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State v. Farley

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JASON R. FARLEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-06-1416.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Sabatino and Lyons.

After a jury trial, defendant Jason R. Farley was convicted of fourth-degree improper peering into the windows or other openings of a dwelling, in violation of N.J.S.A. 2C:18-3c. The trial court sentenced him to an eighteen-month prison term, with a nine-month period of parole ineligibility.

Defendant now appeals his conviction on two grounds. First, he contends that the trial court erred in admitting the victim's out-of-court identifications of him because they were unduly suggestive, and that they tainted the victim's in-court identification at trial. Second, he argues that the trial court improperly admitted proof of prior bad acts under N.J.R.E. 404(b), which unduly prejudiced the jury's consideration of his guilt of the present offense. We affirm as to the N.J.R.E. 404(b) issue and as to the admission of the victim's out-of-court identification of defendant from a photograph, but remand for an evidentiary hearing as to the so-called "show-up" identification.

I.

The record from the trial and the pretrial hearings adduced these facts that are relevant to our review.

On March 27, 2007, between 9:45 and 10:15 p.m., the victim, J.S., who was then sixteen years old, finished showering in her home in Wall Township. She had just entered her bedroom, wearing only a towel, when she noticed a man standing outside, looking through her window.

According to J.S., the window's curtains were open by about a foot. J.S. estimated that she was about eight or nine feet away from the window, which faced the west side of the house. She stated that her view of the window was unobstructed when she spotted the person who was standing outside. No outside lights were on at the time, but J.S.'s bedroom lights were on.

After J.S. saw the person outside her window, she briefly paused. She then walked towards her bed to get away from her observer's line of sight. J.S. stated that she was focused solely on the man when she looked at him. She called her sister from her cell phone and told her what had occurred. J.S.'s sister then came to the bedroom, but the sister did not see anybody outside the window. J.S.'s mother promptly called the police.

Three Wall Township police officers (Robert Larrison, Christopher Lisewski, and Paul Mabin) responded to the mother's call and quickly came to the residence. Officer Mabin brought along Tre, his police canine. Tre had been trained to track human scent.

When the officers arrived, J.S. gave them a description of the man she had seen outside her window. She stated that he had a "chubby face," "dark hair" and could have been wearing a dark winter hat.

Officer Mabin took his tracking gear and Tre and started to follow the perpetrator's scent from the west side of the house. Officer Liseski trailed Officer Mabin and Tre. The dog's tracking led the two officers through various roads, woods, and some vegetation. The tracking ultimately led to defendant's residence, which is also located in Wall Township, after a little more than ten minutes.

Meanwhile, another Wall Township policeman, Officer Todd Verrecchia, was on patrol, looking for a male subject matching the description given by J.S. Officer Verrecchia received a call instructing him to go to defendant's address. Upon his arrival there, Officer Verrecchia discovered that defendant, defendant's brother, and defendant's mother were all home.

Officer Verrecchia observed that defendant's house had a front entrance as well as a side entrance leading to the basement. He noticed that the rain guards on one of the basement windows had been dislodged and was pushed off to the side.

Officer Verrecchia asked to speak with defendant. Defendant's brother retrieved him from the basement. Defendant claimed that he had been watching television with his brother and mother, and had fallen asleep in the basement around 9:00 or 9:30 p.m., until his brother roused him. Defendant denied leaving the house that evening, either through the basement windows or the side door.

Officer Mabin observed that defendant's hair seemed to be "slicked back" from either water or a hair product. Later, at police headquarters, Officer Mabin also noted that defendant had a fresh, thin scratch across his left ear, which Officer Mabin believed had been caused by a thorn. Officer Mabin noticed that he similarly had thorns on his own pants after completing the tracking that brought him to defendant's home. Officer Verrecchia also had noticed that defendant's hair was "matted down in the shape of a hat, as though he had been wearing a hat."

Officer Verrecchia asked defendant and defendant's mother for permission to search the basement. After receiving their consent to do so, Officer Verrecchia inspected the basement, but he did not locate any hat there in plain view. Officer Verrecchia did notice that one of the basement windows was large enough for an adult male to exit through it.

At that point, Officer Verrecchia walked back outside with defendant. He commented to defendant that defendant's hair looked as if he had been wearing a hat. Officer Verrecchia said defendant then rubbed his hands through his hair, "kind of pull[ing] the matting that had been there."

Meanwhile, Officer Larrison remained with J.S. at her house. He received a radio call that the canine tracking had led to defendant's address. Officer Lisewski relayed defendant's name to Officer Larrison. Officer Lisewski requested Officer Larrison to look up defendant on his mobile computer and, if there was a photograph of him available, to show it to J.S.

Officer Larrison, successfully retrieved a photograph of defendant on the computer. He presented the photo to plaintiff on the computer screen. She looked at the photo for about "one minute." J.S. later stated that she did not know why she was looking at the photo; rather the officer "just showed [it to] me and asked if he looked familiar." J.S. said that only Officer Larrison was in the car with her at the time she viewed the photo.

J.S. believed the person on the computer screen resembled the man who had been looking in her window. J.S. stated that she was not sure that it was the same person, "but it looked a lot like him." She was "pretty sure" about this, noting that the man's eyes and cheeks in the photo looked the same. Officer Larrison recalled that J.S. was "visibly upset, shaking, [and] her voice breaking" after he presented the photo to her.

The screen with defendant's photo displayed a name, address, town, and some numbers. J.S. stated that she did not feel any pressure to tell the officer that she believed the photo being shown to her was the same person who had looked in her window. Officer Larrison stated that neither he nor anyone else from the police department spoke to J.S. at the time about the picture.

Officer Larrison informed the other officers who were at defendant's residence that J.S. had a "good idea" that the man in the photo was the perpetrator. The officers requested that Larrison bring J.S. over to the residence for a "drive-by" look at defendant.

Officer Larrison then drove J.S. and her mother to defendant's house. J.S. recalled that she was told by the police, while they were en route, that the canine had made a tracking from her house to defendant's house, and that the police wanted her to "identify if it [sic] was the person or not."

J.S. recalled that the police specifically told her that she was going to "Jason Farley's house." Officer Larrison disputed this contention, recalling that he only told J.S. the street that they were going to, but that he did not tell J.S. defendant's name. Officer Larrison further maintained that he did not reveal to J.S. that he thought the person she was going to see at the house was, in fact, the perpetrator.

When they arrived at defendant's house, Officer Larrison stopped the patrol car, and illuminated defendant's front yard with the spotlight on top of his patrol car. Defendant was standing outside the house along with Officer Verrecchia.

The police then asked J.S. if defendant was the man who had been looking in her window. Defendant was standing at this point about twenty-five feet from the squad car. J.S. recalled that two police officers were standing on the front lawn near defendant. Officer Larrison testified, however, that only one of the uniformed police officers was standing immediately next to defendant, the rest were further up the lawn, closer to the porch.

J.S. recalled that it took about thirty seconds for her to recognize defendant, and, at that point, she was "sure" defendant was the man who had been outside her window. She stated that she had a clear view of defendant in front of his house, and that she felt scared immediately after seeing him. Officer Larrison likewise remembered that J.S. started shaking, crying, and became upset when she saw defendant.

J.S. contended that Officer Larrison said nothing to her during the course of this show-up procedure. According to J.S., the police did not say to her that it was indeed the same person who peered into her window until after she had positively identified him, and that she had made the connection on her own.

J.S. maintained that she had not been pressured to identify defendant as the man who had been at her window. She also recalled that the officers did not tell her anything about defendant. She stated that she had never seen defendant before that evening, nor had she ever heard his name before.

After being informed by Officer Larrison that J.S. had positively identified defendant as the man who had been outside her window, Officer Verrecchia arrested defendant. Defendant's height and weight were recorded, respectively, as five feet, nine inches and 240 pounds. According to Officer Larrison, a total of thirty-one minutes elapsed from the time of the mother's initial call to the police department to the time of defendant's arrest.

J.S. subsequently provided a formal statement at police headquarters. In her statement, J.S. described the man she saw in the window as follows:

I only saw his face. He was white, he had chubby cheeks, and he was wearing a winter hat that goes over your ears. He looked like he had dark eyes.

Officer Larrison acknowledged that he was unfamiliar with the New Jersey Attorney General's Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures ("the Guidelines"). Larrison also did not recall receiving any instruction or training for conducting photographic and live lineups. Moreover, he had never been involved before in a photo array procedure.

The Monmouth County Grand Jury subsequently indicted defendant and charged him, in a single count, with violating N.J.S.A. 2C:18-3c by peering into the windows or other openings of a dwelling "for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in said dwelling or other structure would not expect to be observed[.]" Defendant pled not guilty, and the matter was scheduled for trial.

Several pretrial hearings were conducted before a jury was selected. Two of those hearings pertain to issues that are not raised on this appeal. In particular, the trial judge conducted a hearing pursuant to State v. Sands, 76 N.J. 127 (1978), to determine the admissibility of details of defendant's prior criminal record. As a result of the Sands hearing, the judge elected to sanitize the specifics of those prior convictions before they could be used by the State on cross-examination of defendant. The judge also conducted an evidentiary hearing, pursuant to N.J.R.E. 104, at which time he ruled that the State could elicit at trial evidence of the police's use of canine tracking, and the judge also ruled that he would allow the dog handlers to testify as experts on tracking suspects with canines.

To resolve the admissibility of the victim's two out-of-court identifications, the judge conducted a Wade hearing.*fn1 Defendant waived his right to appear at that hearing. After considering testimony from J.S. and Officer Larrison, the judge ruled that evidence of both J.S.'s identification from the computerized photograph and her show-up identification at defendant's residence would be admissible at trial. The judge rejected defendant's contention that the identifications were impermissibly suggestive, given the totality of circumstances.

In reaching that assessment after the Wade hearing, the judge noted, among other things, that: (1) J.S. had "a clear opportunity" to view the person who had been peering into her bedroom window; (2) she gave an "accurate description" of defendant's puffy cheeks, dark eyes and heavy-set build; (3) she was "very credible" in her testimony about her identification from defendant's photograph; and (4) a "very short time frame" of only thirty-one minutes had elapsed from the time of the offense to the time of the victim's observation of defendant outside of his house. The judge therefore concluded that the out-of-court identifications were reliable. The judge further held that "[t]he absence of a lineup or an array of photographs presented in accordance with the Attorney General['s]

[G]uidelines does not render the identification in this case either unfair or unreliable."

The other pretrial hearing germane to the present appeal concerned defendant's motion to exclude certain prior bad acts under N.J.R.E. 404(b). In particular, defendant sought to bar the State from presenting evidence that he had inappropriately peered into the windows of other victims, or had attempted to do so, on five other prior occasions: July 11, 2000; July 14, 2000; August 25, 2002; April 28, 2003; and April 29, 2003. Defendant had pled guilty to the two peering incidents from 2000, and received a probationary sentence. As to the August 2002 incident, defendant was charged with defiant trespass, although that charge was ultimately dismissed and the details in the record concerning that particular incident are sparse.

The two more recent incidents, in April 2003, occurred at another residence in Wall Township. The residence was within about six blocks from where the 2000 and 2002 incidents and the present 2007 incident took place. According to the 2003 victim, A.B., she had taken a shower at about 6:00 a.m. on April 28. A.B. then walked into her bedroom and applied some lotion to her body, when she saw a man looking through her window. A.B. screamed and went to her mother's room. The police were called, and a canine tracked a scent back to defendant's house, particularly its side door.

The following day, April 29, A.B.'s mother pulled her car into the driveway at about 11:30 p.m. The mother saw a male walk past her car and start down the driveway. She noticed that he had a plastic soda cup in his hand. The mother called 9-1-1, and the operator advised her to follow the man. She followed the man to a house located on the same street as defendant's residence, although she could not recall the house number. The police were summoned, and one of the officers noticed a plastic soda cup from a convenience store in defendant's basement.

A.B.'s mother positively identified defendant in court as the man she had seen on April 29. Defendant, meanwhile, denied that he had ever passed by A.B.'s house.

After a trial, defendant was convicted of looking into the window of A.B. while she was undressing. He was sentenced to a custodial term of eighteen months, which he completed before the present episode in 2007.

The prosecution argued that all five of these prior incidents were admissible under N.J.R.E. 404(b) as proof of defendant's wrongful purpose and motive to invade the victim's privacy in this case. Defendant responded that such state-of-mind proofs were not material to the case, which revolved around identity, and were unduly prejudicial under N.J.R.E. 403.

After considering these competing arguments, the trial judge decided to exclude the three incidents from 2000 and 2002, but to allow the State to present evidence concerning both 2003 incidents. Applying the admissibility standards of State v. Cofield, 127 N.J. 328, 338 (1992) (adopting a multi-part test under N.J.R.E. 404(b)), the judge found that the 2000 incidents were too remote in time from the 2007 incident. He also found that the 2002 incident had not been established by clear and convincing evidence. However, as to the 2003 incidents, the judge was satisfied that they met the Cofield standards and thus were properly admissible and Rule 404(b) as proof of defendant's purpose and intent, an essential element of the instant offense. The judge noted that the similarity of the 2003 episodes to the present offense was "striking," and that they were not too remote in time to require their exclusion.

The judge rejected defendant's argument that the 2003 incidents would be so inflammatory as to require them to be excluded under N.J.R.E. 403. However, in an effort to guard against any undue prejudice, the judge ruled that the State would not be able to divulge to the jury the fact that defendant has been convicted of a crime arising out of those prior acts from 2003, unless they were used by the State to impeach defendant's credibility under N.J.R.E. 609 if he elected to testify. The judge also agreed to issue a limiting instruction to the jury restricting its evidential use of the 2003 prior acts.

At the ensuing trial, the State primarily relied upon the testimony of the victim, J.S. In the course of her testimony, J.S. positively identified defendant in the courtroom as the man she had seen peering into her window. The State also presented testimony from Officers Larrison, Olsen, Mabin, Verrecchia, and Lisewski, as well as A.B., her mother, and two Wall Township police officers who investigated the April 2003 incidents.

The accused took the stand in his own defense. He denied going to J.S.'s residence on the evening in question. During direct examination, defendant's counsel pre-emptively led him to acknowledge the prior convictions, without the nature and details of those convictions being placed before the jurors.

After deliberating for less than a day, the jury found defendant guilty of the charged offense. Subsequently, the court denied a motion by defendant to set aside the verdict as against the weight of the evidence and on other various grounds unrelated to this appeal. The court sentenced*fn2 defendant to the aforementioned eighteen-month prison term, plus various appropriate fines and mandatory DNA testing. This appeal followed.

Defendant raises in his brief the following arguments for our consideration, the first two of which are interrelated issues of identification:

POINT ONE

THE TRIAL COURT ERRED IN ADMITTING THE VICTIM'S IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATIONS AND THE RESULTING TAINTED IN-COURT IDENTIFICATION

POINT TWO

IN THE ALTERNATIVE, THIS COURT SHOULD REMAND THIS MATTER FOR AN EVIDENTIARY HEARING TO ESTABLISH A RECORD ON THE UNRELIABILITY OF SHOW-UP IDENTIFICATIONS, AS CONTEMPLATED BY THE NEW JERSEY SUPREME COURT IN STATE V. HERRERA, 187 N.J. 493 (2006), AND STATE V. ADAMS, 194 N.J. 186 (2008)

POINT THREE

THE ADMISSION OF OTHER-CRIMES EVIDENCE REGARDING A PAST, UNRELATED INCIDENT OF PEERING VIOLATED N.J.R.E. 404(B) AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL

We now examine those arguments.

II.

Taking the two central issues in reverse order from the briefs, we first consider the admissibility of the April 2003 incidents under N.J.R.E. 404(b). Having carefully evaluated that issue, we affirm the trial court's ruling to admit that evidence as relevant proof of the offender's purpose and intent. We do so substantially for the cogent reasons expressed by the trial judge in his oral pretrial ruling on the subject dated January 3, 2008. We amplify the judge's well-supported analysis only to a limited extent.

N.J.R.E. 404(b) provides, in relevant part, that:

Except as otherwise provided by Rule 608(b)[,] evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. [N.J.R.E. 404(b) (emphasis added).]

One of the necessary elements of the offense of wrongful peering into a dwelling under N.J.S.A. 2C:18-3c is that the defendant "did so knowing that (he/she) had no right to peer at that time." See Model Jury Charge (Criminal), Criminal Trespass- Peering, (1999) (emphasis added); see also N.J.S.A. 2C:18-3c. The State must also establish that the defendant peered into the dwelling "for the purpose of invading the privacy of another person." Model Jury Charge, supra, (emphasis added); see also N.J.S.A. 2A:18-3c. These elements must be proven to the jury beyond a reasonable doubt. N.J.S.A. 2C:1-13a.

Given these elemental proof requirements, the trial judge acted within his discretion in permitting the two 2003 incidents to be admitted under Rule 404(b). The judge reasonably found that the evidence of similar efforts by defendant in 2003 to peer into an undressed teenage girl's bedroom, in the very same neighborhood as the instant offense, was admissible to support the State's contention that he acted "for the purpose of invading the privacy of another person," contrary to N.J.S.A. 2C:18-3c. For that matter, the "prior acts" evidence also corroborated that defendant should have known that he had no right to be standing outside of J.S.'s window. Additionally, the prior acts would help defuse any reservations in the jury's mind as to whether defendant's presence outside J.S.'s window was benign or accidental.

Defendant argues that the unwanted observer's state of mind in peering at J.S. was irrelevant to the case. We disagree. Although defendant's trial strategy was to disclaim that he was the person who J.S. had seen outside her window, the State still had to establish each and every element of the crime, even if the jury was convinced of the trespasser's identity. The requisite elements of purpose and knowledge were still charged to the jury. Defendant potentially could have gained an acquittal if those critical elements were not also proven. See State v. Stevens, 115 N.J. 289, 307 (1989) (noting that the State is still obliged to prove a defendant's mental state when it is an element of the crime charged, even if defendant denies committing the act which he acknowledges is an offense).

The trial judge conscientiously and fairly applied the Cofield factors in his Rule 404(b) analysis. We concur with the judge that the evidence of the 2003 peering incidents was (1) "relevant to a material issue[,]" (2) "similar in kind and reasonably close in time to the offense charged[,]" (3) shown by "clear and convincing" evidence, as reflected by defendant's conviction of the 2003 offense, and (4) having probative value that is not "outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338. Defendant's guilty plea stemming from the 2003 incidents supported the inference of his wrongful purpose in 2007. See State v. Cusick, 219 N.J. Super. 452, 465 (App. Div.), certif. denied, 109 N.J. 54 (1987) (sustaining admission of prior bad acts to show defendant's wrongful purpose in being stimulated by contact with young girls).

Lastly on this point, we are satisfied that the trial judge appropriately balanced the probative value of the prior bad acts against their potential undue prejudice. "[E]vidence of motive or intent[] 'require[s] a very strong showing of prejudice to justify exclusion.'" State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Covell, 157 N.J. 554, 570 (1999)). The trial court judiciously weighed the pros and cons of admission, and, in fact, decided to exclude evidence of the 2000 and 2002 incidents while allowing the 2003 incidents. The judge also wisely foreclosed the State from revealing in its case-in-chief that the 2003 acts led to defendant's conviction unless defendant chose to open that door (which he did) by testifying. Even there, the convictions were judicially sanitized and only allowed to be considered by the jury for impeachment. The judge issued careful instructions restricting the use of the prior acts evidence, tracking the Model Criminal Jury Charges. His disposition on this issue is unassailable, and we affirm it.

III.

We turn to the more difficult issues concerning identification. In doing so, we are cognizant that the law in our State concerning eyewitness identification procedures is undergoing review, given the Supreme Court's appointment of a Special Master in February 2009 for plenary hearings to examine the empirical reliability of those identification procedures from a systemic perspective. See State v. Henderson, 2009 N.J. LEXIS 45 (Feb. 26, 2009) (appointing the Special Master). We recognize that the Special Master's work is ongoing, and that there is no particular timetable for when the Court might act after receiving the Special Master's report. Consequently, we must apply the law to this appeal as it presently exists, mindful that the developments in Henderson might ultimately affect the future handling and review of identification issues. We reject defendant's suggestion in Point II of his brief for a remand to allow a broad-brush evidentiary hearing in this case on the reliability of eyewitness identification in general. Pending the Special Master's ongoing efforts in Henderson and the Supreme Court's review of his report, it is the obligation of the trial courts and this court to adhere to existing precedent on the admissibility of identification testimony, unless and until the Supreme Court instructs otherwise. See State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976) (noting an intermediate appellate court's obligation to follow the current law established by the Supreme Court).

That being said, we briefly summarize the present governing law. Identification evidence is inadmissible as a matter of due process where it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L.Ed. 2d 401, 410 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968); State v. Farrow, 61 N.J. 434, 450 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973). "In our two-pronged approach to determine the admissibility of an out-of-court identification, the reviewing court must first 'ascertain whether the identification procedure was impermissibly suggestive.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Romero, 191 N.J. 59, 76 (2007)).

The court's preliminary inquiry should examine whether the identification represents the witness's independent recollection, or if it resulted from a law enforcement officer's suggestive words or conduct. Ibid. If the court finds the procedure was indeed impermissibly suggestive, it "must then decide, as a second factor, 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Romero, supra, 191 N.J. at 76). "'[R]eliability is the linchpin in determining the admissibility of identification testimony.'" Id. at 204 (quoting State v. Madison, 109 N.J. 223, 232 (1988)).

In reviewing such identification issues on appeal, we must weigh the corruptive influence of the suggestive identification against 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 time of the confrontation and the time between the crime and the confrontation." [Madison, supra, 109 N.J. at 239-40 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)).]

Moreover, a "trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451).

First, with respect to Officer Larrison's display of a photograph of defendant to J.S. on his mobile computer, we concur with the trial judge that the procedure employed was not impermissibly suggestive and that J.S.'s identification was sufficiently reliable, thereby satisfying the traditional Manson/Madison admissibility criteria.

Even though our Supreme Court has acknowledged that the display of a single picture to a witness may enhance the danger of an erroneous identification of a perpetrator, Madison, supra, 109 N.J. at 231, the Court has not treated such one-photo displays as per se improper. "While the use of photographs of several persons or a line-up of men is a helpful and desirable police technique, the absence of such a procedure does not in itself make a prior identification unfair or unreliable: the totality of the circumstances must be considered." State v. Matlack, 49 N.J. 491, 498, cert. denied, 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed. 2d 606 (1967). "The absence of comparison [by the person making the identification] ordinarily goes only to the weight of the [identifier's] testimony and not to its admissibility." Ibid.; see also State v. Thomas, 107 N.J. Super. 128, 132 (App. Div. 1969).

There is sufficient credible evidence here to support the trial judge's ruling to admit J.S.'s out-of-court photographic identification. Officer Larrison did not make suggestive comments to J.S. before she viewed the photograph. Rather, he only asked her if she recognized the individual. The manner of the procedure was not impermissibly suggestive.

J.S. stated that she focused her attention on the observer when she noticed him outside her window, signifying that she had an opportunity to view the perpetrator. The record indicates that J.S. had her full attention directed towards the window when she noticed the man, and that nothing obstructed her view. J.S. further indicated that the man in the photograph had the same eyes and cheeks as the man in her description. She said that the man in the photograph looked "a lot like" the man in the window, but she candidly acknowledged that she was not entirely sure. Scant time elapsed between J.S.'s viewing of the man and her photo identification. On the whole, sufficient credible evidence supported the trial judge's finding of a reliable identification from the photograph.

This result as to the photo identification withstands scrutiny, regardless of the Attorney General's Guidelines. We are mindful that in State v. Henderson, 397 N.J. Super. 398, 415 (App. Div.), certif. granted, 195 N.J. 521 (2008),*fn3 a panel of this court held that a rebuttable presumption of impermissible suggestiveness applied where, in that case, the police deviated from the Guidelines concerning photographic identifications. In Henderson, the investigating police "materially breached" the Guidelines by intruding into the display of a photographic array by twice re-entering the room with the witness who was unable to decide if any of the last two of the photographs shown to him matched the suspect's physical features. The police urged the witness to "calm down," and assured him that he would be protected if any threats were made. Id. at 406. Apparently influenced by these remarks, the witness then made a positive identification. Id.

The present circumstances relating to the photo identification are nothing like the scenario in Henderson. We concur with the trial judge that the photographic display, unaccompanied by any editorialization by the patrolman, was reliable and not unduly suggestive. Indeed, when J.S. stated that she was not entirely sure that the photo was of the same man, the police did not pressure her to be more definitive. Any deviations from the Guidelines*fn4 on this point were inconsequential.

We have less confidence, however, about the ensuing "show-up" identification by J.S. at defendant's residence.

As to the potential suggestiveness of a show-up identification procedure, the Court has recognized that

[O]ne-on-one show[-]ups are inherently suggestive. These show[-]ups by definition are suggestive because the victim can only choose from one person, and, generally, that person is in police custody. Our case law recognizes, however, that standing alone a show[-]up is not so impermissibly suggestive to warrant proceeding to the second step. See State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding one-on-one identification by witness ninety minutes after observation). We have permitted on or near-the-scene identifications because "[t]hey are likely to be accurate, taking place, as they do, before memory has faded[] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid. We are satisfied, however, that only a little more is required in a show[-]up to tip the scale toward impermissibly suggestive. [State v. Herrera, 187 N.J. 493, 504 (2006).]

We approach our analysis of the show-up with these considerations in mind.

J.S. testified at the Wade hearing that Officer Larrison told her "the dogs had gone from my house and had led them to his house." That testimony raises significant concerns about suggestiveness. There was no need for the police to share that canine-tracking information with the victim before she was driven to defendant's house.

Once at defendant's house, J.S. saw only defendant and two uniformed police officers, illuminated by Officer Larrison's spotlight. This physical arrangement also has inherent suggestive aspects. Defendant was the sole civilian standing near two police officers, illuminated only by the light of a police car.

Even though J.S. stated that she was not pressured by any police officer to make a positive identification, the dog-tracking statement to her, coupled with the physical setting of the show-up and the surrounding scene, raises significant concerns about the reasons for her certitude.

Although the trial judge ultimately was persuaded that these suggestibility factors did not make a difference and that the show-up identification was reliable, we hesitate to adopt his conclusions based on the present record. Unlike the earlier photo identification, the potential deviations from the Guidelines*fn5 concerning the show-up here could play a significant role in the analysis. See Henderson, supra, 397 N.J. Super. at 414 (applying a presumption of impermissible suggestiveness where the police materially deviated from the Guidelines).

In all fairness to the trial judge, our 2008 opinion in Henderson was not issued until a year after he made his ruling concerning the show-up procedure. The trial judge did not have the benefit of this court's guidance in Henderson, nor the occasion to consider whether a presumption of inadmissibility should flow from any Guidelines deviation, or whether the State could overcome such a presumption. Id. at 414-16 (remanding for further hearing in light of the analytic framework set forth in Henderson).

Given the difficulty of this issue, the evolution of the law following this trial, and the poorly-developed record here concerning any deviations from the Guidelines, we deem it most prudent to remand the show-up issue to the trial court, to be reevaluated in light of Henderson and the potential application of a presumption of inadmissibility, or, alternatively, as Henderson also suggests, a possible "shifting of the burden of persuasion" to the State "regarding the suggestiveness of the procedure." Henderson, supra, 397 N.J. Super. at 414, n.9.

In doing so, we by no means prescribe the outcome on remand. The trial court may still be satisfied with the show-up's admissibility, notwithstanding Henderson. For example, the court may find, on reexamination, that the show-up was overly suggestive in light of Henderson, but that the identification was nonetheless sufficiently reliable to be admitted. Alternatively, the trial court may conclude that the show-up identification was improper and unreliable, but that its admission was nevertheless harmless, given J.S.'s positive identifications of defendant from his photograph and in the courtroom, and given the other proofs in the case--including the canine tracking to defendant's house from the victim's window, the proofs concerning the dislodged basement window, and the scratching and thorns observed on defendant.

The matter is therefore remanded to the trial court in light of Henderson. To maximize the fairness to defendant, the hearing on remand shall be conducted by a judge other than the trial judge, even though we have no doubt that the trial judge would do his best to re-examine the record conscientiously. As prescribed in Henderson, such reassignment to a different judge will spare the trial judge of a "difficult and uncomfortable task for him to now revisit and re-evaluate the [show-up] evidence in light of the opinion he has already expressed about that evidence." Id. at 416. We also withhold judgment, pending the remand, on whether J.S.'s in-court identification was unduly tainted by the show-up procedure.

The remand shall be completed within ninety (90) days of this opinion. Following the issuance of the trial court's ruling on remand, the parties shall have forty-five (45) days to furnish us with concurrent supplemental briefs and the remand transcript. After we have received the transcript, the trial court's decision, and the supplemental briefs, we shall reconsider the appeal.

Affirmed in part, and temporarily remanded in part consistent with this opinion. Jurisdiction is retained.


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