NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-04-739.
Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Shannon M. Ryan, on the brief).
Ian David Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Patricia B. Quelch, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall, Simonelli and Accurso.
Defendant Cecilia X. Chen appeals an order entered following a Rule 104 hearing on the admissibility of identification evidence. The hearing was conducted on remand from and as directed by the Supreme Court. State v. Chen, 208 N.J. 307, 329-30 (2011), modifying State v. Chen, 402 N.J.Super. 62 (App. Div. 2008). After taking testimony for four days, Judge DeStefano followed the procedures and applied the standards articulated in Chen to the facts as he found them to be, and he concluded that the victim's identification was properly admitted. See id. at 326-27. Consequently, the judge entered an order upholding defendant's convictions in accordance with the Court's direction. See id. at 329-30.
On appeal, defendant contends that the evidence does not support the determination and that the judge failed to explain why he did not address some of the factors. Defendant also urges us to reverse based on her allegations of improper prosecutorial conduct and a pattern of conduct on the judge's part suggesting partiality toward the State. For the reasons set forth in this opinion, we reject defendant's claims of error, and substantially for the reasons set forth in the Judge DeStefano's comprehensive written opinion of December 21, 2011, we affirm.
Some background information is essential to provide context for our discussion of defendant's claims. A jury found defendant guilty of attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; aggravated assault, N.J.S.A. 2C:12-1b(1); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. On appeal, the most significant issue defendant raised was the admissibility of an identification made by the victim, Helen Kim, after her husband, JC Kim, showed her pictures of defendant.
JC was not home at the time of the assault and did not see Helen's assailant. JC had dated defendant before marrying Helen, and even though JC and defendant had not spoken for about four and one-half years, defendant called him three days before Helen was attacked. After hearing Helen's description of the assailant who entered their home and seeing a sketch she had drawn of her assailant, JC suspected that defendant was the assailant.
JC found defendant's website and showed Helen pictures of defendant that she had posted. Defendant and others were depicted, and Helen identified defendant as the woman who assaulted her. As previously noted, Helen's identification was admitted without a hearing assessing the reliability of her identification in light of JC's suggestive conduct.
In Chen, the Court determined that the trial "court's traditional gatekeeping role to ensure that unreliable, misleading evidence is not presented to jurors, " warranted a new approach to admission of identifications made under suggestive circumstances attributable to private, as opposed to state, actors. 208 N.J. at 311. Under Chen, a Rule 104 hearing prior to admission of an identification is required if the identification was made "under highly suggestive circumstances, " attributable to a private actor, that "could lead to a mistaken identification." Ibid. In adopting this approach, the Court recognized the "pivotal role identification evidence plays in criminal trials, and the risk of ...