                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any c ourt." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5048-16T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

THOMAS REED, a/k/a
THOMAS REID, THOMAS
RIED, and DAVID RED,

     Defendant-Appellant.
_______________________

                   Submitted December 12, 2018 – Decided January 15, 2019

                   Before Judges Koblitz and Ostrer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment Nos. 16-01-
                   0100, 16-01-0108, 16-02-0350, 16-03-0596 and 16-06-
                   1161.

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

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Ian D. Brater,
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals after a jury convicted him of second-degree robbery,

an attempted theft by threat, N.J.S.A. 2C:15-1(a)(1), third-degree possession of

drugs, N.J.S.A. 2C:35-10(a)(1), second-degree witness tampering, N.J.S.A.

2C:28-5(d), and the disorderly persons offense of hindering apprehension,

N.J.S.A. 2C:29-3(b)(1). On May 12, 2017, the court sentenced him to an

aggregate term of twenty years, with twelve years and nine months of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1

He received concurrent terms on three unrelated convictions stemming from

three additional indictments. Defendant appeals, arguing that the court did not

use the current legal standards in analyzing the evidence at the pretrial

eyewitness identification hearing. We agree and remand for further findings

applying the analysis as set forth in State v. Henderson, 208 N.J. 208, 288-94

(2011).




1
  He was tried on Indictment Nos. 16-03-0596 and 16-06-1161 in one trial.
Defendant raises no issues relating to his guilty pleas to Indictments No. 16 -02-
0350 and 16-01-0108, or his conviction after trial of Indictment No. 16-01-0100.
His sentences on these convictions were imposed concurrently to the twenty-
year sentence imposed after this trial.
                                                                         A-5048-16T3
                                        2
      Defendant was convicted of a robbery near a fried chicken fast food

restaurant at around 11:00 p.m. The victim told the police that he saw a man in

the restaurant who later attempted to steal the victim's wallet when he was

walking home with his food. The robber asked the victim if he had stolen a

friend's bicycle, then grabbed the victim and demanded his wallet, while

threatening him. The victim refused to surrender his wallet and defendant fled.

The victim described the man as a "black male" who was "wearing a black hat

. . . gray sweater, gray pants, [and] . . . riding a bicycle." A short time later, the

police stopped defendant, who matched the description given and had two

packets of heroin on his person, and brought the victim to see defendant. The

victim stayed in the back seat of the police car while defendant, who was

handcuffed, walked in front of the car. The victim identified defendant as the

robber.

      The victim received three letters from defendant offering to pay him $50

if he would recant his testimony. Defendant testified that he and the victim had

a dispute over payment for a bicycle, he did not rob the victim, and he sent the

letters in an effort to convince the victim to tell the truth.

      Defendant argues on appeal:

             POINT I: THE TRIAL COURT ERRED WHEN IT
             APPLIED       THE      MANSON/MADISON

                                                                             A-5048-16T3
                                          3
             FRAMEWORK     FOR    ASSESSING   THE
             EYEWITNESS IDENTIFICATION INSTEAD OF
             THE UPDATED HENDERSON PROCEDURE.

             POINT II: THE DISCRETIONARY EXTENDED-
             TERM SENTENCE SHOULD BE VACATED OR
             REDUCED BECAUSE IT WAS MANIFESTLY
             EXCESSIVE AND PROCEDURALLY DEFECTIVE.

                            I. Identification analysis.

       At the pre-trial Wade2 hearing, the court mistakenly used the

Manson/Madison3 rather than the Henderson test to analyze the evidence

surrounding the showup identification.       The court stated, "I find that the

identification made by [the victim] is reliable and all of the factors under

Madison have been met." The Manson/Madison test required the defense to

prove by a preponderance of the evidence that the police procedures were so

"impermissibly suggestive" they resulted in a "very substantial likelihood of

irreparable misidentification." Madison, 109 N.J. at 232 (quoting Simmons v.

United States, 390 U.S. 377, 384 (1968)).           The court applied the five

Manson/Madison factors.

             These include the opportunity of the witness to view the
             criminal at the time of the crime, the witness' degree of

2
    United State v. Wade, 388 U.S. 218, 242 (1967).
3
  Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977); State v. Madison, 109 N.J.
223, 244-45 (1988).
                                                                         A-5048-16T3
                                        4
             attention, the accuracy of his prior description of the
             criminal, the level of certainty demonstrated at the
             confrontation, and the time between the crime and the
             confrontation. Against these factors is to be weighed
             the corrupting effect of the suggestive identification
             itself.

             [Manson, 432 U.S. at 114.]

See also Madison, 109 N.J. at 239-40.

      In Henderson, the Supreme Court found that the Manson/Madison test did

"not provide a sufficient measure for reliability," it did not deter "suggestive

police practices," and it "overstate[d] the jury's innate ability to evaluate

eyewitness testimony." 208 N.J. at 285-87. Henderson requires a more in-depth

analysis. See id. at 288.

      The Court in Henderson discussed "system and estimator variables." Id.

at 288-89.

             Two principal changes to the current system are needed
             . . . . [F]irst, the revised framework should allow all
             relevant system and estimator variables to be explored
             and weighed at pretrial hearings when there is some
             actual evidence of suggestiveness;

                   ....

             [T]o obtain a pretrial hearing, a defendant has the initial
             burden of showing some evidence of suggestiveness
             that could lead to a mistaken identification. . . . [T]he
             State must then offer proof to show that the proffered


                                                                           A-5048-16T3
                                         5
            eyewitness identification is reliable—accounting for
            system and estimator variables . . . .

            [Ibid. (emphasis in original).]

      System variables include whether the police "warn[ed] the witness that

the suspect may not be the perpetrator and that the witness should not feel

compelled to make an identification[.]" Id. at 290. Estimator variables include:

whether "the event involve[d] a high level of stress"; whether "a visible weapon

[was] used during a crime of short duration"; how close the witness and

perpetrator were to each other; "[h]ow much time elapsed between the crime and

the identification"; and the level of confidence expressed by the witness "at the

time of the identification before receiving any feedback or other information[.]"

Id. at 291-92.

      Here, the police did not instruct the victim prior to the showup that

defendant "may or may not be the culprit." Id. at 261. The Supreme Court stated

in Henderson:

            As with lineups, showup administrators should instruct
            witnesses that the person they are about to view may or
            may not be the culprit and that they should not feel
            compelled to make an identification. That said, lineups
            are a preferred identification procedure because we
            continue to believe that showups, while sometimes
            necessary, are inherently suggestive.

            [Ibid.]

                                                                         A-5048-16T3
                                        6
Pointing to studies on showup identifications, the Court noted that "[e]xperts

believe the main problem with showups is that—compared to lineups—they fail

to provide a safeguard against witnesses with poor memories or those inclined

to guess, because every mistaken identification in a showup will point to the

suspect. In essence, showups make it easier to make mistakes." Id. at 260-61.

      Defendant seeks a new trial, or, in the alternative, "a new hearing so that

the trial court may apply the correct law." We agree with defendant that a

remand is warranted. The court should apply the Henderson standards to the

evidence adduced at the pre-trial hearing, without the need to conduct a new

evidentiary hearing.

                                  II. Sentence.

      Defendant argues also that, although he was indisputably eligible for a

discretionary extended term pursuant to the persistent offender statute, N.J.S.A.

2C:44-3(a), the court improperly considered his record when imposing an

extended term and improperly considered his prior record again when finding

aggravating factor six. N.J.S.A. 2C:44-1(a)(6).

      An appellate court applies "a deferential standard of review to the

sentencing court's determination, but not to the interpretation of a law." State

v. Bolvito, 217 N.J. 221, 228 (2014). "Appellate review of sentencing decisions

                                                                        A-5048-16T3
                                       7
is relatively narrow and is governed by an abuse of discretion standard." State

v. Blackmon, 202 N.J. 283, 297 (2010). An appellate court may not "substitute

[its] judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,

65 (2014).

      The court found aggravating factors three, the risk of reoffending, six,

defendant's prior criminal record, and nine, the need to deter defendant and

others. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The court focused on defendant's

lengthy, thirty-two-year criminal record. Defendant was forty-six years old at

the time of sentencing. He had many more convictions than those necessary to

impose an extended term. The court did not abuse its discretion in imposing a

fifteen-year extended term subject to NERA for the robbery conviction.

      Reversed and remanded for a reevaluation of the evidence produced at the

Wade hearing applying the Henderson criteria. If the identification is deemed

inadmissible, defendant will be afforded a new trial. If the court finds the

showup identification to be admissible, no new trial is necessary

      Reversed and remanded. We do not retain jurisdiction.




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