On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-06-1416.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 ...