STATE OF NEW JERSEY VS. SOLOMAN D. NEAL (15-06-1269, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 20, 2018
• Docket: A-4630-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4630-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SOLOMAN D. NEAL, a/k/a SOLOMON NEAL, and KARIM SMITH,

Defendant-Appellant.

Submitted May 31, 2018 – Decided July 20, 2018

Before Judges Alvarez and Currier.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15- 06-1269.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Solomon D. Neal entered a guilty plea to an amended

charge of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2),

after a Law Division judge denied his motion to suppress an out-

of-court identification. In accord with the plea agreement, the

judge sentenced defendant to fifteen months of probation in

addition to fines and penalties on April 28, 2017. Defendant

appeals, alleging that his motion to suppress should have been

granted because the out-of-court identification was impermissibly

suggestive. We affirm.

We summarize the circumstances as developed during the

suppression hearing. At around 2:00 p.m. on December 24, 2014,

Ajegbe Oyekunle, an apartment building manager, was making repairs

to the front door of the structure. Oyekunle was going back out

to his van to retrieve some construction materials when a car

abruptly stopped in front of it. The driver——who the victim

immediately recognized by name as the son of one of his tenants,

whom he had known for seven years——asked him "Why the f--- you

messin' with my father?"

Defendant driver and the passenger stepped out of the car;

the passenger held a knife. They punched and kicked Oyekunle in

the head and face; Oyekunle's cell phone and wallet fell out of

his pocket. Defendant picked up the items and threw the cell

phone at the victim. As Oyekunle approached defendant to retrieve

2 A-4630-16T4 his wallet, the passenger wielded the knife and Oyekunle retreated.

Defendant took cash from the wallet, and threw the wallet at

Oyekunle. Defendant and the passenger then drove away.

Oyekunle called 911 and told the dispatcher that he had just

been robbed and assaulted by Solomon Neal, the son of a tenant who

had recently been evicted. After police arrived at the scene,

Oyekunle was administered medical treatment, however, he did not

go to the station to make a statement until approximately 6:00

p.m. because he wanted to complete the work on the building.

During the video recorded interview at the police station,

Irvington Police Department Detective Philip Rucker showed the

victim two photographs of defendant, including his Division of

Motor Vehicle photo. Rucker testified that because the victim

knew his assailant, he did not create a photo array or otherwise

comply with the Attorney General guidelines found in State v.

Henderson, 208 N.J. 208 (2011). See R. 3:11; see also Office of

the Attorney Gen., N.J. Dep't of Law & Pub. Safety, Attorney Gen.

Guidelines for Preparing and Conducting Photo and Live Line-Up

Identification Procedures, 1 (2001). Rucker described the

identification procedure as a "show-up," during which he displayed

the photographs to the victim and asked if the victim knew the

person. He said that Oyekunle had explained defendant's father

had been a tenant over the course of years. Once Rucker obtained

3 A-4630-16T4 defendant's name from Oyekunle, Rucker requested defendant's

Division of Motor Vehicles photograph. Although the interview

took place several hours after the incident, Oyekunle was still

bleeding and wearing a bloody shirt.

The judge found that having observed the officer and the

victim during the suppression hearing, he "found their testimony

credible in all material respects." The judge concluded that the

officer's failure to adhere to the Henderson guidelines was

inconsequential. The victim had known defendant by name for many

years. Therefore, only showing the victim photographs of defendant

was not suggestive. Although he had granted defendant's motion

for a Wade hearing, defendant ultimately did not sustain his

burden. Accordingly, the judge did not suppress the

identification.

On appeal, defendant raises the following point:

THE MOTION TO SUPPRESS THE IDENTIFICATION SHOULD HAVE BEEN GRANTED BECAUSE UNDER THE TOTALITY OF THE CIRCUMSTANCES, THERE WAS A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. U.S. Const. Amend. V, XIV; N.J. Const. Art. I, ¶¶ 1, 9.

We accord "considerable weight" to a trial judge's findings

regarding the impermissible suggestiveness of an identification

procedure. State v. Adams, 194 N.J. 186, 203 (2008) (quoting

State v. Farrow, 61 N.J. 434, 451 (1972)). A defendant bears the

4 A-4630-16T4 "initial burden of showing some evidence of suggestiveness that

could lead to a mistaken identification." Henderson, 208 N.J. at

288. "The findings of the trial judge as to reliability of the

witnesses are [also] entitled to considerable weight." State v.

Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003) (citations

omitted). The State may proffer an identification as long as

"there is sufficient credible evidence in the record to support

the findings." Adams, 194 N.J. at 203 (citation omitted).

In this case, defendant was well-known to the victim as he

had known him by name for years. During the 911 call, the victim

told police defendant was his attacker. Thus, the reliability of

Oyekunle's identification was not undermined by the fact he was

presented the two photographs of defendant. Having found the

victim believable, his familiarity with his attacker was

sufficient credible evidence for the court to hold the

identification was reliable. Defendant's argument lacks

sufficient merit to warrant discussion in a written opinion. See

R. 2:11-3(e)(2).

Affirmed.

5 A-4630-16T4