                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                        State v. Jose Medina (A-67-18) (081926)

Argued March 16, 2020 – Decided June 9, 2020

Timpone, J., writing for the Court.

       In this appeal, the Court considers whether, under the circumstances of this case, a
detective’s testimony that he had included defendant Jose Medina’s picture in a photo
array based on the “evidence . . . collected” violated the hearsay rule or defendant’s
constitutional right to confront the witnesses against him.

        In December 2013, Anthony Rivera was slashed across the face as he exited a bar.
Police spoke with Rivera, who described his attacker and indicated that he could identify
the attacker if he saw him again. His friend Tommy Rafferty also described, but could
not identify, the attacker. Officers spoke with a woman at the scene who wished to
remain anonymous. She identified the attacker as defendant and showed the police one
of defendant’s Instagram pictures and his username. Detective Anthony Abate prepared
a photo array that included defendant’s picture. Looking at the array, Rivera identified
defendant as the attacker.

       Rivera also identified defendant as his attacker at trial. Abate also testified and
confirmed, over defendant’s objection, that officers at the scene “spoke with one female
who didn’t want to get involved.” Abate further confirmed Rafferty “was the only one
who was willing to come in and give a statement.” Abate testified he obtained
surveillance footage, which the State played for the jury. Abate told the jury that Rivera
provided a description of the attacker and said that he could identify the attacker if he saw
him again. At that point, the prosecutor asked, “based on . . . the evidence that you
collected, did you have a suspect?” Abate stated that defendant was the suspect.

       Abate further testified that he generated a photo array. The prosecutor asked
whether Abate was “going based in any way on [his] viewing of the surveillance footage”
when he made the array; Abate replied affirmatively. On redirect, Abate confirmed that
the responding officers at the scene “managed to speak with one person, a female, who
wished to remain anonymous, didn’t want to give a statement.” He explained that the
officers attempted to question other people at the scene, but that “nobody else . . .
volunteered to give any statements.”


                                             1
       The jury convicted defendant of aggravated assault and weapons offenses, and
defendant appealed. The Appellate Division reversed and remanded for a new trial. The
appellate court found it problematic that the investigating officer relied on unverifiable
hearsay statements to create a photo array and also took issue with Abate’s testimony.
The Court granted the State’s petition for certification. 237 N.J. 419 (2019).

HELD: Viewing the trial record in its entirety, the detective’s testimony, in context, did
not compel the inference that he had superior knowledge incriminating defendant from a
non-testifying witness. The testimony therefore did not violate defendant’s confrontation
right or the hearsay rule. Although there was no abuse of discretion in the admission of
the testimony here, the Court cautions against using the phrase “based on the evidence
collected” in this context and provides guidance as to curative instructions.

1. In State v. Bankston, the Court noted that the use of neutral explanatory phrases, such
as the officer approached a suspect “upon information received,” are admissible to show
“the officer was not acting in an arbitrary manner.” 63 N.J. 263, 268 (1973). The Court
stressed, however, that when the officer repeats “what some other person told him
concerning a crime by the accused,” the testimony violates both the hearsay rule and the
defendant’s confrontation right. Id. at 268-69. And even where the officer does not
reiterate what he learned from a third party, “[w]hen the logical implication to be drawn
from the testimony leads the jury to believe that a non-testifying witness has given the
police evidence of the accused’s guilt, the testimony should be disallowed as hearsay.”
Id. at 271. In Bankston, although the detective never repeated what he learned from the
informer, the “inescapable inference” from his testimony was that the “unidentified
informer, who was not present in court and not subjected to cross-examination, had told
the officers that defendant was committing a crime.” Ibid.; accord State v. Irving, 114
N.J. 427 (1989). The Court held that the testimony should not have been admitted.
Bankston, 63 N.J. at 271, 273. Hearsay may not be used to imply that a testifying officer
possesses superior knowledge than what is presented to the jury and, hence, his testimony
is worthy of greater weight. (pp. 20-25)

2. Here, it is undisputed that Abate never repeated to the jury what the anonymous
woman said, so his testimony would only conflict with the above principles if his
references to her created an “inescapable inference” that she incriminated defendant.
Yet, Abate did not imply that the woman gave police any information at all. Based on
the record, the jury likely considered the anonymous woman to be a “dead-end witness.”
Abate’s testimony did not create the “inescapable inference” that he had superior
information about defendant’s guilt from the anonymous woman, and it did not violate
defendant’s confrontation right or the hearsay rule under Bankston. (pp. 25-27)

3. In State v. Branch, the Court considered the use of neutral phrases in the particular
context of photographic identifications and “disapprove[d] of a police officer testifying
that he placed a defendant’s picture in a photographic array ‘upon information received,’”
                                            2
noting that such “language, by inference, has the capacity to sweep in inadmissible
hearsay” by implying the “officer has information suggestive of the defendant’s guilt
from some unknown source.” 182 N.J. 338, 352 (2005). Accordingly, the Court limited
the use of “based on information received” to “contexts other than a photographic
identification,” and “only if necessary to rebut a suggestion that [the officer] acted
arbitrarily and only if the use of that phrase does not create an inference that the
defendant has been implicated in a crime by some unknown person.” Ibid. (pp. 27-29)

4. Whether Branch’s embargo of the phrase “based on information received” extends to
other, broader phrases depends on context. The circumstances here are significantly
different than in Branch. Notably, “information received” suggests the existence of an
informant, whereas “evidence . . . collected” is a broader phrase that could encompass
other types of evidence. Perhaps most importantly, Abate repeatedly told the jury that no
one other than Rafferty and Rivera came forward to give a statement. Viewed in that
light, “the logical implication” of Abate’s testimony was that “the evidence that [he]
collected” referred to evidence other than hearsay. Given the other evidence in the
record, the Court finds Abate’s testimony did not compel the inference that he had
superior knowledge incriminating defendant from a non-testifying witness. (pp. 30-31)

5. The Court provides the following guidance. Although the admission of Abate’s
testimony here was not an abuse of discretion, the Court cautions against using the phrase
“based on the evidence collected” in this context. Such language can potentially sweep
in inadmissible hearsay. When the State improperly lays the foundation for an officer’s
testimony about a photo identification, the trial court should promptly give a curative
instruction to direct the jury’s attention away from evidence outside of the record.
Finally, information gathered during police investigations that leads to the development
of a suspect is not subject to the hearsay rule. To the extent the Appellate Division
decision created limitations on photo arrays, the Court does not adopt them. (pp. 32-33)

       REVERSED and REMANDED to the Appellate Division.

         JUSTICE ALBIN, dissenting, expresses the view that defendant was denied a
fair trial. In Justice Albin’s view, nothing in the admissible evidence before the jury
suggested that, at the time the officer constructed the array, he had a reasonable basis to
consider Medina a suspect. The jury, therefore, was left to infer that the officer had
superior knowledge from outside the record that targeted Medina as a suspect. Justice
Albin explains that Abate’s impermissible testimony that Medina “was a suspect in the
eyes of the police [based on the evidence collected] may have tipped the scales.” See
Branch, 182 N.J. at 354. Justice Albin would affirm and remand for a new trial.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
JUSTICE ALBIN filed a dissent.
                                              3
       SUPREME COURT OF NEW JERSEY
             A-67 September Term 2018
                       081926


                 State of New Jersey,

                 Plaintiff-Appellant,

                          v.

                    Jose Medina,

               Defendant-Respondent.

        On certification to the Superior Court,
                  Appellate Division.

      Argued                         Decided
   March 16, 2020                  June 9, 2020


Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Theodore N. Stephens, II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat and
Tiffany M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and
on the briefs).

Robert Carter Pierce argued the cause for respondent
(Robert Carter Pierce, on the briefs).

Adam D. Klein, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Adam D. Klein, of counsel and on the brief).



                          1
            Stefan Van Jura, Assistant Deputy Public Defender,
            argued the cause for amicus curiae Public Defender of
            New Jersey (Joseph E. Krakora, Public Defender,
            attorney; Stefan Van Jura, of counsel and on the
            brief).


            JUSTICE TIMPONE delivered the opinion of the Court.


      Defendant Jose Medina was tried and convicted for offenses related to a

non-fatal slashing that occurred outside of a bar in the Township of Belleville.

Although no physical evidence linked defendant to the crime, surveillance

footage captured the incident, and the victim selected defendant’s picture from

a photo array. A woman who witnessed the attack identified defendant as the

attacker to police but was unwilling to give a formal statement or testify.

      At defendant’s trial, the prosecutor referenced the anonymous woman,

after which an officer testified that, based on the “evidence . . . collected,” he

included defendant’s picture in the photo array. Relying on State v. Bankston,

63 N.J. 263 (1973), State v. Irving, 114 N.J. 427 (1989), and State v. Branch,

182 N.J. 338 (2005), the Appellate Division found that this testimony violated

the hearsay rule and the Confrontation Clause by suggesting that the

anonymous woman -- a non-testifying witness -- implicated defendant in the

crime. Viewing the trial record in its entirety, however, we find that the




                                         2
officer’s testimony did not generate such an inference. Accordingly, we

reverse the judgment of the Appellate Division.

                                         I.

      We discern the following facts from the pretrial hearing on the State’s

motion in limine and the trial record.

                                         A.

      On the night of December 27, 2013, Anthony Rivera and four friends,

including Tommy Rafferty, went to Speakeasy’s, a bar in the Township of

Belleville. After two or three beers, Rivera and Rafferty stepped outside for a

cigarette. On their way out, Rivera held the door to let two women into the

bar. As soon as he stepped through the doorway, a man slashed him across the

face with a box cutter and said, “[D]o you remember me[?]” The attacker

approached again but another man intervened and the attacker fled.

      Police arrived a short while later and spoke with Rivera. Rivera stated

that his attacker was about thirty years old, five foot seven, 180 pounds, and

wore a gray sweatshirt. Rivera said the man was Hispanic and either bald or

had short hair. Rivera also indicated that he did not know his attacker but

could identify him if he saw him again. Police noted that Rivera did not seem

intoxicated at the time, and escorted him to the hospital where he received

forty-one stitches for the thirteen-centimeter laceration on his left cheek.

                                         3
      Meanwhile, officers spoke with a woman at the scene who wished to

remain anonymous. She identified the attacker as defendant Jose Medina and

showed the police one of defendant’s Instagram pictures and his username. In

addition, Rafferty went with police to the Belleville Police Station to give a

formal videotaped statement. Like Rivera, he described, but could not

identify, the attacker.

      The next day, the responding officers apprised Belleville Detective

Anthony Abate of what they learned at Speakeasy’s. Abate also viewed

surveillance footage from the bar, which depicted Rivera holding the door for

the women and the slashing. The assailant’s face was not visible on the tape.

Abate also ran a background check and found that defendant’s picture matched

Rivera’s and Rafferty’s descriptions, as well as the Instagram photo shown to

police by the anonymous woman. Abate then prepared a photo array that

included defendant’s picture.

      Later that afternoon, Rivera went to the police station to give a formal

videotaped statement. With the shock of the attack having worn off, Rivera

gave Abate a more specific description of his assailant: light-skinned Hispanic

male wearing jeans and a gray hooded-sweatshirt with a yellow stripe, stocky

build, no tattoos, a “real, real thin” beard, and “real-short,” “low-cut” hair.

Rivera repeated that he could make an identification if given the opportunity.

                                         4
This time, however, Rivera added that he thought he recognized his attacker

from a recent brawl at Yesterday’s Bar and Grille (Yesterday’s) in Clifton, but

he could not be certain. In Rivera’s view, that explained why the attacker said

“do you remember me.”

      Rivera and defendant were, in fact, involved in a group fight at

Yesterday’s roughly six weeks before the night of the attack. Unbeknownst to

the participants, an unidentified individual posted a video of the fight on

YouTube. Of the two men, defendant is the only one depicted because Rivera

did not participate in the recorded portion of the fight. Nevertheless, Rivera

later testified that he hit someone over the head with a bottle during the fight at

Yesterday’s and that both he and defendant “threw some punches,” but that

Rivera could not be sure if they made contact with one another. For his part,

defendant told an officer who responded to Yesterday’s that he was struck on

the head with what he thought was a bottle.

      After Rivera gave his second statement, Sergeant Edward Zimmerman

served as a blind administrator to conduct the photo array. Looking at the

pictures prepared by Abate, Rivera identified defendant as the attacker.

Zimmerman later testified that Rivera “was confident” in his selection and did

not need to see any pictures a second time. No further leads developed, and




                                        5
Abate obtained a warrant for defendant’s arrest. Defendant subsequently

turned himself in to the Belleville Police Department.

                                        B.

      On September 24, 2014, an Essex County grand jury indicted defendant

for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(2).

      Before trial, the State filed an in limine motion seeking a number of pre-

trial evidentiary rulings. As part of this motion, the State sought leave to

admit the YouTube video of the brawl at Yesterday’s, arguing it was

admissible under N.J.R.E. 404(b) in order to establish defendant’s identity and

motive to assault Rivera. Separately, the State recognized that relaying the

anonymous woman’s identification to the jury could violate the hearsay rule

and defendant’s confrontation right under the State and Federal Constitutions.

Therefore, the State also requested permission for Abate to testify that he

compiled the photo array “based on information received,” which would give

the jury enough context to understand that there was a fulsome investigation

leading to defendant’s arrest without actually disclosing the anonymous

woman’s statements.

                                        6
      Defendant filed a letter brief in opposition challenging the introduction

of the YouTube video. Defendant further disputed the State’s suggested use of

the phrase “based on information received” because it would violate the

precepts of Branch.

      The trial judge conducted an N.J.R.E. 104 hearing at which four

witnesses testified. The judge found the YouTube video was “inadmissible

under [N.J.R.E.] 404(b), but yet [was] admissible predicated upon [N.J.R.E]

803(a) and . . . prior identification of a person as analyzed in State v.

Henderson, 208 [N.J.] 208, 261[] (2011).” The judge did not rule on the issue

of Abate’s testimony on the record.

      At trial, Rivera identified defendant as his attacker. The State also

called Abate to testify. During Abate’s direct examination, the prosecutor

paused and asked the judge for a sidebar to discuss the photo array. The judge

advised the prosecutor that Abate “can’t speak as to what information [the

anonymous woman] gave him, it’s hearsay.” The prosecutor then resumed

questioning:

            Q: Detective, after speaking with the officers who had
            done the crime scene, did they tell you that they had
            spoken with some witnesses?

            A: Yes.

            Q: Including one --

                                         7
[Defense counsel]: Judge, at this point -- this is like
double hearsay.

The Court: He’s just gonna say whether he talked to
them, not what they said but whether he talked to them.

Q: I’m not asking what they said but they spoke, for
example, with one female who didn’t want to get
involved --

The Court: Overruled. Go ahead.

Q: They spoke with one female who didn’t want to get
involved. Correct?

A: Correct.

Q: Don’t tell me what they said.

A: Correct.

Q: Okay. They spoke with another individual by the
name of Tom Rafferty. Correct?

A: Correct.

Q: And they intended to speak with other people, as
well, to no avail. Correct?

A: Correct.

Q: Now, when -- were any witnesses -- or, specifically,
of the witnesses -- Mr. Rafferty was the only one who
was willing to come in and give a statement. Correct?

A: Correct.
                          8
Q: Did you take a statement from him?

A: Yes.

Q: And aside from taking his statement, did you take
anyone else’s statement in the case?

A: In the whole entire case?

Q: In the case, yes?

A: Ah, yes, I did.

Q: And who was that?

A: The victim.

....

Q: Now, what other investigative steps did you take to
try to uncover any evidence of what had happened?

A: Ah, additional things were -- we a -- we were able
to obtain surveillance footage from the --

....

Q: And so you did actually obtain a copy of the
surveillance footage. Correct?

A: Yes.

[(emphases added).]




                          9
      The judge then adjourned the trial for a break, after which the State

played the surveillance footage for the jury. Next, Abate explained that both

Rivera and Rafferty came to the police station to give formal videotaped

statements. Abate also told the jury that Rivera provided a description of the

attacker and said that he could identify the attacker if he saw him again. At

that point, the prosecutor asked,

            Q: And based on -- at this point the evidence that you
            collected, did you have a suspect?

            A: Yes.

            Q: And who was that suspect?

            A: Jose Medina.

            Q: Now, what was -- once he told you he could make
            an identification, what was the next step that you took
            with that information?

            A: Generated a photo lineup.

            [(emphasis added).]

      Later, the prosecutor asked Abate, “when [he] put together this array,”

whether he was “going based in any way on [his] viewing of the surveillance

footage,” to which Abate replied affirmatively. In addition, Abate indicated

that he only obtained formal statements from Rivera and Rafferty because

“there was nobody else that wanted to come forward umm to give a statement,

                                       10
any witnesses or anything like that. And that -- that’s really who -- who the

other people that we would take statements from.”

      During cross-examination, defense counsel elicited from Abate that

Rivera could not definitively say whether he saw defendant before the attack.

Defense counsel then continued:

            Q: So, was any physical evidence recovered? A knife?

            A: No.

            Q: No knife was recovered. Correct?

            A: Correct.

            ....

            Q: No physical -- from the slashing. No physical
            evidence was recovered. Is that correct?

            A: Correct.

            Q: No forensic evidence. Is that correct?

            A: Correct.

            Q: No fingerprints, no DNA, no weapon. Correct?

            A: Correct.

            Q: And the person you spoke to regarding the incident,
            or the people, specifically were Thomas Rafferty. Is
            that correct?

            A: Correct.
                                      11
            Q: And Mr. Rivera. Is that correct?

            A: Correct.

            Q: Now, when Thomas Rafferty gave you the
            statement, he couldn’t make an identification. Is that
            correct?

Defense counsel then presented the jury with Rafferty’s statement, in which he

described the attacker but said, “I never saw the kid before in my life.”

      On redirect, the prosecutor sought to clarify the scope of the police

investigation for the jury:

            Q: Now, you testified earlier that you also spoke with
            -- or not you, but officers at the scene did manage -- and
            don’t tell me what anyone said at the scene -- but they
            managed to speak with one person, a female, who
            wished to remain anonymous, didn’t want to give a
            statement. Correct?

            A: Correct.

            Q: They also spoke, obviously, with Mr. Rafferty who
            was willing to come in, give a formal statement.
            Correct?

            A: Correct.

            Q: And, again, I think you answered this but why didn’t
            you take formal statements from anyone else?

            A: Because nobody else ah, volunteered to give any
            statements.

                                       12
            Q: Okay. But to your knowledge, did the other officers
            question other people at the scene and attempt to speak
            with other people?

            A: I believe so, yes.

            [(emphases added).]

      The final reference to the anonymous woman occurred during the

prosecutor’s summation, in which he emphasized the challenges posed by

eyewitnesses who decline to assist the police:

                  Now, let’s also talk about the investigation, itself,
            very briefly. The investigation, itself, we had the
            witness, Mr. Rivera. The officers can’t control who
            stays at the scene, who doesn’t stay at the scene.
            They’re coming there after the fact. The officers not
            only can’t control who stays at the scene, they can’t
            control who talks to them, who doesn’t. Who’s willing
            to give a truthful and honest account of what happened,
            and who doesn’t.

                  We know from . . . Detective Abate[] that officers
            attempted to speak with everyone at the scene, and
            anyone who’s willing to provide information, they took
            information from. [Rafferty], unfortunately, didn’t
            actually witness the incident. He was willing to give a
            statement, which you’d expect. He was the victim’s
            friend, so he’s willing to at least go in and give a
            statement. Officers attempted to speak with other
            people. You heard testimony that they spoke even with
            some anonymous female that didn’t want to give a
            statement, and wouldn’t even give her name when she
            spoke with the officers.


                                        13
                  People didn’t want to get involved. Officers
            can’t control that. You don’t fault the investigation on
            the fact that people don’t want to cooperate, they
            disappear, they don’t want to talk.

            [(emphasis added).]

      The jury convicted defendant on all charges and the judge sentenced him

to seven years’ imprisonment with an eighty-five-percent period of parole

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

                                        C.

      Defendant appealed his convictions, and the Appellate Division reversed

and remanded for a new trial because “the misapplication of the rules of

evidence permitted the introduction of materially incompetent evidence that

irreparably tainted the reliability of the jury’s verdict.” According to the court,

“[t]he first serious error occurred when the investigating officer relied on

unverifiable hearsay statements from an unidentified woman to create the

photo[ ]array.” The court found that investigatory practice problematic

because Rivera’s identification of defendant “was the principal legal issue at

trial and the only evidence directly linking him to the assault.” And, absent

the photo array based on “unverifiable information from an anonymous non-

testifying individual,” Rivera would have been unable to identify defendant.




                                        14
      The Appellate Division also took issue with Abate’s testimony. In the

court’s view, telling the jury that police spoke with the anonymous woman and

thereafter generated a photo array constituted reversible error. Relying on

Bankston, Irving, and Branch, the court explained that, when an officer

conveys incriminating information from a non-testifying witness, the State

violates the hearsay rule and defendant’s confrontation right. As the court put

it, “[a]lthough the precise information this unidentified individual relayed to

the police was not revealed at trial, Detective Abate’s testimony provided a

sufficient basis from which the jury could infer it supported the State’s case

against defendant.” In light of the “magnitude” of those errors, the court

reversed and remanded without consideration of defendant’s four remaining

arguments.

      This Court granted the State’s petition for certification. 237 N.J. 419

(2019). We further granted leave to the Attorney General of New Jersey and

the New Jersey Office of the Public Defender to appear as amici curiae.

                                       II.

                                       A.

      The State asserts that the Appellate Division erroneously reversed

defendant’s convictions based on a misapplication of our case law to the facts

of this case. Stressing that Abate’s references to the anonymous woman were

                                       15
brief, inconsequential, and detached in time, the State argues that those

references did not create an “inescapable inference” that she incriminated

defendant to police, as Bankston requires. (quoting Bankston, 63 N.J. at 271).

The State also distinguishes Irving on the ground that, here, Abate and the

prosecutor did not allude to information contained in impermissible hearsay,

but rather limited their commentary to the lack of witness cooperation. And

the State faults the Appellate Division’s reliance on Branch, in which there

was no trial testimony or evidence that could have steered police toward the

defendant, leaving the jury to speculate that the detective had superior

knowledge of the defendant’s guilt via hearsay. Here, the State contends, there

were other sources of information that the jury could assume were used to

create the photo array. Finally, the State argues that the Appellate Division

conflated Medina’s rights under Bankston and the Confrontation Clause of the

Sixth Amendment with permissible methods used by law enforcement to create

a photo array, and asks that we clarify that the hearsay rule and Confrontation

Clause apply at trial, not during an investigation.

      The Attorney General agrees with the State that the jury had no reason to

assume that the anonymous woman implicated defendant to police. Instead,

the Attorney General suggests the only logical implications to be drawn from

Abate’s testimony were that (1) the anonymous woman was a “dead-end

                                        16
witness” whose interaction with police “was of no moment at all,” and (2)

Abate “created the photo array using Rivera’s description, the footage, and his

law-enforcement expertise and resources.”

         The Attorney General cautions that the Appellate Division’s decision

needlessly expands Bankston’s restrictions and would preclude the State from

demonstrating that police conducted a complete investigation -- an important

facet of the prosecution’s presentation in a criminal case -- by asking officers

about their attempts to speak with witnesses.

         Finally, the Attorney General argues that plain error review applies

because defendant never objected to Abate’s testimony about the photo array

and the trial judge never ruled on the issue of Abate’s testimony at the Rule

104 hearing. And the conduct at issue here did not rise to the level of plain

error, the Attorney General contends, in light of the other evidence adduced at

trial.

                                         B.

         In response, defendant argues that the State’s testimony about the

anonymous woman and ensuing use of the phrase “based on . . . the evidence

that you collected” violated defendant’s confrontation right and the hearsay

rule by impermissibly creating the sort of “inescapable inference” prohibited

under Bankston and its progeny. Defendant also asserts that the State’s

                                         17
testimony violated Branch, which forestalls any explanation as to why the

police included a suspect’s picture in a photo array -- beyond evidence that the

police fairly assembled the photo array and that the process led to a reliable

identification -- in the absence of alleged police misconduct.

      Defendant additionally suggests we apply the abuse of discretion

standard rather than review for plain error, noting defense counsel’s objection

to the first reference to the anonymous woman at trial and opposition to the

State’s motion in limine. Defendant alternatively argues that, regardless of the

standard of review, reversal is warranted here considering the impermissible

inference created through reference to the anonymous woman.

      In support of defendant’s position, the Public Defender adds three

points. First, phrases such as “upon information received” or “based on . . .

the evidence that you collected” are just as suggestive that the testifying

officer has superior, extra-record knowledge about a defendant’s guilt as a

direct quote from the non-testifying witness. Second, the scope of Branch

should be extended by prohibiting any reference to evidence from outside the

record in an identification case. Third, by eliciting information about the

anonymous woman while simultaneously trying to avoid introducing hearsay,

the State misrepresented the real reason why police identified Medina as a




                                       18
suspect and put his picture in the photo array, in potential violation of Rule of

Professional Conduct 3.4(e).

                                       III.

      As a preliminary matter, we note that the parties disagree about which

standard of review applies: plain error or abuse of discretion. Because

defendant did, in fact, object to Abate’s use of the phrase “based on

information received” before trial, cf. State v. Santamaria, 236 N.J. 390, 404

(2019) (noting plain error review applies in the absence of an objection), we

will employ the abuse of discretion standard as we do for all evidentiary

rulings, see State v. Prall, 231 N.J. 567, 580 (2018).

      Under that deferential standard, we review a trial court’s evidentiary

ruling only for a “clear error in judgment.” State v. Scott, 229 N.J. 469, 479

(2017) (quoting State v. Perry, 225 N.J. 222, 233 (2016)). We do not

substitute our own judgment for the trial court’s unless its “ruling ‘was so wide

of the mark that a manifest denial of justice resulted.’” State v. Brown, 170

N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

                                       IV.

      Turning to the merits of the case, we first apply the legal principles that

govern references to non-testifying witnesses and then consider limits on

testimony specific to photo arrays.

                                        19
                                         A.

                                         1.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant

the right to confront “the witnesses against him.” That right is “an essential

attribute of the right to a fair trial,” Branch, 182 N.J. at 348, and secures for a

defendant the “fair opportunity to defend against the State’s accusations,”

State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi,

410 U.S. 284, 294 (1973)).

      “For that reason, the Sixth Amendment right of confrontation ‘expresses

a preference for the in-court testimony of a witness, whose veracity can be

tested by the rigors of cross-examination.’” State v. Basil, 202 N.J. 570, 591

(2010) (quoting State in Interest of J.A., 195 N.J. 324, 342 (2008)). Indeed,

“[o]ur legal system has long recognized that cross-examination is the ‘greatest

legal engine ever invented for the discovery of truth.’” Ibid. (quoting

California v. Green, 399 U.S. 149, 158 (1970)). And, in light of the value it

places on cross-examination, the Confrontation Clause prohibits the

introduction of testimonial hearsay that does not meet “[a]n established and

recognized exception to the hearsay rule,” Branch, 182 N.J. at 349, and cannot




                                         20
be challenged by a defendant through cross-examination, Basil, 202 N.J. at

591; accord Crawford v. Washington, 541 U.S. 36, 53-59 (2004).

      Beginning with our decision in Bankston, we have applied the above

principles to protect criminal defendants “from the incriminating statements of

a faceless accuser who remains in the shadows and avoids the light of court.”

Branch, 182 N.J. at 348. In Bankston, police entered a tavern and found

heroin on the bar under a pair of gloves near where the defendant had been

sitting. 63 N.J. at 265. Police arrested him and, at his trial, a detective

testified that the defendant fit an informer’s description of a person with

narcotics in the tavern. Id. at 266. The prosecutor also emphasized the

significance of this testimony in his summation, bolstering the State’s case.

Id. at 267.

      In evaluating the detective’s testimony, we first noted that the use of

neutral phrases to explain an officer’s conduct, such as the officer approached

a suspect “upon information received,” does not violate the hearsay rule

because they are admissible to show “the officer was not acting in an arbitrary

manner or to explain his subsequent conduct.” Id. at 268. We stressed,

however, that, “when the officer becomes more specific by repeating what

some other person told him concerning a crime by the accused,” the testimony

violates both the hearsay rule and the defendant’s confrontation right. Id. at

                                        21
268-69. We added that, even where the officer does not reiterate what he

learned from a third party, “[w]hen the logical implication to be drawn from

the testimony leads the jury to believe that a non-testifying witness has given

the police evidence of the accused’s guilt, the testimony should be disallowed

as hearsay.” Id. at 271.

      Applying those principles, we found that, although the detective never

repeated what he learned from the informer, the “inescapable inference” from

his testimony was that the “unidentified informer, who was not present in court

and not subjected to cross-examination, had told the officers that defendant

was committing a crime.” Ibid. Yet “there was no need for any reference to

an informer” because “[t]here was no allegation that the police were acting

arbitrarily.” Id. at 272. Accordingly, we held that “[t]he testimony was

clearly hearsay” and its prejudicial effect -- further augmented by the

prosecutor -- required reversal. Id. at 271, 273.

      Later, in Irving, we considered a detective’s testimony in connection

with the investigation of an armed robbery. 114 N.J. at 431, 445. In that case,

the detective stated that, after the crime, he “canvassed the neighborhood,

basically put the word out of what happened and if anybody had any

information to call [him] at the robbery squad.” Id. at 445. The detective then

replied affirmatively when asked whether, before the date of the defendant’s

                                       22
arrest, he “receive[d] some information.” Ibid. He explained to the jury that

he “followed up on the information [he] received, [then] obtained from the

gallery [a] photo [based on the] information received and made a photo array”

that included the defendant’s picture. Ibid. As in Bankston, the prosecutor’s

summation “emphasiz[ed] the value of the information received” by the

detective. Ibid.

      We repeated our instructions from Bankston that neutral phrasings such

as “upon information received” are permissible to show an officer was not

acting arbitrarily, whereas repeating incriminating information from a non-

testifying witness violates the hearsay rule, as well as our admonition that the

“specific hearsay statement” need not be repeated to create an impermissible

inference of guilt if “the logical implication to be drawn from the testimony” is

that the informant incriminated the defendant. Id. at 446 (quoting Bankston,

63 N.J. at 271). Indeed, “the creation of the inference, not the specificity of

the statements made, was the critical factor in determining whether [the]

hearsay [rule] was violated.” Id. at 447.

      Ultimately, we found the detective’s testimony was improper, reasoning

that he created an “inescapable inference, although never specifically

stated, . . . that an informant had told [him] that [the] defendant committed the

crime.” Id. at 446-47. We attributed significance to the detective’s testimony

                                        23
that, after canvassing the neighborhood and asking for leads, he placed the

defendant’s picture in the array. Id. at 446. We found the circumstances

similar to Bankston, namely, that (1) “there was no need for any reference to

an informer” absent an allegation the detective acted arbitrarily and (2) the

prosecutor’s summation bolstered the detective’s testimony. Id. at 447.

      Still, defense counsel in Irving failed to timely object to the improper

testimony. Ibid. We affirmed the defendant’s convictions based on the other

evidence adduced at trial, holding that the detective’s testimony did not

constitute plain error. Id. at 448; see also State v. Roach, 146 N.J. 208, 224-26

(1996) (relying on Bankston and Irving to find that an officer’s testimony --

that information from co-defendants and a jailhouse informant made the

defendant a suspect -- was improper even though the officer did not repeat

what he learned, but also finding the error harmless).

      Under Bankston and Irving, an officer may not disclose incriminating

information obtained from a non-testifying witness. Even when an officer

does not specifically repeat that information, the officer may not create an

“inescapable inference” that an unavailable source has implicated the

defendant. Bankston, 63 N.J. at 271. Either method of relaying hearsay

generates “[t]he vice Bankston and its progeny seek to eradicate”: “the

implication that a testifying police officer somehow is in possession o f

                                       24
superior knowledge than what is presented to the jury and, hence, his

testimony is worthy of greater weight.” State v. Kemp, 195 N.J. 136, 155

(2008).

                                       2.

      Here, it is undisputed that Abate never repeated to the jury what the

anonymous woman told officers. Therefore, his testimony would only conflict

with the principles derived from Bankston and Irving if his references to her

otherwise created an “inescapable inference” that she incriminated defendant

to police. Bankston, 63 N.J. at 271.

      Yet, Abate did not imply that the woman gave police any information at

all. He referenced the anonymous woman twice: once on direct examination

and again on redirect examination. In the first instance, he agreed with the

prosecutor that she “didn’t want to get involved,” and in the second, he agreed

that she “didn’t want to give a statement.” Abate also explained that he

obtained formal statements only from Rivera and Rafferty because “there was

nobody else that wanted to come forward . . . to give a statement, any

witnesses or anything like that.” Moreover, unlike the prosecutors in Bankston

and Irving who emphasized the importance of the non-testifying witness’s

incriminating information, the prosecutor’s summation here highlighted that




                                       25
police tried to speak with witnesses at the scene -- including the anonymous

woman -- but none wanted to get involved.

      The record substantiates the Attorney General’s contention that the jury

likely considered the anonymous woman to be a “dead-end witness.” The

State not only was careful not to repeat what she told police, but also went to

great lengths to suggest that she was not forthcoming. Additionally, the

references to the anonymous woman would have seemed less significant than

the other relevant evidence in the record. Both Rivera and Rafferty gave

descriptions of the attacker that matched defendant’s picture; the surveillance

video captured the incident; and Rivera unwaveringly identified defendant

both at trial and in the array. In sum, we find that the references to the

anonymous woman did not create an “inescapable inference” that she

implicated defendant in the attack to the police. Bankston, 63 N.J. at 271.

      We further agree with the State that the Appellate Division

inappropriately expanded Bankston’s requirements by finding Abate’s

testimony improper because the jury “could infer it supported the State’s case

against defendant.” In Bankston, we expressly noted that we were

unconcerned “with mere possible inferences” to be drawn from an officer’s

testimony. Ibid. What matters is that Abate’s testimony did not create the

“inescapable inference” that he had superior information about defendant’s

                                        26
guilt from the anonymous woman. Ibid. With that in mind, we hold that

Abate’s testimony did not violate defendant’s confrontation right or the

hearsay rule under Bankston.

      We turn next to defendant’s contention that Abate’s testimony violated

the guidelines particular to officer testimony about photo arrays set forth in

Branch.

                                        B.

                                        1.

      In Branch, Kathleen O’Nieal was talking with a family friend, Joseph

Gannon, when she heard screams from upstairs where her twin children were

sleeping. 182 N.J. at 343. An intruder sucking on a lollipop came down the

stairs, ran past the two adults, and tried to escape through the back door in the

kitchen. Ibid. The door handle jammed, but after a brief delay in which he

fended off Gannon, the intruder opened the rear door and fled. Ibid.

      Police were unable to develop any physical evidence from the scene, but

they did take descriptions of the suspect from the four witnesses. Id. at 344.

Two days later, Gannon met with a police sketch artist to prepare a sketch of

the suspect. Id. at 345. The detective assigned to the case then prepared a

photo array. Ibid. However, O’Nieal and Gannon were unable to identify the

suspect from the array. Ibid. The next day, the detective prepared a second

                                       27
array, and both O’Nieal and Gannon independently selected the defendant’s

picture. Ibid. They also identified the defendant at trial. Ibid. Importantly,

the defendant’s appearance both in his picture and at trial differed markedly

from the witnesses’ descriptions and the sketch. Ibid.

      At trial, the prosecutor asked the detective, “[B]ased on information

received did you develop a suspect in this case?” Id. at 347 (emphasis

omitted). The detective replied affirmatively and, when asked who that was,

named the defendant. Ibid.

      On appeal, we considered whether that testimony violated the

defendant’s confrontation right and the hearsay rule. Id. at 348-53. Reviewing

Bankston, Irving, and a relevant decision from the Appellate Division, State v.

Tilghman, 345 N.J. Super. 571 (App. Div. 2001), we explained that “[t]he

common thread that runs through [those cases] is that a police officer may not

imply to the jury that he possesses superior knowledge, outside the record, that

incriminates the defendant.” Branch, 182 N.J. at 351.

      Yet, in the context of photo identifications, we retreated from our earlier

approval in Bankston and Irving of the use of neutral phrases -- such as that an

officer developed a photo array or identified a suspect “based on information

received” -- to explain an officer’s conduct. Id. at 352. We observed that

            [w]hen a police officer testifies concerning an
            identification made by a witness, such as in this case,
                                       28
            what counts is whether the officer fairly arranged and
            displayed the photographic array and whether the
            witness made a reliable identification. Why the officer
            placed the defendant’s photograph in the array is of no
            relevance to the identification process and is highly
            prejudicial. For that reason, we disapprove of a police
            officer testifying that he placed a defendant’s picture in
            a photographic array “upon information received.”
            Even such seemingly neutral language, by inference,
            has the capacity to sweep in inadmissible hearsay. It
            implies that the police officer has information
            suggestive of the defendant’s guilt from some unknown
            source.

            [Ibid. (emphasis added) (citation omitted).]

      Accordingly, we limited the use of the phrase “based on information

received” to “contexts other than a photographic identification,” and “only if

necessary to rebut a suggestion that [the officer] acted arbitrarily and only if

the use of that phrase does not create an inference that the defendant has been

implicated in a crime by some unknown person.” Ibid.

      As applied in Branch, the detective’s use of that phrase was “not

relevant and . . . highly prejudicial,” because it “implied that he had

information from an out-of-court source, known only to him, implicating [the]

defendant in the burglary.” Id. at 352-53; see also, e.g., State v. Lazo, 209 N.J.

9, 15, 21-22 (2012) (finding Branch error where a detective’s testimony that he

placed the defendant’s picture in a photo array “because of his similarities to

the victim’s description” unfairly bolstered the witness’s identification).

                                        29
                                        2.

      Here, Abate testified that he placed defendant’s picture in the array

because defendant was a suspect “based on . . . the evidence that [Abate]

collected.” The question this case presents is whether Branch’s embargo of

the phrase “based on information received” extends to other, broader

explanatory phrases. The answer, we find, depends on the context of the

testimony. That is, whether a jury would likely be compelled by a lack of

record evidence to infer from the officer’s use of the phrase that the officer

“possesses superior knowledge, outside the record, that incriminates the

defendant.” Branch, 182 N.J. at 351.

      In Branch, we were troubled not by the inherently inflammatory nature

of the phrase “based on information received,” but the use of that language

given the lack of physical evidence in the case and the fact that the sketch and

the witnesses’ descriptions of the defendant resembled neither his appearance

on the day of his arrest nor the picture of him in the array. Id. at 345-47. In

the absence of anything else tying the defendant to the crime, the jury could

easily have inferred that the “information received” by the detective was from

a non-testifying witness. Id. at 352-53.

      The circumstances here are significantly different. Notably,

“information received” suggests the existence of an informant, whereas

                                       30
“evidence . . . collected” is a broader phrase that could encompass other types

of evidence. Abate used that phrase after (1) he explained that Rafferty and

Rivera gave formal statements, (2) the jury watched the surveillance footage

taken at Speakeasy’s, and (3) he read Rivera’s description of the attacker.

Abate also later clarified during his testimony that he had personally watched

the surveillance footage before assembling the photo array. Abate further

explained that Rivera told him that the fight at Yesterday’s likely involved the

culprit in the slashing before Rivera identified defendant’s picture in the array.

And, perhaps most importantly, Abate repeatedly told the jury that no one

other than Rafferty and Rivera came forward to give a statement. Viewed in

that light, “the logical implication” of Abate’s testimony was that “the

evidence that [he] collected” referred to evidence other than hearsay: the

surveillance footage and Rivera’s and Rafferty’s formal statements and

descriptions of the attacker. Bankston, 63 N.J. at 271.

      Despite our dissenting colleague’s suggestion to the contrary, see post at

___ (slip op. at 6-7), we find it reasonable that the jury believed the record

evidence led Abate to place defendant’s picture in the array. Given the other

evidence in the trial record, then, we find that Abate’s testimony did not

compel the inference that he had superior knowledge incriminating defendant

from a non-testifying witness.

                                        31
                                        3.

      Notwithstanding our ruling that the admission of Abate’s testimony was

not an abuse of discretion, we reiterate that the best practice is to avoid

explaining that a defendant’s picture was placed in a photo array because he or

she was a suspect or “based on information received.” See Branch, 182 N.J. at

352 (“Why the officer placed the defendant’s photograph in the array is of no

relevance to the identification process and is highly prejudicial.”). We also

caution against using the phrase “based on the evidence collected” in this

context. As in Branch, such language can potentially sweep in inadmissible

hearsay by producing the “inescapable inference” that the officer obtained

incriminating information about the defendant beyond the scope of the record.

Bankston, 63 N.J. at 271. For instance, if Abate had simply testified that

officers spoke with the anonymous woman and, “based on . . . the evidence

that [he] collected,” he placed defendant’s picture in the array -- without

reference to any other forms of evidence -- then the “logical implication” from

Abate’s testimony would have been that the anonymous woman implicated

defendant to police. Ibid.

                                        C.

      Fundamentally, we find the admission of Abate’s testimony was not an

abuse of discretion considering the entirety of the record before us, and we

                                        32
therefore reverse the judgment of the Appellate Division. We nevertheless

caution that, going forward, when the State improperly lays the foundation for

an officer’s testimony about a photo identification, the trial court should

promptly give a curative instruction to direct the jury’s attention away from

evidence outside of the record.

                                        V.

      Finally, we briefly address the portion of the Appellate Division’s

decision suggesting the police should not use hearsay information to assemble

a photo array.

      Information gathered during police investigations that leads to the

development of a suspect is manifestly different from admissible information

that the State may present in court. Only the latter is subject to the hearsay

rule. See N.J.R.E. 801(c) (defining hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted” (emphasis added)). Limits

on the State’s ability to generate a reliable photo array stem from a number of

our decisions. See, e.g., State v. Green, 239 N.J. 88, 98-100, 105-08 (2019);

Henderson, 208 N.J. at 251-52; State v. Delgado, 188 N.J. 48, 63 (2006). To

the extent the Appellate Division created additional limitations, we do not

adopt them.

                                        33
                                        VI.

      The judgment of the Appellate Division is reversed and the matter is

remanded to the Appellate Division to consider the four arguments that remain

from defendant’s brief to that court.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
JUSTICE ALBIN filed a dissent.




                                        34
                              State of New Jersey,

                              Plaintiff-Appellant,

                                       v.

                                  Jose Medina,

                            Defendant-Respondent.


                         JUSTICE ALBIN, dissenting.


      I part with the majority because, I believe, defendant was denied a fair

trial based on this Court’s jurisprudence, which is intended to ensure that a

defendant is not wrongfully convicted based on a misidentification.

      In State v. Branch, this Court made a simple yet constitutionally

significant pronouncement to protect the confrontation and fair-trial rights of a

defendant when the State presents testimony of an identification made from a

photographic array. 182 N.J. 338 (2005). We instructed that a police officer

should not testify that he placed the defendant’s photograph in the array

because the defendant was a suspect based “upon information received.” Id. at

342, 352. We barred such testimony because it might “imply to the jury that

[the officer] possesses superior knowledge, outside the record, that

incriminates the defendant” and because the officer’s “reasons for including

[the] defendant’s photograph in the array [are] not relevant and [are] highly

                                        1
prejudicial.” Id. at 351, 352; see also State v. Lazo, 209 N.J. 9, 22 (2012)

(holding that the detective’s explanation for placing the defendant’s photo in

an array was irrelevant and violated the dictates of Branch).1 We also noted

that such testimony has the capacity to improperly bolster the witness’s

identification and thus invade the jury’s role. See Branch, 182 N.J. at 350-51.

      Despite that clear warning in Branch, the prosecutor in this case

proceeded to do precisely what this Court forbade -- the prosecutor elicited

that the investigating officer placed defendant Jose Medina’s photograph in the

photographic array because Medina was “a suspect” based on evidence the

officer had collected. But nothing in the admissible evidence before the jury

suggested that, at the time the officer constructed the array, he had a

reasonable basis to consider Medina a suspect. The jury, therefore, was left to

infer that the officer had superior knowledge from outside the record that

targeted Medina as a suspect.

      The truth is that the officer placed Medina’s photograph in the array as a

suspect because an unnamed woman at the scene of the assault told the police


1
  In Lazo, the detective testified that he placed the defendant’s photograph in
the array “[b]ecause of his similarities to the suspects that were described by
the victim.” 209 N.J. at 19. We concluded the detective’s testimony not only
violated Branch, but also constituted “improper lay opinion testimony” that
“enhanced the victim’s credibility and intruded on the jury’s role.” Id. at 21-
22.


                                        2
that Medina was the assailant and showed the police his Instagram profile.

Because the police did not hold the woman as a material witness and because

she was not subject to direct or cross-examination, we do not know whether

she actually witnessed the assault, whether she had the ability to observe the

events, or whether she had questionable motives. For those reasons, the

information was inadmissible hearsay and not presented to the jury.

      The Appellate Division cannot be faulted for overturning Medina’s

conviction by faithfully applying the law developed by this Court -- by

honoring Medina’s confrontation rights and fair-trial rights. In reversing the

Appellate Division and reinstating Medina’s conviction, the majority does not

adhere to the principles laid out in Branch. I therefore respectfully dissent.

                                        I.

                                       A.

      In Branch, the defendant was convicted of burglarizing a home and

robbing its residents. 182 N.J. at 346. Without any corroborating forensic

evidence tying the defendant to the crimes, the State’s case rested primarily on

the victims’ photographic identifications of the defendant. Id. at 346-47, 353.

In response to the prosecutor’s questioning, the investigating detective gave

his reasons for including the defendant’s picture in the photographic array:




                                        3
            [Prosecutor]: Now, after that day, after April 22nd,
            1998, based on information received did you develop a
            suspect in this case?

            [Detective]: Yes, I did.

            [Prosecutor]: And who was that person?

            [Detective]: Mr. Alexander Branch.

            [Prosecutor]: And did you obtain a photo array
            containing Alexander Branch’s photograph?

            [Detective]: Yes, ma’am.

            [Id. at 347.]

      Though no objection was raised to this line of questioning, we reversed

the defendant’s convictions on the basis of plain error. Id. at 353-54. We did

so because the detective’s “hearsay testimony violated [the] defendant’s

federal and state rights to confrontation as well as our rules of evidence.” Id.

at 348. In Branch, like here, “there was no trial testimony or evidence, other

than [the] identifications, that could have led [the detective] to focus on [the]

defendant as a suspect,” and therefore “the jury was left to speculate that the

detective had superior knowledge through hearsay information implicating

[the] defendant in the crime.” Id. at 347-48. We held that “[t]here was no

legitimate need or reason for [the detective] to tell the jury why he placed [the]

defendant’s picture in the photographic array” and that “[t]he only relevant

evidence was the identification itself.” Id. at 348.


                                         4
                                         B.

      In this case, when Detective Abate arranged the photographic array for

display to the victim, no admissible evidence pointed to Medina as a suspect.

The victim, Anthony Rivera, did not know who attacked him, though he

believed he would be able to identify him. Rivera had given a generic

description of his assailant, a Hispanic male of a size and weight (and of

varying hair styles) that fit the profile of hundreds of such males in this State. 2

Moreover, Rivera’s friend, Thomas Rafferty, could provide the police with

only generic, physical characteristics of the assailant. Rafferty had told the

police that he could not make an identification and therefore was not shown a

photographic array.

      The surveillance video at Speakeasy’s, the establishment where Rivera’s

face was slashed, recorded the incident but “[t]he assailant’s face was not

visible on the tape.” Ante at ___ (slip op. at 4). Rivera was involved in a

brawl six weeks earlier at Yesterday’s Bar and Grille, where Medina was

present as well. The grainy surveillance video at Yesterday’s that was posted


2
  Rivera gave two descriptions of his attacker. Immediately following the
incident, Rivera described his assailant as a Hispanic male, either bald or with
short hair, about thirty years old, five foot seven and 180 pounds, wearing a
gray sweatshirt. Ante at ___ (slip op. at 3). Later that day, he described his
assailant as a “light-skinned Hispanic male wearing jeans and a gray hooded-
sweatshirt with a yellow stripe, stocky build, no tattoos, a ‘real, real thin’
beard, and ‘real-short,’ ‘low-cut’ hair.” Ante at ___ (slip op. at 4).

                                         5
on YouTube, however, did not show Rivera, much less Rivera engaged in an

altercation with Medina. Medina appeared on the video with at least a dozen

other individuals, but not in a conflict with Rivera. Significantly, Detective

Abate had no forensic evidence tying Medina to the aggravated assault of

Rivera.

      Shortly before Detective Abate’s testimony about the identification

procedure, the detective told the jury that the police had spoken with an

anonymous woman at the scene who did not want to get involved. Despite the

lack of evidence before the jury linking Medina to the crime, the prosecutor

pursued the same colloquy that we condemned in Branch:

            [Prosecutor]: And based on -- at this point the evidence
            that you collected, did you have a suspect?

            [Detective Abate]: Yes.

            [Prosecutor]: And who was that suspect?

            [Detective Abate]: Jose Medina.

            [Prosecutor]: Now, what was -- once he told you he
            could make an identification, what was the next step
            that you took with that information?

            [Detective Abate]: Generated a photo lineup.

            [(emphases added).]

      Unlike in Branch, in this case, defense counsel, in a pretrial motion,

objected to the line of questioning the prosecutor pursued. See 182 N.J. at


                                        6
353. The record before the jury provided no indication how Detective Abate

could have pinpointed Medina as a suspect based on the generic descriptions

of the assailant provided by Rivera and Rafferty, the Speakeasy’s surveillance

video that did not reveal a view of the assailant’s face, or the Yesterday’s

YouTube video that did not show an interaction between Medina and Rivera.

In short, Detective Abate’s testimony identified Medina as a suspect based on

unidentified “collected” evidence. None of the “collected” evidence put before

the jury -- before the showing of the photographic array -- pointed to Medina

as a suspect, thus leaving the jury with the clear impression that Abate

possessed “information suggestive of [Medina’s] guilt from some unknown

source.” See id. at 352.

      There is no meaningful distinction between the detective’s reference in

Branch to information received or Detective Abate’s reference here to

evidence collected. In both cases, the reference suggested that the detective

was privy to information not available to the jury -- that the detective had

superior knowledge implicating the defendant.

                                       II.

      We did not set forth the principles in Branch or in Lazo as a “best

practice” to be followed by the State. See ante at ___ (slip op. at 32). Those

principles are constitutional imperatives that the State must honor. To repeat,



                                        7
“[w]hen a police officer testifies concerning an identification made by a

witness . . . what counts is whether the officer fairly arranged and displayed

the photographic array and whether the witness made a reliable identification.”

Branch, 182 N.J. at 352. The colloquy between the prosecutor and Detective

Abate about the evidence collected that led to the targeting of Medina as a

suspect had the real potential to “to sweep in inadmissible hearsay,” implying

that Detective Abate had “information from an out-of-court source, known

only to him, implicating [Medina] in the [crime].” See id. at 352-53.

      Detective Abate’s testimony explaining that Medina was a suspect based

on evidence “collected” -- evidence never disclosed to the jury -- and giving

that explanation as the reason for placing Medina’s photograph in the array

“[was] of no relevance to the identification process and [was] highly

prejudicial.” See id. at 352 (emphases added). In labeling Medina as a

suspect, moreover, Detective Abate presented “improper lay opinion

testimony” that inappropriately buttressed Rivera’s identification and

credibility, thus intruding on the jury’s exclusive role as factfinder. See Lazo,

209 N.J. at 22; see also Branch, 182 N.J. at 350-51.

      Medina’s conviction rested almost wholly on Rivera’s identification.

There was no corroborating forensic evidence. Detective Abate’s

impermissible testimony that Medina “was a suspect in the eyes of the police



                                        8
[based on the evidence collected] may have tipped the scales.” See Branch,

182 N.J. at 354. That error had the clear capacity to cause an unjust result. 3

See ibid.

                                        III.

      Because Medina’s conviction rests on constitutionally infirm

identification testimony, I would affirm the Appellate Division and remand

this case for a new trial. I therefore respectfully dissent.




3
  I agree with Part V of the majority decision that it is permissible for the
police to rely on hearsay information as a basis for arranging a photographic
array, provided the hearsay information is not elicited before the jury. See
ante at ___ (slip op. at 33).

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