STATE OF NEW JERSEY VS. SOLOMAN D. NEAL (15-06-1269, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4630-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SOLOMAN D. NEAL, a/k/a
SOLOMON NEAL, and KARIM SMITH,
Defendant-Appellant.
Submitted May 31, 2018 – Decided July 20, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 15-
06-1269.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Matthew
E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Solomon D. Neal entered a guilty plea to an amended
charge of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2),
after a Law Division judge denied his motion to suppress an out-
of-court identification. In accord with the plea agreement, the
judge sentenced defendant to fifteen months of probation in
addition to fines and penalties on April 28, 2017. Defendant
appeals, alleging that his motion to suppress should have been
granted because the out-of-court identification was impermissibly
suggestive. We affirm.
We summarize the circumstances as developed during the
suppression hearing. At around 2:00 p.m. on December 24, 2014,
Ajegbe Oyekunle, an apartment building manager, was making repairs
to the front door of the structure. Oyekunle was going back out
to his van to retrieve some construction materials when a car
abruptly stopped in front of it. The driver——who the victim
immediately recognized by name as the son of one of his tenants,
whom he had known for seven years——asked him "Why the f--- you
messin' with my father?"
Defendant driver and the passenger stepped out of the car;
the passenger held a knife. They punched and kicked Oyekunle in
the head and face; Oyekunle's cell phone and wallet fell out of
his pocket. Defendant picked up the items and threw the cell
phone at the victim. As Oyekunle approached defendant to retrieve
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his wallet, the passenger wielded the knife and Oyekunle retreated.
Defendant took cash from the wallet, and threw the wallet at
Oyekunle. Defendant and the passenger then drove away.
Oyekunle called 911 and told the dispatcher that he had just
been robbed and assaulted by Solomon Neal, the son of a tenant who
had recently been evicted. After police arrived at the scene,
Oyekunle was administered medical treatment, however, he did not
go to the station to make a statement until approximately 6:00
p.m. because he wanted to complete the work on the building.
During the video recorded interview at the police station,
Irvington Police Department Detective Philip Rucker showed the
victim two photographs of defendant, including his Division of
Motor Vehicle photo. Rucker testified that because the victim
knew his assailant, he did not create a photo array or otherwise
comply with the Attorney General guidelines found in State v.
Henderson, 208 N.J. 208 (2011). See R. 3:11; see also Office of
the Attorney Gen., N.J. Dep't of Law & Pub. Safety, Attorney Gen.
Guidelines for Preparing and Conducting Photo and Live Line-Up
Identification Procedures, 1 (2001). Rucker described the
identification procedure as a "show-up," during which he displayed
the photographs to the victim and asked if the victim knew the
person. He said that Oyekunle had explained defendant's father
had been a tenant over the course of years. Once Rucker obtained
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defendant's name from Oyekunle, Rucker requested defendant's
Division of Motor Vehicles photograph. Although the interview
took place several hours after the incident, Oyekunle was still
bleeding and wearing a bloody shirt.
The judge found that having observed the officer and the
victim during the suppression hearing, he "found their testimony
credible in all material respects." The judge concluded that the
officer's failure to adhere to the Henderson guidelines was
inconsequential. The victim had known defendant by name for many
years. Therefore, only showing the victim photographs of defendant
was not suggestive. Although he had granted defendant's motion
for a Wade hearing, defendant ultimately did not sustain his
burden. Accordingly, the judge did not suppress the
identification.
On appeal, defendant raises the following point:
THE MOTION TO SUPPRESS THE IDENTIFICATION
SHOULD HAVE BEEN GRANTED BECAUSE UNDER THE
TOTALITY OF THE CIRCUMSTANCES, THERE WAS A
SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
MISIDENTIFICATION. U.S. Const. Amend. V, XIV;
N.J. Const. Art. I, ¶¶ 1, 9.
We accord "considerable weight" to a trial judge's findings
regarding the impermissible suggestiveness of an identification
procedure. State v. Adams, 194 N.J. 186, 203 (2008) (quoting
State v. Farrow, 61 N.J. 434, 451 (1972)). A defendant bears the
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"initial burden of showing some evidence of suggestiveness that
could lead to a mistaken identification." Henderson, 208 N.J. at
288. "The findings of the trial judge as to reliability of the
witnesses are [also] entitled to considerable weight." State v.
Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003) (citations
omitted). The State may proffer an identification as long as
"there is sufficient credible evidence in the record to support
the findings." Adams, 194 N.J. at 203 (citation omitted).
In this case, defendant was well-known to the victim as he
had known him by name for years. During the 911 call, the victim
told police defendant was his attacker. Thus, the reliability of
Oyekunle's identification was not undermined by the fact he was
presented the two photographs of defendant. Having found the
victim believable, his familiarity with his attacker was
sufficient credible evidence for the court to hold the
identification was reliable. Defendant's argument lacks
sufficient merit to warrant discussion in a written opinion. See
R. 2:11-3(e)(2).
Affirmed.
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