RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4392-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA M. GREEN,
Defendant-Appellant. __________________________________
Argued October 25, 2016 – Decided August 21, 2017
Before Judges Fisher, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-02-0322.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief).
Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
PER CURIAM
A jury found defendant guilty of second-degree attempt to
commit aggravated sexual assault by sexual penetration during a kidnapping, N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:5-1; second-
degree kidnapping (as a lesser-included offense of first-degree
kidnapping), N.J.S.A. 2C:13-1(b); and second-degree attempt to
commit sexual assault, N.J.S.A. 2C:14-2(c) and N.J.S.A. 2C:5-1.
The convictions arose out of an attack on September 15, 2011 at a
nutrition products store in Perth Amboy. Minutes after the store
opened for business in the pre-dawn hours, a man walked in, forced
the sole employee, Maria,1 into a rear bathroom, threw her against
the sink and toilet, and tried to rape her. After two regular
customers entered the store, the assailant tried to barricade
Maria in the bathroom with a mop and then fled. A surveillance
video from a neighboring store recorded him as he entered and,
minutes later, ran from the store, but the picture quality was
poor.
The trial focused on identification, as the State lacked
forensic evidence tying defendant to the crime. Months after the
attack, the victim identified defendant from a photo array and
identified him again in court. With some uncertainty, one of the
regular customers also identified defendant in court, after he
previously did not identify him from a photo array.
1 We use pseudonyms to protect the privacy of the victim and eyewitnesses.
2 A-4392-13T3 As his principal point on appeal, defendant contends the
court erred in allowing the State to bolster these two witnesses
by (1) permitting Perth Amboy police officers involved in the
investigation to opine that defendant was depicted on the video
despite lacking any prior personal familiarity with defendant; and
(2) allowing testimony that defendant's photo was included in the
array because a South Brunswick police officer, who was familiar
with defendant, believed he was the man in the video.
I.
Maria told police that her attacker entered the store soon
after it opened and ordered a nutrition shake. While Maria's back
was turned to prepare the drink, he grabbed her from behind,
dragged her to the bathroom and locked the door behind him. He
then tried to sexually assault her in various ways, choking and
striking her in the face and neck when she resisted.
Gerardo was the first regular customer to enter the store the
morning of the attack. He overheard what he believed was an
argument in the bathroom. He heard Maria tell a man to let her
go. Then, he saw a man exit and run out of the store. Maria came
out, crying and apparently beaten, and said the man had tried to
rape her. The second customer, Miguel, passed the fleeing man as
he entered the store.
3 A-4392-13T3 Maria was reluctant to call the police. She said that in El
Salvador, from which she emigrated, women who accused men of rape
were often killed. However, a coworker who arrived around 8:40
a.m. called the police and persuaded Maria to cooperate. Perth
Amboy Police Detective Marcos Antonio Valera and Detective Sandra
Rivera arrived soon thereafter. The police made no effort to
collect fingerprint or DNA evidence from the scene. Detective
Valera explained that multiple people had entered the store after
the attack.
The eyewitnesses did not provide identical physical
descriptions of the attacker. According to Detective Valera,
Maria said she saw her attacker's face when he ordered a shake,
but he "didn't let me see" him while they were in the bathroom.
In her initial statement, she said her assailant was a twenty-four
to twenty-six year old black male; he was taller than Detective
Valera who is six feet tall; his hair was curly; he had a big
mouth; and a face that appeared "pulled back." Detective Rivera
testified that Maria said her attacker had a protruding mouth,
"small ears, big eyes and his face was kind of drawn, kind of long
and he was kind of lanky . . . ."
Later that day, Maria was unable to identify her assailant
from about 400 photos — none of defendant — that police presented
4 A-4392-13T3 to her. She also did not make an identification from a photo
array a week later.
Gerardo said the assailant was black, between eighteen and
twenty years old. He did not see his face, which he said was
covered with a jacket. But, he confirmed that the man shown
running from the store on the surveillance video was the man he
saw flee the store. According to witnesses, the fleeing man wore
shorts and a team jersey.
Miguel told Detective Valera that he saw the assailant well
and he was confident he could identify him if he saw him again.
In a statement given on the day of the attack, Miguel said the
assailant appeared to be a young black man, eighteen or nineteen
years old, weighing about 125 to 130 pounds, and about five foot
seven.
Detective Valera took two still photos from the neighboring
store's surveillance video and disseminated them to other police
departments seeking assistance in identifying the man pictured.2
South Brunswick Detective Roger Tuohy responded that he believed
the still photos were of Joshua Green, with whom he was familiar.
He sent photos he had of defendant. Notwithstanding Detective
2 The trial court overruled defense counsel's pre-trial objection to admission of the bulletin Detective Rivera disseminated. None of the photographic or video exhibits introduced in evidence has been included in the record on appeal.
5 A-4392-13T3 Valera's alleged belief, based on Detective's Tuohy's input, that
defendant committed the assault, the police took no immediate
steps to arrest him, to place him under surveillance, or to seek
a warrant to search his apartment for clothing that matched those
worn by the man in the video.
Soon after the attack, Maria called Detective Valera to say
she believed she saw her attacker board a bus that stopped near
her workplace. But, when police stopped the bus in another town,
they did not identify any passenger who looked like the attacker.
Maria herself was not permitted to view the passengers.
On November 17, 2011, Detective Rivera noticed a man at a bus
stop in Perth Amboy who, based on the photos Detective Tuohy had
supplied, looked like defendant. Detective Rivera, who was out
of uniform, struck up a conversation with the man, who identified
himself as Joshua Green. She also surreptitiously took photographs
of him.
Police did not show Maria an array with defendant's photo
until November 25.3 Maria selected defendant's photo with
certainty. Miguel also reviewed the same November 25, 2011 photo
array. He said defendant's photo looked most like the man who
fled the store, but when asked if he is was sure, he said no. He
3 The photo used in the array was one from an unrelated arrest of defendant.
6 A-4392-13T3 later testified that he was fifty to seventy percent certain that
defendant's photo matched the fleeing man, but he remained silent
because he thought he needed to be entirely certain.
Detective Valera arrested defendant a week later. He was
then twenty years old, five-foot-ten, with a "very thin build."
When arrested, defendant reportedly said he weighed 168 pounds.
He was not wearing glasses; by contrast, defendant wore glasses
at trial. Detective Valera testified that, at trial, defendant
looked even heavier than 168 pounds.
In court, Maria identified defendant as her attacker. In
contrast to her statement to Detective Valera, she said she got a
look at his face when he spoke to her in the store, as well as in
the bathroom. She said, "he had big ears, . . . his eyes were
also big, his mouth was big, very thin, and . . . his hair were,
[sic] like, very high." She asserted she provided Detective Rivera
with additional details about her attacker after she completed her
formal recorded statement, including that her attacker's hair was
messy and his hair was not jet black, but dark. However, when
defendant stood up in court, Maria said he was much shorter than
he appeared the day of the attack. Still, she was "certain it's
him." She also noted he did not wear glasses during the attack.
On cross-examination, defense counsel attempted to highlight
7 A-4392-13T3 inconsistencies between her trial testimony and her statement to
police the day of the attack.
Miguel also made an in-court identification. At trial, he
said defendant's face was thin and his hair curly. He also
confirmed that the man depicted in the video was the attacker. He
noted the man he saw running from the store was not wearing
glasses. However, Miguel admitted he was "not positive" defendant
was Maria's attacker. Asked how sure he was, he replied,
"[s]eventy percent."
The eyewitnesses' testimony was bolstered by the testimony
of the investigating officers. Detective Valera testified he
"received information that this [the still photos] was Josh Green
in September of 2011 from [Detective] Tuohy . . . ." Detective
Valera also identified defendant as the person depicted in the
surveillance footage who first walked by the store, then returned
to enter, and later ran out. He also identified defendant in
court.
Without objection, the State was permitted to ask Detective
Rivera to state "who was the perpetrator of [the] crime" against
Maria. She stated without reservation, "Joshua Green," and
identified him in court. She explained that Detective Tuohy told
her that he recognized the person in the circulated photos to be
defendant. She testified that when she met defendant at the bus
8 A-4392-13T3 stop in Perth Amboy, she identified him as the person in the
surveillance video. She asserted that defendant was the person
depicted in the still shots taken from the surveillance video, the
photos supplied by Detective Tuohy, and photos she surreptitiously
took of defendant when she met him at a Perth Amboy bus stop. She
opined that defendant at trial looked heavier than he did when she
saw him at the bus stop. This was also the first time she saw him
wearing glasses. On cross-examination, she conceded that she
could not positively identify defendant as the person in the
surveillance video, even after Detective Tuohy sent photos of
defendant.
Detective Tuohy testified that he had known defendant for
four or five years based on "dealings" in South Brunswick. 4 He
stated that he recognized Joshua Green as the individual depicted
in the photos Detective Rivera sent and identified him in court.
He said, with respect to one photo, he believed it depicted
defendant because the person's posture matched defendant's. He
4 The defense objected pretrial to permitting Detective Tuohy to testify that he recognized defendant based on his prior arrests. The State informed the court that Detective Tuohy knew of defendant based on being an officer on patrol in South Brunswick, and was aware of, but was not directly involved in, prior arrests of defendant in the township. The court prohibited any reference at trial to defendant's prior arrests. Defense counsel also objected to Detective Tuohy reviewing the surveillance footage, or the photos taken from the footage, to identify defendant.
9 A-4392-13T3 stated if he "had to guess," he was "probably . . . around 80
percent" positive that defendant was the man in the photos.
An employee of a temporary employment agency in Perth Amboy
testified that defendant obtained work through their office, which
was located a short distance from the store where Maria was
attacked. Defendant worked the second shift of the day of the
attack, beginning at 4:00 p.m., for a firm in Carteret. The agency
provided transportation from Perth Amboy at about 3:00 p.m. The
agency representative testified that workers could arrive as early
as 6:00 a.m. to seek assignments, and could be sent out for work
early in the morning for the first shift of the day. But the
agency had no record that defendant sought work on the morning of
Over defendant's objection, the State was permitted to
introduce a recording of a telephone conversation between
defendant and his mother while defendant was incarcerated
(although his incarceration was not disclosed to the jury).
Defendant asked his mother to look for glasses that he claimed he
wore to an interview in Perth Amboy on the day of the attack and
noted that Maria's attacker was not said to be wearing glasses.
Defendant's mother agreed to buy a pair if she could not find
them.
10 A-4392-13T3 The State contended the conversation demonstrated
consciousness of guilt because records of medical examinations
from November 2011 and 2012, which the State introduced, indicated
that defendant had twenty-twenty vision. The court ruled that the
conversation was admissible because defendant admitted to being
in Perth Amboy on the day of the attack. The court declined to
exclude references to the glasses.
The State also introduced medical records indicating that
defendant's weight grew from 146 pounds in November 2011 to 172
pounds a year later. It also reported his height at five-foot-
eleven and then five-foot-ten on those same dates. However, the
arrest report showed that defendant weighed 168 pounds when he was
arrested on December 1, 2011.
Defendant did not testify, but his mother did. She asserted
defendant was home the morning of the attack and she left with
defendant around 8:30 a.m. She went to Dunkin' Donuts by the bus
stop where she normally dropped defendant off for the bus to New
Brunswick. As proof, she providing a Dunkin' Donuts receipt
generated at 8:43 a.m. She testified that she only went "that
way" in the morning when she was dropping defendant at the bus.
She said defendant was going to take a bus to New Brunswick and
then another bus to Perth Amboy because "[h]e said he had a job
11 A-4392-13T3 interview." She noted, however, that he did not have to be at
work until 3:00 p.m.
On cross-examination, without objection, the State confronted
Ms. Green with a twenty-three-year-old conviction for third-degree
theft by deception from 1990. She testified that she received
probation and admitted she also violated probation.
In summation, defense counsel contended defendant was
misidentified. He noted Maria viewed the photo array months after
the incident. He highlighted the lack of forensic evidence,
inconsistencies in Maria's statements, and Miguel's uncertainty
in his identification. He challenged the police detectives'
identification, arguing that if the police had been sure defendant
was the attacker, they would have acted sooner.
The State emphasized that defendant was identified not only
by Maria and Miguel, but also Detectives Tuohy and Rivera (omitting
without explanation Detective Valera's identification). The
prosecutor highlighted defendant's contacts with Perth Amboy. She
also referred to defendant's phone call regarding his glasses and
contended that defendant wore glasses to court "[t]o perpetrate a
fraud on the Court . . . ." She challenged Ms. Green's credibility,
highlighting her past conviction for theft by deception.
The jury found defendant guilty of second-degree kidnapping,
as it declined to find he failed to release Maria unharmed;
12 A-4392-13T3 attempted aggravated sexual assault during the commission of a
kidnapping; and attempted sexual assault. The jury found him not
guilty of criminal restraint. After merger, the court imposed
concurrent ten-year terms on the kidnapping and attempted
aggravated sexual assault counts, both subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1
to -23.
On appeal, defendant presents the following points for our
consideration:
POINT I
BECAUSE IDENTIFICATION WAS THE CRITICAL ISSUE BEFORE THE JURY, INADMISSIBLE TESTIMONY ABOUT WHY DEFENDANT'S PHOTO WAS INCLUDED IN THE ARRAY AND INADMISSIBLE LAY OPINION TESTIMONY FROM INVESTIGATING OFFICERS, IDENTIFYING DEFENDANT AS THE PERSON ON THE SURVEILLANCE FOOTAGE, INFRINGED HIS RIGHT TO A FAIR TRIAL. (PARTIALLY RAISED BELOW).
A. Testimony That Defendant's Photo Was Included in the Array Because the Police Had Concluded that Defendant Resembled the Surveillance Footage Was Inadmissible and Unduly Prejudicial.
B. Lay Opinion Testimony from Investigating Detectives, Identifying Defendant as the Suspect on the Surveillance Footage was Improper and Prejudicial.
POINT II
THE COURT ERRED IN ADMITTING IN EVIDENCE A PHONE CALL BETWEEN DEFENDANT AND HIS PARENTS,
13 A-4392-13T3 WHICH THE STATE USED AS PROOF OF CONSCIOUSNESS OF GUILT. THE PREJUDICE TO DEFENDANT WAS COMPOUNDED BY THE JUDGE'S FAILURE TO GIVE THE REQUIRED JURY INSTRUCTION. (PARTIALLY RAISED BELOW).
POINT III
THE ALIBI WITNESS'S TWENTY-THREE-YEAR-OLD THIRD-DEGREE CONVICTION WAS INADMISSIBLE AS TOO REMOTE TO IMPEACH CREDIBILITY AND THE PROSECUTOR COMMITTED MISCONDUCT IN ARGUING THAT THE VICTIM WAS MORE CREDIBLE BECAUSE SHE HAD NO CRIMINAL CONVICTIONS. (NOT RAISED BELOW).
POINT IV
A RESENTENCING IS NECESSARY BECAUSE THE COURT FAILED TO SUPPORT ITS FINDING OF AGGRAVATING FACTOR ONE WITH COMPETENT CREDIBLE EVIDENCE IN THE RECORD, INDEPENDENT OF THE ELEMENTS OF THE CRIME.
II.
Identification of Maria's attacker was the principal focus
of the trial. We are convinced that Maria's and Miguel's
identifications of defendant was improperly bolstered by (1) the
Perth Amboy detectives' explanation that defendant's photo was
placed in the array based on the information that South Brunswick
Detective Tuohy had provided; and (2) the Perth Amboy detectives'
identification of defendant as the man in the surveillance video.
We turn first to the issue of the photo array. "[A]n
officer's reasons for placing a particular photo in an array are
irrelevant and prejudicial." State v. Lazo, 209 N.J. 9, 12-13
14 A-4392-13T3 (2012) (citing State v. Branch, 182 N.J. 338, 352 (2005)).
Moreover, when those reasons may lead a jury to infer past contact
with law enforcement, the courts have found them generally
inadmissible due to their limited probative value and prejudicial
effect. See, e.g., State v. Tilghman, 345 N.J. Super. 571, 578-
79 (App. Div. 2001).
In Tilghman, an officer testified "that when he heard the
victim's description, he suspected that the assailant was
defendant because he knew him." Ibid. The apparently neutral
testimony implied "the officer knew defendant because of
defendant's prior criminal conduct." Ibid. Although the testimony
"explain[ed] why defendant's photograph was included in the
array[,]" it was unnecessary to the victim's identification "and,
if anything improperly bolstered it by letting the jury know that
the victim had chosen the photograph of the person the officer
already suspected." Ibid.
Similarly, in Branch, the Court found inadmissible an
officer's testimony that he included a defendant's photo in an
array "upon information received" because it implied hearsay
information from an unknown source about the defendant's guilt.
Branch, supra, 182 N.J. at 352. The Court concluded, "The jury
only needed to know that the police fairly displayed the
15 A-4392-13T3 photographs to the witnesses and that the process led to a reliable
identification." Ibid.
In Lazo, supra, 209 N.J. at 21, the Court held that its
reasoning in Branch was not limited to the admission of
"prejudicial hearsay testimony," but "extend[ed] to testimony
about the identification process in general." The detective in
Lazo did not rely on information received; instead, he testified
that he included the defendant's photo in an array because he
believed the defendant matched the culprit. Id. at 22. The
admission of that testimony was still error, the Court concluded,
because the detective lacked personal knowledge of the attacker's
appearance and his testimony improperly "enhanced the victim's
credibility and intruded on the jury's role." Ibid.
We reach the same conclusion with respect to the testimony
describing why defendant's photo was placed in the array shown to
Maria and Miguel in November 2011. Detective Tuohy's suspicion
was the obvious reason the photo was included. He and Detective
Valera explained that after the surveillance stills were sent out,
Detective Tuohy responded that he believed defendant was the man
depicted. Detectives Rivera and Valera testified that afterwards,
they suspected defendant as well, and ultimately included his
photo in the array. Although Detective Tuohy obliquely stated
that he knew defendant "through dealings" in the township, the
16 A-4392-13T3 inference was inescapable that defendant's interaction with law
enforcement was not benign, and arose because of "defendant's
prior criminal conduct." Tilghman, supra, 345 N.J. Super. at 578.
For example, if Detective Tuohy knew defendant because he coached
him on the Police Athletic League baseball team, he presumably
would have said so.5
It is also of no moment that, unlike the detective in Lazo,
Detective Tuohy actually knew defendant. The Court has clearly
held that the reason a defendant's photo is included in an array
is irrelevant. See Lazo, supra, 209 N.J. at 12-13. "The only
relevant evidence [is] the identification itself." Id. at 21
(quoting Branch, supra, 182 N.J. at 348).
The error regarding the origins of the photo array was
compounded by the improper admission of the Perth Amboy detectives'
lay opinion that the man depicted in the video was defendant. 6 A
lay witness may testify "in the form of opinions or inferences"
if "rationally based on the perception of the witness" and if the
5 Additionally, while the judge did provide a limiting instruction stating that photos of defendant could be derived from a variety of sources and that the jury could not consider them as evidence of having been arrested or convicted of a crime, this instruction merely cured speculation arising from the source of defendant's photo. It did not cure the testimony from Detective Tuohy that he knew defendant and had photos of him based on prior dealings. 6 We do not address the propriety of allowing Detective Tuohy to identify defendant, as defendant does not challenge that on appeal.
17 A-4392-13T3 testimony "will assist in understanding the witness' testimony or
in determining a fact in issue." N.J.R.E. 701. "[T]estimony in
the form of an opinion, whether offered by a lay or an expert
witness, is only permitted if it will assist the jury in performing
its function." State v. McLean, 205 N.J. 438, 462 (2011). "The
Rule does not permit a witness to offer a lay opinion on a matter
. . . as to which the jury is as competent as he to form a
conclusion[.]" Id. at 459 (internal quotation marks and citation
omitted). Furthermore, a police witness is not permitted to offer
an opinion regarding a defendant's guilt. State v. Frisby, 174
N.J. 583, 593-94 (2002) (disapproving police testimony that opined
regarding innocence of one person and inferentially the guilt of
the defendant); State v. Landeros, 20 N.J. 69, 74-75 (1955)
(holding that police captain's testimony that defendant was "as
guilty as Mrs. Murphy's pet pig" caused "enormous" prejudice
warranting reversal).
These principles apply to opinions regarding an offender's
identity. "In an identification case, it is for the jury to decide
whether an eyewitness credibly identified the defendant." Lazo,
supra, 209 N.J. at 24. A police officer may not "improperly
bolster or vouch for an eyewitness' credibility and thus invade
the jury's province." Ibid.
18 A-4392-13T3 The Lazo Court reviewed federal authority on whether a lay
police witness may opine that a defendant is depicted in a crime
scene photograph. The Court noted that one federal court held
that a lay opinion "is permissible where the witness has had
sufficient contact with the defendant to achieve a level of
familiarity that renders the lay opinion helpful." Id. at 22
(internal quotation marks and citation omitted). Whether the
opinion is helpful in turn depends on the witness's knowledge of
the defendant's appearance at the time of the crime, the
defendant's dress, and "whether the defendant disguised his
appearance during the offense or altered her looks before trial,
and whether the witness knew the defendant over time and in a
variety of circumstances." Ibid. (internal quotation marks and
citation omitted). "[C]ourts recognize that when there is no
change in defendant's appearance, juries can decide for themselves
— without identification testimony from law enforcement — whether
the person in a photograph is the defendant sitting before them."
Id. at 23.
The Court cited a decision finding it error to admit an
officer's opinion that a defendant was depicted in a bank
surveillance photo where the officer's opinion "was based entirely
on his review of photographs . . . and witnesses' descriptions
. . . ." Ibid. (internal quotation marks and citation omitted).
19 A-4392-13T3 Another factor in determining whether to permit a lay opinion on
identification is "whether there are additional witnesses
available to identify the defendant at trial." Ibid.
With this authority in mind, the Lazo Court held it was error
to permit a detective to testify he believed the defendant's arrest
photo closely resembled a composite sketch that was based on the
victim's description of her assailant. Id. at 24. The detective
did not witness the crime; did not know the defendant; and relied
solely on the victim's description. Ibid. "Nor was there a change
in appearance that the officer could help clarify for the jurors;
they could have compared the photo and the sketch on their own.
Finally, the sole eyewitness told the jury what he observed
firsthand." Ibid.
Applying these principles, we conclude it was improper for
Detectives Valera and Rivera to opine that defendant was the man
depicted in the video, and, in Detective Rivera's case, to opine
regarding the ultimate issue that defendant committed the assault
against Maria. In particular, at various points in the playback
of the video footage at trial, Detective Valera was permitted to
assert that the person depicted was defendant. Detective Rivera
was permitted to testify that defendant was depicted in stills
from the video. Furthermore, she was permitted to opine on
defendant's guilt, by responding that defendant was the
20 A-4392-13T3 perpetrator of the crime. Yet, neither detective had any contact
or familiarity with defendant before the assault. Their opinions
were clearly affected by Detective Tuohy's opinion. The Perth
Amboy detectives were no more competent than the jury to scrutinize
the video, the 2011 photos, and defendant — who sat before them
for several days — to determine whether defendant was the man in
the video.
The evidence that defendant may have put on weight between
the time of the attack and the trial does not alter our analysis.
First, the evidence was not uncontroverted that defendant gained
weight after the attack. Perhaps, he never was as slim as the
attacker. Maria described her attacker as lanky, and Miguel
believed he weighed between 125 and 130 pounds. The evidence was
far from conclusive that defendant's weight was in that range in
September 2011. Indeed, the incongruities in the weight-related
evidence raise questions about its reliability. According to a
November 2011 medical record, defendant reportedly weighed 146
pounds — which is roughly twenty pounds more than the range Miguel
described. And, when he was arrested the next month, his weight
was reportedly twenty-two pounds more, and it remained close to
that a year later according to another medical record.
Second, even assuming defendant gained weight between 2011
and the time of trial — which was in March 2013 — the State did
21 A-4392-13T3 not establish that the detectives were more competent than the
jurors to ascertain whether defendant was the man in the video.
Detective Rivera may have been competent to testify that the
heavier person in the courtroom looked like the person she met at
a bus stop in November 2011, and Detective Valera may have been
competent to testify that the man in the courtroom resembled the
person he arrested in December 2011. They may also have been
competent to testify that Detective Tuohy's photographs, or
Detective Rivera's bus-stop photographs, depicted defendant.
However, that was not at issue. The issue was whether defendant
was the man in the video. As to that question, the detectives
were not significantly more capable than the jury to form a
conclusion.
Furthermore, the fact that defendant wore glasses at trial
did not justify admitting the detectives' opinion. Wearing glasses
did not constitute a major change in defendant's appearance. In
any event, defendant repeatedly removed the glasses during the
trial when witnesses were asked to make an in-court identification.
In sum, Detective Valera's and Detective Rivera's testimony
improperly "intruded on the jury's role." Lazo, supra, 209 N.J.
at 22.
We next consider whether the court's admission of the
testimony regarding the origins of the photo array and of the
22 A-4392-13T3 Perth Amboy detectives' identification of defendant constitutes
reversible error. Defendant raised the first issue at trial, but
not the second. Thus, we consider whether the first was harmless
error. See State v. J.R., 227 N.J. 393, 417 (2017) ("An
evidentiary error will not be found 'harmless' if there is a
reasonable doubt as to whether the error contributed to the
verdict."); see also Lazo, supra, 209 N.J. at 26 ("The harmless
error standard requires that there be some degree of possibility
that [the error] led to an unjust result. The possibility must
be real, one sufficient to raise a reasonable doubt as to whether
[it] led the jury to a verdict it otherwise might not have
reached." (internal quotation marks and citation omitted)).
The second error is subject to a plain error standard of
review. Under that standard, "defendant has the burden of proving
that the error was clear and obvious and that it affected his
substantial rights." State v. Koskovich, 168 N.J. 448, 529 (2001)
(internal quotation marks and citation omitted); see also State
v. Williams, 168 N.J. 323, 336 (2001) (stating that, under plain
error standard, "a defendant . . . must demonstrate . . . the
error possessed a clear capacity for producing an unjust result"
that is, one "sufficient to raise a reasonable doubt as to whether
the error led the jury to a result it otherwise might not have
23 A-4392-13T3 Whether an error is clearly capable of producing an unjust result
"depends on an evaluation of the overall strength of the State's
case." State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v.
Chapland, 187 N.J. 275, 289 (2006)).
Applying these two standards, we are convinced that the photo
array testimony was not harmless, and defendant has met his burden
as to plain error. As noted, the trial centered on the issue of
identification. The video surveillance did not clearly depict the
attacker. There was no forensic evidence. The eyewitnesses'
testimony was questionable. Although Maria said she was certain
defendant attacked her, her physical description of the
assailant's age, height and weight did not match defendant's
physical characteristics. The defense also questioned whether
Maria got a good look at her attacker's face.
Miguel was only seventy percent certain of his in-court
identification, and fifty-to-seventy percent certain of his out-
of-court identification, although he told a detective on the day
of the attack that he was sure he could recognize the assailant.
Miguel's physical description also did not completely match
defendant. Furthermore, defendant presented an alibi.
The photo array testimony, the Perth Amboy detectives'
identification, and Detective Rivera's opinion regarding guilt,
constituted weighty evidence. The importance of Detective
24 A-4392-13T3 Rivera's identification was reflected in the State's emphasis of
it in summation. Given the high regard that jurors may have for
the opinions of police officers, our Court has recognized the
substantial prejudice that may befall a defendant if an officer
is permitted to offer a personal opinion of defendant's guilt.
See Landeros, supra, 20 N.J. at 74-75. Similar harm occurs when
an officer provides improper testimony about the origin of a photo
array, see Branch, supra, 182 N.J. at 353-54 (finding plain error
because officer's testimony that defendant was a suspect "based
on information received" could have "tipped the scales" as there
was no physical evidence linking defendant to scene and the
evidence was "far from overwhelming"), or provides an
identification that usurps the difficult task assigned to the
jury, see Lazo, supra, 209 N.J. at 24, 27.
In sum, we are constrained to reverse based on the admission
of testimony regarding the origins of the photo array, and the
Perth Amboy detectives' identification of defendant.
III.
We add only brief comments on remaining issues to guide the
trial court in the event of a retrial.
25 A-4392-13T3 We discern no error in the court's admission of defendant's
phone conversation with his mother about eyeglasses.7 It was for
the jury to determine whether defendant — despite evidence of
twenty-twenty vision — wore glasses to interviews, perhaps to make
himself look studious; or whether he was concocting a means of
distinguishing himself from the attacker that the eyewitnesses
described — which may have demonstrated a consciousness of guilt
or merely an effort to look less like the described assailant.
See State v. Mann, 132 N.J. 410, 422 (1993) (stating that a
defendant's post-charge conduct is admissible if it supports an
inference that the conduct "is evidence of consciousness of
guilt"). However, it was error for the court to omit the model
jury charge on consciousness of guilt. Id. at 420 (stating that
when a court admits evidence of post-crime conduct, "it must
instruct the jury carefully regarding the inferences the jury may
draw from that evidence"). We recognize that defendant did not
request the charge. In view of our disposition of other issues,
we need not determine whether the omission of the model charge
constituted plain error.
We also conclude it was error to permit the State to challenge
defendant's mother's credibility with presentation of her twenty-
7 There is no reasonable dispute that defendant's admission in the conversation that he was in Perth Amboy was relevant.
26 A-4392-13T3 three-year-old theft conviction. This, too, was not raised below
and would be subject to a plain error analysis but for our reversal
on other grounds. Although the then-applicable version of N.J.R.E.
609 did not draw any time limits on the use of prior convictions,8
our Court has long recognized a conviction's remoteness weakens
its probative force, which then may be substantially outweighed
by the prejudice to the party against whom the conviction is used.
State v. Sands, 76 N.J. 127, 144-45 (1978) ("The trial court must
balance the lapse of time and the nature of the crime to determine
whether the relevance with respect to credibility outweighs the
prejudicial effect to the defendant.").
We have found no authority — and the State has provided none
— for the proposition that a twenty-three-year-old third-degree
conviction is sufficiently probative of a lack of credibility so
as to outweigh its prejudicial effect. Cf. State v. Murphy, 412
N.J. Super. 553, 565 (App. Div.) (finding seventeen-year-old drug
possession conviction too remote), certif. denied, 202 N.J. 440
(2010); State v. Leonard, 410 N.J. Super. 182, 186-89 (App. Div.
2009) (affirming exclusion of fifteen-year-old conviction of
State's witness), certif. denied, 201 N.J. 157 (2010). Also,
8 The revised version effective in 2014 establishes a heightened burden for the proponent of evidence of a prior conviction over ten years old. N.J.R.E. 609.
27 A-4392-13T3 there was no evidence of any intervening convictions that might
have mitigated the extreme remoteness of Ms. Green's conviction.
Sands, supra, 76 N.J. at 145 ("If a person has been convicted of
a series of crimes through the years, then conviction of the
earliest crime, although committed many years before, as well as
intervening convictions, should be admissible.").
The error was exacerbated in two ways. The State improperly
elicited that Ms. Green was found to have violated probation,
which is not a conviction and, accordingly, not admissible under
N.J.R.E. 609 irrespective of its remoteness. State v. Jenkins,
299 N.J. Super. 61, 75 (App. Div. 1997) ("Since a probation
violation is not a criminal conviction, it cannot be used for
impeachment purposes under N.J.R.E. 609."). And the State in
summation juxtaposed Ms. Green's record with the victim's "who
ha[d] no conviction, no convictions for trying to deceive anyone."
That commentary was improper; there was no evidence of the victim's
lack of a record, and, in any event, a party may generally not
bolster a witness's character for truthfulness with evidence of
specific instances of conduct. N.J.R.E. 405; see State v. Scott,
___ N.J. ___, ____ (2017) (slip op. at 21).
Finally, with respect to the defendant's sentence, we agree
that the court did not identify facts independent of the elements
of the crime in finding that aggravating factor one applied.
28 A-4392-13T3 N.J.S.A. 2C:44-1(a)(1) (requiring the court to consider "[t]he
nature and circumstances of the offense, and the role of the actor
therein, including whether or not it was committed in an especially
heinous, cruel, or depraved manner"); State v. Fuentes, 217 N.J.
57, 77 (2014) (remanding for resentencing where trial court did
not identify competent and credible evidence in the record — aside
from that which was necessary to prove the elements of the offense
— in finding aggravating factor one). If the defendant is retried,
found guilty and resentenced, the court shall reconsider its
application of aggravating factor one.
Reversed and remanded. We do not retain jurisdiction.
29 A-4392-13T3