                        NOT FOR PUBLICATION WITHOUT THE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-4081-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SANTOS L. VARGAS, a/k/a VARGAS
PABON SANTOS, LOPEZ SANTOS,
PABON SANTOS and PABON VARGAS,

     Defendant-Appellant.
______________________________

              Submitted September 12, 2017 – Decided September 26, 2017

              Before Judges Reisner and Mayer.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 15-03-0194.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John Douard, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Steven William Bondi,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
      Defendant Santos L. Vargas was convicted by a jury of second-

degree    robbery,     N.J.S.A.      2C:15-1,   and   was   sentenced     to     a

discretionary extended term of thirteen years in prison, subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.             We affirm

defendant's conviction.        However, we remand for resentencing.

      The State's principal trial evidence consisted of testimony

from the victim, identifying defendant as the man who grabbed her

purse and stole her cell phone. The State also presented testimony

from an eyewitness, Mr. Anagbo, who heard the victim's screams and

then saw defendant walking away from the victim, stuffing items

in his pockets.       Anagbo followed defendant from the robbery scene

to a gas station a short distance away.          As he followed defendant,

Anagbo called 911 and reported the crime and a description of the

perpetrator.    While Anagbo was still talking to the 911 operator,

the police arrived, and he pointed out defendant to them as the

robber.   A few minutes later, the police brought the victim to the

gas   station   for    a   show-up    identification   procedure,    and       she

immediately identified defendant as the man who robbed her.                    The

State also introduced a video from a security camera, which

recorded the robbery as it occurred.




                                        2                               A-4081-15T1
    Defendant's appeal of his conviction is limited to the denial

of his pre-trial Wade1 motion.      He also challenges his sentence.

Defendant   presents   the   following   points   of   argument   for   our

consideration:

            POINT I: THE TRIAL COURT SHOULD NOT HAVE
            ALLOWED THE SHOWUP IDENTIFICATION TO BE USED
            AT   TRIAL  BECAUSE   IT   DID  NOT   SATISFY
            CONSTITUTIONAL STANDARDS OF RELIABILITY UNDER
            STATE v. HENDERSON AND STATE v. JONES.

                 A.    The Police Failed To Keep
                 Adequate Records Of The Showup
                 Procedure, As Required By State v.
                 Delgado.

                 B. The Judge's Reliability Deter-
                 mination Failed To Clearly Account
                 For All Of The Estimator Variables
                 That May Bias A Showup Identi-
                 fication As Required By State v.
                 Henderson,       And      Improperly
                 Considered   Background    Knowledge
                 That Anagbo Had Followed Mr. Vargas.

            POINT II: THE COURT IMPROPERLY DENIED MR.
            VARGAS'S APPLICATION TO DRUG COURT AND IMPOSED
            AN EXCESSIVE SENTENCE.

                 A. The Court Improperly Denied Mr.
                 Vargas     The    Opportunity     To
                 Participate In Drug Court After
                 Failing To Give Full And Fair
                 Consideration To His Application
                 And Incorrectly Using His Prior Drug
                 Court Involvement As A Basis For
                 Rejection.



1
  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).

                                   3                               A-4081-15T1
                    1. That Mr. Vargas Applied To
               Drug Court After He Was Convicted At
               Trial Not Only Fails To Preclude
               Entry Into Drug Court, But Is
               Assumed By Special Probation To Be
               An Option.

                    2.     The Judge Improperly
               Weighed Mr. Vargas's Non-Existent
               Record Of Violent Offenses.

                    3.     That Mr. Vargas Had Been
               Sentenced   To Drug Court But Had His
               Probation   Revoked Was Irrelevant To
               Whether      Mr.   Vargas   Currently
               Qualifies     For Admission To Drug
               Court.

               B.   Mr.   Vargas's    Sentence   Was
               Excessive.

     We begin by addressing the Wade issue.2     The identification

took place ten to fifteen minutes after the robbery occurred.

According to Officer Munoz, who drove the victim from the crime

scene to the gas station, she spoke Spanish and he communicated

with her entirely in Spanish. During the short drive to the gas

station, Munoz told the victim that the police had detained a

"possible suspect," but he did not tell her that the individual

was the robber or that she had to make an identification.   Officer

Munoz testified that, as soon as the victim saw defendant, she


2
  In the trial court, the State conceded that because the victim
first identified defendant to the police in the context of a show-
up procedure, there was sufficient evidence of suggestibility to
require a Wade hearing.


                                  4                         A-4081-15T1
immediately and definitively identified him as the robber.     Munoz

did not have a packet of standard on-scene identification forms

in the patrol car.     See State v. Delgado, 188 N.J. 48 (2006).

However, he and the victim filled out the forms at the police

station the day after the robbery.3

     In her hearing testimony, the victim confirmed that Munoz

told her that the police had detained someone and he was taking

her to see "if that was the person that had mugged me."   Munoz did

not tell her that the person was the mugger and did not tell her

that she had to make an identification.   According to the victim,

she identified defendant by the gray color of the jacket he was

wearing and by his light skin color.   She testified that she told

Munoz she was "99 percent" certain of her identification of

defendant.

     In an oral opinion issued September 23, 2015, the motion

judge found the victim and Officer Munoz to be credible witnesses.

He was convinced that the victim's identification of defendant was

reliable and was a product of her perceptions at the time of the

robbery.     The judge found that the identification occurred in

close proximity to the location of the robbery and within a few


3
  Defendant has not provided us with the forms, and we therefore
cannot engage in meaningful appellate review of his argument that
the forms were completed improperly. See Cipala v. Lincoln Tech.
Inst., 179 N.J. 45, 55 (2004).

                                5                            A-4081-15T1
minutes after the crime occurred, and concluded that the police

did not unfairly influence the identification.               The judge found

no need for a further hearing to explore the additional factors

set forth in State v. Henderson, 208 N.J. 208 (2011).

       Having reviewed the record, we find no basis to disturb the

judge's factual findings and credibility determinations.                    See

State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif.

denied, 165 N.J. 486 (2000).         The judge appropriately ended the

hearing after listening to the credible testimony of Munoz and the

victim.      "[T]he court can end the hearing at any time if it finds

from   the    testimony    that   defendant's    threshold     allegation    of

suggestiveness is groundless."        Henderson, supra, 208 N.J. at 289.

"[T]he ultimate burden remains on the defendant to prove a very

substantial likelihood of irreparable misidentification."               Ibid.

The Wade hearing evidence did not come close to satisfying that

burden.

       Contrary to defendant's argument, we do not read the judge's

opinion as relying on Anagbo's identification of defendant as

bolstering the reliability of the victim's identification.                  See

State v. Jones, 224 N.J. 70, 89 (2016) ("[E]xtrinsic evidence of

guilt plays no role in assessing whether a suggestive eyewitness

identification       was     nonetheless        inherently      reliable.").

Defendant's      remaining   arguments    on    this   point    are   without

                                      6                               A-4081-15T1
sufficient merit to warrant discussion in a written opinion.                   R.

2:11-3(e)(2).    We affirm defendant's conviction.

      Turning to defendant's sentencing arguments, we agree with

defendant that in rejecting defendant's Drug Court application,

the   trial   court    mistakenly    considered    as    a   negative    factor

defendant's insistence on going to trial.               Drug Court probation

is a post-conviction sentencing alternative, which may be imposed

"whenever a drug or alcohol dependent person . . . is convicted

of . . . an offense" and satisfies the other relevant provisions

of the statute.       See N.J.S.A. 2C:35-14(a).         In fact, in deciding

whether to sentence a convicted offender to Drug Court, the judge

"shall   take   judicial    notice    of   any    evidence,    testimony       or

information adduced at the trial, plea hearing or other court

proceedings . . . ."       N.J.S.A. 2C:35-14 (emphasis added).

       A defendant has a constitutional right to assert his or her

innocence and put the State to its proofs, and a court cannot

impose a "trial penalty" on a defendant who chooses to invoke that

constitutional    right.      See    N.J.S.A.    2C:44-1(c)(1);     State      v.

Jimenez, 266 N.J. Super. 560, 570 (App. Div.), certif. denied, 134

N.J. 559 (1993).      Because the trial court gave negative weight to

defendant's constitutionally-protected choice in this case, we are

constrained to remand this matter for a new sentencing hearing.

At the time of the resentencing hearing, the court shall consider

                                      7                                 A-4081-15T1
defendant's individual situation "as he stands before the court

on that day," including any changed circumstances.             See State v.

Randolph, 210 N.J. 330, 354 (2012). To ensure a meaningful re-

hearing, defendant shall be given a TASC evaluation prior to the

hearing.

    In light of the remand, it would be premature to address

defendant's additional arguments concerning his sentence.

    Affirmed    in   part,   remanded   in   part.   We   do    not    retain

jurisdiction.




                                   8                                  A-4081-15T1
