                                NOT FOR PUBLICATION WITHOUT THE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




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4176-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAEVON DAVIS, a/k/a
DAEVON N. DAVIS,

     Defendant-Appellant.
_______________________

                   Argued telephonically June 1, 2020 –
                   Decided July 15, 2020

                   Before Judges Rothstadt, Moynihan and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-03-0733.

                   Laura M. Garcia argued the cause for appellant (Joseph
                   E. Krakora, Public Defender, attorney; Laura M.
                   Garcia, Designated Counsel, on the briefs).

                   Steven Cuttonaro, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Steven Cuttonaro, of counsel and on
                   the brief).
PER CURIAM

      Defendant Daevon Davis appeals from his conviction after jury trial of:

first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-

3(a)(1),(2) (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2) (count

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

(count three); and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count four), in connection with the shooting death

of Christopher Graham on the one-hundred block of Isabella Avenue, and

defendant's concomitant aggregate sentence of life imprisonment, subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). On appeal, he argues:

            [POINT I]

            [DEFENDANT'S]   CONVICTION   MUST   BE
            REVERSED BECAUSE THE TRIAL COURT ERRED
            IN ADMITTING THE FINGERPRINT EVIDENCE
            WHERE DETECTIVE RICCI'S ANALYSIS WAS
            PREJUDICIALLY FLAWED AND NOT BASED ON
            FACTS IN THE RECORD.

            [POINT II]

            THE TRIAL COURT ERRED IN ADMITTING [AN
            EYEWITNESS'S       (THE      WITNESS'S)]
            IDENTIFICATION OF [DEFENDANT] WHICH
            RESULTED FROM SUGGESTIVE CONDUCT BY
            BOTH THE STATE AND A PRIVATE ACTOR
            WITHOUT      FIRST    CONDUCTING    AN
            EVIDENTIARY HEARING.

                                                                        A-4176-17T4
                                       2
                 A.    [The witness's] Identification was the
                 Irreparable Product of an Improperly Suggestive
                 Photo Array Procedure.


                 B.    [The witness's] Identification was the
                 Irreparable Product of Suggestive Conduct by an
                 Unidentified, Unnamed Third Party Who Was
                 Not Subject to Cross-Examination as well as [the
                 witness's] Use of Instagram to Further Confirm
                 her Identification.


           [POINT III]

           THE   STATE'S   FAILURE   TO   PROVIDE
           ADMISSIBLE EVIDENCE OF [DEFENDANT'S]
           INVOLVEMENT IN THE SHOOTING RENDERS
           THE HANDGUN EVIDENCE IRRELEVANT AND
           WHOLLY      INADMISSIBLE,    REQUIRING
           REVERSAL OF [DEFENDANT'S] CONVICTION
           FOR UNLAWFUL POSSESSION OF A WEAPON.

           [POINT IV]

           THE CUMULATIVE EFFECT OF THE ABOVE
           ERRORS DEPRIVED [DEFENDANT] OF DUE
           PROCESS AND A FAIR TRIAL, REQUIRING
           REVERSAL.

           [POINT V]

           THE   TRIAL        COURT'S      SENTENCE        WAS
           EXCESSIVE.

Unpersuaded, we affirm.

                                                                    A-4176-17T4
                                     3
                                         I.

      We consider the facts found in the trial record. In the investigation that

followed the police response to a 911 call on July 13, 2015, reporting that two

individuals each wearing gray hooded sweatshirts, blue jeans and blue bandanas

around their faces shot the victim several times then ran in different directions,

police recovered surveillance-camera video from a residence on the same block.

The multi-channel video captured one of the fleeing suspects, wearing a gray

hooded sweatshirt, holding what appeared to be a handgun as he ran through a

common driveway. As he ran, he placed his left hand on the windshield of a

vehicle and continued through yards onto Vermont Avenue.

        That video led Essex County Prosecutor's Office Detective Frank

Ricci—who was qualified at trial as an expert in fingerprint analysis—to process

"the front windshield on the passenger side within arm[']s reach" for

fingerprints. Of the four latent prints lifted by the detective, three were screened

through a fingerprint database, and the detective later compared the three lifts

against defendant's known fingerprints. He opined two latent prints lifted from

the vehicle matched those of defendant's left little finger and left index finger.

      Although defendant did not object to the admission of Ricci's expert

testimony at trial, he now argues the admission of that testimony was plain error


                                                                            A-4176-17T4
                                         4
because it "constituted an inadmissible net opinion" that was a "speculative,

cursory, and unreliable expert conclusion" that had "no support in the record,

failed to establish the factual bases or methodology, and should have been

excluded." That argument is belied by the record.

      Ricci testified generally about fingerprints, which he explained are

"unique skin [called] friction ridge skin" transferred to another surface ; and

about their characteristics—loops, whorls and arches—that are unique to each

person.   He later explained other points—ridge endings, bifurcations and

deltas—to the jury. He also described his method for lifting prints and the

preliminary screening performed before his comparison. Defendant takes no

issue with that portion of Ricci's testimony.

      Ricci then explained how he placed two of the latent prints, preserved on

L-1 and L-3, next to the known prints from defendant's fingerprint card and,

using a magnifying device known as a loop and alternative light sources called

pointers to help identify points of interest, did a side-by-side analysis of the

fingerprints.

      Using two colored diagrams of defendant’s known fingerprints and the

latent prints, the detective explained to the jury:

                  So as I testified earlier about ridge lines, these are
            ridge lines, and I indicated that deviations of the ridge

                                                                           A-4176-17T4
                                         5
            lines are the minutia[e] points where the ridge lines
            separate . . . split or come together. The deviations are
            – are the points of identification, so what we do to do
            an identification is that we would look at the latent print
            lift and find – follow the ridge lines and find the
            deviations.

      Detective Ricci testified further that, after following the ridge lines in LP-

1 and LP-3, he then compared the deviations, i.e, points of identification, in

those prints to defendant’s known fingerprint impressions. He explained his

process: "you would do a comparison [by] . . . find[ing] the deviation and then

you would count the lines between that deviation and the next deviation, and it

[has] to be an exact replica in order to make an identification. If you find one

inconsistent deviation" the comparison would be terminated because "it would

not be that person" against whose known prints the latent prints were compared.

Later in his testimony, he elaborated:

                   I identified the minutia[e] point which is the
            actual point, and then I count ridge lines to the next
            visible minutia[e] point, and then if the numbers come
            out correct, it has to be exactly reflective to the
            identifiable print. It would be exactly the same. If
            there's an extra line in here that's not here, then it would
            disqualify that person. So every point that's identified
            here must matchup with the other known print.

If one minutiae point did not match, "the print would be excluded."




                                                                            A-4176-17T4
                                         6
      On one diagram, Ricci highlighted eleven minutiae points on both LP-1

and the known print for defendant’s left little finger which reflected eleven

matching points of identification that he found by comparing the two prints. On

the other diagram, he highlighted nine points on both LP-3 and the known print

of defendant’s left index finger that corresponded to the matching points of

identification between the two prints.      He fully explained the color-coded

diagrams and how he reached his conclusion that both prints matched those of

defendant by counting the number of ridge lines between the minutiae points in

each set of prints.

      Ricci's comprehensive analysis of the latent prints against defendant's

known prints provided the factual basis for his opinion. See Townsend v. Pierre,

221 N.J. 36, 53-54 (2015) (Under the net opinion rule, "an expert's conclusions

that are not supported by factual evidence or other data" are barred from

admission into evidence at trial. (quoting Polzo v. County of Essex, 196 N.J.

569, 583 (2008))). Ricci's conclusion was not "based merely on unfounded

speculation and unquantified possibilities."      Id. at 55 (quoting Grzanka v.

Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). He provided "'the why and

wherefore' that support[ed his] opinion, 'rather than a mere conclusion.'" Id. at




                                                                          A-4176-17T4
                                        7
54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,

144 (2013)).

      "[F]ingerprint analysis . . . involves an expert [visually] identifying points

of comparison between a known and unknown print." State v. Fortin, 189 N.J.

579, 602 n.12 (2007). The science and statistical data behind Ricci's mode of

analysis has long been recognized by our courts. See State v. Cary, 49 N.J. 343,

355 (1967) ("New Jersey was an early state in the recognition of fingerprint

evidence, State v. Cerciello, 86 N.J.L. 309, 313-14 (E. & A. 1914), a type of

investigative aid which now possesses unquestioned value.").             It is quite

apparent Ricci did not render an opinion based on a subjective standard wholly

personal to him. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,

373 (2011) ("[I]f an expert cannot offer objective support for his or her opinions,

but testifies only to a view about a standard that is 'personal,' it fails because it

is a mere net opinion."). Ricci's detailed and illustrated testimony established

that his was not a net opinion.

      We reject defendant's argument that the discrepancy in the location of the

lifted latent prints rendered Ricci's opinion irrelevant. Counsel for defendant

cross-examined Ricci about his prior testimony that he processed only the upper

portion of the passenger-side windshield. Counsel highlighted in summation


                                                                             A-4176-17T4
                                         8
that both Ricci and an Essex County Prosecutor's Office lieutenant testified that

the latent prints were lifted from the upper portion of the windshield. She

argued, however, that video shows the fleeing suspect touching only the lower

portion of the windshield, and the fingerprint evidence presented by the State

was "absolutely meaningless."

      Although defendant rightly challenging the meaning of the evidence,

whether the latent prints were lifted from the upper or lower portion of the

windshield did not scotch the admissibility of Ricci's opinion.         Ricci also

testified that he fingerprinted the entire windshield and that "[t]he prints were

developed in the upper portion, the middle – the top half of the windshield"; and

that he processed "the front windshield on the passenger side within arm[']s

reach."

      The jury was left to resolve the conflicting evidence and determine if the

prints lifted from the windshield were left by defendant. See Rosenberg v.

Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002) (It is "the function of the

jury to determine the credibility and probative value of the expert's testimony.").

Nonetheless, Ricci's opinion was relevant evidence. See State v. Santamaria,

236 N.J. 390, 405 (2019) ("N.J.R.E. 401 defines 'relevant evidence' as 'evidence

having a tendency in reason to prove or disprove any fact of consequence to the


                                                                           A-4176-17T4
                                        9
determination of the action.' Relevant evidence 'need not be dispositive or even

strongly probative in order to clear the relevancy bar.'" (quoting State v. Cole,

229 N.J. 430, 447 (2017))).

      We determine defendant's remaining challenges to the fingerprint

evidence, including that related to defects in any expert report, are without

sufficient merit to warrant discussion here. R. 2:11-3(e)(2). We note only that

there is evidence that Ricci "generated a fingerprint . . . examination report" and

was cross-examined about the contents of his report. The appellate record does

not contain a report, and defendant did not seek to bar Ricci's testimony or seek

other appropriate relief because his report did not comply with Rule 3:13-

3(b)(1)(C) and (I).

      We see no error, much less plain error, in the admission of the State's

fingerprint evidence. R. 2:10-2.

                                        II.

      The State introduced the out-of-court and in-court identifications of

defendant made by a witness who testified about her encounter with him on July

13, 2015, after she heard "pop noises" that she was convinced were gunshots.

Defendant did not move to suppress the witness's identification. He now argues

her out-of-court identification at a photo array conducted by an Essex County


                                                                           A-4176-17T4
                                       10
Prosecutor's Office investigator on the day of the homicide was tainted by what

he terms in his merits brief as

             three critical factors:     (1) the State's suggestive
             behavior during the photo array; (2) [the witness's] own
             review of what she believed was [defendant's]
             Instagram account; and (3) the identification of
             [defendant] over the phone, based on [the witness's]
             description, by an unnamed individual who was
             incarcerated at the time the crime occurred.

Defendant claims the trial court's failure to hold an evidentiary hearing, required

by the "suggestive circumstances," was plain error under Rule 2:10-2, requiring

"reversal and a remand for an evidentiary hearing to determine the reliabi lity of

[the] identification."

      In its seminal eyewitness identification decision, our Supreme Court

introduced a revised framework to evaluate identification evidence:

             First, to obtain a pretrial hearing, a defendant has the
             initial burden of showing some evidence of
             suggestiveness that could lead to a mistaken
             identification. See State v. Rodriquez, 264 N.J. Super.
             [261, 269 (1993), aff'd o.b., 135 N.J. 3 (1994)]; State v.
             Ortiz, 203 N.J. Super. [518, 522 (1985)]; cf. State v.
             Michaels, 136 N.J. 299, 320 (1994) (using same
             standard to trigger pretrial hearing to determine if
             child-victim's statements resulted from suggestive or
             coercive interview techniques). That evidence, in
             general, must be tied to a system—and not an
             estimator—variable. But see [State v. Chen, 208 N.J.
             307 (2011)] (extending right to hearing for suggestive
             conduct by private actors).

                                                                           A-4176-17T4
                                        11
             [State v. Henderson, 208 N.J. 208, 288-89 (2011),
             modified by State v. Anthony, 237 N.J. 213 (2019).]

       The Court instructed that a trial court "should conduct a [pretrial hearing,

commonly known as] a Wade1 hearing only if defendant offer some evidence of

suggestiveness," id. at 290, based only on a non-exhaustive list of "system

variables," which it delineated:

             1. Blind Administration. Was the lineup procedure
             performed double-blind? If double-blind testing was
             impractical, did the police use a technique like the
             "envelope method" described above, to ensure that the
             administrator had no knowledge of where the suspect
             appeared in the photo array or lineup?

             2. Pre-identification Instructions. Did the administrator
             provide neutral, pre-identification instructions warning
             that the suspect may not be present in the lineup and
             that the witness should not feel compelled to make an
             identification?

             3. Lineup Construction. Did the array or lineup contain
             only one suspect embedded among at least five
             innocent fillers? Did the suspect stand out from other
             members of the lineup?

             4. Feedback. Did the witness receive any information
             or feedback, about the suspect or the crime, before,
             during, or after the identification procedure?

             5. Recording Confidence. Did the administrator record
             the witness' statement of confidence immediately after

1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                           A-4176-17T4
                                       12
            the identification, before the possibility of any
            confirmatory feedback?

            6. Multiple Viewings. Did the witness view the suspect
            more than once as part of multiple identification
            procedures? Did police use the same fillers more than
            once?

            7. Showups. Did the police perform a showup more
            than two hours after an event? Did the police warn the
            witness that the suspect may not be the perpetrator and
            that the witness should not feel compelled to make an
            identification?

            8. Private Actors. Did law enforcement elicit from the
            eyewitness whether he or she had spoken with anyone
            about the identification and, if so, what was discussed?

            9. Other Identifications Made. Did the eyewitness
            initially make no choice or choose a different suspect
            or filler?

            [Id. at 289-90.]

      In cases where a private actor's suggestive behavior is implicated, the

Court reached a similar conclusion after a nuanced analysis. Chen, 208 N.J. at

311. While ruling defendant's due process rights were not in issue because

government action was not involved in the identification, the Court ruled

"although no Wade hearing was necessary, that hardly ends the inquiry. We

must consider the admission of eyewitness identifications tainted by private

suggestive procedures in light of the rules of evidence and the trial courts'


                                                                       A-4176-17T4
                                      13
gatekeeping function." Id. at 318. Under those standards, the Court modified

the Henderson requirements for obtaining a Wade hearing and, in private-actor

cases, required "a higher, initial threshold of suggestiveness to trigger a hearing,

namely, some evidence of highly suggestive circumstances as opposed to simply

suggestive conduct." Id. at 327.

      Those polestars guide our review of the facts adduced at trial that bear on

the suggestiveness of the photo array identification.

      Shortly after hearing the "pop noise[s]" the witness saw two individuals

wearing gray hooded sweatshirts and blue jeans run from Vermont Avenue and

enter a parked vehicle. Although both had the sweatshirt hoods drawn tight

concealing their faces, the individual who entered the back seat pulled his hood

back, allowing the witness to see his face.

      The witness immediately recognized defendant "[b]ecause he[] [was]

someone that [she had] seen around the neighborhood a plethora of times." She

explained that by "around the neighborhood" she meant:

            South Orange Avenue, Isabella Avenue, Sunset
            Avenue. There's a Dunkin Donuts on West End – there.
            There's a laundry mat on South Orange Avenue – like
            it would be between Vermont and Isabella – in the
            laundry mat. There's a parking lot next to the laundry
            mat where the bust stop is – there.



                                                                            A-4176-17T4
                                        14
                   There's a Home Liquors across the street – there.
             There's a corner store – there. There's a Chicken Shack
             across from the corner store – there. I mean, all over.

The witness estimated she had seen defendant "[m]ore than a hundred" times

over more than five years.

      Although she did not know defendant's given name or surname, she knew

his street name to be "Young Snatch." She also "followed" defendant on his

Instagram2   account    under   the   user   names    "4eva_sleezy"    and    then

"Ben_bun_bet." She showed both Instagram accounts to a police sergeant who

responded to her house after she called police. The witness testified she was

able to "instantly . . . pull up [both of defendant’s] Instagram accounts" during

the initial interview and provided police with the account names.

      At the Prosecutor's Office on the day of the homicide, before the witness

gave a statement to detectives and participated in the photo array, she received

a telephone call from an incarcerated individual who was neither identified nor

testified at trial. The witness described to the caller the individual she saw by

giving his street name and his physical appearance. The caller told the witness

he thought the individual's name was either Daevon or Devon.



2
  The witness described Instagram as "a social site. . . . used to post videos and
post photos."
                                                                          A-4176-17T4
                                       15
      The witness then gave a statement to detectives; she did not describe

defendant as having dreadlocks, dark skin or facial hair. The witness said she

did not provide the description because there "was no need because [she] had

his Instagram."

      The photo array was compiled by a detective who, after receiving

information from the sergeant about defendant's Instagram accounts, opened the

account, saw defendant's photo and included a non-Instagram photo of defendant

in the array with five fillers. That array was shown sequentially to the witness

by a blind administrator, an investigator without knowledge of the case

including the identity of any suspect.

       In fact, as part of the instructions given to the witness prior to being

shown the photographs, the investigator told her "[i]f you select a photograph,

please do not ask me whether I agree with or support your selection. I do not –

know whether – whom the suspect is, if he or she are present in the lineup, or

what photograph he or she may be [in] if present," and that it was her "choice

alone that counts." The additional instructions included:

                  In a moment I will show you a number of
            photographs one at a time. You may take as much time
            as you need to look at each one. You should not
            conclude that the person who committed the crime is in
            the group merely because a group of photographs are
            being shown to you. The person who committed the

                                                                        A-4176-17T4
                                         16
            crime may or may not be in the group and the mere
            display of the photographs is not meant to suggest that
            the police believe that the person who committed the
            crime is in one of the photographs. You do not have to
            select any photograph. There is no significance to the
            order in which the photographs are displayed.

                 Even if you select a photograph, all the
            photographs will still be show to you. However, tell
            me immediately if you recognize anyone in one of the
            photographs.

      The witness viewed two photographs, and said, "[n]o," to each, signifying

neither was the person she saw in the vehicle. She immediately selected the

third photograph—defendant's—when she saw it. The investigator asked her,

"Yes?" The witness responded, "Yes." The investigator told her, "Okay, put

that one aside." The investigator showed the remaining fillers to the witness;

she again said, "[n]o," to each. She initialed and dated the photographs she did

not select; she signed and dated the photograph she did.

      Defendant does not contend: the array was not conducted by a blind

administrator; the witness was not given "neutral, pre-identification instructions

warning that the suspect may not be present in the lineup and that the witness

should not feel compelled to make an identification"; defendant's photograph

was physically different from the fillers; or that the witness viewed any photo

more than once. Henderson, 208 N.J. at 290.


                                                                          A-4176-17T4
                                       17
      He does argue the investigator's verification of the witness's response of

"[y]es" when shown photograph number three, and his request to set that

photograph aside constituted confirmatory feedback. We see no merit in that

argument. The investigator did not know if defendant was the suspect. By

merely confirming the witness's response and setting aside the photograph so

she could later sign it, he was preventing any confusion or misunderstanding

during the identification procedure.      Those measures did not confirm the

witness's choice. See id. at 253 ("Confirmatory or post-identification feedback

. . . . occurs when police signal to eyewitnesses that they correctly identified the

suspect."). Further, contrary to defendant's merits-brief contention, the request

did not signal that the identification procedure was complete.         Indeed, the

procedure continued with the showing of the remaining photographs in

accordance with the investigator's preliminary instructions.

      Although the record does not reflect the investigator filled out the post-

identification forms that record the percentage of the witness's assuredness, in

asking the witness how she recognized the person in photograph number three,

he elicited: "I know[] him from the neighborhood. He – he [is] around my

neighborhood. And then today I noticed him running from Vermont and getting

in the car after I heard shots fired." The circumstances, including the witness's


                                                                            A-4176-17T4
                                        18
immediate response as shown on the recording of the procedure, and her

familiarity with defendant evidenced by her many prior viewings in the

neighborhood and her knowledge of his Instagram accounts and street name,

indicate a confidence level. Defendant's trial counsel ably explored the basis

for the witness's identification, probing each source of the witness's basis for

identifying defendant.

      We determine defendant's argument that the filler photographs were

suggestive because they depicted individuals who did not live in the witness's

neighborhood where she had previously seen defendant is without sufficient

merit to warrant discussion.      R. 2:11-3(e)(2).    While the witness did not

recognize any of the individuals depicted in the fillers as being from her

neighborhood, there is no evidence they were not. Moreover, neither Henderson

nor any other case require that fillers be of persons from a geographic ar ea. The

fillers must not be suggestive; that is, they must look like the photograph of the

suspect. Henderson, 208 N.J. at 293 (including, as a factor in determining

suggestiveness, if "fillers . . . resemble the suspect"); see also State v. Herrera,

187 N.J. 493, 516 (2006) ("In composing a photo or live lineup, the person

administering the identification procedure should ensure that the lineup is

comprised in such a manner that the suspect does not unduly stand out.


                                                                            A-4176-17T4
                                        19
However, complete uniformity of features is not required." (quoting Office of

the Attorney Gen., N.J. Dep't of Law and Pub. Safety, Attorney General

Guidelines     for    Preparing     and     Conducting     Photo     and      Live

Lineup Identification Procedures 1 (2001) (Guidelines))). Defendant does not

contend the fillers did not resemble defendant.

      Our review leads us to conclude defendant did not show some evidence of

suggestiveness sufficient to warrant a Wade hearing, and we reject his call for a

remand.

      Turning to defendant's argument that the caller who provided the witness

with defendant's first name tainted the identification procedure, we do not find

his analogy to Chen apposite. The victim in Chen did not know her attacker,

208 N.J. at 312, and told police she "didn't see her [assailant’s] face except for

a second when she turned," id. at 313. She sketched her assailant and showed it

to her husband who thought it resembled his ex-girlfriend. Ibid. He opened the

ex-girlfriend's website and showed the victim five to ten pictures of defendant

without including any innocent fillers.     Id. at 313, 329. After seeing one

particular photo off of the website, the victim "just jumped" and was "ninety

percent positive" that the woman depicted in one of the photographs attacked

her. Id. at 313. The victim's sister drew eyeglasses on the photograph at which


                                                                           A-4176-17T4
                                       20
point the victim positively identified her attacker. Ibid. Those circumstances,

deemed highly suggestive by the Court, required a remand for an evidentiary

hearing. Id. at 329.

      Here, in contrast, the witness knew defendant from the neighborhood,

seeing him many times over the years and following him on Instagram. She

knew his street names and both of his Instagram accounts. The only information

provided by the caller, after the witness provided him with defendant's street

name and physical description, was two variations of a given name. In his merits

brief, defendant attempts to relate Chen's facts because the witness viewed

defendant's Instagram account. Neither the caller nor any other third-party,

however, prompted the witness to view defendant's Instagram account, of which

she had personal knowledge.

      We do not discern that information met the "higher, initial threshold of

suggestiveness [necessary] to trigger a hearing, namely, some evidence of highly

suggestive circumstances as opposed to simply suggestive conduct." Id. at 327.

Defendant's first name was not mentioned or shown during the photo array; there

is no evidence it played any role in the witness's identification.

      We, therefore, reject defendant's argument that "the trial court's failure to

require an evidentiary hearing to determine the reliability and admissibility of


                                                                           A-4176-17T4
                                       21
[the witness's] identification was clearly capable of producing an unjust result,"

amounting to plain error under Rule 2:10-2.         Defendant did not meet the

threshold showing of suggestiveness required under Henderson and Chen to

warrant an evidentiary hearing.

                                        III.

         Though the surveillance video that showed that the suspect fleeing

through the driveway was carrying a handgun, police did not immediately

recover a murder weapon. More than six months after Graham was shot and

killed, police executed a search warrant in an unrelated case and recovered a

handgun that a ballistics expert testified was that from which shell casings and

projectiles taken as evidence from the crime scene on Isabella Avenue were

fired.

         Defendant claims there was insufficient evidence linking him to that

handgun. Specifically, he argues without the fingerprint and identification

evidence, evidence that handgun matched that used in the Graham homicide was

irrelevant and inadmissible; his conviction for unlawful possession of a weapon

should be reversed.

         As determined, the fingerprint and identification evidence were properly

admitted. The jury was instructed they could consider in their deliberations


                                                                          A-4176-17T4
                                        22
direct evidence that directly proves a fact, and circumstantial evidence which

provides "a fact from which an inference of the existence of another fact may be

drawn. An inference is a deduction of fact . . . that may logically and reasonably

be drawn from another fact or group of facts established by the evidence."

Model Jury Charges (Criminal), "Circumstantial Evidence" (rev. Jan. 11, 1993).

      Accordingly, the 911 call describing the shooters each wearing gray

hooded sweatshirts, blue jeans and blue bandanas; surveillance video showing

two individuals with firearms and wearing gray hooded sweatshirts on that July

afternoon running on Isabella Avenue after the shooting; more video showing

the fleeing suspect wearing a gray hooded sweatshirt carrying an apparent

handgun in the driveway where the car was parked on which defendant's

fingerprints were left; three gray hooded sweatshirts recovered from defendant's

residence by police executing a search warrant a week after the homicide; the

witness's identification of defendant and her description of the clothing he was

wearing when she first saw him on Vermont Avenue, the street to which the

suspect ran after exiting the driveway; and the ballistics evidence linking the

casings and projectiles to Graham's homicide provided circumstantial, if not

direct, evidence that defendant possessed the handgun on the day Graham was




                                                                          A-4176-17T4
                                       23
killed.3 There was ample evidence of that crime to sustain the jury's finding on

that charge. See State v. Brown, 80 N.J. 587, 592 (1979).

                                       IV.

      Defendant's argument that the cumulative effect of the trial errors

deprived defendant of a fair trial is without sufficient merit to warrant any

discussion. R. 2:11-3(e)(2). We discern no errors.

                                       V.

      In sentencing defendant, the trial court found aggravating factor three, the

risk that defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3), and

gave it high consideration; aggravating factor six, the extent of defendant’s

criminal history and seriousness of the offenses which he was previously

convicted, N.J.S.A. 2C:44-1(a)(6), and gave it moderate consideration;

aggravating factor nine, the need to deter defendant and other individuals from

violating the law, N.J.S.A. 2C:44-1(a)(9), and gave it high consideration; and

mitigating factor eleven, defendant’s imprisonment would cause excessive

hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11), and afforded it

low consideration.    The court found "the aggravating factors preponderate


3
  Defendant stipulated that he did not possess a permit to possess the handgun,
the other element of the crime other than the knowing possession of same.
N.J.S.A. 2C:39-5(b)(1).
                                                                          A-4176-17T4
                                      24
significantly over the sole mitigating factor." After merging counts one and

four, the trial court sentenced defendant to life imprisonment, subject to NERA,

for murder (count two) and a concurrent ten-year prison sentence with five years

of parole ineligibility for unlawful possession of a handgun (count three).

      Defendant argues the sentence was excessive because the court "failed to

adequately apply the relevant aggravating and mitigating factors," in that "[t]he

trial court’s finding of aggravating factors three and six was not supported by

competent credible evidence in the record[.]"

      After reciting defendant's juvenile and adult criminal history, the trial

court found "aggravating factor three, both [three]A and [three]B[,]" which it

identified as "[t]hree[]A, the risk defendant will commit another offense," and

defendant's failure to "express any remorse" that the court found "as an

aggravating factor under [three]B." As to the former, the court recognized

defendant’s extensive criminal history, including his "six juvenile adjudications,

within a six-year period with two parole violations. . . . [e]leven disorderly

convictions from 2008 to 2014 with a violation of probation,4" and one prior

indictable conviction on which defendant violated probation. As to factor three



4
  The presentence report indicates defendant was resentenced on December 13,
2010, for two violations of probation on separate disorderly persons convictions.
                                                                          A-4176-17T4
                                       25
B, the court acknowledged defendant's in-court apology for the loss to the

victim's family but highlighted his lack of remorse despite the surfeit of evidence

that defendant planned and executed the murder, "gunn[ing] down [Graham] in

the street in broad daylight." The trial court concluded there exists no evidence

"to detract from the reasonable likelihood that . . . defendant will offend again ."

      Notwithstanding the trial court's bifurcation of the single statutory

aggravating factor, it found defendant continued to commit numerous offenses

despite experiencing both parole and probation supervision, as well as numerous

jail terms. See State v. Dunbar, 108 N.J. 80, 96-97 (1987) (finding aggravating

factor three was warranted based defendant's "lengthy juvenile record, [and] his

adult record including violations of parole and probation"). Further, defendant's

denial of involvement and his lack of remorse indicated that a prison sentence

was necessary to deter defendant from similar conduct in the future . The trial

court, therefore, properly considered defendant's lack of remorse as part of its

finding regarding aggravating factor three. See generally State v. Rivers, 252

N.J. Super. 142, 153-54 (App. Div. 1991) (recognizing a defendant's lack of

remorse as one of the many reasons supporting aggravating factor nine, N.J.S.A.

2C:44-1(a)(9)).




                                                                            A-4176-17T4
                                        26
      The trial court based aggravating factor six on "the extent of . . .

defendant's prior record . . . and the seriousness of this event." Defendant's

lengthy criminal history supported the court's determination. We disagree with

defendant's contention that the trial court wrongly considered the "seriousness

of [the] event" in finding this aggravating factor. The court properly considered

the escalating nature of defendant's criminal history.

      "[A]n appellate court should not second-guess a trial court's finding of

sufficient facts to support an aggravating or mitigating factor if that finding is

supported by substantial evidence in the record." State v. O'Donnell, 117 N.J.

210, 216 (1989).    Under our deferential standard of review, we "must not

substitute [our] judgment for that of the sentencing court," and will affirm a

sentence unless:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) 'the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience.'

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]




                                                                          A-4176-17T4
                                       27
Under that lens, we discern no reason to overturn the trial court's sentence.

      Affirmed.




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                                       28
