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State v. Pressley

Supreme Court of New Jersey

April 19, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DORIAN PRESSLEY, a/k/a JUSTIN BELTON, Defendant-Appellant.

          Argued January 30, 2018

         On certification to the Superior Court, Appellate Division.

          Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Frank J. Pugliese, of counsel and on the brief).

          Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Erica M. Bertuzzi, Assistant Prosecutor, on the brief).

          Sarah E. Elsasser, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah E. Elsasser, of counsel and on the brief).

         PER CURIAM

         Counsel for both sides raise an intriguing question: whether an identification made by a law enforcement officer should be tested by the same standards that apply to a civilian. See State v. Henderson, 208 N.J. 208, 248-72, 287-93 (2011).

         In this case, the State presented strong evidence that defendant Dorian Pressley distributed cocaine. According to the testimony at trial, defendant sold two vials of cocaine directly to an undercover detective on April 30, 2013. At the end of the face-to-face exchange, defendant gave the detective his phone number and told her to store the number under the first three letters of his name. A second officer observed the transaction. Immediately after the sale, the undercover officer transmitted a description of defendant to a supervisor. The second officer also radioed information about defendant's movements. About four blocks from where the sale took place, a third officer stopped defendant, who matched the description. The officer realized he knew the suspect-as Dorian Pressley- and let him go to protect the ongoing undercover operation. Back at headquarters, the third officer printed a photo of defendant. The undercover detective also returned to headquarters. Within one hour of the transaction, she viewed the single photo of Dorian Pressley and said she was certain that the individual in the picture had sold her the two vials. Defendant was arrested and convicted after trial of third-degree possession of heroin, third-degree distribution of cocaine, and third-degree distribution of cocaine within 1000 feet of a school.

         On appeal, defendant argued that the trial court should have held a pretrial hearing to evaluate the reliability of the identification, and that the prosecutor committed misconduct in her summation. The Appellate Division affirmed defendant's conviction. The Court granted certification. 229 N.J. 609 (2017).

         HELD: Based on the record, the Court cannot determine whether part or all of the protections outlined in Henderson should apply to identifications made by law enforcement officers. For the reasons expressed, the Court affirms the judgment of the Appellate Division and upholds defendant's convictions.

         1. Defendant claims that "police officers are not more accurate eyewitnesses than civilians." He relies on social science research and cites multiple published studies. The State and the Attorney General, in turn, submit that the risk of undue suggestiveness is remote when a trained officer is involved. They also rely on social science. (pp. 3-4)

         2. The Court is not aware of case law that has reviewed the social science evidence with care. The Court encourages parties in the future to make a record before the trial court, which can be tested at a hearing by both sides and then assessed on appeal. (pp. 5-6)

         3. Even if the trial judge in this case had held a pretrial hearing, though, it is difficult to imagine that the identification would have been suppressed. Although showups are inherently suggestive, "the risk of misidentification is not heightened if a showup is conducted" within two hours of an event. Henderson, 208 N.J. at 259. Here, the identification took place within an hour. In addition, the trial judge gave the jury a full instruction on identification evidence, consistent with Henderson and the model jury charge. (pp. 6-7)

         4. The Rule 104 hearing held in this case did not substitute for a pretrial hearing on the identification evidence. Although there are some references to the identification process, the hearing did not probe or assess the relevant system and estimator variables. Nor did this case involve a "confirmatory" identification, which is not considered suggestive. A confirmatory identification occurs when a witness identifies someone he or she knows from before but cannot identify by name. Here, the undercover detective first met defendant during the drug transaction. (pp. 7-8)

         5. During summation, defense counsel commented on the Attorney General's Guidelines for identification procedures and argued that "[t]here's no exception in [them] for police officer witnesses." In response, the prosecutor argued (a) that the "Guidelines for the most part do address the possible misidentification when there is a lay witness"-which was not untrue; (b) that the witness was "a law enforcement officer who's trained to do what occurred here today"-which was also not untrue; and (c) that the officer made a "confirmatory identification." The last comment misstated the law, but it does not appear that the jury received any instruction on the meaning of the term. The remark was not capable of producing an unjust result-particularly in light of the overwhelming evidence of defendant's guilt. (pp. 8-9)

         The judgment of the Appellate Division is AFFIRMED.

          JUSTICE ALBIN, CONCURRING, is prepared today to hold that, even in the case of police witnesses, whenever practicable, an identification procedure should be conducted by the showing of a photographic array rather than a single photograph. Highly suggestive identification procedures, such as the showing of a single photograph (a photographic "showup") ordinarily should result in a Wade hearing, United States v. Wade, 388 U.S. 218 (1967), in Justice Albin's view.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion. JUSTICE ALBIN filed a separate, concurring opinion.

          PER ...


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