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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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
Remanded November 20, 2009
Before Judges Sabatino and J. N. Harris.
This matter returns to us following our opinion of November 20, 2009, remanding to the trial court certain issues relating to the victim's identification of defendant, in light of the supervening legal principles of identification set forth in our opinion in State v. Henderson, 397 N.J. Super. 398, 415 (App. Div.), certif. granted, 195 N.J. 521 (2008).*fn1 Among other things, Henderson instructs trial courts to apply a rebuttable "presumption of impermissible suggestiveness" in situations where the identification procedures used by the police deviate from the Attorney General's Guidelines ("Guidelines"). Ibid.
On remand, the trial court conducted a supplemental evidentiary hearing at which the victim in this case, J.S., testified. Following that hearing, the remand judge*fn2 issued a written opinion, concluding that the victim's identification of defendant had been properly admitted at trial.
The remand judge noted that the Guidelines do not specifically establish protocols for so-called "show up" identifications. Nevertheless, the remand judge acknowledged certain general principles contained in the Guidelines, including the need for the police to "avoid saying anything to the witness that may influence the witness' selection." In light of that principle, the remand judge concluded that the police impermissibly deviated from the Guidelines in this case by informing the victim, while driving her to defendant's residence, that canines had tracked his scent from her residence to his own abode. Consequently, the judge concluded, consistent with Henderson, that the "show up" identification of defendant at his house was overly suggestive, even though it was not a "purposeful" departure from the Guidelines.
However, turning to the second prong of the legal test for admissibility--reliability of the identification--the remand judge was convinced that the victim's identification of defendant was nonetheless "sufficiently reliable and was properly submitted for the consideration of the jury." See State v. Romero, 191 N.J. 59, 76 (2007) (articulating the two-pronged legal test for admissibility of out-of-court identifications). In particular, the remand judge noted the short time between the victim's observation of defendant at her home and the ensuing "show up," her consistent "unprompted description of the defendant to the police" when they first interviewed her, and the overall credibility of the victim's explanation of how she became "very sure" of the perpetrator's identity after first viewing his photograph on a computer screen and thereafter seeing him in person.
The remand judge also was impressed that the victim was "a particularly credible witness," who "readily acknowledged when she could not recall a fact," "did not attempt to embellish or invent when confronted with questions to which she did not have answers," and provided answers "confidently" in a manner that "appeared to come from her own memory."
We have duly considered the post-remand supplemental briefs of the parties, in which defendant claims that the remand judge erred in reaffirming the admissibility of the victim's identification, and in which the State reciprocally urges that we sustain the remand judge's findings. Having done so, we affirm the ruling of the remand judge, substantially for the cogent reasons thoughtfully articulated in the February 16, 2010 written opinion of Judge Jamie S. Perri, the remand judge. Consequently, we affirm defendant's conviction in all respects.