State of New Jersey v. Alfred D. Hollaway ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1661-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALFRED D. HOLLAWAY,
a/k/a ALFRED HOLLAWAY,
Defendant-Appellant.
_________________________
Submitted April 9, 2024 – Decided April 26, 2024
Before Judges Gooden Brown, Haas and Bergman.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 21-01-
0031.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Alison Gifford, Assistant Deputy Public
Defender, of counsel and on the brief).
Matthew J. Platkin, Attorney General for the State of
New Jersey, attorney for respondent (Deborah Cronin
Bartolomey, Deputy Attorney General, of counsel and
on the brief).
PER CURIAM
Defendant Alfred Hollaway appeals from an order denying his motion to
suppress an out-of-court identification made by an undercover police officer
after an evidentiary hearing.
Following the denial of his motion, defendant entered a conditional guilty
plea to N.J.S.A. 2C:39-9(i), transporting a firearm to unlawfully dispose of it to
another person, and to N.J.S.A. 2C:39-5(j), unlawful possession of a firearm
with a prior armed robbery conviction. As part of the plea agreement, all other
charges against defendant in the indictment were dismissed. Thereafter, the
court heard and denied defendant’s motion to withdraw his guilty plea. This
appeal followed.
Defendant raises the following singular point on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS THE
UNDER COVER OFFICER'S OUT-OF-COURT
IDENTIFICATION
Having considered this argument in light of the record and applicable legal
principles, we affirm.
I.
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The record developed at the Wade/Henderson hearing1 held by the trial
court in this matter reflects the following.
On June 11, 2020, an undercover officer ("UCO") was working as part of
the Middlesex County Prosecutor's Office Narcotics Task Force Unit. ("Task
Force"). At approximately 4:44 p.m., the UCO was in the parking lot of a South
Plainfield shopping mall to engage in a narcotics transaction with Tyrell Coffey.
When Coffey arrived, the UCO talked with him about the drug transaction and
they also spoke about purchasing a firearm. Coffey informed the UCO that he
had an AK-47 with three magazines for sale and that the UCO would need to
"get the money right away" if he wanted to purchase the gun. After negotiating
a price, the two reached an agreement for the UCO to purchase the gun and
magazines for $1300. They agreed that the UCO would obtain the money
immediately and Coffey would return with the gun. Although the UCO had been
part of hundreds of undercover narcotics operations, this was his first gun
purchase.
Once Coffey left, the UCO went to the post-purchase location to obtain
the funds and discuss the transaction with other detectives. At around 5:37 p.m.,
1
United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208(2011).
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the UCO returned to the parking lot to purchase the gun. He parked his car and
waited while a surveillance unit monitored the exchange. Approximately fifteen
minutes later, Coffey arrived with a female passenger in the same silver Cadillac
he was driving earlier. A red Hyundai was trailing him. Coffey parked his car
in front of the UCO’s car and the red Hyundai parked next to the UCO. The
UCO could see that a Black male was driving the Hyundai, whom he later
identified as defendant. He relayed a description of the driver and the car to his
surveillance unit.
All three men exited their vehicles and met at the back of the Hyundai.
Defendant asked the UCO, "where's the money", and he replied by asking,
"where's the weapon". All three men were standing close together at the back
of the Hyundai. There was still daylight at the time.
Defendant opened the trunk and popped the vehicle liner to show the UCO
a blue bag with a black trash bag inside. Defendant opened the bags to show the
gun inside the trash bag and then gave the gun to Coffey, who put the gun in the
UCO's car. The UCO gave the money to Coffey. Thereafter, the three men
talked about future gun purchases and they told the UCO that selling guns is
"what [they] do . . . [They]'ll take care of it."
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After the exchange, the UCO returned to his car and provided descriptions
of the gun seller to the surveillance unit, describing defendant as "Black male,
gray beard, black t-shirt, kind of tall" and the red Hyundai as having a Tennessee
tag.
The UCO left the parking lot and went to the post-purchase location to
meet with additional detectives to secure the weapon. He told detectives to stay
with the Hyundai to attempt to identify defendant because at that time he did not
know the name of the driver. Thereafter, the UCO went to Task Force
headquarters. Defendant remained in the parking lot and appeared to be sleeping
in the red Hyundai.
At headquarters, other detectives were attempting to identify the driver,
and although at the hearing the UCO testified he did not recall assisting them,
Detective Anthony Pacillo testified that the UCO was "assisting in the lookups".
Detective Pacillo was also working for the Task Force and participated in the
undercover operation. He was part of the surveillance unit acting as lead
investigator. Detective Pacillo observed the drug and gun transactions made by
the UCO and could see Coffey and defendant from a distance but could not make
out any distinguishing characteristics.
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Detective Pacillo obtained the red Hyundai's license plate number from
another detective and ran the license plate. The car was registered as a rental
from Enterprise. Detectives contacted Enterprise and found that the renter was
Shermaine Green. Defendant, Alfred Hollaway was listed as an additional
driver on the rental car agreement. A criminal history search revealed a recent
arrest of Hollaway in Pennsylvania. Detectives obtained a booking photo from
the Pennsylvania agency at 9:00 p.m. on June 11, 2020.
Detective Pacillo testified he showed the photograph to the UCO within
three to five minutes after receiving it, without saying anything "specific other
than . . . is this him or whatever." The UCO said "yeah, that's the guy. . . that's
him" referring to the man he had just purchased the gun from approximately
three hours earlier. The UCO signed and dated the back of the photo to record
the positive identification.
The UCO testified that there was "no doubt in [his] mind" that the man in
the photo was the seller. Detective Pacillo testified that he is familiar with
photographic arrays, but he did not use that type of procedure because it "doesn't
. . . pertain to [a] law enforcement [identification]". The UCO prepared a report
dated July 2, 2020, concerning the operation and stated that his normal practice
was to write his reports within a day or two of the operation and upload it later.
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There was no official record made of the identification procedure other than the
UCO's report. The time between the UCO's interaction with defendant and
Detective Pacillo showing him the photograph was slightly more than three
hours.
The hearing record indicates the UCO's training included attending and
instructing several undercover trainings including the Attorney General Top
Gun case agent training, the Unit School and the FBI/State Police School. At
these trainings, he was taught how to focus on suspects during transactions
involving anywhere from one to ten people and to recount the event in a report
the day of an event or the following day to preserve his recollection of the
interaction. As part of his duties as an instructor at the Unit School and
FBI/State Police School, he taught undercover officers-in-training. He trained
them what to look for when meeting people during an undercover investigation,
how to pay attention, how to stay in the moment and how to be alert. In his
time as a UCO, he took part in wiretap investigations, met with targets to observe
transactions, bought drugs, guns, and fake licenses, and participated in
surveillance operations. He was the primary undercover officer in a recent case
where the Task Force dismantled a higher network drug organization.
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Additionally, the UCO observed and spoke to defendant for several
minutes during the interaction even before the gun was visible. Also, the UCO
knew that he would be responsible for identifying the suspect at a later point and
knew to make direct observations of him.
II.
In support of his motion, defendant asserted that the identification was
insufficiently recorded in the UCO's July 2, 2020 report. Defendant also
criticized the UCO's ability to recall the interaction because he originally
thought the red Hyundai was a Sonata rather than an Elantra and because he was
under additional stress as this was his first undercover firearm purchase and he
did not have sufficient time to observe the seller. Defendant also claimed that
some of Detective Pacillo's reported observations were given to him by other
detectives so they were not reliable. Defendant argued that the identification
was unreliable based on the totality of the circumstances and it should be
suppressed. Defendant further argues that the trial court failed to properly
consider the variables determining the reliability of an identification set forth in
Henderson.
The State argues that the motion was properly denied because defendant
did not show that the procedure created a sufficient likelihood of irreparable
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misidentification. In support of its argument the identification was reliable, the
State posited the UCO was not a civilian witness but was a trained undercover
officer and an instructor to other officers concerning appropriate procedures in
an undercover operation.
III.
In reviewing a grant or denial of a motion to suppress, we "must uphold
the factual findings underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record." State v. Lamb, 218
N.J. 300, 313 (2014). Factual findings are accorded deference because they "are
substantially influenced by [the trial court's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). Therefore, the trial court's findings on the admissibility
of identification evidence are "entitled to very considerable weight." State v.
Farrow, 61 N.J. 434, 451 (1972). A finding that the identification procedures
were reliable should not be disturbed unless they fail the sufficient credible
evidence standard of review. State v. Adams, 194 N.J. 186, 203 (2008).
The purpose of a Wade/Henderson hearing is for the trial court to
determine whether an identification procedure created a substantial likelihood
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of irreparable misidentification, such that the identification was unreliable and
should be suppressed at trial. Wade, 388 U.S. at 229-230. New Jersey adopted
this principle in Henderson, 208 N.J. at 289.
To obtain a pretrial Wade/Henderson hearing, "a defendant has the initial
burden of showing some evidence of suggestiveness that could lead to a
mistaken identification." Henderson, 208 N.J. at 288. The evidence must be
tied to some system variable – usually law enforcement conduct – and not an
estimator variable. Id. at 288-89. Next, the State must offer proof that the
eyewitness identification was reliable. Id. at 189. Finally, the ultimate burden
is "on the defendant to prove a very substantial likelihood of irreparable
misidentification." Ibid. The third part of the test is taken from New Jersey's
previous test articulated in State v. Madison, and the court considers the relevant
system and estimator variables when determining whether a defendant has met
their burden. 109 N.J. 223, 239 (1988); Henderson, 208 N.J. at 291.
System variables are variables within the control of the legal system, and
estimator variables are out of the legal system's control. Henderson, 208 N.J. at
247. In Henderson, the Court listed system variables for eyewitness
identifications as: blind administration, pre-identification instructions, lineup
construction, feedback, recording confidence, multiple viewings, show up
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timeline, private actors, and other identifications made. Id. 289-91.
Additionally, the Court listed estimator variables as: stress, weapon focus,
duration, distance and lighting, witness characteristics, perpetrator
characteristics, memory decay, race-bias, opportunity to view the criminal,
degree of attention, accuracy of prior descriptions, level of certainty
demonstrated at identification before feedback, and time between the crime and
confrontation. Id. at 291-93.
Although a show-up identification process typically is "inherently
suggestive," the display of a single suspect in a photographic identification is
not impermissibly suggestive when it occurs "on or near the scene . . . 'before
memory has faded.'" State v. Herrera, 187 N.J. 493, 504 (2006) (citing State v.
Wilkerson, 60 N.J. 452, 461 (1972)). On or near-the-scene identifications
"facilitate and enhance fast and effective police action[,]" because they are likely
to be accurate and to avoid inconvenience for witnesses. Ibid.The risk of misidentification is not heightened when the identification
occurs "within two hours of an event." State v. Pressley, 232 N.J. 587, 592
(2018). The court in Pressley declined to answer whether an identification made
by a law enforcement officer should be evaluated under the same standards as a
civilian eyewitness. Id. at 591. However, in State v. Little, a case with similar
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facts to Pressley, we observed that "[t]here can be no dispute that a trained
undercover police officer has heightened awareness of the need for proper
identification of persons who engage in drug purveyance." 296 N.J. Super. 573,
580 (App. Div. 1997).
IV.
Having carefully considered the entire record and applicable law, we
determine that the trial judge's findings were based on sufficient, credible
evidence in the hearing record and his denial of defendant's motion to suppress
the UCO's identification was appropriate.
In his written decision denying defendant’s motion to suppress, the judge
cited to the Manson/Madison 2 factors. Although our Court supplemented the
standards of Manson/ Madison in Henderson, we are convinced the evidence
and factual findings the trial judge relied upon adequately addressed the factors
as required by Henderson. 208 N.J. 208 (2011).
Initially, the court held an evidentiary hearing concerning the
identification, implicitly determining the "show-up" identification showed some
2
See Manson v. Braithwaite, 432 U.S. 98 (1977); State v. Madison, 109 N.J.
223 (1988).
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evidence of suggestiveness under the first prong of Henderson. At the hearing,
testimony was taken which was relevant to the system and estimator variables.
The trial judge found the identification was reliable based upon the
following findings. The judge found that the identification procedure in the
undercover operation "was not so inherently suggestive that it fail[ed] to pass
the preliminary inquiry of non-suggestiveness." The judge found that based on
the registration information for the red Hyundai defendant was observed driving,
detectives worked to "piece together his identity starting with the vehicle ['s]
rental information". This led them to conduct an NCIC search which produced
a booking photograph from an arrest of defendant in Pennsylvania. The trial
judge determined when the photo was shown to the UCO a "mere three hours
after the controlled purchase," the conditions under which the UCO observed
defendant make clear that presenting the UCO with the photograph to identify
defendant was a "reasonable substitution for an in person show-up, a line up, or
a photo array."
The judge found the UCO was operating as part of a Task Force along
with other surveillance personnel, whose duties included the identification of
the driver of the red Hyundai. The judge also determined the show-up
methodology employed by the Task Force officers "was not so suggestive as to
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fail the first inquiry of admissibility." The findings by the trial judge cited
Detective Pacillo's testimony as credible as he did not say anything to the UCO
other than "is this him?" The judge also found Detective Pacillo did not disclose
to the UCO that the photo depicted the additional driver listed on the Hyundai's
rental agreement.
The judge stated that the UCO was "an experienced officer, trained as an
illicit-drug-activity investigator with hundreds of controlled purchases
involving a number of different forms of contraband." In addition to his
training, the judge noted that the UCO had a strong incentive to be observant.
Also, the judge found the conditions were ideal for the UCO to observe
defendant, making findings that it was sunny and bright outside and the UCO
was already familiar with Coffey due to their previous interactions. The judge
added the transaction took several minutes to complete during which time the
UCO had an unhindered line of sight and multiple opportunities to view
defendant.
Recognizing the show-up identification procedure may create the
likelihood of misidentification, the trial judge determined that the UCO was also
working with the investigation team to identify the driver as compared to a
civilian witness. The judge determined the UCO knew who and what he was
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looking for while the search was pending because he had just directly observed
defendant approximately three hours prior to his identification.
After a thorough review of the record, we determine the judge's findings
which applied the system and estimator variables were based on sufficient
credible evidence in the record and support the judge’s denial of defendant’s
motion.
The UCO was an experienced undercover officer who had participated in
hundreds of undercover operations in his career. While this was his first gun
sale and his stress level may have been moderately heightened, this was not his
first undercover operation as he had participated in hundreds of undercover
operations. He attended several trainings to become an undercover officer and
was an instructor to other officers-in-training on how to focus on and identify
individuals involved in undercover operations. His training prepared him for
undercover situations involving identifying up to ten individuals. He knew
going into the operation that he would need to later identify the seller of the gun,
and even told his surveillance unit while he was completing the sale to
investigate the red Hyundai's tags to obtain an identification.
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We have determined that an undercover officer has heightened awareness
of the importance of a proper identification, as compared to a civilian
eyewitness. Little, 296 N.J. Super at 580.
In this instance, the gun purchase transaction took place over a sufficient
period of time where the UCO was able to clearly observe defendant. The UCO
had ideal viewing conditions during the firearm sale. Both Detective Pacillo
and the UCO testified it was still light out when the transaction occurred at
around 6:00 p.m. The interaction lasted several minutes, during many of which
defendant was standing close to the UCO and speaking to him. He had ample
opportunity to note defendant's face and appearance and commit it to memory.
Although a gun was present, there was no evidence in the record that the
gun was being used to threaten the UCO or anyone else. The gun was the
subject matter of the sale and was contained in a bag and unloaded at the time
of the exchange. The evidence presented at the hearing showed the UCO had
three distinct opportunities to view defendant without the distraction of the
firearm being visible. The first, when defendant pulled the red Hyundai into the
parking spot next to his car. The second, when all three men exited their vehicles
to begin the transaction and exchanged words. The third, after the gun was
secured in his vehicle and the men talked about future gun purchases.
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Additionally, the UCO had already met with Coffey earlier in the day,
therefore it was less likely he would have been distracted in trying to remember
features and descriptions of both men. His primary concerns during the
transaction were to purchase the gun and observe defendant for later
identification.
We note there was a negative factor concerning the reliability of the
UCO's identification which was the additional one-hour time difference
exceeding the two-hour window articulated as guidance in Henderson and
Pressley. Nonetheless, when considering the other evidence supporting the
reliability of the identification, we conclude the excess time was insignificant
when weighed against the other cumulative evidence supporting the overall
reliability of the identification. The UCO was still actively working to assist the
investigation unit in identifying defendant during the three-hour period. There
was no gap where he began working on another case or through his shift ending,
which could have caused a lapse of memory or his focus to move elsewhere.
The UCO testified "without a doubt" the photograph depicted the seller of
the firearm. He immediately signed and dated the photograph to record the
positive identification, indicating that he was certain this was the man from
which he purchased the gun.
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While the trial judge did not directly cite Henderson in his written
decision, the record shows his rulings clearly considered the factors required
under the case including the relevant system and estimator variables. When
applying the standards required by Henderson to the trial judge’s findings, we
conclude his determination the UCO's identification was reliable, is based on
sufficient, credible evidence in the hearing record.
In addition, after our in-depth review of the record including the trial
judge's factual findings addressed previously, we also determine based on those
same reasons, there was not sufficient, credible evidence proffered by defendant
that the identification procedure created a sufficient likelihood of irreparable
misidentification as required by Henderson.
To the extent we have not otherwise addressed defendant's arguments,
they are without sufficient merit to warrant discussion in a written opinion. Rule
R. 2:11-3(e)(2).
Affirmed.
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