

Applying these guiding principles, we conclude defendant is entitled to a

Wade/Henderson hearing because the officer failed to fully comply with Rule

3:11 and Delgado by making a contemporaneous record. Although Anthony was

decided after the trial judge's decision in this case, notably the Court in Anthony,

unlike Henderson, did not set forth that its ruling had prospective application

only. Further, under the revised threshold standard adopted in Anthony, in State

v. Guerino, 464 N.J. Super. 589, 611 (App. Div. 2020), we applied the ruling

retroactively and remanded for the trial court to convene an evidentiary hearing

on the admissibility of a photo array identification procedure conducted in 2016

A-5288-17 37 because the report did not provide a detailed account of the dialogue between

the officer and the witness. Ibid. Similarly, here, under the revised threshold,

defendant was entitled to a Wade/Henderson hearing without having to prove

suggestiveness. Anthony, 237 N.J. at 233-34.

Moreover, under the pre-Anthony/Henderson framework, defendant made

the threshold showing for a Wade/Henderson hearing based on "the inherent

suggestibility of a showup . . . ." Wright, 444 N.J. Super. at 357. It is well

established that "one-on-one showups are inherently suggestive . . . . because

the victim can only choose from one person, and, generally, that person is in

police custody." State v. Herrera, 187 N.J. 493, 504 (2006). In Herrera, a pre-

Henderson case, the Court held "that standing alone a showup is not so

impermissibly suggestive to warrant proceeding to the second step." Ibid. "Our

law has permitted 'on or near-the-scene identifications because they are likely

to be accurate, taking place . . . before memory has faded and because they

facilitate and enhance fast and effective police action and they tend to avoid or

minimize inconvenience and embarrassment to the innocent.'" State v. Jones,

224 N.J. 70, 87 (2016) (alteration in original) (quoting Herrera, 187 N.J. at 504).

"[H]owever, only a little more is required in a showup to tip the scale toward

impermissibly suggestive." Herrera, 187 N.J. at 504.

A-5288-17 38 Here, even though, as the trial judge found, the showup was conducted

within fifteen to thirty minutes of the incident, the record is incomplete as to the

pre-identification dialogue between Jean-Simon and Jose, a requirement under

Rule 3:11 and Delgado. It appears that the trial judge did not have a copy of the

worksheet at the time of the motion and thus there was no record of any pre-

identification instructions. Further, even if the judge had the worksheet, and

although the officer checked the box indicating he instructed Jose that the actual

perpetrator may or may not be in the showup, Jose testified at trial that the

officer told him "we're going to see if we can recognize a person who is, like, a

suspect." See Jones, 224 N.J. at 87 (noting statements by police identifying

witness as a suspect can bear on suggestiveness of a showup).

The Wade/Henderson hearing requested by defendant would have

provided him with "the opportunity to attempt to secure the information denied

to him by the Delgado violation," namely, the full dialogue between Jean-Simon

and Jose, before, during, and after the identification, including whether the

officer referred to defendant as a "suspect." State v. L.H., 239 N.J. 22, 54

(2019). As a result, we remand the matter for an evidentiary hearing to allow

defendant the opportunity to explore the issue of suggestiveness in the showup

process and for the appropriate remedy for the Delgado violation.

A-5288-17 39 By way of guidance, the trial judge on remand may in her discretion end

the hearing if she finds that the showup worksheet recounted verbatim the entire

exchange between the officer and Jose, provided no evidence of suggestiveness

has been demonstrated by the evidence. Guerino, 464 N.J. Super. at 612. If the

trial judge finds the evidence should not have been admitted, or alternatively

only admitted with redactions or cautionary instructions, the parties can then

present argument as to whether a new trial is warranted. Henderson, 208 N.J. at

300. However, if the evidence presented does not show that any violations of

Rule 3:11 and the out-of-court identification was reliable, then defendant's

conviction and sentence shall stand. See Anthony, 237 N.J. at 238.

IV.

We reach a different conclusion as to defendant's argument in Point III

that contends the trial judge erred in admitting Joy's first-time identification of

defendant at trial because it was "highly suggestive and unreliable." He argues

her in-court identification should have been stricken under the principles

established in Henderson, and in the alternative, even if Henderson did not

apply, "a straightforward application of N.J.R.E. 401 and 403 compelled the

exclusion of Joy's in-court identification." We disagree.

A-5288-17 40 A.

Prior to trial, defense counsel moved to preclude Joy from making an in-

court identification because the officers failed to conduct an out-of-court

identification procedure. There is no indication in the record that the trial judge

addressed this application.

During Joy's testimony at trial, she identified defendant, unprompted, for

the first time on direct, as someone she saw in the parking lot of the restaurant

where they had gone to pick up dinner. At side bar, defense counsel moved to

strike Joy's identification because counsel believed the prosecutor had agreed

not to elicit this testimony, it was "highly suggestive" for a person to make a

first-time in-court identification, and there was out-of-state case law to support

the exclusion of the identification. The prosecutor countered that he had not

prompted Joy to identify defendant, and, in any event, first-time in-court

identifications were "completely proper." The prosecutor argued that defense

counsel could cross-examine her on the identification and that the jury should

be given a Henderson in-court identification charge.

The trial judge found that the prosecutor had not solicited the in-court

identification, denied the application to strike, and agreed to include the in -court

identification instruction in the final charge. The judge then instructed the jury,

A-5288-17 41 "you will note . . . [ that Joy] made an in-court identification. . . . that is the first

identification she has made. There will be a charge that is given to you at the

end of the case about in-court identifications."

Thereafter, defense counsel objected to Joy's testimony that she was

"certain" of her identification of defendant. The court overruled the objection

finding that defense counsel could address her answer on cross-examination.

Joy subsequently testified that she had not previously identified defendant, she

was "very certain" that defendant was the man she saw in the parking lot, and

she described the circumstances surrounding her out-of-court observation of

defendant.

In her final charge, the judge instructed the jury, without objection,

substantially in accord with the Model Jury Charges (Criminal), "Identification:

In-Court and Out-Of-Court Identifications" (rev. May 18, 2020), including that

the jury could consider "whether the witness did not identify the defendant at a

prior identification procedure."

"[T]he decision to prohibit an in-court identification is made on a case-

by-case basis." Guerino, 464 N.J. Super. at 606. In our review of these

determinations, we "defer to a trial court's evidentiary ruling absent an abuse of

A-5288-17 42 discretion." State v. Garcia, 245 N.J. 412, 430 (2021). "[A]pellate review,"

nonetheless, "remains a backstop to correct errors that may not be caught at or

before trial." Guerino, 464 N.J. Super. at 620.

In determining the reliability of an in-court identification, the Court in

Madison, 109 N.J. at 243, adopted the factors set forth in Manson, 432 U.S. at

114. Those factors include the "opportunity of the witness to view the criminal

at the time of the crime, the witness's degree of attention, the accuracy of his

prior description of the criminal, the level of certainty demonstrated at the

confrontation and the time between the crime and the confrontation. [8]" Id. at

239-40 (quoting Manson, 432 U.S. at 114).

Significantly, in Guerino, we recently rejected a defendant's contention

that the court should "ban all in-court identifications, or at least to restrict in-

court identifications to cases where there has been an 'unequivocal' out-of-court

identification." 464 N.J. Super. at 605. In that case, the eyewitness said she

was eighty percent confident in her out-of-court identification of the defendant

from a photo array, but after seeing defendant at trial, testified that she was one

8 Thereafter, the Court in Henderson, 208 N.J. at 287, revised the Manson/Madison framework for evaluating out-of-court eyewitness identification evidence in view of scientific evidence, but did not eliminate or address in-court identification evidence. A-5288-17 43 hundred percent certain of her in-court identification. Id. at 602. The defendant

argued, as in this case, that "the scientific principles that necessitated the reforms

achieved in Henderson demonstrate that in-court identifications are the product

of inherently suggestive circumstances and have minimal probative value." Id.

at 605. Further, as in this case, the defendant maintained that "nearly all the

system variables discussed in Henderson apply to in-court identifications, and

that this traditional practice 'does not comport with the post-Henderson legal

landscape and must be updated.'" Id. at 605-06.

We rejected that argument, stating that "[t]he relief defendant seeks would

represent a significant change to our State's eyewitness identification

jurisprudence," which is contrary to the "well-established precedent, including

Henderson." Id. at 606.

We further explained:

We do not mean to suggest the familiar practice of having a trial witness point to the defendant sitting at counsel table is a talisman carved in stone. Chief Justice Rabner aptly recognized in Henderson that scientific research on human memory and the reliability of eyewitness identifications will continue to evolve. [208 N.J.] at 219. We are not persuaded, however, that we have the evidential foundation upon which to grant the fundamental change defendant seeks. In Henderson, the reform of New Jersey's eyewitness identification jurisprudence was supported by an extensive report of a special master appointed by the

A-5288-17 44 Court to compile and evaluate the scientific evidence regarding eyewitness identifications. Id. at 228-29. Using that example of scientific groundwork as a benchmark, the record before us in this case is inadequate to test the validity and utility of in-court identifications.

[Id. at 606-07.]

In any event, we concluded this was not "an appropriate case in which to

decide whether to abandon an established practice" given its decision to remand

for an evidentiary hearing. Id. at 607. "That hearing will examine whether the

victim's in-court identification was tainted by either or both the photo array and

hallway identification procedures. Defendant may yet obtain the ultimate

remedy he seeks by applying existing legal principles. In these circumstances,

we see no need to displace those principles." Ibid.

On appeal, defendant here raises identical arguments as to the application

of the principles in Henderson to first-time in-court identifications and argues

that they are the functional equivalent of a showup and thus Joy's in-court

identification almost two years after the event could not produce a reliable

identification and deprived defendant of a fair trial. We disagree.

Although not cited by the parties, our Supreme Court held that a first-time

in-court identification was admissible in State v. Clausell, 121 N.J. 298, 327

(1990). In that case the witness identified one of the assailants for the first time

A-5288-17 45 at trial, even though she had been unable to identify him out-of-court in an

earlier photographic array. Ibid. The Court held that the in-court identification,

which took place nineteen months after the incident, was properly admitted. Id.

at 328. The Court found:

Notwithstanding that [the witness] identified defendant for the first time in court, her identification was constitutionally valid. See United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (observing that no decision of the Supreme Court requires in-court identifications to meet the same standards of reliability as pretrial identifications), cert. denied, 479 U.S. 1038 (1987). Although undercut by the long delay between the crime and the trial, the reliability of the identification is supported by other considerations. . . . [The witness] had ample opportunity to view the assailants under circumstances in which she was seeking to establish their identities. The courtroom atmosphere was suggestive, but not so much so as to outweigh the reliability of the identification. Defense counsel had ample chance to challenge the accuracy of the identification on cross- examination, and the jury was free to discount its value based on [the witnesses'] inability to identify anyone on earlier occasions. See Domina, 784 F.2d at 1368 (noting that one advantage of in-court identification over pretrial identification is that jury can observe [the] witness during identification process).

[Id. at 327-28.]

Thus, first-time in-court identifications are admissible under Clausell and

were not revised or eliminated under Henderson, which only addressed

A-5288-17 46 suggestive pre-trial identifications. We, as members of an intermediate

appellate court, are "bound to comply with the law established by the Supreme

Court." State v. Steffanelli, 133 N.J. Super. 512, 514 (App. Div. 1975).

We are not persuaded otherwise by defendant's reliance on the out-of-state

opinion in Commonwealth v. Crayton, 21 N.E.3d 157 (Mass. 2014). At the

outset, we observe that the opinion is not binding on us and has, in fact, been

rejected by several courts. In Crayton, the Massachusetts Supreme Court

overturned its precedent and held that "[w]here an eyewitness has not

participated before trial in an identification procedure, we shall treat the in-court

identification as an in-court showup, and shall admit it in evidence only where

there is 'good reason' for its admission." Id. at 169. The court placed "the burden

on the prosecutor to move in limine to admit the in-court identification of the

defendant by a witness where there has been no out-of-court identification." Id.

at 171. However, in State v. Doolin, 942 N.W.2d 500, 515 (Iowa 2020), the

Iowa Supreme Court described Crayton as an "outlier." See also Garner v.

People, 436 P.3d 1107, 1118-19 (Colo. 2019) (declining to adopt Crayton

because it turned on state common law principles of fairness and departed from

the standard articulated in Perry v. New Hampshire, 565 U.S. 228, 246 (2012)).

A-5288-17 47 Furthermore, despite some similarities between showups and in-court

identifications, the exclusionary pre-trial principles announced in Henderson

should not apply with equal force to in-court identifications because, as set forth

in Clausell, there are significant safeguards built into our adversary system to

protect against a mistaken identification made for the first time at trial. Perry,

565 U.S. at 246. Such safeguards include the Sixth Amendment right to confront

witnesses, the right to the effective assistance of counsel "who can expose the

flaws in the eyewitness' testimony during cross-examination and focus the jury's

attention on the fallibility of such testimony during opening and closing

arguments," and eyewitness specific jury instructions. Ibid.

Those safeguards were at work during this trial. Defense counsel cross -

examined Joy on the reliability of her spontaneous identification of defendant

and argued in summation that her identification was not credible because it was

based on feedback from her husband and her observation of him sitting at

counsel table. Defense counsel also argued that Joy was not paying close

attention to defendant when he walked around the parking lot because she was

distracted by her phone, music, and her children, and was under stress and could

not describe the face of the man who pulled a mask over his face as he ran in

front of her car. The trial judge also gave the jury the lengthy model criminal

A-5288-17 48 jury charge on in-court identification, and the jury was free to discount the

identification. Additionally, as in Clausell, the reliability of Joy's in-court

identification was supported by other considerations, including the conditions

under which she observed him and the fact that her independent description of

defendant at the scene was identical to Jose's description of the man who robbed

him.

Last, defendant did not raise at trial, as he does now, the argument that

Joy's in-court identification should have been excluded under N.J.R.E. 403. For

that reason, we review the new contention for plain error. Under the plain error

standard, we disregard "[a]ny error or omission" by the trial judge "unless it is

of such a nature as to have been clearly capable of producing an unjust

result . . . ." R. 2:10-2. To warrant reversal, "[i]n the context of a jury trial, the

possibility must be 'sufficient to raise a reasonable doubt as to whether the error

led the jury to a result it otherwise might not have reached.'" State v. G.E.P.,

243 N.J. 362, 389-90 (2020) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Under that standard, we conclude that even if the judge had erred in

admitting Joy's identification, it was not plain error. Joy did not identify

defendant as the robber, rather she identified him as the man she saw in the

parking lot. Although Joy's testimony was corroborative, there was other strong

A-5288-17 49 evidence as to defendant's identity as the robber, notably, the descriptions

provided by both Jose and Joy at the scene, the fact that defendant's DNA was

found on the mask next to Jose's wallet, and the officer's testimony as to their

apprehension of defendant near the alleyway where he had been seen running

after the robbery. Additionally, the jury was able to assess Joy's credibility in

making the identification and was specifically instructed on the factors they

should consider in making that assessment.

We have no cause to disturb defendant's conviction based upon Joy's

identifying defendant for the first time at trial.

We last address defendant's argument in Point IV that the judge erred in

imposing an excessive sentence. He contends that the judge erred in imposing

a ten-year sentence, in considering his prior arrests, and in giving significant

weight to the psychological effect of the incident on the victim's family. We

find no merit to these contentions.

At sentencing , the judge first denied the State's application to sentence

defendant to a discretionary extended term as a persistent offender under

N.J.S.A. 2C:44-3(a), on the second-degree robbery count. The judge then found

A-5288-17 50 aggravating factors three (the risk that defendant will commit another offense),

six (the extent of defendant's prior record and the seriousness of the offenses),

and nine (the need to deter), N.J.S.A. 2C:44-1(a)(3), (6), (9), and no mitigating

factors under N.J.S.A. 2C:44-1(b).9

The presentence report considered by the judge in support of her findings

revealed defendant's extensive criminal record. Defendant had two juvenile

adjudications, and five adult indictable convictions for third-degree eluding,

second-degree aggravated assault, second-degree possession of a weapon for an

unlawful purpose, third-degree possession of a controlled dangerous substance

(CDS), and fourth-degree resisting arrest. He received a five-year term for his

conviction for aggravated assault and unlawful possession of a weapon, and was

sentenced to probationary terms on the other convictions, which he violated in

three cases and was sent to State prison. He also had nine disorderly person

convictions for drug-related offenses, and was granted conditional discharge

twice, with an extension of the program in one case, and discharged as

9 While the judgment only listed two aggravating factors, N.J.S.A. 2C:44- 1(a)(3) and (9), "[t]he sentencing transcript," which listed three aggravating factors, "is 'the true source of the sentence.'" State v. Walker, 322 N.J. Super. 535, 556 (App. Div. 1999) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)). On remand, the trial judge should enter a corrected judgment of conviction, if warranted, after the Wade/Henderson hearing. A-5288-17 51 absconded in the other. At the time of his arrest in this case, there was an active

bench warrant for his arrest in New York for possession of CDS and he was on

probation in Union County. Thus, as the trial judge found, defendant had "what

appears to be . . . a continuous period of being involved" in the justice system.

In making her determination, the trial judge did not apply aggravating

factor two, N.J.S.A. 2C:44-1(a)(2), ("gravity and seriousness of harm inflicted

on the victim") explaining as follows:

Having presided over the case, I note that it is clear, and it's very rare that I would ever use . . . the serious gravity, seriousness of harm inflicted on the victim, including whether the victim knew or reasonably should have known that the victim of the offense -- I don't think . . . it doesn't quite amount to the second . . . aggravating factor, but it is clear that this incident has had a devastating impact on this family.

They are not quite functioning the same way because of this incident that took place in front of their children, and they will never function in the same way. And that's between them and their [G]od to figure out how they will work through it. But it has had a devastating impact on the family and the family dynamics, of which I don't think there's a way that that's really going to be fixed except probably through counseling and through many other things. But the impact was beyond the point of significant to the victims in this matter.

The judge concluded "the aggravating factors do outweigh the mitigating

factors" and sentenced defendant to a term of ten years, subject to an eighty-five

A-5288-17 52 percent period of parole ineligibility pursuant to NERA, on count one . Count

nine merged with count one.

Our "review of a sentencing court's imposition of sentence is guided by

an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318 (2018).

"Although '[a]ppellate review of sentencing is deferential,' that deference

presupposes and depends upon the proper application of sentencing

considerations." State v. Melvin, 248 N.J. 321, 341 (2021) (alteration in

original) (quoting State v. Case, 220 N.J. 49, 65 (2014)). We will "affirm the

sentence of a trial court unless: (1) the sentencing guidelines were violated; (2)

the findings of aggravating and mitigating factors were not 'based upon

competent credible evidence in the record;' or (3) 'the application of the

guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v.

Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth,

95 N.J. 334, 364 (1984)). The first prong of the inquiry presents an issue of law

that is reviewed de novo. State v. Robinson, 217 N.J. 594, 604 (2014).

The ordinary term for a second-degree offense is between five and ten

years, N.J.S.A. 2C:43-6(a)(2), and thus defendant's sentence of ten years subject

to the NERA, complied with the sentencing guidelines. Bolvito, 217 N.J. at 228.

A-5288-17 53 In determining the appropriate sentence to impose within that range, judges

"must identify any relevant aggravating and mitigating factors set forth in

N.J.S.A. 2C:44-1(a) and (b) that apply to the case." Case, 220 N.J. at 64. "The

finding of any factor must be supported by competent, credible evidence in the

record." Ibid. "Whether a sentence should gravitate toward the upper or lower

end of the range depends on a balancing of the relevant factors." Ibid.

Here, defendant argues the judge improperly considered his twenty-five

prior arrests in finding aggravating factors three, six, and nine . However, the

judge specifically set forth that she was not "tak[ing] into account the matters

that have been dismissed and no-billed." Moreover, such consideration to

support her findings on the aggravating factors three, six, and nine would not

have been error because, "[a]dult arrests that do not result in convictions m ay

be 'relevant to the character of the sentence . . . imposed.'" State v. Rice, 425

N.J. Super. 375, 382 (App. Div. 2012) (alteration in original) (quoting State v.

Tanksley, 245 N.J. Super. 390, 397 (App. Div. 1991)).

Defendant's assertion to the contrary, in reliance upon State v. K.S., 220

N.J. 190, 199 (2015), is inapposite. In that case, the Court addressed whether a

prosecutor, in rejecting an application for pretrial intervention, may consider a

A-5288-17 54 defendant's prior dismissed charges, which were not "supported by undisputed

facts of record or facts found at a hearing." Ibid.

Similarly unpersuasive is defendant's argument that the judge erred in

failing to consider, based on the jury's finding, the robbery was on the lower end

of a second-degree crime because the victim suffered no physical injuries and

the incident lasted only a few minutes. However, there is no indication in this

record that the judge improperly considered the more serious acquitted charges

in deciding to impose a sentence in the highest range for a second-degree

offense. Melvin, 248 N.J. at 350 (explaining that consideration of acquitted

charges in sentencing defies the principles of due process and fundamental

fairness). The judge focused only on defendant's lengthy past criminal history

and did not, like in Melvin, make any findings as to the weapons charges for

which defendant was acquitted.

That lengthy criminal conduct, beginning in 1993 when defendant was a

juvenile, and continuing to the time of his arrest in this case, despite repeated

attempted rehabilitation and punishment, supported the judge's finding as to

aggravating factors three, six, and nine, because it presented a strong risk of re-

offense and underscored the need to deter him from future criminal activity. See

A-5288-17 55 State v. Ross, 335 N.J. Super. 536, 543 (App. Div. 2000) (finding aggravating

factors supported by the defendant's lengthy criminal history).

Last, defendant's argument that the judge, in effect, improperly applied

aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the "gravity and seriousness of

harm inflicted on the victim," is not persuasive. The judge expressed sympathy

for the victim and his family based on this incident, but specifically found that

aggravating factor two did not apply in this case. 10

We conclude defendant's sentence was in accord with the sentencing

guidelines, was based on a proper weighing of the factors, and does not shock

the judicial conscience.

Affirmed in part; reversed and remanded in part for further proceedings

consistent with our opinion.

10 Factor two is not listed on the judgment of conviction. A-5288-17 56