STATE OF NEW JERSEY VS. THOMAS REED (16-03-0596 ANS 16-06-1161, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3302-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS REED, a/k/a
THOMAS REID, THOMAS
RIED AND DAVID RED,
Defendant-Appellant.
_________________________
Submitted March 11, 2020 – Decided March 25, 2020
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Indictment Nos.
16-03-0596 and 16-06-1161.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Timothy Denny, Assistant Deputy
Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (William P. Cooper-Daub, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Thomas Reed appeals from the March 25, 2019 order denying
his motion to suppress an out-of-court showup identification. The order was
entered after the judge analyzed the facts under State v. Henderson, 208 N.J.
208 (2011), pursuant to our remand. See State v. Reed, No. A-5048-16 (App.
Div. Jan. 15, 2019) (slip op. at 3-6). The same judge who tried the case
originally carefully reconsidered the evidence elicited at the earlier hearing,
applying the "system and estimator variables" required by Henderson, 208 N.J.
at 288-289. We now affirm.
As we stated in our earlier opinion:
Defendant appeals after a jury convicted him of second-
degree robbery, an attempted theft by threat, N.J.S.A.
2C:15-1(a)(1), third-degree possession of drugs,
N.J.S.A. 2C:35-10(a)(1), second-degree witness
tampering, N.J.S.A. 2C:28-5(d), and the disorderly
persons offense of hindering apprehension, N.J.S.A.
2C:29-3(b)(1). On May 12, 2017, the court sentenced
him to an aggregate term of twenty years, with twelve
years and nine months of parole ineligibility pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. He received concurrent terms on three unrelated
convictions stemming from three additional
indictments.
[Reed, slip op. at 2 (footnote omitted).]
A-3302-18T3
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The victim of the attempted robbery identified defendant shortly after the
incident at a showup, when the victim was in a police car and defendant was in
handcuffs. Defendant raises the following issue on appeal:
POINT I: THE TRIAL COURT ERRED BY
ADMITTNG THE OUT-OF-COURT
IDENTIFICATION BECAUSE IT WAS A SHOWUP
CONDUCTED IN AN UNDULY SUGGESTIVE
MANNER, AND BECAUSE THE WITNESS DID
NOT RECEIVE ANY OF THE INSTRUCTIONS
DESIGNED TO IMPROVE RELIABILITY.
The court found, based on the transcript of the police officer's testimony,
that the victim was told prior to the showup "that someone was stopped matching
the description that he gave, but that the person may or may not be the
perpetrator." The officer testified:
Q: Can you please generally [describe] what a showup
is?
A: When you advise the victim that someone is stopped,
matching the description that he gave, but he needs to
know that he may or may not be the person involved in
the incident.
Q: Did you explain to [the victim] what you've
explained to us?
A: Yes.
A-3302-18T3
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Later the officer testified he had no discussion with the victim about the
identification in the patrol car. We defer to the court's factfinding in sorting out
this apparent inconsistency. State v. Handy, 206 N.J. 39, 44 (2011).
Although a showup is "inherently suggestive," Henderson, 208 N.J. at
261, it is not per se impermissible evidence. Having reviewed the judge's
detailed analysis placed on the record on March 1, 2019, we now affirm
substantially for the cogent reasons expressed by the trial court.
Affirmed.
A-3302-18T3
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