STATE OF NEW JERSEY VS. L.H. (12-05-1445, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )


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  •                              RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2878-14T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    L.H.,
    Defendant-Appellant.
    _____________________________
    Submitted April 4, 2017 – Decided August 2, 2017
    Before Judges Fisher and Vernoia.
    On appeal from the Superior Court of New
    Jersey, Law Division, Essex County, Indictment
    No. 12-05-1445.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Alicia J. Hubbard, Assistant
    Deputy Public Defender, of counsel and on the
    brief).
    Carolyn A. Murray, Acting Essex County
    Prosecutor, attorney for respondent (Kayla
    Elizabeth Rowe, Special Deputy Attorney
    General/Acting   Assistant Prosecutor,  of
    counsel and on the brief).
    PER CURIAM
    Defendant L.H. appeals his conviction and sentence following
    a guilty plea. More particularly, he appeals the court's denial
    of his motions to suppress his statement to the police and to
    suppress an out-of-court identification. We reverse in part and
    vacate in part.
    I.
    During the summer of 2011, two women were sexually assaulted,
    and another woman was the victim of an attempted sexual assault.
    Defendant was taken into custody, interrogated about the assaults,
    and provided a statement to police. In addition, one of the victims
    made an out-of-court identification of defendant in a photo array
    presented by the police.
    A grand jury indicted defendant for two counts of first-
    degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (counts one and six);
    four counts of first-degree aggravated sexual assault, N.J.S.A.
    2C:14-2(a)(3) (counts two, three, seven, and eight); three counts
    of   second-degree   aggravated     assault,     N.J.S.A.      2C:12-1(b)(1)
    (counts   four,   nine,   and   twelve);   two   counts   of   third-degree
    terroristic threats, N.J.S.A. 2C:12-3(a) (counts five and ten),
    and first-degree attempted aggravated sexual assault, N.J.S.A.
    2C:5-1 and 2C:14-2(a)(3) (count eleven). Following the indictment,
    defendant moved to suppress the statements he made during the
    2                               A-2878-14T3
    custodial interrogation and separately to suppress the victim's
    out-of-court identification. The court denied defendant's motions.
    Defendant subsequently pled guilty to two counts of first-
    degree kidnapping, two counts of first-degree aggravated sexual
    assault, and one count of first-degree attempted aggravated sexual
    assault. He was sentenced to an aggregate twenty-year custodial
    sentence subject to the requirements of the No Early Release Act,
    N.J.S.A.    2C:43-7.2,   parole   supervision   for   life   pursuant    to
    N.J.S.A. 2C:43-6.4, and Megan's Law, N.J.S.A. 2C:7-2. This appeal
    followed.
    On appeal, defendant makes the following arguments:
    POINT I
    BECAUSE THE POLICE OBTAINED A CONFESSION ONLY
    AFTER LYING TO [DEFENDANT] BY SPECIFICALLY
    PROMISING THAT ANY CONVICTION PREMISED UPON
    THE   CONFESSION   WOULD    NOT   RESULT   IN
    INCARCERATION,   THE    STATEMENT   MUST   BE
    SUPPRESSED.
    POINT II
    THE MOTION TO SUPPRESS THE OUT-OF-COURT
    IDENTIFICATION SHOULD HAVE BEEN GRANTED
    BECAUSE THE STATE'S FAILURE TO RECORD THE
    NECESSARY   DETAILS   OF   THE    PHOTOGRAPHIC
    IDENTIFICATION PROCEDURE WAS CONTRARY TO STATE
    V. DELAGADO AND R. 3:11.
    II.
    Defendant first argues the court erred by denying his motion
    to suppress his statement to police. He claims his statement was
    3                             A-2878-14T3
    not given voluntarily because the police misled him during the
    interrogation by advising him that he would receive counseling,
    and would not be jailed, if he spoke with them. We agree.
    When reviewing a trial court's denial of a motion to suppress
    a defendant's statement, we must "engage in a 'searching and
    critical' review of the record."    State v. Maltese, 
    222 N.J. 525
    ,
    543 (2015) (quoting State v. Hreha, 
    217 N.J. 368
    , 381-82 (2014)),
    cert. denied, ___ U.S. ___, 
    136 S. Ct. 1187
    , 
    194 L. Ed. 2d 241
    (2016). We defer to the trial court's findings supported by
    sufficient credible evidence in the record, particularly when they
    are grounded in the judge's feel of the case and ability to assess
    the witnesses' demeanor and credibility.    State v. Robinson, 
    200 N.J. 1
    , 15 (2009); State v. Elders, 
    192 N.J. 224
    , 243-44 (2007).
    This standard of review applies even where the motion court's
    "factfindings [are] based on video or documentary evidence," such
    as recordings of custodial interrogations by the police. State v.
    S.S., __ N.J. __, __ (2017) (slip op. at 18, 24-25).
    We will not reverse a motion court's findings of fact based
    on its review of a recording of a custodial interrogation unless
    the findings are clearly erroneous or mistaken. Id. at 16-17.      We
    review issues of law de novo. Id. at 25; State v. Shaw, 
    213 N.J. 398
    , 411 (2012).
    4                           A-2878-14T3
    At a hearing challenging the admission of statements made
    during a custodial interrogation, the "state must prove beyond a
    reasonable doubt that a defendant's confession was voluntary and
    was not made because the defendant's will was overborne." State
    v. Knight, 
    183 N.J. 449
    , 462 (2005). The State must also prove
    "the defendant was advised of his rights and knowingly, voluntarily
    and intelligently waived them." State v. W.B., 
    205 N.J. 588
    , 602
    n.3 (2011).
    The determination of whether the State has satisfied its
    burden of proving beyond a reasonable doubt a defendant's statement
    was voluntary requires "a court to assess 'the totality of the
    circumstances, including both the characteristics of the defendant
    and the nature of the interrogation.'" Hreha, supra, 217 N.J. at
    383 (quoting State v. Galloway, 
    133 N.J. 631
    , 654 (1993)). We must
    determine "whether, under the totality of the circumstances, the
    confession is 'the product of an essentially free and unconstrained
    choice by its maker' or whether 'his will has been overborne and
    his capacity for self-determination critically impaired.'" State
    v.   Pillar,   
    359 N.J. Super. 249
    ,   271   (App.   Div.)   (quoting
    Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 225-26, 
    93 S. Ct. 2041
    ,
    2046-47, 
    36 L. Ed. 2d 854
    , 862 (1973)), certif. denied, 
    177 N.J. 572
     (2003). The "factors relevant to that analysis include 'the
    suspect's   age,     education   and   intelligence,    advice   concerning
    5                             A-2878-14T3
    constitutional     rights,     length   of   detention,   whether     the
    questioning was repeated and prolonged in nature, and whether
    physical punishment and mental exhaustion were involved.'" Hreha,
    supra, 217 N.J. at 383 (quoting Galloway, 
    supra,
     
    133 N.J. at 654
    ).
    The court should also consider defendant's prior encounters with
    law enforcement and the period of time that elapsed between the
    administration of Miranda warnings and defendant's confession.
    
    Ibid.
    During   a    custodial    interrogation,   an   officer   may   use
    "psychological coercion including trickery and deceit," without
    violating a defendant's right against self-incrimination. State
    v. Patton, 
    362 N.J. Super. 16
    , 29-31 (App. Div.), certif. denied,
    
    178 N.J. 35
     (2003)). "[M]isrepresentations by police officers to
    the subject of an interrogation are relevant in analyzing the
    totality of the circumstances," but "misrepresentations alone are
    usually insufficient to justify a determination of involuntariness
    or lack of knowledge." State v. Cooper, 
    151 N.J. 326
    , 355 (1997)
    certif. denied, 
    528 U.S. 1084
    , 
    1205 S. Ct. 809
    , 
    145 L. Ed. 2d 681
    (2000); accord Pillar, 
    supra,
     
    359 N.J. Super. at 269
    . "Moreover,
    a misrepresentation by police does not render a confession or
    waiver involuntary unless the misrepresentation actually induced
    the confession."     Pillar, 
    supra,
     
    359 N.J. Super. at 269
     (quoting
    Cooper, 
    supra,
     
    151 N.J. at 355
    ).
    6                            A-2878-14T3
    Likewise, an officer's promise of leniency is a factor in the
    totality of circumstances analysis. Hreha, supra, 217 N.J. at 383.
    However, "certain promises, if not kept, are so attractive that
    they render a resulting confession involuntary." Pillar, 
    supra,
    359 N.J. Super. at 273
     (quoting Streetman v. Lynaugh, 
    812 F.2d 950
    , 957 (5th Cir.), reh'g denied, 
    818 F.2d 865
     (5th Cir. 1987)).
    For example, "a promise of immunity in the form of an assurance
    by police that a statement would not be used against an accused,
    or   would    be    considered   confidential"        renders    a   statement
    involuntary. Id. at 269.
    A   court     should   consider   the    circumstances     surrounding     a
    promise, including "the nature of the promise, the context in
    which the promise was made, the characteristics of the individual
    defendant, whether the defendant was informed of his rights, and
    whether counsel was present." Hreha, supra, 217 N.J. at 383-84
    (quoting     Pillar,    
    supra,
       
    359 N.J. Super. at 271
    ).    "Those
    considerations         should    be    assessed        qualitatively,        not
    quantitatively, and the presence of even one of those factors may
    permit the conclusion that a confession was involuntary." 
    Id. at 384
    . Whether a statement by a law enforcement officer constitutes
    a promise must be viewed from the defendant's perspective. State
    v. Fletcher, 
    380 N.J. Super. 80
    , 92 (App. Div. 2005).
    7                                A-2878-14T3
    Defendant     argues     that   his     statements    were    not   voluntary
    because the police misled him by suggesting that if he spoke about
    what occurred he would get counseling. Defendant also asserts the
    police misled him by making "false promises of no jail time" if
    he spoke to them. Defendant contends that as a result of the
    officer's tactics, his will was overborne and his confession was
    not voluntary. The record supports his arguments.
    Throughout the interrogation the officers told defendant he
    needed counseling to address issues he had with women and to
    prevent the commission of future acts of sexual assault. They
    consistently    advised      him   that     speaking     with     them   would      help
    determine the counseling he needed and facilitate his receipt of
    counseling.    As   correctly      determined      by    the     trial   court,     the
    officer's    statements      about    counseling        alone     did    not    render
    defendant's    confession      involuntary       under    the     totality     of   the
    circumstances. See, e.g.,          State v. Miller, 
    76 N.J. 392
    , 398, 404
    (1978) (finding officer's promise to "do all he could to help
    defendant" if defendant spoke about the crimes "did not contribute
    to   an   'overbearing    of    his   will'"     under     the    totality     of   the
    circumstances); Miller v. Fenton, 
    796 F.2d 598
    , 610, 612 (3d Cir.
    1986) (finding under the same facts, the officer's promise of help
    to defendant in obtaining treatment did not constitute a direct
    8                                    A-2878-14T3
    promise of leniency in the criminal proceedings and did not
    overbear defendant's will).
    The officers, however, did not limit their efforts to convince
    defendant to speak with them to their statements about counseling.
    The officers also promised defendant that if he spoke to them, he
    would   not   go   to   jail.   During       an   exchange   with   the   officers
    defendant said he was tired, and one of the officers asked if
    defendant wanted something to eat or drink. In response, defendant
    asked "Am I going to jail tonight? Is this going to be my last
    meal or something like that?" The officer replied, "No, no, not
    at all."
    Defendant responded to the officer's statement that he would
    not go to jail that evening, stating "That's what everybody says."
    He then explained that "the last time something happened" and he
    "told [the police] the truth," it "quickly happened," indicating
    that he was immediately jailed.                   The officers understood the
    statement as such. In response, one of the officers said "that's
    not gonna happen - it's not gonna go down like that," thus assuring
    defendant that unlike in his prior case where he told the truth
    and was jailed, that would not happen here.
    The other officer reinforced the false impression, stating
    "I tell everybody who I interview in this room the same thing. .
    . . I'm gonna lock you up, I'm gonna tell you I'm gonna lock you
    9                                 A-2878-14T3
    up."   But   the   officer   never    contradicted    the   first   officer's
    statement that defendant would not be jailed if he confessed, and
    during the interrogation did not tell defendant he would be "locked
    up" until after defendant confessed to his involvement in the
    sexual assaults.
    Defendant   also   expressed    hesitancy     in   responding   to   the
    questions, stating he felt like he was "shooting [himself] in the
    foot," and repeating that he would like counseling. The officers
    agreed defendant needed counseling, and explained they needed to
    obtain his statement about what occurred to "find out exactly
    where [defendant was] as far as getting the help [he] need[ed]."
    Defendant then asked, "The help I need is not sending me to jail
    is it?" Again reinforcing that defendant would receive counseling
    and not go to jail if he confessed, the officer responded, "Not
    at all. Nobody gets rehabilitated in jail."
    The   officers'    statements       that   information   supplied      by
    defendant was required only to provide him with counseling, and
    would not result in him being jailed, made a false promise. On
    three separate occasions and in three different ways, the officers
    assured defendant that if he spoke with them, he would not be put
    in jail.
    In State v. Puryear, 
    441 N.J. Super. 280
    , 288 (App. Div.
    2015), we affirmed the trial court's suppression of a statement
    10                               A-2878-14T3
    where a detective told the defendant, "[t]he only thing you can
    possibly do here is help yourself out. You cannot get yourself in
    any more trouble than you're already in. You can only help yourself
    out here." The detective then read the defendant his Miranda1
    rights and the defendant agreed to speak with the officers. Id.
    at 289. We found the officer's instruction "contradicted a key
    Miranda    warning"    and    "was    not      a     permissible     interrogation
    technique" because the fact that the State sought to admit the
    defendant's     statement    showed     that       the   defendant    "could   hurt
    himself by giving the statement." Id. at 298.
    Here, the officers' representations that defendant would not
    be   jailed     similarly    misled   defendant          by   suggesting   that    a
    confession would only help him to obtain counseling, and would not
    result in his incarceration. The representations were in direct
    contravention of the same key Miranda warning at issue in Puryear:
    that anything defendant said could be used against him. Id. at
    298; see also Pillar, 
    supra,
     
    359 N.J. Super. at 268
     ("A police
    officer cannot directly contradict, out of one side of his mouth,
    the Miranda warnings just given out of the other.").
    In Fenton, 
    supra,
     
    796 F.2d at 610
    , the court noted that where
    implicit   or    explicit    promises    of        psychiatric   help   suggest    a
    1
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966).
    11                                   A-2878-14T3
    defendant will be treated rather than prosecuted, and thereby
    trick   the   defendant     into   confessing,       the   confession     may    be
    involuntary.     Id.   at   608.   The    court    determined   the   officers'
    promises of help in that case did not render the defendant's
    confession involuntary because there was "no direct promise of []
    leniency" and that "the only outright promise [] made was to get
    [the defendant] help with his psychological problem." Id. at 610.
    In   contrast,   here   the   officers'       statements    went   well    beyond
    promises about counseling. The officers directly assured defendant
    that if he spoke with them, he would not be jailed.
    The record also shows that defendant was induced to confess
    by the officers' promises. See Pillar, 
    supra,
     
    359 N.J. Super. at 269
     ("a misrepresentation by police does not render a confession
    or   waiver   involuntary     unless      the     misrepresentation     actually
    induced the confession"); cf. Fenton, 
    supra,
     
    796 F.2d at 612
    (finding the defendant made a statement based on a desire to come
    clean rather than on a promise of leniency or psychiatric help).
    The officers relied on defendant's desire for counseling as the
    sole enticement for defendant to speak with them, and stated they
    needed defendant's statement in order to assess his need for
    "help." However, it was not until the officers assured defendant
    that his statements would not result in incarceration, and that
    12                               A-2878-14T3
    the "help" they discussed did not include jail, that defendant
    admitted his involvement in the offenses.
    We are not persuaded by the contention that because defendant
    had a prior encounter with law enforcement, he therefore knew that
    the statements he made could result in his incarceration. While
    prior encounters with law enforcement are a factor in determining
    the voluntariness of a waiver of Miranda rights, Hreha, supra, 217
    N.J. at 383, here the officers advised defendant to ignore his
    prior encounter with law enforcement by assuring him that situation
    was   "different."   As   noted,   following   the   officers'   initial
    assurance defendant would not go to jail, defendant explained that
    in a prior encounter with the police, he was quickly jailed after
    providing a statement. In response, the officers assured defendant
    "that's not gonna happen – it's not gonna go down like that."
    Thus, the officers told defendant to disregard his prior encounter
    with law enforcement.
    We are therefore constrained to conclude that the court erred
    by denying the motion to suppress defendant's statement. The court
    engaged in a detailed analysis of the circumstances but overlooked
    that the officers' false promise of no incarceration directly
    negated the Miranda warnings and induced defendant to confess.
    Like the officers' promise in Pillar, the assurances defendant
    would not go to jail presented an overwhelming enticement to admit
    13                            A-2878-14T3
    criminal activity without fear of incarceration, and "clearly had
    the likelihood of stripping defendant of his 'capacity for self-
    determination,'"     Pillar,     supra,    
    359 N.J. Super. at 272-73
    .
    (quoting Schneckloth, 
    supra,
     
    412 U.S. at 225-26
    , 
    93 S. Ct. at 2046-47
    , 
    36 L. Ed. 2d at 862
    ). It thereby requires the conclusion
    that the State failed to establish defendant's statement was
    voluntary beyond a reasonable doubt. See 
    id. at 273
    .
    III.
    Defendant also contends the court erred by denying his motion
    to suppress the out-of-court identification made by one of the
    victims. Defendant argues the out-of-court identification, which
    occurred during the fifteenth showing of various photo arrays to
    the victim, should have been suppressed because the State failed
    to   comply   with   the   recording      requirements     for    out-of-court
    identification procedures under Rule 3:112 and the principles
    established in State v. Delgado, 
    188 N.J. 48
     (2006).
    In its denial of defendant's motion to suppress the out-of-
    court   identification,    the    court    stated   that    determining      the
    2
    We do not address defendant's contention the court should have
    suppressed the out-of-court identification based on a failure to
    comply with Rule 3:11 because the Rule was not in effect in 2011
    when the identification procedures took place. Rule 3:11 did not
    take effect until September 4, 2012.
    14                                  A-2878-14T3
    admissibility of an out-of-court identification required analysis
    under a two-part test. Citing State v. Madison, 
    109 N.J. 223
    (1988),3 the court found defendant must first demonstrate that the
    identification procedure was impermissibly suggestive and then the
    court will then consider the reliability of the identification.
    The court noted that the second prong of the test required a
    determination of whether the impermissible suggestiveness would
    lead    to    a     very    substantial     likelihood      of   irreparable
    misidentification.
    Applying the Madison standard,4 the court found that "the
    composition of the [photo] arrays and manner in which they were
    displayed [to the victim here] is not disputed." The court based
    its findings on its review of the photo arrays and "information
    packets"     that   "were   completed     and   preserved   along   with   the
    photographs shown to the witness at the time [she] made her
    identification as well as the prior times when she was shown the
    photo arrays." Based on the court's review of the photographs and
    3
    In Madison, 
    id. at 232
    , our Supreme Court adopted the standard
    established by the United States Supreme Court in Manson v.
    Brathwaite, 
    432 U.S. 98
    , 
    97 S. Ct. 2243
    , 
    53 L. Ed. 2d 140
     (1977).
    4
    The out-of-court identification at issue here occurred prior to
    our Supreme Court's decision in State v. Henderson, 
    208 N.J. 208
    (2011), which established a new framework for determining the
    admissibility of such identifications. The Court held that its
    decision applied prospectively. Id. at 302.
    15                                A-2878-14T3
    packets, it found that during each of the fifteen identification
    procedures, the victim was sequentially shown the photographs in
    the arrays by a detective not involved in the investigation, and
    that the photographs were of individuals having similar physical
    features. The court also found each information packet noted the
    victim's demeanor when reviewing the photo arrays.
    The court held that defendant failed to make any showing of
    impermissible suggestiveness, and therefore was not entitled to a
    Wade5 hearing on his suppression motion. The court, however, did
    not consider whether the alleged failure to make a record of the
    photo array identification procedures in accordance with Delgado
    necessitated a hearing on defendant's motion.
    In 2001, the New Jersey Attorney General's Office issued
    guidelines "to ensure that identification procedures in this state
    minimize the chance of misidentification of a suspect." Delgado,
    
    supra,
     
    188 N.J. at 61
     (quoting Attorney General Guidelines for
    Preparing and Conducting Photo and Live Lineup Identification
    Procedures 1   (Apr.   18,   2001)).   The   guidelines   directed    an
    administrator to:
    1. Record   both  identification   and  non-
    identification results in writing, including
    the witness' own words regarding how sure he
    or she is.
    5
    United States v. Wade, 
    388 U.S. 218
    , 
    87 S. Ct. 1926
    , 
    18 L. Ed. 2d 1149
     (1967).
    16                            A-2878-14T3
    2. Ensure that the results are signed and
    dated by the witness.
    3. Ensure   that   no  materials    indicating
    previous identification results are visible to
    the witness.
    4. Ensure that the witness does not write on
    or mark any materials that will be used in
    other identification procedures.
    [Ibid. (citing Attorney General Guidelines at
    7).]
    In Delgado, 
    supra,
     
    188 N.J. at 63
    , the Court exercised its
    supervisory powers under Article VI, Section 2, Paragraph 3 of
    the New Jersey Constitution and "require[d] that, as a condition
    of   the   admissibility   of    an   out-of-court   identification,   law
    enforcement officers make a written record detailing the out-of-
    court identification procedure, including the place where the
    procedure was conducted, the dialogue between the witness and the
    interlocutor,    and   the      results." The   Court   stated,   "[w]hen
    feasible, a verbatim account of any exchange between the law
    enforcement officer and witness should be reduced to writing," and
    "[w]hen not feasible, a detailed summary of the identification
    should be prepared." 
    Ibid.
    In State v. Smith, 
    436 N.J. Super. 556
    , 574 (App. Div. 2014),
    we determined the officers failed to comply with Delgado where
    their report about a show-up procedure mentioned only that an
    17                          A-2878-14T3
    officer brought a victim to a suspect "to see if she could make a
    positive [identification] on this possible suspect. . . . [and]
    [the victim] related right away that he was the one who robbed
    her." 
    Id. at 568
    . We found "[t]he limited comments recorded by
    police include [the victim's] identification, but omit what she
    was told, her response, or a statement of the specific procedures
    employed to effectuate the show-up." 
    Ibid.
           We concluded that the
    identification   was   not   reliable   under   the   Madison   standard,
    because the victim's account of the identification at the hearing,
    and the show-up procedure itself, indicated suggestiveness. 
    Id. at 573
    .
    Defendant contends the information packets concerning the
    fifteen identification procedures do not include the dialogue
    between the victim and police as required by Delgado. Although the
    court's findings were based on the information packets, they were
    not marked in evidence and are not part of the record on appeal.
    The court's factual findings, however, suggest that the packets
    did not include a verbatim account of the discussions between the
    officer and the victim, any showing that a verbatim account was
    not feasible, or if not feasible, a detailed account of the
    identification. See Delgado, 
    supra,
     
    188 N.J. at 63
    . Thus, it
    appears that as    defendant contends, the police may not have
    complied with Delgado's requirements. Indeed, the court did not
    18                              A-2878-14T3
    make any findings that the information packets satisfied the
    requirements in Delgado.
    We are convinced the court erred by denying defendant's
    request for a hearing without first considering and making findings
    concerning   law      enforcement's   compliance   with   Delgado's
    requirements, including whether compliance was feasible. 
    Ibid.
    Compliance with the recordation requirements is an issue separate
    from whether defendant made a showing of suggestiveness under the
    Madison   standard.    The   recording   requirement   "protects    a
    defendant's rights allowing examination of whether the procedure
    was impermissibly suggestive." Smith, supra, 436 N.J. Super. at
    569. The Delgado requirements were intended to permit a defendant
    to obtain evidence of suggestiveness. Thus, it would be illogical
    to conclude that a defendant's failure to show suggestiveness
    precludes a hearing on whether the Delgado requirements were met.
    We therefore vacate the court's denial of defendant's motion
    to suppress the out-of-court identification. We remand for the
    court to determine whether the police complied with Delgado's
    requirements, including whether it was feasible for the police to
    have done so. Any fact issues concerning compliance shall be
    resolved at an evidentiary hearing. If it is determined there was
    a lack of compliance, the court shall conduct such hearings it
    deems necessary to determine the admissibility of the out-of-court
    19                         A-2878-14T3
    identification. See, e.g., id. at 568-73 (finding                 the evidence
    presented at an evidentiary hearing showed the identification was
    unreliable    where    the   police   recordation   of    an    identification
    procedure was deficient under Delgado).
    We add that a failure to properly record the identification
    procedures as required under Delgado does not necessarily require
    the court to suppress the identification. See            Delgado, 
    supra,
     
    188 N.J. at 64-65
     (rejecting defendant's claim that the failure to
    make    a   detailed   record    of   the    out-of-court       identification
    procedures denied him a fair trial because the defendant learned
    the details of every identification and nonidentification through
    police reports, a Wade hearing, and the witness's testimony at
    trial); State v. Joseph, 
    426 N.J. Super. 204
    , 223-24 (App. Div.
    2012) (stating that the failure to retain photos from an array
    "does not automatically result in the suppression of an out-of-
    court identification," but rather, "if not explained, should be
    weighed     in   deciding      upon    the   probative         value   of    the
    identification") (quoting State v. Janowski, 
    375 N.J. Super. 1
    , 9
    (App. Div. 2005)).
    Reversed in part, vacated in part. Remanded for further
    proceedings in accordance with this opinion. We do not retain
    jurisdiction.
    20                                A-2878-14T3