State v. Santino J. Micelli (070453)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Santino J. Micelli, a/k/a Santino J. Miceli, a/k/a Santino Miceli (A-1-12) (070453)
Argued April 30, 2013 -- Decided August 19, 2013
PER CURIAM
In this appeal, the Appellate Division panel unanimously determined that the State’s evidence of out-of-
court photographic identifications of defendant by two police officer witnesses was the result of impermissibly
suggestive identification procedures under the first prong of the test articulated by the United States Supreme Court
in Manson v. Brathwaite, 432 U.S. 98 (1977), and adopted in State v. Madison, 109 N.J. 223 (1988). The issue is
whether the majority of the panel appropriately exercised original jurisdiction to decide that the identification was
nonetheless reliable under the second prong of the Manson/Madison test and thus admissible at trial.
Defendant Santino Micelli was charged with eluding a law enforcement officer. The State’s theory of the
case was that defendant failed to stop at a driving while intoxicated (DWI) checkpoint despite posted stop signs.
Prior to trial, defendant moved to suppress evidence of the out-of-court identifications by police officers, alleging
that the procedures used by the investigating detective were impermissibly suggestive and unreliable.
To determine if the out-of-court identifications were admissible, the trial court conducted a hearing under
United States v. Wade, 388 U.S. 218 (1967). Sergeant Kassai testified that while on duty at the DWI checkpoint, he
saw a blue Suzuki slowly moving toward the checkpoint, and it then began to accelerate, although there were two
stop signs posted. As the Suzuki sped past, Kassai saw the profile view of the driver’s face. Detective Kochis
testified that he also saw a profile of the face of the driver, a “skinny” white male with long brownish/blonde hair,
and wearing eyeglasses. Shortly after the Suzuki sped through the checkpoint, officers found it abandoned. It was
registered to defendant’s mother and contained letters with defendant’s name. At the police station, Kassai and
Kochis viewed a photograph of defendant on a computer screen. Lieutenant DePasquale presented defendant’s
photograph to Kochis and said it was “the person that was possibly driving the car.” DePasquale showed the same
photograph to Kassai, stating “this is the guy that [Kochis] was looking for, you know what I’m saying?” Both
Kochis and Kassai identified defendant as the person who had sped through the checkpoint. DePasquale testified
that he used a one-photo identification procedure because, at the time, that was the procedure generally used when
the identification was made close to the time of the incident. He also considered the training of the officers.
At the conclusion of the Wade hearing, the court found that the identification procedures were not
impermissibly suggestive, noting that police officers are trained to make observations that a layperson would not be
able to make. The court did not reach the second prong of the Manson/Madison test, which focuses on reliability and
calls for a balancing of the two prongs. The judge denied defendant’s motion to suppress, and the matter proceeded
to trial. The jury found defendant guilty of third-degree eluding.
Defendant appealed. A divided panel of the Appellate Division affirmed the conviction. The panel
unanimously determined that the identification procedure used was impermissibly suggestive. The majority
exercised original jurisdiction, made factual findings, and weighed the evidence in order to consider the second
Manson/Madison prong. Judge Fisher, dissenting, urged a remand to the trial court to conduct a new Wade hearing.
Defendant filed an appeal as of right based on that dissent. R. 2:2-1(a)(2).
HELD: The reliability of the identifications should have been assessed at a Wade hearing before the trial court.
1. The Manson/Madison test provides a two-step process for determining whether an out-of-court identification is
admissible at trial. First, the judge must determine if the out-of-court identification procedure was impermissibly
suggestive. If the judge finds that it was not, then the evidence may be admitted at trial. If there is a finding of
impermissible suggestiveness, then the court must determine whether the procedure resulted in a very substantial
likelihood of irreparable misidentification. This requires the judge to consider the totality of the circumstances and
weigh the suggestive nature of the procedure against the reliability of the identification. The evidence may be
admitted at trial if the judge finds that the identification procedure was nevertheless reliable despite the
impermissibly suggestive procedure used. To assess reliability, a court considers the opportunity of the witness to
view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the
confrontation. The factors are to be weighed against the corrupting effect of the suggestive identification. (pp. 8-9)
2. The Appellate Division’s exercise of original jurisdiction was incorrect. Rule 2:10-5 permits appellate courts to
exercise original jurisdiction, but only with great frugality and to end perpetual or lengthy litigation, but not to
weigh evidence anew or make independent factual findings. The Court has exercised original jurisdiction in
extraordinary circumstances to assess an issue under the proper legal standard, which did not require resolving
credibility issues or subjective evaluations that would otherwise dictate a remand to the trial court. Here, the
admissibility of identification evidence requires a careful balancing of the factors outlined in the Manson/Madison
test. That process depends largely on a trial judge’s assessment of the testimony presented at the hearing. (pp. 9-12)
3. The matter is remanded to the Law Division to conduct a new Wade hearing concerning the second prong of the
Manson/Madison test. The Appellate Division’s unanimous holding that the identification procedure was
impermissibly suggestive under the first prong remains the law of the case. (pp. 12-13)
The judgment of the Appellate Division is REVERSED IN PART, and the matter is REMANDED to the
Law Division for further proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in this opinion.
2
SUPREME COURT OF NEW JERSEY
A-1 September Term 2012
070453
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SANTINO J. MICELLI, a/k/a
SANTINO J. MICELI, a/k/a
SANTINO MICELI,
Defendant-Appellant.
Argued April 30, 2013 – Decided August 19, 2013
On appeal from the Superior Court, Appellate
Division.
Alison S. Perrone, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney).
David A. Malfitano, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Jeffrey S.
Chiesa, Attorney General, attorney; Hillary
K. Horton, Deputy Attorney General, of
counsel and on the brief).
PER CURIAM
This appeal is before us as of right based on a dissent in
the Appellate Division. R. 2:2-1(a)(2). We reverse the
judgment of the Appellate Division, which affirmed defendant’s
May 21, 2010 conviction for third-degree eluding a police
officer, N.J.S.A. 2C:29-2b. We do so because the reliability of
the State’s evidence of out-of-court photographic
identifications of defendant by two police officer witnesses
should have been assessed at a Wade1 hearing before the trial
court pursuant to the standard set by this Court in State v.
Madison, 109 N.J. 223, 232-33 (1988). The Madison standard
applies to this case because the out-of-court identifications
were completed prior to our August 24, 2011 decision in State v.
Henderson, 208 N.J. 208 (2011).
I.
Our discussion begins with a review of the salient proofs
and relevant procedural steps in this litigation. Defendant
Santino Micelli was charged with second-degree eluding a law
enforcement officer by failing to stop, N.J.S.A. 2C:29-2b. The
State’s theory of the case against defendant was that, at around
2:40 a.m. on Saturday, August 23, 2008, defendant drove his
mother’s Suzuki through a driving while intoxicated (DWI)
checkpoint, ignoring posted stop signs. Prior to trial,
defendant moved to suppress evidence of the out-of-court
identifications by police officers, alleging that the procedures
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2
utilized by the investigating detective were impermissibly
suggestive and unreliable.
A Wade hearing is required to determine if the
identification procedure was impermissibly suggestive and, if
so, whether the identification is reliable. The trial court
conducts a Wade hearing to determine the admissibility of the
out-of-court identifications. State v. Ortiz, 203 N.J. Super.
518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). At
the Wade hearing, the State presented the testimony of three
Elmwood Park police officers. Sergeant Michael Kassai testified
that, at that early morning hour, he was on duty at the DWI
checkpoint at the intersection of Route 46 and Boulevard in
Elmwood Park.
Around 2:40 a.m., Kassai saw a blue Suzuki moving at a slow
rate of speed in the direction of the checkpoint. As the Suzuki
approached the checkpoint, it began to accelerate. Although
there were two stop signs posted, the Suzuki proceeded through
the checkpoint, making an illegal right turn at a red light.
Kassai testified that, as the Suzuki accelerated past him, he
saw the side of the driver’s face. Other officers at the scene
pursued and attempted to stop the Suzuki, but they were
unsuccessful.
Kassai acknowledged that he only had a profile view of the
Suzuki’s driver as the vehicle sped past. He testified that,
3
although it was dark, the DWI checkpoint area was well-lit by
portable lights. Kassai admitted that he did not have his
flashlight to enhance his vision as the Suzuki passed him.
Detective Thomas Kochis testified that he also was assigned
to the DWI checkpoint that night. He too saw a profile of the
driver’s face as the Suzuki passed him. He described the driver
as a “skinny” white male in his late thirties/early forties,
with long brownish/blonde hair, and wearing eyeglasses.
Shortly after the Suzuki sped through the checkpoint,
police officers found it abandoned one half-mile down Route 46.
Kochis searched the Suzuki’s interior and found some bills and
letters containing defendant’s name. Kochis ran a check on the
license plate and determined that the Suzuki was registered to
Claire Lune Daniels, defendant’s mother.
Subsequently, Kassai and Kochis viewed a photograph of
defendant on a computer screen at the Elmwood Park police
station. Lieutenant Brian DePasquale presented defendant’s
photograph to Kochis and said, “I’ve got a picture of the person
that was possibly driving the car.” DePasquale showed the same
photograph to Kassai shortly thereafter, stating “this is the
guy that [Kochis] was looking for, you know what I’m saying?
This is the guy that that was involved with Detective [Kochis]
with the -- what the -- who he was looking for.” Both Kochis
4
and Kassai identified defendant as the person who had sped
through the checkpoint.
DePasquale testified that he used a one-photo
identification procedure because, at the time, that was the
procedure generally employed when the identification was made in
close proximity to the time of the incident. He also considered
the training of the officers and the circumstances in which they
viewed the driver.
II.
At the conclusion of the Wade hearing, the judge found that
the identification procedures were not impermissibly suggestive.
The judge questioned whether Wade principles apply in the
absence of a selection at a lineup or from a photographic array.
The judge also suggested that police officers are trained
observers and, thus, are able to make observations that a
layperson would not be able to make. The judge did not reach
the second prong of the Manson/Madison2 test, which focuses on
reliability and calls for a balancing of the two prongs. The
judge denied defendant’s motion, and the matter proceeded to
trial.
The jury found defendant guilty of the lesser-included
offense of third-degree eluding a police officer, N.J.S.A.
2
Manson v. Brathwaite, 432 U.S. 98, 114, 97, S. Ct. 2243, 2253,
53 L. Ed. 2d 140, 154 (1977); Madison, supra, 109 N.J. at 232-
33.
5
2C:29-2b. The judge imposed a five-year probationary term,
conditioned upon service of 364 days in the Bergen County jail.
Defendant appealed. A majority of the appellate panel
affirmed the conviction. Judge Clarkson S. Fisher, Jr.
dissented and, in a separate opinion, urged remanding to the
trial court to conduct the Wade hearing anew.
III.
Before this Court, defendant’s sole contention is that he
was denied due process of law by virtue of the admission of
impermissibly suggestive and unreliable identification evidence,
contrary to Wade. Defendant relies on the two-prong test
articulated by the United States Supreme Court in Manson v.
Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d
140, 154 (1977). In Manson, a Connecticut state trooper, acting
in an undercover capacity, conducted a drug transaction with
defendant Brathwaite. Id. at 100-01, 97 S. Ct. at 2246, 53 L.
Ed. 2d at 145-46. The trooper described Brathwaite to backup
officers just after the transaction. Id. at 101, 97 S. Ct. at
2246, 53 L. Ed. 2d at 145. Based on this description, one of
the backup officers who knew Brathwaite suspected that he was
the seller and left a photograph of Brathwaite in the trooper’s
office. Ibid. After viewing this single photograph alone in
his office, the trooper “identified the person shown as the one
6
from whom he had purchased the narcotics.” Id. at 101, 97 S.
Ct. at 2246, 53 L. Ed. 2d at 146.
The Manson test was adopted essentially verbatim by this
Court in State v. Madison, supra, 109 N.J. at 232-33. We
discuss the test in detail in Section IV of this opinion. The
Manson/Madison test was applied by this Court to showup
identifications in State v. Herrera, supra, 187 N.J. at 503-04.
The State argues that the identifications were
overwhelmingly reliable considering the totality of the
circumstances. In making this argument, the State points to
certain corroborating evidence to support the strength of the
identifications, such as the mail found in the Suzuki addressed
to defendant and the fact that defendant's mother told police he
was using the car on the night in question.
Amicus curiae Attorney General argues that a judge should
give special consideration to a police officer’s training and
experience in light of the factors enumerated pursuant to the
two-part test for identification reliability. The Attorney
General does not argue that there should be a law enforcement
exception to the reliability analysis but rather postulates that
a judge can properly find that trained police officers’
observations should be entitled to greater credibility than
observations made by lay persons.
IV.
7
Pursuant to the Manson/Madison test, the process of
determining whether an out-of-court identification is admissible
at trial consists of two steps. At a hearing out of the
presence of the jury, the judge first must determine whether or
not the out-of-court identification procedure was impermissibly
suggestive. Herrera, supra, 187 N.J. at 503. If the judge
finds that the identification was not impermissibly suggestive,
then the evidence may be admitted at trial. If there is a
finding of impermissible suggestiveness, the court must
determine “whether the objectionable procedure resulted in a
‘very substantial likelihood of irreparable misidentification.’”
Madison, supra, 109 N.J. at 232 (citations omitted). To make
that assessment, the judge must analyze the reliability of the
identification by considering the totality of the circumstances
and weighing the suggestive nature of the procedure against the
reliability of the identification. Id. at 233; Manson, supra,432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. The
evidence may be admitted at trial if the judge finds that the
identification procedure was nevertheless reliable despite the
impermissibly suggestive procedure used. Herrera, supra, 187
N.J. at 503-04.
If the judge then determines that the procedure was
reliable, taking into account the totality of the circumstances,
the out-of-court identification is admissible at trial. See
8
State v. Adams, 194 N.J. 186, 206 (2008). The two prongs of the
Manson/Madison test are interrelated, rather than mutually
exclusive, and must be weighed against each another. See
Herrera, supra, 187 N.J. at 509.
“Reliability is the linchpin in determining the
admissibility of identification testimony.” Manson, supra, 432
U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. To assess
the reliability of an identification, this Court has adopted
certain factors to be considered. These factors are:
[T]he opportunity of the witness to view the
criminal at the time of the crime, the
witness’ degree of attention, the accuracy
of his prior description of the criminal,
the level of certainty demonstrated at the
confrontation, and the time between the
crime and the confrontation.
[Herrera, supra, 187 N.J. at 503 (quoting
Manson, supra, 432 U.S. at 114, 97 S. Ct. at
2253, 53 L. Ed. 2d at 154).]
The factors are to be weighed against “the corrupting effect of
the suggestive identification.” Manson, supra, 432 U.S. at 114,
97 S. Ct. at 2253, 53 L. Ed. 2d at 154.
V.
Here, because defendant appeals as of right pursuant to
Rule 2:2-1(a)(2), our review is limited to the issue raised in
the dissent. See R. 2:2-1(a)(2) (“Appeals may be taken to the
Supreme Court from final judgments as of right . . . in cases
where, and with regard to those issues as to which, there is
9
dissent in the Appellate Division.” (emphasis added)); see also
State v. Yough, 208 N.J. 385, 395 (2011) (“The State appealed as
of right based on the dissent in the Appellate Division. R.
2:2-1(a)(2). The issues before us are limited to those raised
in the dissenting opinion.”); State v. Breakiron, 108 N.J. 591,
595 (1987) (holding as a result of not seeking certification on
other issues, petitioner’s appeal was limited to the question
raised in the dissent).
The opinions of the Appellate Division majority and Judge
Fisher agreed that the identification procedure employed was
impermissibly suggestive. However, the majority exercised
original jurisdiction, made factual findings, and weighed the
evidence relying on the transcripts in order to consider the
second Manson/Madison prong, which the trial judge had not
addressed. The dissenter concluded that such factfinding and
weighing of the evidence was inappropriate. He explained,
Unlike my colleagues, who appear to have
exercised original jurisdiction on the Wade
issues,[] I am unwilling to express a view
of the weight of the evidence since I was
not present when the witnesses testified.
Rather than hazard a view of the evidence
from a cold record, I would remand for a re-
examination of the second prong, including
-- for the first time –- the trial court’s
weighing of the corrupting effect of the
police procedure in light of our unanimous
conclusion that the procedure was
impermissibly suggestive.
10
The core issue before us is whether the Appellate Division
majority was correct in exercising original jurisdiction. We
conclude that it was not for several reasons. First, the
majority made factual findings based on a hearing transcript and
then weighed the evidence on its own. That approach is not in
keeping with Rule 2:10-5, which permits appellate courts to
exercise original jurisdiction “but only with great frugality,”
Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003)
(citation and internal quotation marks omitted), “to end
perpetual or lengthy litigation,” Allstate Ins. Co. v. Fisher,
408 N.J. Super. 289, 301 (App. Div. 2009) (citations omitted),
but not to “weigh[] evidence anew” or “mak[e] independent
factual findings,” Cannuscio v. Claridge Hotel & Casino, 319
N.J. Super. 342, 347 (App. Div. 1999) (citation omitted).
Second, Rule 2:10-5 states that “[t]he appellate court may
exercise such original jurisdiction as is necessary to the
complete determination of any matter on review.” In State v.
Santos, 210 N.J. 129, 142 (2012), we noted that Rule 2:10-5
“allow[s] [an] appellate court to exercise original jurisdiction
to eliminate unnecessary further litigation, but discourage[es]
its use if factfinding is involved.”
Third, in State v. Sugar, 108 N.J. 151 (1987), this Court
exercised original jurisdiction to assess the issue of
inevitable discovery under the proper legal standard. The Court
11
first noted that the ordinary course of action would be “to
remand th[e] case to the trial court for it to redetermine the
matter under the correct, clarified standard.” Id. at 159.
Nevertheless, the Court exercised original jurisdiction because
“evidence presented d[id] not pose issues of credibility or
require the subjective and intuitive evaluations of a trial
court that would otherwise dictate a remand. . . . In th[o]se
extraordinary circumstances, [the Court] believe[d] it
appropriate to invoke [its] original jurisdiction.” Id. at 159-
60.
Fourth, the importance of the issues to be determined at a
Wade hearing mandate setting aside the Appellate Division
judgment here and remanding for a new hearing. The
admissibility of identification evidence requires a careful
balancing of the factors outlined in the Manson/Madison test.
That process depends, in part, on a trial judge’s assessment of
the testimony presented at the hearing. Thus, in both
Henderson, supra, 208 N.J. 208, and State v. Chen, 208 N.J. 307(2011), even though the evidence as to all of the factors was in
the record before this Court, we remanded to the trial court to
determine admissibility. There are no compelling reasons here
to proceed differently.
Thus, we conclude that the Appellate Division’s exercise of
original jurisdiction in order to engage in factfinding and
12
consideration of the second Manson/Madison prong was incorrect.
Thus, we remand to the Law Division to conduct a new evidentiary
hearing at which the Appellate Division’s unanimous holding that
the identification procedure was impermissibly suggestive shall
be deemed the law of the case. We do not disturb that
conclusion in light of the limited nature of the appeal of right
before the Court.
VI.
Accordingly, the judgment of the Appellate Division is
reversed in part and the matter is remanded to the Law Division
for a new Wade hearing concerning the second prong of the
Manson/Madison test, i.e., the reliability of the suggestive
identification proceeding, and the appropriate balancing of both
prongs. Out of an abundance of caution and because the trial
judge here has already made a decision on the admissibility of
the out-of-court identifications, we direct that this matter be
assigned to a different judge.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and
PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in this opinion.
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SUPREME COURT OF NEW JERSEY
NO. A-1 SEPTEMBER TERM 2012
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SANTINO J. MICELLI, a/k/a
SANTINO J. MICELI, a/k/a
SANTINO MICELI,
Defendant-Appellant.
DECIDED August 19, 2013
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST REVERSE IN PART
AND REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7