                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3471-16T4

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

TAJMIR D. WYLES,

        Defendant-Respondent.


              Submitted October 3, 2017 – Decided October 13, 2017

              Before Judges Yannotti and Carroll.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Camden County,
              Indictment No. 16-06-1621.

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for appellant (Linda A. Shashoua,
              Assistant Prosecutor and Jamie L. Hutchinson,
              Assistant Prosecutor, of counsel and on the
              brief).

              Helmer, Conley & Kasselman, PA, attorneys for
              respondent (Jack J. Lipari, of counsel and on
              the brief).

PER CURIAM

        Defendant Tajmir Wyles is charged with murder in connection

with the shooting death of Nicholas Rowser.              By leave granted, the
State appeals from that portion of a March 10, 2017 order granting

defendant's motion to suppress the out-of-court identification of

defendant by A.T.,1 a witness to the incident.          The motion judge

concluded that: A.T. lacked credibility; the State failed to

establish that A.T. was familiar with defendant prior to the

shooting; and defendant met his ultimate burden of showing a very

substantial likelihood of misidentification.          Finding no basis to

disturb these determinations, we affirm.

                                     I.

     In State v. Henderson, 208 N.J. 208, 288-99 (2011), our

Supreme Court effected a "sea change . . . in the methodology for

examining     suggestive    police     identification    procedures      and

ascertaining     the     reliability        of   resulting   out-of-court

identifications."      State v. Smith, 436 N.J. Super. 556, 564 (App.

Div. 2014).      Under prior law, there was a two-step test for

determining    the   admissibility     of   identification   evidence;    it

required the court to decide whether the identification procedure

in question was impermissibly suggestive and, if so, whether the

objectionable procedure resulted in a "very substantial likelihood



1
  We use initials in this opinion to protect the privacy of the
witnesses to the crimes with which defendant is charged.       The
March 10, 2017 order denied defendant's motion to suppress the
out-of-court identification of defendant by a second witness, J.I.
That identification is not at issue in this appeal.

                                     2                             A-3471-16T4
of irreparable misidentification."         State v. Madison, 109 N.J.

223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377,

384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).                To

assess reliability, the court considered five factors: (1) the

opportunity of the witness to view the criminal at the time of the

crime; (2) the witness's degree of attention; (3) the accuracy of

the witness's prior description of the criminal; (4) the level of

certainty demonstrated at the time of the confrontation; and (5)

the time between the crime and confrontation.           Id. at 239-40.

These   reliability   factors    were   then   balanced      against   the

"corrupting effect" of the suggestive identification.          Henderson,

supra, 208 N.J. at 238 (quoting Manson v. Braithwaite, 432 U.S.

98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

     In Henderson, the Court relied upon current social science

research and studies to expand the number of factors informing the

reliability of identification evidence and to provide trial courts

guidance and explanation as to how to analyze those factors.

Specifically,   the   Court   identified   eight   "system    variables,"

defined as characteristics of the identification procedure over

which law enforcement has control. Id. at 248-61. These variables

are: 1) whether a "blind" or "double blind" administrator is used;

(2) whether pre-identification instructions are given; (3) whether

the lineup is constructed of a sufficient number of fillers that

                                   3                              A-3471-16T4
look like the suspect; (4) whether the witness is given feedback

during or after the procedure; (5) whether the witness is exposed

to multiple viewings of the suspect; (6) whether the lineup is

presented   sequentially   versus   simultaneously;   (7)   whether     a

composite is used; and (8) whether the procedure is a "showup."

Ibid.

     The Court also identified ten "estimator variables," defined

as factors beyond the control of law enforcement which relate to

the incident, the witness, or the perpetrator.    Id. at 261.     These

variables are: (1) the stress level of the witness when making the

identification; (2) whether a visible weapon was used during the

crime; (3) the amount of time the witness viewed the suspect; (4)

the lighting and the witness's distance from the perpetrator; (5)

the witness's age; (6) whether the perpetrator wore a hat or

disguise; (7) the amount of time that passed between the event and

the identification; (8) whether the witness and perpetrator were

different races; (9) whether the witness was exposed to co-witness

feedback; and (10) the speed with which the witness makes the

identification.   Id. at 261-72.

     Henderson prescribed a four-step procedure for determining

admissibility of identification evidence.     Id. at 288-89.     First,

to obtain a hearing, defendant has the burden of producing some

evidence of suggestiveness, tied to a system rather than estimator

                                    4                           A-3471-16T4
variable, that could lead to a mistaken identification.             Ibid.

Second, the State must offer proof the identification is reliable,

"accounting for system and estimator variables[.]"           Id. at 289.

Third, the burden remains on the defendant "to prove a very

substantial likelihood of irreparable misidentification."           Ibid.

And, fourth, if defendant sustains his burden, the identification

evidence should be suppressed; if defendant does not sustain his

burden,   the   evidence   should   be    admitted   with   "appropriate,

tailored jury instructions[.]"       Ibid.

                                    II.

     It is in the context of this legal landscape that we review

the motion record.    On February 7, 2016, Rowser was fatally shot

on Morton Street in Camden.    At approximately 3:30 p.m. that day,

A.T. exited her apartment on Morton Street and headed across the

street toward a friend's vehicle.         There, A.T. noticed an African

American man with dreadlocks proclaim "they fucking robbed me."

Approximately five to ten minutes later, A.T. heard multiple

gunshots, although she did not actually observe the shooting.          She

then saw the same African American man run from the scene.            A.T.

informed a nearby police officer she believed the suspected shooter

had dreadlocks.

     The next day, detectives interviewed A.T. at the Camden County

Prosecutor's Office (CCPO).    A.T. stated her boyfriend, J.I., told

                                     5                            A-3471-16T4
her    the   shooter's   nickname    was   "Fatboy."      A.T.   provided    a

description of the suspect, approximating his weight, height,

length of hair, and the clothing he was wearing.             The detectives

showed A.T. a single photograph of defendant, and A.T. identified

him as the shooter.

       Defendant was thereafter indicted for first-degree murder,

N.J.S.A. 2C:11-3a(1)(2), and second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4a.              Defendant moved to

suppress A.T.'s out-of-court identification.           Relying on State v.

Farrow, 61 N.J. 434 (1972), cert. denied, 410 U.S. 963, 93 S. Ct.

1396, 35 L. Ed. 2d 602 (1973), the State argued that A.T. generally

knew    defendant    from   the     neighborhood   and     accordingly    her

identification of defendant from a single photograph was merely

confirmatory.       In rejecting this contention, the motion judge

indicated he could not "square the proposition that [A.T.] actually

knew [defendant] with her clear statement . . . where she said

that he was not a familiar face."          The judge added: "She wouldn't

have said he's not a familiar face if she knew him, it seems to

me."     Consequently, the State could not "avail itself of the

confirmation process approved [in] Farrow."

       The judge determined that "this identification by [A.T.] must

be treated as a single photo show-up procedure," which although

not per se unconstitutional, is "inherently suggestive" (citing

                                      6                              A-3471-16T4
Henderson, supra, 208 N.J. at 259).   The judge then focused on the

system variables identified in Henderson and made the following

detailed findings:

          Here, approximately [eighteen] hours elapsed
          from the time of the shooting to the interview
          and show-up procedure. [A.T.] was not given
          the pre-identification instructions regarding
          the photograph, and received information from
          . . . a private actor, her boyfriend, [J.I.],
          concerning the . . . name of the man she saw.
          . . .

          Furthermore,    though   [A.T.]    repeatedly
          mentioned [J.I.]'s statements concerning the
          suspect made to her, [A.T.], the police
          apparently failed to investigate the extent
          of the discussion and the detail involved.

          Considering the system variables in this
          particular light, I will note, first of all,
          with respect to blind administration, this
          apparently was not done. It appears that the
          officers knew who the suspect[] [was];
          ultimately, showed her a single photograph of
          the suspect, and so that cuts against
          reliability of the identification.     I give
          . . . that factor high weight.

          In terms of pre-identification instructions,
          [A.T.] was not given pre-identification
          instructions.  So again, that cuts against
          reliability. I give that high weight.

          In terms of lineup construction, that's not
          applicable, because there was no lineup.

          In terms of feedback, whether the officers
          gave feedback about the suspect or the crime
          before[,]    during[,]    or     after    the
          identification procedure, arguably, there was
          some done here . . . that cuts against


                                7                           A-3471-16T4
reliability, but based on [] the nature of it,
I give it low weight.

In terms of recording confidence, that wasn't
done here, one way or the other, although the
whole statement was recorded. So we do have
the benefit of that, and that can be just
judged broadly from what is observed from the
video and [] what I have seen so far from the
transcript.

And as to the way it was done, though, where
it wasn't expressly asked of the witness for
her to state in particular her level of
confidence, that cuts against reliability.
But I give it low weight, given the fact that
we can otherwise observe and hear her
statements, and I've read her statements.

In terms of multiple viewings, did the witness
view the suspect more than once as part of
multiple identification procedures? No. So
that favors reliability, but I give it low
weight. And the sub-part of that is about the
use of fillers, which does not apply.

Show-ups.   Did the police perform a show-up
more than two hours after the event.     Yes,
they did.    This was some [eighteen] hours
later. If it was within [two] hours there was
[] very little problem about unreliability,
but this was more than [two] hours, so we're
not in that realm.

The sub-part of this is whether the police
warned the witness that the suspect may not
be the perpetrator, and that the witness
should not feel compelled to make an
identification. That was not done. All this
cuts against reliability.  I give that high
weight.

In terms of private actors, whether the law
enforcement officers elicited from the witness
whether he or she had spoken with anyone about

                      8                          A-3471-16T4
            the identification; and, if so what [was]
            discussed? Well, it was apparent that [A.T.]
            was interacting with her boyfriend, a private
            actor.    She mentioned this; [the police]
            didn't pursue it to flesh that out.

            In terms of to what extent it might affect
            [A.T.'s] ability to identify from her personal
            knowledge, this photograph is being the
            photograph of the actual perpetrator, and so
            that cuts against reliability.    I give that
            high weight.

            In terms of other identifications made, [A.T.]
            didn't make any other identifications or
            choose any other suspect.      Of course, she
            wasn't shown any more than one photograph, but
            she didn't otherwise suggest there was
            somebody else.       And she did say this
            photograph was the right person. So she did
            not identify other people.        That favors
            reliability. But since it was done the way
            it was done, with one photograph only, I give
            it low weight.

The judge concluded that defendant made a threshold showing of

some    evidence   of   suggestiveness   that   could   lead    to     a

misidentification, "thereby entitling [him] to an evidentiary

hearing, the next step under Henderson."

       The court conducted an evidentiary hearing on February 22 and

23, 2017, at which A.T. and CCPO Detective James Brining testified.

The court also viewed the video recording of A.T.'s out-of-court

identification.    The judge concluded that A.T. "was substantially

lacking in credibility."    He elaborated:

            Her testimony was rambling and sometimes
            unresponsive to questions. She admitted that

                                  9                            A-3471-16T4
           in her statement to the police she made
           numerous assumptions not based on personal
           observations or knowledge. She admitted some
           of her statements to police, especially early
           on, were untruthful.

           Her statement to police was internally
           inconsistent, at first saying the perpetrator
           was not . . . a familiar face, then later
           saying she had seen him before in the
           neighborhood.   She stated that . . . she
           obtained some of her knowledge of what she
           knew about the perpetrator from her boyfriend
           [J.I.], and further stated other things that
           he knew about [] defendant, such as his
           nickname Fatboy, but she was unconvincing in
           her efforts to separate what she gleaned from
           him and what she knew of her own account.

           She also stated that at her interview she        was
           shown multiple photographs . . . when,            in
           fact, she was shown one, that of                 the
           defendant, as evidenced by the video of          her
           statement.

           She was, at the time of the statement, under
           indictment   in   Camden   County  and   was
           intercepted in court by law enforcement
           officers and taken to the [CCPO] for
           questioning regarding this matter.

     The judge next proceeded to analyze the estimator variables

identified in Henderson.      He first found that the unexpected mid-

day shooting involving multiple gunshots involved a high level of

stress   and   decreased    the   reliability   of   the   identification.

Second, the judge noted that A.T. did not observe a weapon at the

time of the shooting.       This factor increased the reliability of

the identification.        Third, A.T.'s observation of the criminal


                                    10                             A-3471-16T4
suspect was for a "relatively short duration[,] [which] cuts

against reliability."     Fourth, as to distance and lighting, the

judge found it was daylight, which favored reliability, but "the

distance across the street wasn't close," which did not.                  Fifth,

there was no evidence that A.T. was under the influence of drugs

or alcohol or in a state that "undercut her reliability or ability

to perceive[,]" which favored reliability.              Sixth, A.T. was age

twenty-nine when she witnessed the shooting, which also favored

reliability.     Seventh, as to characteristics of the criminal

suspect,   the   perpetrator    was    not    wearing   a    disguise    in   his

commission of the criminal act.            This too favored reliability.

       The judge next addressed the accuracy of a witness's memory

during a show-up identification occurring more than two hours

after the criminal incident.          Drawing on Henderson, supra, 208

N.J. at 259-60, the judge noted that "memory decay is a problem"

in that context.

       Regarding racial bias, the judge recognized that A.T. is

Caucasian and defendant is African American.                However, the judge

deemed the potential for cross-racial bias less significant in

this    case   because   many   African        Americans     live   in    A.T.'s

neighborhood.    Thus, racial bias weighed only slightly against the

reliability of the identification.



                                      11                                 A-3471-16T4
     Next,       A.T.'s      description      of    defendant     was    "generally

accurate"        and   favored       reliability.          Finally,     while    A.T.

immediately identified defendant in the photo, she did not verbally

indicate her certainty as to same.                  Notwithstanding, the court

found that the immediacy of the identification weighed in favor

of reliability.

     The judge then "weigh[ed] the system and estimator variables

quantitatively         and   qualitatively,        under   the   totality   of    the

circumstances."         He concluded the State "failed to show that the

identification is still reliable," and defendant "met his ultimate

burden      of     showing       a     very     substantial       likelihood       of

misidentification."          The judge entered an order suppressing A.T.'s

out-of-court identification of defendant.                  This appeal followed.

                                         III.

     Our standard of review on a motion to bar an out-of-court

identification "is no different from our review of a trial court's

findings in any non-jury case."               State v. Wright, 444 N.J. Super.

347, 356 (App. Div.) (citing State v. Johnson, 42 N.J. 146, 161

(1964)), certif. denied, 228 N.J. 240 (2016).                    We are bound to

uphold the motion judge's factual findings as long as they are

supported by sufficient credible evidence in the record.                        State

v. Gonzalez, 227 N.J. 77, 101 (2016).                This deference is grounded

in the understanding that our "reading of a cold record is a pale

                                         12                                 A-3471-16T4
substitute for a trial judge's assessment of the credibility of a

witness he has observed firsthand."      State v. Nash, 212 N.J. 518,

540 (2013).

     However,   "[d]eference    ends   when   a   trial   court's   factual

findings are not supported by sufficient credible evidence in the

record."   State v. S.S., 229 N.J. 360, 381 (2017).         We also do not

defer to the trial judge's legal conclusions.             State v. Gorthy,

226 N.J. 516, 530 (2016).        We review legal decisions de novo.

State v. Tate, 220 N.J. 393, 405 (2015).

     Before us, the State contends the motion judge was confused

by A.T.'s statement that defendant was "not a familiar face."            The

State submits that A.T. intended to say defendant was not a

"familiar face" among the drug dealers who plied their trade across

the street from her home.       It is the State's position that this

misinterpretation caused the judge to incorrectly conclude that

A.T. was not merely making a "confirmatory identification."           Again

relying on Farrow, supra, 61 N.J. at 453, the State argues the

judge   erred   in   applying    the   identification       procedures     of

Henderson, and there was no need for a further hearing to assess

the Henderson factors where, as here, the witness actually knew

the perpetrator.     We are not persuaded.

     Specifically at issue here is that portion of A.T.'s February

8, 2016 recorded interview in which she stated:

                                  13                                A-3471-16T4
          And he goes, I heard him straight up say I was
          just robbed.   He's like they fucking robbed
          me. So I kind of look 'cause I was [] like I
          know he's not a familiar face, like I know, I
          know there's a lot of people that stand out
          across the street. They'll literally always
          stand directly across from my street, but I
          know I never really seen [him], like seen him
          like um, like there.

     Clearly this statement was sufficient to give the motion

judge pause to question the degree of A.T.'s familiarity with

defendant.   In light of the inherent suggestibility of a show-up

in which A.T. was presented with a single photograph of defendant

more than two hours after the event,2 the fact she was not given

pre-identification instructions or told the photo might not depict

the perpetrator, and was given information about the shooter by

her boyfriend that may have tainted her own personal perception,

these factors in combination clearly entitled defendant to an

evidentiary hearing.

     After hearing A.T.'s testimony and observing her demeanor,

the judge found her "substantially lacking in credibility."       As

we have noted, the judge carefully enumerated several reasons

supporting his credibility assessment.   He recognized that A.T.

"indicated that she was not entirely truthful with everything that



2
 See Henderson, supra, 208 N.J. at 261 ("showups, while sometimes
necessary, are inherently suggestive").


                               14                          A-3471-16T4
she said during her recorded statement and that she also, from

time to time, was making assumptions of facts in things she set

forth during her recorded statement."         Specifically, A.T. asked

the detectives "'Does this seem about right?' or words to that

effect[,]" with regard to her interview testimony.          She also told

the detectives she "hoped [] she could pick [the suspect] out of

a photo array."        (Emphasis added).     Finally, A.T. incorrectly

testified she was shown several photographs of suspects, maybe

five,   before   she   identified    defendant   as   the   shooter,    when

indisputably she was only shown defendant's photo.

        Mindful that we are reviewing a cold record and that the

trial court's factual findings are "entitled to very considerable

weight," State v. Adams, 194 N.J. 186, 203 (2008), we are loathe

to   disturb   the   judge's   credibility   findings.      Given    A.T.'s

perceived lack of credibility, we are thus unable to accept the

interpretation of A.T.'s statement urged on us by the State, that

her identification of defendant was merely confirmatory.

      The judge properly went on to identify and balance the various

system and estimator variables within the Henderson framework.

The judge correctly followed the totality of the circumstances

approach that Henderson requires when evaluating the admissibility

of identification evidence.         We conclude there is no basis for

disturbing the judge's conclusion that defendant established "a

                                    15                              A-3471-16T4
very substantial likelihood of irreparable misidentification."

That conclusion is supported by substantial credible evidence in

the record and a proper application of Henderson.

    Affirmed.




                              16                         A-3471-16T4
