                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is only binding 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-4599-13T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAYMOND WILSON,

     Defendant-Appellant.
__________________________

              Submitted September 14, 2016 – Decided            July 27, 2017

              Before Judges Fuentes and Carroll.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 12-02-0210.

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

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Monica do
              Outeiro, Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant Raymond Wilson was tried before a jury and found

guilty of first degree armed robbery, N.J.S.A. 2C:15-1; third

degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-

1b(2); third degree terroristic threats, N.J.S.A. 2C:12-3b; third

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4d; and fourth degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5d.   This was the second time defendant stood trial

on these charges.    The court declared a mistrial the first time

because the jury could not reach a unanimous verdict.

     After   applying   the   doctrine   of   merger,   the   trial   judge

sentenced defendant to an aggregate term of fifteen years, with

an eighty-five percent period of parole ineligibility and five

years of parole supervision, as required under the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.          The judge also imposed the

mandatory fines and penalties.

     Defendant now argues, for the first time on appeal, that the

trial court erred when it failed to sua sponte instruct the jury

on the concept of accomplice liability and allow the jury to

convict defendant of second degree robbery.         Although defendant

is represented by counsel in this appeal, he submitted a pro se

supplemental brief in which he argues the trial court erred by not

suppressing the out-of-court eyewitness identification under the



                               2                                  A-4599-13T2
standards adopted by our Supreme Court in State v. Henderson, 208

N.J. 208 (2011).     We reject defendant's arguments and affirm.

     We gather the following facts from the record developed before

the trial court.

     In the summer of 2011, Margaret Gillis owned two McDonald's

fast food restaurants in Neptune Township.          Gillis hired Stephanie

Thompson,   a    retired   teacher,    to   pick   up    the   sales   proceeds

generated by the restaurants from Monday through Saturday and to

deposit the money at a local branch of Wells Fargo Bank.                       The

restaurants were open seven days a week, but the bank closed on

Sundays,    so   Thompson's   Monday    pick-ups        contained   the     sales

proceeds from Saturday and Sunday.          When this incident occurred,

Thompson had worked for Gillis for the past eleven years.

     At approximately 7:45 a.m. on Monday, August 1, 2011, Thompson

drove to the two restaurants and picked up the weekend sales

proceeds.   She placed the bag containing the deposits on the front

passenger's side floor of the car and headed to the Wells Fargo

Bank branch located at the intersection of Route 33 and Fortunato

Place in Neptune.     She parked the car in a no parking zone located

"right in front of the night deposit box."                 Although the bank

opened at 9:00 a.m., Thompson testified she customarily delivered

the bag with the cash to the tellers one hour before because the

deposits often comprised thousands of dollars.

                                3                                         A-4599-13T2
       Following her ordinary routine, Thompson reached down and

grabbed the deposit bag located at the passenger side floor of her

car.     As she did this, an unknown man "snatche[d] open" the

driver's side door and said: "[T]his is a robbery."             Thompson

initially thought this was mere "horseplay."        As she explained:

            Being that you see the same people almost
            every day and, you know, like I'm from the
            town, you know a lot of people, I'm thinking
            this is horseplay because everybody knows, you
            know, you see the same people. I'm thinking
            somebody is going to say "don't do two things
            at one time," or "keep the door locked." You
            know, last thing in my head is robbery.

       Thompson's instinctive reaction to see innocuous “horseplay”

in the face of danger was supported by the physical characteristics

of her assailant.    As Thompson explained:

            I'm thinking this real quick because I['ve]
            been at the high school 37 years, so you know
            a lot of people know you. There's a lot of
            horse play, but, you know, I'm saying to
            myself, this old geezer.     I'm thinking this
            is one of the men that you see every day. Some
            men sit in McDonald's, read the paper. Some,
            you know, seniors come in for the senior
            coffee. I knew right away. I just knew that,
            hey, why would somebody want to rob me. That
            wouldn't make sense to me.

       Thompson   finally   realized   that   she   faced   a   dangerous

situation when the assailant repeatedly yelled: "I'm going to kill

you."   The man then used a small knife to cut Thompson's face and

"blood was everywhere."      Despite her injuries, Thompson remained

defiant, "banging," "hitting," and "cussing" her attacker.         In her
                            4                                     A-4599-13T2
own words: "I put up a fight."         Thompson also maintained direct

eye contact with defendant during the five or six minutes he was

in her car.    As the altercation wound down, Thompson noticed the

assailant looked familiar.         A few days later, she realized she

knew   him   because   he   frequented   the   McDonald's.    Defendant

eventually grabbed the bag with the deposits, left the car, and

fled to an adjoining parking lot.        Gills, the restaurant owner,

testified the bag contained $17,170.33.

       While the robbery was happening, Trevor White had driven to

the bank's parking lot to withdraw money from an ATM.        He noticed

Thompson's car door was open, a woman was sitting in the vehicle's

driver seat, and a man was "leaning on the seat on his right knee,

[with his] left foot out the door."        Because he did not hear any

cries for assistance or anything else that seemed suspicious or

untoward, he did not "pay that much mind" to it.        However, as he

returned to his car, White heard someone say "help" twice.          When

White looked at Thompson's car, he saw the man was partially inside

the car and had a "knife or a fork" in his hand.         White sounded

his car horn to alert the man of his presence and called 9-1-1.

       White next stepped out of his car and yelled at the man:

"[W]hat you doing, get out of here."           White lost sight of the

assailant when he ran behind bushes at a nearby parking lot.

Although White did not see the assailant's face, he saw him get

                               5                                A-4599-13T2
away in a green Pontiac Bonneville that "was going down Fortunato."

White described the Pontiac to the 9-1-1 operator as a 1993 or

1994 model with a spoiler.

     At approximately 7:52 a.m., Neptune Police Officer Michael

Allen responded to a report of a "robbery in progress."      Allen

knew Thompson based on her work making these deposit runs for

McDonald's.   He observed Thomson had suffered a laceration to her

face and was bleeding.    Both Thompson and White provided Allen

with a description of the assailant.       Thompson in particular

described her attacker as a heavyset "[b]lack male, approximately

45 to 55 years old," "wearing a light blue polo . . . style shirt,"

"pants [of unknown color]," and "a baseball cap."     White gave a

similar description, but added the man wore "gray khaki pants."

     Neptune Police Officer Erick Amadruto heard the radio call

of the robbery, which included a description of the assailant, the

vehicle used to flee the scene, and its direction of travel.

Amadruto found a Pontiac Bonneville with New York license plates

on Winding Ridge Drive, parked in a parking lot of a condominium

located approximately a quarter mile from the scene of the robbery.

Amadruto saw a bloody white towel on the car's center console gear

shaft and blood on an armrest.       The vehicle was towed to the

Neptune Police Department.       The car was registered to Jerome

Coverdale of Yonkers, New York.     Coverdale told law enforcement

                             6                             A-4599-13T2
investigators         that    his       friend   Raymond    Wilson       used    the     car

exclusively.      Inside the car, law enforcement investigators found

a towel stained with blood, a baseball cap, a sneaker stained with

blood, a grill fork, and documents.                  The New Jersey State Police

Laboratory      forensically            investigated       and    analyzed       the     DNA

retrieved from the items the police recovered inside the car and

found they matched defendant's DNA.                       Investigators also found

defendant's wallet and social security card in the car.

      On     August    2,     2011,      Monmouth    County      Prosecutor's         office

Detective Jose Cruz, acting as an independent agent, administered

an eyewitness identification procedure in which Thompson selected

defendant's photograph from an array of six photographs.                         Thompson

also provided investigators with a detailed statement describing

the assailant.         White similarly selected defendant's photograph

as the man he saw in Thompson's car.

      Law    enforcement          investigators      learned      that    a     man    named

Shequan Williams, whose wife worked at McDonald's, originally

conceived of the plan to rob Thompson.                 Williams, however, did not

participate in the robbery.                  When he later learned that Thompson

had   been    injured        in   the    scuffle    over   the    deposit       money,    he

voluntarily contacted a detective he knew from the Asbury Police

Department     and     gave       a   full    statement    on    September       9,    2011.



                                         7                                        A-4599-13T2
Williams also testified at trial as a witness for the State.       He

provided the following explanation for his decision.

          [W]hen I find out that this lady got cut in
          her face, man, that's what got me upset. Like
          I would have left it alone. I would have left
          it alone, that was my wife's teacher.    That
          was my wife's teacher.    She's a real close
          family friend and it was just wrong, like,
          come on, she's an old lady. You got to cut
          an old lady? A [sic] old lady?

          PROSECUTOR: Let me stop you for a second.
          Mr. Williams, you're talking about how it's
          wrong, correct?

          A. Yes.

          PROSECUTOR: But you said that you planned to
          rob her yourself, correct?

          A. Yes.

          PROSECUTOR: Why is what you were going to do
          any different than what happened?

          A. I wouldn't hurt her, at all.

          PROSECUTOR: How would you have done it?

          A. I would have snatched the bag and ran.
          That's what I would have done.

     Williams stated he originally approached his friend Marcus

Evans with the idea of robbing Thompson.    Williams and Evans met

defendant in August 2011.   The three men went to McDonald's to see

how Thompson picked up the deposit bag.        They next followed

Thompson to the bank.   On August 1, 2011, Evans told Williams that

he was "going to take this job" from him because he was taking

                             8                              A-4599-13T2
"too long about it."            Williams interpreted Evan's message as a

threat to take away money that Williams depended on to finance a

vacation with his wife.            He responded by immediately going to his

house to retrieve supplies he needed to rob Thompson without being

identified.         These items included "a gray hoodie and stocking

cap."

       When Williams drove into the Wells Fargo Bank parking lot,

he received another call from Evans warning him not to go forward

with the robbery.          As Williams approached the Bank's parking lot,

he noticed defendant looking inside the trunk of a green car. This

prompted Williams to abandon his plan to rob Thompson. As Williams

explained to the jury: "I'm going to leave because I'm not going

to jail for some stupid shit that they do."              Williams identified

defendant as the assailant, both in court and through a photo

array presented during the investigation.

       After Williams gave his statement related to this crime on

September 9, 2011, he was arrested on an open parole violation

warrant issued by New York State and housed in the Monmouth County

Correctional Institution (MCCI).             While awaiting disposition of

this parole violation, Williams encountered defendant while they

were    both   in    the    MCCI   Intake   Housing   area.   Williams   also

interacted with defendant when defendant was housed in the "G2"

section of the MCCI, which Williams claimed was "right next door

                                     9                               A-4599-13T2
to me."   Williams provided the following description of this

custodial setting:

          So there's a big glass that separates us. We
          see each other every day. I actually didn't
          know that he was there at first until . . . I
          saw my brother-in-law and when I saw my
          brother-in-law, I happened to see Mr. Wilson
          sitting by the table watching T.V. also; and
          I asked my brother-in-law to call him.      I
          wanted to make sure that that was the person
          that I saw or that person that I met.

          When I saw him, I asked him to come outside.
          It's all glass, all around, and it was their
          time for yard.   We had the gym, but we can
          talk through the glass or we can talk through
          the doors and we had a conversation.

          In that conversation, he admitted to me that
          he did it. He told me that he didn't cut her,
          that all he did was put the fork to her face.
          I said a fork?    He said yeah, a fork.    You
          know, one of those big BBQ fork[s]? That's
          all I had. He put the fork to her face and
          the only reason she got cut is because how she
          was fighting. He said, man, that bitch was
          strong. She was trying to bite my fingers and
          everything, just going off.

     Defendant presented an alibi defense.    He denied having any

involvement with this crime because he was home in Yonkers, New

York on the morning of August 1, 2011. In support of this defense,

defendant called his wife Lisa Stewart as his alibi witness.       As

of the time of trial, Stewart testified she had been married to

defendant for twenty-nine years.   She and defendant had never been

to Neptune before defendant was arrested on August 10, 2011 in


                            10                              A-4599-13T2
connection with this crime.1         According to Stewart, at 7:00 a.m.

on Monday, August 1, 2011, the day and time the robbery occurred,

defendant was at home with her in Yonkers.

         Stewart testified she worked for the WestMed Medical Group

as   a    "clerical   associate's   office    manager"   when   the   robbery

occurred.      When she woke up at 7:00 a.m. that Monday to go to

work, defendant was "[i]n the bed with a hangover."               When asked

why he was "hungover," Stewart responded: "Because he went out

th[e] night before."       When defense counsel asked her to elaborate

on   defendant's      condition   that    morning,   Stewart   stated:   "Hung

over[,] [d]runk, drunk, drunk, drunk, like when he came in, and

then that morning he was just laying in the bed sick, you know.

If you drink too much[,] you get a hangover and he was just sick."

         Defendant was sixty-five years old when he testified in his

own defense on December 10, 2013.             He corroborated his wife's

testimony about being hungover when the robbery occurred.                   He

testified he was "socializing" at the "marina" the night before

and overextended himself.         He did not remember which one of his

"associates" drove him home.             Although he realized his car was

missing, defendant claimed he did not learn that Williams and

Evans had taken it until later.


1
  Stewart testified that defendant was initially held in a jail
located in Westchester, New York for a period of two to three
weeks before he was transported to the MCCI.
                            11                           A-4599-13T2
     Defendant testified he knew Evans "[f]rom the neighborhood."

He did not know Williams at all until he met him at a party in

Yonkers.   He claimed Williams set him up as the "fall guy" in this

robbery.   He saw both Williams and Evans at the MCCI and claimed

they threatened him "[i]n a roundabout way."          When asked by his

attorney to elaborate, defendant merely stated: "Just keep your

mouth shut."    Although defendant denied any involvement in the

robbery, he conceded the towel that the police found inside his

car contained his blood.        He claimed the blood was on the towel

from a self-inflicted injury to his finger that occurred about one

month before the robbery.

     Against   this   record,    defendant   now   appeals   raising   the

following arguments.

           POINT I

           GIVEN THE PROSECUTION'S THEORY THAT MARCUS
           EVANS AND SHEQUAN WILLIAMS WERE "INVOLVED IN"
           THE ROBBERY WITH DEFENDANT, THE TRIAL COURT
           ERRED IN FAILING TO CHARGE THE JURY ON
           ACCOMPLICE LIABILITY, AND IN FAILING TO GIVE
           THE JURY THE OPTION OF CONVICTING DEFENDANT
           OF SECOND-DEGREE ROBBERY. (Not Raised Below)

           POINT II

           THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
           THE JURY THAT IT SHOULD RECEIVE AND WEIGH
           SHEQUAN WILLIAM'S TESTIMONY ABOUT DEFENDANT'S
           SUPPOSED CONFESSION WITH CAUTION, AND ONLY
           CONSIDER IT IF THEY BELIEVE IT TO BE TRUE.
           (Not Raised Below)


                                12                                A-4599-13T2
     In   his   pro   se   supplemental   brief,   appellant   raises   the

following argument.

           POINT I

           THE TRIAL COURT SHOULD HAVE SUPPRESSED THE
           RESULTS OF THE EYEWITNESS IDENTIFICATION AS
           IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE.

     We begin our analysis by emphasizing that all of the arguments

defendant now makes in this appeal were not raised before the

trial court.     Thus, these arguments will be reviewed under the

plain error standard, which requires this court to disregard any

error or omission "unless it is of such a nature as to have been

clearly capable of producing an unjust result[.]"         R. 2:10-2.     We

must also review the jury charge as a whole.          State v. Baum, 224

N.J. 147, 159-60 (2016).       Guided by this standard of review, we

are satisfied the trial court properly instructed the jury on all

of the relevant legal issues.

     Williams's testimony describing his role in this crime did

not warrant that the court sua sponte instruct the jury on the

legal elements of accomplice liability as defined in N.J.S.A.

2C:2-6.    Defendant's defense strategy was based on the alibi

testimony presented by his wife.          Thus, defense counsel did not

ask the court to instruct the jury on accomplice liability during

the charge conference held pursuant to Rule 1:8-7(b).



                                13                                A-4599-13T2
     Defendant's   remaining   arguments   raised   by   his   appellate

counsel lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). In the interest of clarity, we indicate

there was no rational basis for the trial judge to sua sponte

instruct the jury on the lesser included offense of second degree

robbery.   See State v. Carrero, ____ N.J. ____, ____ (2017) (slip

op. at 19); N.J.S.A. 2C:1-8(e).     The trial court also correctly

instructed the jury on how to consider and evaluate Williams's

testimony concerning defendant's alleged inculpatory statements.

State v. Cook, 179 N.J. 533, 552 (2004).

     Finally, defendant's pro se argument is wholly without merit.

Applying the then-prevailing analytical standards, the trial court

found the law enforcement investigators properly followed the

identification procedures acceptable at the time.        The standards

that the Supreme Court established in State v. Henderson, 208 N.J.

208, 302 (2011), do not apply to this case.

     Affirmed.




                               14                                A-4599-13T2
