On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 03-05-0637.
Before Judges Conley, Braithwaite and Winkelstein.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2005
The State appeals, by leave granted, from an order suppressing the out-of-court photographic identification of defendant Michael Janowski because the set of computerized photographs from which defendant was identified by the victim was not preserved and recorded. The State contends that the motion judge erroneously interpreted existing law and that the automatic exclusion of the out-of-court identification is inappropriate. We agree with the State and now reverse.
Defendant was arrested and subsequently indicted for: (1) first-degree robbery, N.J.S.A. 2C:15-1; (2) third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a(3); (3) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4d; and (4) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d.
Defendant challenged the out-of-court identification. A Wade*fn1 hearing was conducted. The following proofs were presented at the hearing. On February 7, 2003, between 9 and 11 a.m., Reedel Wilson ("the victim") was approached by a man, later identified as defendant, on the street in Trenton. Despite snowy conditions, the victim could still see clearly even though she had once suffered a gun shot wound to her cheek and was not wearing the glasses she normally wears only for reading and watching television. The man was white with brown hair and a"crater[ed]" or"pock mark[ed]" face wearing"black or blue jeans, black jacket with red sleeves and boots...." He carried"a garden shovel on his shoulder...." The man demanded the victim's purse and pushed her to the ground even though she complied with the man's demand.
The victim met with Detective Manuel Montez at the Trenton Police headquarters. Detective Montez had the victim view photographs on a computer in an effort to identify her attacker. Detective Montez testified that the computer contained photographs of individuals previously arrested by the police department. He further testified that, using a program called"picture link," he directed the system to display only photographs of individuals who were white, male and within the age range the victim provided in her description of the attacker.
Detective Montez explained during his testimony that it is possible to cull photographs from the system based on a total of seven characteristics including gender, race, height, weight, eye color, hair color and age range. However, Detective Montez testified that he used only race, gender and age, so the number of photographs displayed would be greater.
Once the desired characteristics were entered into the system, the computer began to display"12 photographs at a time for between 10 and 12 seconds." After viewing between thirty six to sixty photographs, the victim identified one of the images as that of the man who had attacked her on the street earlier that day. Detective Montez printed an enlarged version of the photograph, and then had the victim view and sign it as well. None of the other photographs viewed by the victim were printed or maintained as part of the investigative record.
Detective Montez further testified that after the victim identified defendant's photograph, he was able to use the picture link system to obtain defendant's name. Additionally, Detective Montez testified that prior to the victim's identification he had no"idea who the suspect was by name or otherwise." He further testified that he did not indicate to the victim whether her attacker would indeed appear in the photographs she was about to view. The victim also testified, and her testimony"was substantially the same as [Detective] Montez regarding the identification procedure."
Following the hearing, the motion judge ruled that the photographs viewed by the victim constituted an array. He further held that the State's failure to retain all of the photos viewed by the victim prevented a"meaningful inquiry into the specific procedure employed by the State." The judge therefore suppressed the out-of-court identification. The judge went on to rule, however, that the victim's in-court identification of defendant would be admissible because it was "based on her view of him at the time of the commission of the crime, and not as a result of the photographic array employed by the State."
The State argues that the motion judge erred when he construed the display of photographs viewed by the victim as an array subject to State v. Peterkin, 226 N.J. Super. 25 (App. Div.), certif. denied, 114 N.J. 295 (1988). The State contends that what the victim actually viewed was, instead, an"average'mug shot book' identification used everyday by police departments across the State, whether... physical or computer generated" and, therefore need not be preserved to be admissible. We agree."[E]nforcement authorities should... make a complete record of an identification procedure if it is feasible to do so, to the end that the event may be reconstructed in the testimony." State v. Earle, 60 N.J. 550, 552 (1972). Generally, where a photographic identification is employed, the photographs shown to a witness should be recorded. Ibid.
While photographic arrays must be preserved to be admissible, the use of mug shot books to develop an as-yet-to be-determined suspect does not require that all the photographs viewed in the mug shot books be preserved. ...