STATE OF NEW JERSEY VS. MAMADEE KAMARA (13-10-2016, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2854-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAMADEE KAMARA,
Defendant-Appellant.
Argued telephonically February 15, 2019 –
Decided May 15, 2019
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 13-10-2016.
Susan L. Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan L. Romeo, of counsel
and on the brief).
Jaimee M. Chasmer, Assistant Prosecutor, argued the
cause for respondent (Esther Suarez, Hudson County
Prosecutor, attorney; Erin M. Campbell, on the brief).
PER CURIAM
Defendant Mamadee Kamara was indicted for three crimes related to the
armed robbery of L.B.1 A jury convicted defendant of first-degree robbery,
N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b)(1). Defendant was sentenced to an aggregate
term of twelve years in prison, with periods of parole ineligibility and parole
supervision as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2.
Defendant appeals his convictions and sentence. He argues (1) it was
improper to admit portions of his recorded police interview where the officers
questioned him about his financial circumstances and allegedly mocked his
religious beliefs; and (2) the court abused its discretion in denying his request
for a Wade2 hearing concerning his identification. He also contends that his
sentence should be reversed because the court failed to properly weigh
aggravating factor nine, the need for deterrence. Having reviewed defendant's
arguments in light of the applicable law, we affirm in part and remand with
direction that the trial court conduct a full Wade hearing.
1
We use initials to protect the privacy interests of the victim and witnesses.
2
United States v. Wade, 388 U.S. 218 (1967).
A-2854-16T3
2
I.
The evidence at trial established that at approximately 11 a.m. on March
20, 2013, L.B. was robbed at the corner of University Avenue and Market Street
in Newark. L.B. testified that as she was walking on Branford Place, she noticed
a young African-American male walking closely behind her. At the next
intersection, L.B. turned left on to University Avenue and the man continued
walking straight on Branford Place. L.B. walked north on University Avenue
until the road intersected with Market Street where she turned right. As she was
turning, L.B. heard footsteps and then saw the man from Branford Place standing
in front of her and pointing a gun at her chest. The man told L.B.: "[D]on't
move or I will kill you, give me your pocketbook."
L.B. let go of her pocketbook, the man grabbed her pocketbook and as he
ran away, L.B. screamed for help. At approximately that time, B.P., who was
then working for the Newark Downtown District and was in the area, looked up
and saw a man point a gun at L.B., take her pocketbook, and run away. B.P.
came over to L.B., who told him that she had just been robbed. B.P. then chased
the robber.
B.P. testified that he followed the robber, but stayed approximately forty
to fifty feet behind him because he knew he was armed. When the robber
A-2854-16T3
3
reached Martin Luther King Jr. Boulevard, he stopped and began pacing up and
down the sidewalk. B.P. saw a car pull up and the robber entered the rear
passenger side of the vehicle, which then left. B.P. walked into the road to see
the vehicle's license plate as it drove away, and he was able to make out the
license plate number. Thereafter, B.P. gave that license plate number to the
police.
Meanwhile, L.B. had tried to follow B.P. and the robber, but lost sight of
them. L.B. worked as a secretary in the prosecutor's office, and a work colleague
was driving on University Avenue when she observed L.B. and pulled over to
check on her. L.B. told the colleague she had been robbed and the colleague
called 911.
The police responded, and L.B. and B.P. thereafter gave statements to the
police. Both described the robber. L.B. described the robber as approximately
five-feet-eleven-inches tall, a young African-American man with a thin build.
She also told the police that the robber had "distinct eyes" that "were kind of
slanted" and "like oriental."
Thereafter, a detective from the Newark Police Department began
investigating the robbery. By tracing the license plate number given by B.P.,
the detective learned that the motor vehicle was registered to the girlfriend of
A-2854-16T3
4
defendant and defendant had received motor vehicle summonses while driving
that vehicle. Consequently, the detective determined that defendant was a
person of interest and he compiled photo arrays. The detective and other officers
from the Newark Police Department then contacted both L.B. and B.P. to see if
they could identify defendant from a photo array.
Approximately three weeks after the robbery, on April 10, 2013, three
detectives went to L.B.'s home to conduct a photo array. The array was
administered by a detective who was not involved in the investigation. L.B.
selected the photograph of defendant as the robber. That identification
procedure was audio recorded and detailed in a subsequent police report dated
April 22, 2013, which was authored by the lead investigating detective. At trial,
L.B. explained that she was confident in her photograph selection. L.B. also
identified defendant at trial.
The next day, on April 11, 2013, the detectives created a second photo
array and showed that array to B.P. Again, the detective who presented the array
was not involved in the investigation. B.P. selected the photograph of
defendant. As with the identification by L.B., B.P.'s out-of-court identification
procedure was audio recorded, and later detailed in the lead detective's April 22,
2013 police report.
A-2854-16T3
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Defendant was arrested on April 12, 2013. Following his arrest, he was
given his Miranda3 rights, which he waived. Defendant then participated in a
recorded interview with detectives. During that interview, defendant told the
detectives he was in Newark on the date and time of the robbery. He stated that
while he was driving to work, at approximately 11 a.m., he observed a man with
a gun running on Branford Place and that man was being chased by a second
man in a yellow jacket. Defendant was not able to recall what the man with the
gun looked like, other than that he was a "black kid" wearing a hoodie.
Defendant denied knowing the person he saw running and denied that person
got into the car with him. Defendant also denied having anything to do with the
robbery.
While being questioned by the police, defendant acknowledged that he
never notified the police of what he saw. In explaining why he had not called
the police, defendant stated that based on his religion he did not get involved in
things that did not concern him. The police then asked defendant what religion
he practiced, and defendant responded that he was Muslim.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2854-16T3
6
The detectives also questioned defendant about his financial and familial
circumstances. During that questioning, defendant stated that he had a bank
account and he sent money to his family in Africa.
In October 2013, a grand jury indicted defendant for three crimes related
to the armed robbery. On February 20, 2015, in preparation for trial, defense
counsel requested a Wade hearing, contending that the out-of-court photo array
identifications by L.B. and B.P. should be excluded from the trial due to law
enforcement officers' suggestiveness. At the time the request was made,
defendant was not present in court.
The trial court did not hold a hearing on that request. Instead, the court
heard oral arguments by counsel and reviewed the audio recordings of the photo
arrays. On March 13, 2015, the court issued a written decision denying the
request for a Wade hearing. Based on its review of the recorded photo arrays,
the court concluded that defendant had made no showing of suggestiveness. The
court's initial decision referenced only the identification made by B.P.
Thereafter, the court supplemented its decision on April 16, 2015, and denied
the request for a Wade hearing concerning the identifications made by both L.B.
and B.P.
A-2854-16T3
7
Pretrial, the State also moved to admit a redacted audio recording of
defendant's statement. The court conducted a hearing. During that hearing,
defense counsel objected to the admission of defendant's statement describing
the method he used to send money to his family in Africa and his agreement to
testify in court. After hearing oral argument and testimony from the lead
detective, the court granted the State's motion to admit defendant's statement
with the redactions requested by defense counsel.
In September 2016, a four-day jury trial was conducted. At trial, there
was testimony that the lead detective on the investigation spoke with L.B. and
B.P. alone before they were shown their photo arrays. In that regard, the
detective who conducted the photo array for L.B. testified that when the
detectives went to the home of L.B. to show the photo array, the lead detective
initially went into L.B.'s apartment by himself. The lead detective also testified
at trial that when B.P. was shown a photo array, he initially walked B.P. into the
interview room, opened the statement concerning the photo array, and went over
that statement with B.P. Thereafter, the detective who was not involved with
the investigation conducted the photo array. Defense counsel did not renew his
request for a Wade hearing based on the testimony that was given at trial.
A-2854-16T3
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After hearing the evidence at trial, a jury convicted defendant of first-
degree armed robbery, second-degree possession of a weapon for an unlawful
purpose, and second-degree unlawful possession of a handgun.
Defendant was then sentenced on November 18, 2016. On the conviction
of first-degree armed robbery, defendant was sentenced to twelve years in prison
subject to NERA. The conviction for second-degree possession of a weapon for
an unlawful purpose was merged with the armed robbery conviction. Defendant
was also sentenced to a concurrent term of five years for the conviction of
second-degree unlawful possession of a handgun. Ten days later, on November
28, 2016, the court held a supplemental sentencing proceeding to advise
defendant that as part of his sentence for armed robbery, he was subject to a
five-year period of parole supervision following his release from prison as
required by NERA.
II.
On appeal, defendant makes three arguments, which he articulates as
follows:
POINT I – IT WAS PLAIN ERROR FOR THE COURT
NOT TO SANITIZE THE EXTENSIVE PORTIONS
OF DEFENDANT'S TAPED STATEMENT WHERE
THE POLICE: 1) QUESTIONED DEFENDANT'S
FINANCES AND LIFESTYLE, SUGGESTING THAT
HE COMMITTED THE ROBBERY BECAUSE,
A-2854-16T3
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ALTHOUGH HE HAD A FULL-TIME JOB, HE WAS
TOO POOR TO AFFORD THE CAR, APARTMENT,
FURNITURE, CLOTHES AND FINANCIAL
ASSISTANCE THAT HE PROVIDED TO HIS
FAMILY IN AFRICA, AND 2) MOCKED
DEFENDANT'S RELIANCE ON HIS MUSLIM
RELIGIOUS BELIEFS.
POINT II – THE TRIAL COURT ABUSED ITS
DISCRETION AND VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHTS WHEN IT DENIED
HIS REQUEST FOR A HEARING PURSUANT TO
UNITED STATES V. WADE, 388 U.S. 218 (1967),
WITHOUT PROVIDING DEFENDANT WITH: 1)
THE OPPORTUNITY TO SUBMIT EVIDENCE
THAT SHOWED A COURSE OF IMPROPER
CONDUCT BY THE POLICE BEFORE
PRESENTATION OF THE PHOTO ARRAYS, AND
2) THE OPPORTUNITY TO BE PRESENT AT THE
PRETRIAL PROCEEDINGS ON THAT ISSUE.
POINT III – DEFENDANT'S SENTENCE MUST BE
REVERSED BECAUSE, IN THE ABSENCE OF ANY
FINDINGS ON A NEED FOR SPECIFIC
DETERRENCE, THERE WAS NO SUPPORT FOR
THE TRIAL COURT'S FINDING THAT THE
SINGLE AGGRAVATING FACTOR OF THE NEED
FOR GENERAL DETERRENCE SUBSTANTIALLY
OUTWEIGHED THE MITIGATING FACTOR THAT
DEFENDANT HAD NO PRIOR CRIMINAL
RECORD.
Having reviewed these arguments in light of the record and law, we affirm
the ruling on defendant's statement and his sentence, but remand for a full
A-2854-16T3
10
hearing on the out-of-court identifications. We will address the arguments in
the order they were raised by defendant.
A. Defendant's Statement to Law Enforcement Officers
Defendant first argues that his conviction should be reversed because the
court erred in admitting certain parts of his recorded statement to law
enforcement officers. Specifically, defendant contends that the jury heard the
officers insinuate that defendant robbed the victim because he did not have
enough money to finance the lifestyle he maintained for his family and heard
the officers mock defendant's religious beliefs.
Defendant did not object to the admission of the portions of the recorded
statement he gave to law enforcement officers that he now challenges. Indeed,
defendant twice failed to object to these portions of his statement. Accordingly,
we review the admission of those statements for plain error. R. 2:10-2. Under
that standard, reversal is only appropriate if the error was "clearly capable of
producing an unjust result." State v. McKinney, 223 N.J. 475, 494 (2015)
(quoting R. 2:10-2).
It is improper for the State to use poverty or lack of financial means as
evidence of a defendant's motive to commit a crime. State v. Mathis, 47 N.J.
455, 472 (1966) ("[T]here must be something more than poverty to tie a
A-2854-16T3
11
defendant into a criminal milieu."); State v. Terrell, 359 N.J. Super. 241, 247
(App. Div. 2003); State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978).
Accordingly, "[t]he introduction of evidence regarding whether or not a
defendant has a regular source of income is, when a collateral issue, prohibited
in any form." Terrell, 359 N.J. Super. at 247. Courts have ordered new trials or
reversed convictions based on admission of such evidence when elicited from a
defendant or other witnesses and when referenced by the State in opening or
closing arguments. See Mathis, 47 N.J. at 469-72; Terrell, 359 N.J. Super. at
247-48; State v. Sherman, 230 N.J. Super. 10, 19 (App. Div. 1988) (ordering a
new trial after the assistant prosecutor "used his summation . . . to suggest that
defendant committed the crimes with which he was charged because he was
without funds").
Here, defendant has not shown, and there is nothing in the record
indicating, that the admission of his statement to law enforcement officers was
clearly capable of producing an unjust result. The State did not question any of
the trial witnesses about defendant's financial circumstances, nor did the State
suggest in its opening or closing arguments that defendant had committed the
crime due to his financial circumstances. The questions posed to defendant and
his responses, which the jury heard when defendant's recorded statement was
A-2854-16T3
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played, did not directly suggest that defendant committed the robbery because
of his financial circumstances. Instead, those questions were more in the nature
of general background questions. Thus, the situation here is distinguishable
from the facts in Mathis, Terrell, and Sherman.
Moreover, there was strong evidence linking defendant to this crime. The
victim and a witness identified defendant as the robber. The police also located
defendant based on a license plate number which, after investigation, proved to
be the license to the car of his girlfriend and there was a record that defendant
had driven that car.
Defendant also argues that his conviction should be reversed because he
was prejudiced when the detectives mocked his religious beliefs. The record
does not support that contention. While questioning defendant, the detectives
did ask him about his religion when defendant asserted that he had not called
the police after seeing a man running on the sidewalk with a gun because of his
religious beliefs. A review of the record shows that this exchange was relatively
brief in duration and did not contain any mocking of defendant's religion.
Instead, defendant was asked whether there was anything in his religion,
including within the Koran, which would prohibit him from reporting a crime to
A-2854-16T3
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the police. Heard in context, the questioning cannot be reasonably construed as
mocking defendant's religious beliefs.
B. The Request for a Wade Hearing
Next, defendant argues that the trial court abused its discretion in denying
his request for a Wade hearing. In connection with that argument, defendant
also contends that the court converted a status conference, at which defendant
did not appear, into an argument on whether defendant was entitled to a Wade
hearing.
We review a denial of a request for a Wade hearing under an abuse of
discretion standard. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985).
See also State v. Henderson, 208 N.J. 208, 290-91 (2011). Generally, we will
not disturb a trial court's finding that the photographic identification procedures
were reliable if there is sufficient credible evidence in the record to support that
finding. State v. Adams, 194 N.J. 186, 203 (2008). Moreover, even if a
reviewing court finds that the trial court should have conducted a Wade hearing,
but also finds that the identification procedures did not result in "a very
substantial likelihood of irreparable misidentification," the ruling can still be
affirmed. State v. Anthony, ___ N.J. ___,___ (2019) (slip op. at 35) (quoting
A-2854-16T3
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Henderson, 208 N.J. at 289); State v. Cherry, 289 N.J. Super. 503, 517 (App.
Div. 1995).
Identifications of a defendant are often critical evidence. See Anthony,
___ N.J. at ___ (slip op. at 2). Accordingly, pretrial identification procedures
must comply with due process. If a process is overly suggestive, the
identification may be excluded to protect defendant's constitutional rights.
Foster v. California, 394 U.S. 440, 443 (1969); Henderson, 208 N.J. at 285-87
(first citing Manson v. Brathwaite, 432 U.S. 98, 112-16 (1977); then citing State
v. Madison, 109 N.J. 223, 239 (1988)). To safeguard a defendant's
constitutional rights, law enforcement officials must document their
identification procedures. See R. 3:11; Anthony, ___ N.J. at ___ (slip op. at 2,
17-21); Henderson, 208 N.J. at 278, 298; State v. Delgado, 188 N.J. 48, 63
(2006).
Rule 3:11 enumerates the documentation requirements for pretrial
identification procedures. Specifically, Rule 3:11(a) provides that "[a]n out-of-
court identification resulting from a photo array, live lineup, or showup
identification procedure conducted by a law enforcement officer shall not be
admissible unless a record of the identification procedure is made." The rule
then details how law enforcement should record identification procedures and
A-2854-16T3
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what type of information should be included in that recording. See R. 3:11(b)
to (c); Anthony, ___ N.J. at ___ (slip op. at 20-21) (quoting R. 3:11). Relevant
to this appeal, the record should include, "the identity of any individuals with
whom the witness has spoken about the identification, at any time before,
during, or after the official identification procedure, and a detailed summary of
what was said." R. 3:11(c)(8).
Where a record "is lacking in important details" and law enforcement
could have obtained and preserved those details, Rule 3:11 authorizes the trial
courts in their "sound discretion and consistent with appropriate case law" to (1)
"declare the identification inadmissible," (2) "redact portions of the
identification testimony," and (3) "fashion an appropriate jury charge to be used
in evaluating the reliability of the identification." R. 3:11(d); accord Anthony,
___ N.J. at ___ (slip op. at 21) (quoting R. 3:11(d)).
A defendant may request a pretrial hearing to evaluate the reliability and
admissibility of a pretrial identification. Such a hearing is commonly known as
a Wade hearing. There is no absolute right to a Wade hearing and such a hearing
is not granted in every case involving an out-of-court identification. Henderson,
208 N.J. 288-89; State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). To
obtain a Wade hearing, a defendant is usually required to show "some evidence
A-2854-16T3
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of suggestiveness that could lead to a mistaken identification." Henderson, 208
N.J. at 288. "That evidence, in general, must be tied to a system—and not an
estimator—variable." Id. at 288-89. System variables are factors within the
control of the criminal justice system. Id. at 247. Estimator variables, in
contrast, "are factors related to the witness, the perpetrator, or the event itself
—like distance, lighting, or stress—over which the legal system has no control."
Ibid. If a court finds that the procedure was impermissibly suggestive, then the
State must "offer proof to show that the proffered eyewitness identification is
reliable[.]" Id. at 289. "[T]he ultimate burden remains on the defendant to prove
a very substantial likelihood of irreparable misidentification." Ibid.
Our Supreme Court recently recognized an exception to the requirement
that a defendant must show some evidence of impermissible suggestiveness that
could lead to a mistaken identification. In that regard, in Anthony, the Court
held that a defendant is "entitled to a pretrial hearing on the admissibility of
identification evidence if Delgado and Rule 3:11 are not followed and no
electronic or contemporaneous, verbatim written recording of the identification
procedure is prepared." Anthony, ___ N.J. at ___ (slip op. at 26-27). Indeed,
"[i]n such cases, defendants will not need to offer proof of suggestive behavior
tied to a system variable to get a pretrial hearing." Id. at ___ (slip op. at 27). In
A-2854-16T3
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reaching its holding, the Court explained that "defendants need a full record of
the identification procedure to gather possible evidence of suggestiveness." Id.
at ___ (slip op. at 26). The Court went on to stress that "[t]he failure to provide
that information should not deprive defendants of the opportunity to probe about
suggestive behavior that may have tainted an identification." Id. at ___ (slip op.
at 26).4
Here, the identifications of defendant as the armed robber by L.B. and
B.P. were crucial evidence leading to defendant's conviction. Based on the
evidence adduced at trial, it appears that the recordings did not fully capture the
conversations between the witnesses and the lead investigating detective.
Accordingly, we remand for a Wade hearing to explore those unrecorded
conversations.
When defendant requested a pretrial hearing concerning the identification
made by B.P., he argued that B.P.'s statements to the police included certain
discrepancies. In that regard, defendant argued that there was a discrepancy in
B.P.'s description of the car that defendant entered, the license plate that B.P.
4
The decision in Anthony was issued after this appeal was argued. Counsel for
defendant submitted a letter in accordance with Rule 2:6-11(d) contending that
the reasoning in Anthony was applicable to defendant's appeal. The State did
not respond to that letter.
A-2854-16T3
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collected, and the distance at which B.P. made his identification. Defendant
also challenged B.P.'s ability to see what he claimed to see concerning the car.
With regard to the identification made by L.B., defendant argued that one of the
investigating detectives told L.B. that she would be examining photographs of
individuals that may contain a suspect.
As previously noted, the trial court did not hold a hearing. Instead, the
court listened to the audio recordings of the out-of-court identifications made by
both B.P. and L.B. The trial court found that the procedures used were
consistent with the procedures required by Henderson. The court also noted that
defendant's arguments regarding the identification made by B.P. only went to
estimator variables and, thus, did not show any suggestive conduct by the police.
With regard to the identification made by L.B., the trial court found that
the blind administrator's instructions were consistent with the instructions called
for by Henderson. The court then went on to hold that the remarks by the
investigating detective, which preceded the appropriate instructions, did not
establish suggestiveness.
On appeal, defendant does not challenge the court's findings regarding the
initial request for a Wade hearing. Rather, defendant presents a new ground to
support his request. That is, he relies on testimony from trial to argue that the
A-2854-16T3
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lead investigating detective met with B.P. and L.B. prior to their photo arrays.
Defendant concedes, however, that he did not renew his request for a Wade
hearing at trial when that testimony was first heard.
Regarding L.B.'s pretrial identification, defendant relies on trial testimony
of the detective who administered the photo array. That detective testified that
before she conducted the photo array, the lead detective spoke with L.B.
privately for a few minutes. In that regard, the detective testified as follo ws:
[Assistant Prosecutor:] What happened when you
arrived at the home?
[Detective:] I remained outside with [a
third detective]. [The lead
detective] went in, and he then
came back out a few minutes
later.
[Assistant Prosecutor:] What happened next?
[Detective:] I went - - I went into the
apartment, and showed the
victim six photographs.
[Assistant Prosecutor:] At what point did [the lead
detective] give you the
photographs?
[Detective:] In the - - in the hallway.
On cross-examination, the detective explained further:
A-2854-16T3
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[Defense Counsel:] And you get out of the car, and
you make your way into
[L.B's] house, and only [the
lead detective] goes in to
speak to her initially; correct?
[Detective:] Correct.
....
[Defense Counsel:] How long was he in there with
her before you went - - end up
going in showing the photo
array?
[Detective:] I didn't time it, but a few
minutes.
The recording of the photo array procedure with L.B. begins with the lead
detective speaking with L.B. alone for approximately one minute and eighteen
seconds before leaving the room, at which time the blind administrator detective
enters. During that initial discussion with L.B., the lead detective confirmed
L.B.'s identity, the location of the identification procedure, and explained that
he was there with other law enforcement officials for the purpose of conducting
a photo array. L.B. agreed to participate in the identification procedure, and at
that time, the lead detective left the room. Based on the blind administrator
detective's testimony that the lead detective spoke with L.B. for "a few minutes"
before she conducted the photo array, it is unclear whether the recording
A-2854-16T3
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captured the entirety of L.B.'s conversation with the lead detective, as the
recording includes a conversation that is less than two minutes in duration.
As to B.P.'s pretrial identification, defendant relies on the lead detective's
testimony, when he stated:
[Lead Detective:] We met with [B.P.]
[Assistant Prosecutor:] Where?
[Lead Detective:] On the street. I contacted
him. . . . We found him. We
told him that we made some
developments. We told him
we needed him to come back
to the office with us. He
alerted his supervisor, advised
him. He was okay, and
authorized him to come with
us, and then we brought him
back to the office.
[Assistant Prosecutor:] So, the photo array was done at
your office?
[Lead Detective:] Yes.
....
[Assistant Prosecutor:] And at what point did you
hand off the photo array?
[Lead Detective:] Again, I walked [B.P.] into the
interview room, I opened the
statement, went over the same
things I did with [L.B.]. I
A-2854-16T3
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excused myself out of the
room. Went up to [the blind
administrator], handed her the
array package, and said, you're
ready, can you go show this.
The recording of the photo array procedure with B.P. begins with the lead
detective speaking with B.P. in the presence of another detective for
approximately two minutes before both detectives leave the room, at which time
the blind administrator enters. During the initial recorded discussion with B.P.,
the lead detective confirms B.P.'s identity and contact information, the location
of the identification procedure, and then explains the photo array procedure,
which B.P. agrees to participate in. At that time, the two detectives leave the
interview room. There is no recording or contemporaneous written account as
to any conversation between B.P. and the investigating detectives during the
drive to the police station or the walk to the interview room.
Accordingly, the trial testimony suggests there were unrecorded
conversations between the witnesses and the lead investigating detective
immediately before the pretrial identification procedures. We, therefore, hold
defendant is entitled to a full Wade hearing. See Anthony, ___ N.J. at ___ (slip
op. at 26-27). Under Rule 3:11(c), law enforcement was required to provide a
detailed summary of any conversations between a witness and other individuals
A-2854-16T3
23
with whom the witness discussed the identification before the official
identification procedure occurred. See R. 3:11(c)(8). The record provided to us
contains no such detailed summary.
We note that Anthony did not directly address the instant situation where
evidence of unrecorded conversations involving the pretrial identification
procedures first came to light at trial and defense counsel did not renew a request
for a Wade hearing. Nonetheless, the witness identifications were crucial at
defendant's trial, and thus, defendant should have an opportunity to explore the
reliability of those identifications due to the witnesses' conversations with the
lead investigating detective prior to identifying defendant in the photo arrays.
Consequently, we remand for such a hearing consistent with the requirements
set forth in Wade, Henderson, Delgado, and Anthony.
We express no view as to the outcome of the Wade hearing on remand.
If, however, "damaging evidence about feedback, witness confidence, or some
other factor that affects memory is developed at the hearing, [defendant] may
have a strong case and [may] be entitled to a new trial." Anthony, ___ N.J. at
___ (slip op. at 33-34). In such a circumstance, the trial court will need to make
a decision on whether defendant is entitled to a new trial. Alternatively, if the
evidence presented at the hearing does not show that any violations of Rule
A-2854-16T3
24
3:11(d) were "clearly capable of producing an unjust result," and that the out-
of-court identifications were reliable, then defendant's convictions can stand.
See id. at ___ (slip op. at 34) (quoting R. 2:10-2). That determination will also
need to be made in the first instance by the trial court after the full Wade hearing.
In light of the remand for a full Wade hearing, we need not reach
defendant's argument that he should have been present when the court initially
addressed the request for a Wade hearing. Defendant will have the right to be
present at the hearing we are directing on remand. In that regard, we point out
that criminal defendants generally have the "right to be present in the courtroom
during every 'critical stage' of the trial." State v. Reevey, 417 N.J. Super. 134,
149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363 (App.
Div. 1991)). See also R. 3:16(b) (providing that a "defendant shall be present
at every stage of the trial").
C. The Sentence
Finally, defendant argues that his sentence should be vacated because the
sentencing court erroneously weighed the applicable aggravating and mitigating
factors. We disagree.
We review sentencing determinations under a deferential standard. State
v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606
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(2013)). We do not substitute our judgment for the judgment of the sentencing
court. Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180
(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we
will affirm a sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Miller, ___ N.J. ___, ___ (2019) (slip op. at
15-16) (alteration in original) (quoting State v. Fuentes,
217 N.J. 57, 70 (2014)).]
At sentencing here, the court found aggravating factor nine, the need for
deterrence. N.J.S.A. 2C:44-1(a)(9). The court also found one mitigating factor;
that defendant had no prior criminal record. N.J.S.A. 2C:44-1(b)(7). The court
placed significant weight on aggravating factor nine and determined that that
aggravating factor "substantially" outweighed the mitigating factor. The court's
findings concerning aggravating factor nine and mitigating factor seven are
supported by credible evidence in the record. Moreover, we discern no abuse of
discretion in the court's balancing of the aggravating factor relative to t he
mitigating factor.
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On appeal, defendant argues the court improperly relied on the harm
suffered by the victim in determining that aggravating factor nine substantially
outweighed mitigating factor seven. At sentencing, however, the court
explained that it weighed aggravating factor nine "very heavily" for two reasons:
(1) defendant committed a first-degree offense; and, (2) that offense was "a very
traumatic experience for [the victim] as it would be for anyone." In evaluating
the need for deterrence, the courts may consider the degree of the offense and
the gravity and harm of the crime. See Fuentes, 217 N.J. at 79 ("[D]emands for
deterrence are strengthened in direct proportion to the gravity and harmfulness
of the offense." (alteration in original) (quoting State ex rel. C.A.H. & B.A.R.,
89 N.J. 326, 337 (1982))); State v. Carey, 168 N.J. 413, 426 (2001) ("The need
for public safety and deterrence increase proportionally with the degree of the
offense."). Accordingly, the court did not abuse its discretion in finding a
compelling need for deterrence after considering the degree of the offense that
defendant committed and the gravity and harm of that offense.
Just as importantly, we discern no abuse of discretion in the court's
imposition of the sentence. Defendant was found guilty of one first-degree
crime (armed robbery), and two second-degree crimes (possession of a weapon
for an unlawful purpose and unlawful possession of a handgun). The court
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correctly merged the possession of a weapon for unlawful purpose with the
robbery conviction. The court then imposed a twelve-year sentence for the first-
degree crime, which was below the mid-range for a first-degree crime (ten to
twenty years). The court also imposed a concurrent sentence of five years for
the conviction of second-degree unlawful possession of a handgun. That
sentence was within the guidelines and does not shock the judicial conscience.
Affirmed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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