                        NOT FOR PUBLICATION WITHOUT THE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-1143-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WILLIAM C. COOPER, JR., a/k/a WILLIAM
SMITH and WILLIAM C. SMITH,

     Defendant-Appellant.
_______________________________________


              Argued April 11, 2018 – Decided August 31, 2018

              Before Judges Fuentes, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              11-12-2963.

              Seon Jeong Lee, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; Seon Jeong Lee, on the
              brief).

              Linda A. Shashoua, Assistant Prosecutor,
              argued the cause for respondent (Mary Eva
              Colalillo,    Camden   County   Prosecutor,
              attorney; Linda A. Shashoua, of counsel and
              on the brief).

PER CURIAM
     Defendant William C. Cooper, Jr.1, was tried before a jury

and convicted of knowing or purposeful murder, N.J.S.A. 2C:11-

3(a)(1)(2), felony murder, N.J.S.A. 2C:11-3(a)(3), five counts of

first degree robbery, N.J.S.A. 2C:15-1, five counts of third degree

criminal restraint, N.J.S.A. 2C:13-2(a), second degree unlawful

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

possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-

4(a), second degree possession of a handgun by a person previously

convicted of one of the crimes listed in N.J.S.A. 2C:39-7(b), and

conspiracy   to   commit   armed   robbery    and   criminal   restraint,

N.J.S.A. 2C:5-2.       The trial court sentenced defendant to an

aggregate term of 124 years, with 101 years, one month, and twenty-

four days to be served without parole, as mandated by the No Early

Release Act, N.J.S.A. 2C:43-7.2.

     The central and dispositive issue in this appeal requires

this court to determine whether the out-of-court identification

made by the State's key witnesses was irreparably tainted by the

suggestive setting in which it was made.       Equally troubling is the

testimony of a man who claimed defendant admitted to him that he

committed these crimes, while the two men were detained together

in the Camden County Jail. For the first time on appeal, defendant


1
    Defendant was tried together with his codefendant, Rashawn
Carter.

                                    2                               A-1143-15T1
also argues that the trial judge abused his discretion under Rule

1:8-2(d) when he failed to discharge two jurors while the jury was

deliberating.      Finally, defendant claims the jury's verdict must

be vacated because it was tainted by a coercive environment during

deliberations.

     After reviewing the record of this trial and mindful of

prevailing    legal    standards,       we    conclude        the   out-of-court

identification of defendant made by the widow of the murdered

victim in this robbery was irreparably tainted by the suggestive

environment   in    which   the   identification        was    made.    The   law

enforcement agents who were investigating these crimes brought the

witness to the courtroom where defendant was to be arraigned on

these charges, and asked her if she could identify him as one of

the participants in the robbery.             The witness, accompanied by a

victim's   advocate    employed    by   the    Camden    County     Prosecutor's

Office (CCPO), made this identification as she sat in the courtroom

and watched defendant enter the courtroom, escorted by Sheriff's

Officers, handcuffed and wearing a prisoner uniform from the Camden

County Jail. Although the witness' ability to speak and understand

English is limited, and thus she may have not understood the verbal

interactions between defendant and the judge, we conclude the

prejudice caused by this manner of identification spoke for itself



                                        3                                A-1143-15T1
and needed no further explanation.           Consequently, this verdict

cannot stand.

                                    I

                               The Robbery

      At approximately 8:40 p.m. on October 14, 2009, three men,

later identified as defendant, codefendant Rashawn Carter, and a

third individual, entered Alex's Bakery, located in the Township

of Woodlynne in Camden County.          The owners of the bakery, Oscar

Hernandez and Silvia Ramos-Morales, husband and wife, were inside

the   bakery   working.   At   trial,     Ramos-Morales   described   what

occurred during the robbery, including how her husband was killed.

The following account is taken primarily from her testimony and

the testimony of Giovanni Bautista, a customer of the bakery.

Although Bautista was unable to enter the bakery during the

robbery, he was able to describe one of the assailants based on

what he saw through the windows.         Both Ramos-Morales and Bautista

testified at the trial through a court-appointed Spanish language

interpreter.

      The prosecutor used photographs of the bakery as a visual aid

to guide the witnesses' testimony.         Ramos-Morales testified that

on the night of the robbery, a woman carrying a baby came into the

bakery, asking to buy only a slice of a cake.             This woman was

later identified as Latasha Baker, the sister of codefendant

                                    4                            A-1143-15T1
Carter.   Hernandez told her that she could not buy a slice of that

particular cake.       Baker left the bakery but soon returned and

again asked to buy a slice of that cake.           Ramos-Morales testified

that her husband again told Baker that the cake was not sold in

individual slices. According to Ramos-Morales, Baker "continued

arguing[,] . . .       she wanted . . . to force us to give her that

slice of cake."

     At this point, Ramos-Morales testified that three assailants

entered the bakery "to rob us."            According to Ramos-Morales, the

assailant, whom she later identified as defendant, was armed with

a handgun and wore a hooded sweatshirt with the hood pulled over

his head, a black face mask that covered his entire face, and

gloves.   Only his eyes were visible.           Ramos-Morales and Bautista

both testified that the assailant who was later identified as

codefendant Carter, was wearing a red "Ed Hardy" jacket; he did

not have a mask covering his face or gloves on his hands.                 The

third unidentified assailant wore a black jacket with grey and

white stripes.

     According to Ramos-Morales, defendant walked towards the

cash-register    and   pointed   the   handgun    at   Hernandez,   who   was

standing behind the counter.      She testified that

           at that moment [Hernandez ran] towards the
           kitchen and he was able to close the door, but
           the person followed him. And they forced the

                                       5                            A-1143-15T1
           door [open] and the person was able to push
           the door. He was able to put the gun in his
           face and he shot at my husband.


Ramos-Morales testified that defendant was the man who fatally

shot Hernandez.

     Immediately after the shooting, the third man who had been

standing guard at the front door of the bakery and codefendant

Carter "gathered" all the patrons in the bakery and "took them

towards the front and told them all to get down on the ground."

The patrons were later identified as Blanca and Anayeli Ramirez,

Felipe Lopez, and Latasha Baker and her infant child.             Ramos-

Morales noted that "[t]he woman that had the baby, I remember that

she did not go down on the ground."

     Defendant gathered Lopez, Blanca, and Anayeli, forced them

into the kitchen, and robbed them of whatever money they had on

their   person.   Ramos-Morales   was   able   to   stay    hidden   from

defendant's view, and pressed an alarm button that the bakery had

installed.    In the meantime, Carter and the third assailant

unsuccessfully attempted to open the cash register.        Ramos-Morales

testified that before leaving the bakery, the man who had shot her

husband noticed her while she was still pressing the alarm button,

and motioned with his handgun for her to go into the kitchen.

Around that time, someone yelled that the police were on their


                                  6                              A-1143-15T1
way, and the men left the bakery.         Hernandez died from a gunshot

wound to the left side of his chest.

                          The Investigation

     CCPO    Sergeant      Lance         Saunders       was    the        lead

detective/investigator.      He    interviewed       Ramos-Morales.        She

described the person who shot her husband as "tall, not a really

short person but not that tall . . . ."             She told Saunders that

the assailant was taller than him.          With respect to his weight,

she again was less than precise.           She told Saunders that the

assailant was a "little bit heavier than the others . . . ."               She

was only certain about one detail: she did not see his face.

     The CCPO also interviewed Latasha Baker as a witness and

victim of the robbery.    Baker had entered the bakery with her then

one-year-old son two times shortly before the robbery, ostensibly

to buy a slice of cake.    She was inside the bakery when the three

assailants entered.     She told the police officers who responded

that the assailants took her cellphone during the robbery and gave

the police her cellphone number.        Saunders secured a Communication

Data Warrant to track Baker's purportedly stolen cellphone.             Using

the cellphone number, United States Marshal John Husinger traced

the location of the "stolen" cellphone to an address corresponding

to Baker's house.



                                    7                                 A-1143-15T1
     When   the    law   enforcement   agents   responded    to   Baker's

residence, she allowed them to enter.       Using a hand-held signal

monitoring device, the agents found the cellphone under her living

room couch.       Based on this discovery, Saunders asked Baker to

explain how this allegedly stolen cellphone ended up under a couch

in her home.      According to Saunders, Baker gave three different

reasons: (1) the assailants "probably knew that she was a single

mother with two kids[,] so they broke into her house and put the

phone back;"      (2) the assailants "were trying to frame her;" and

(3) the assailants "probably put it back so she wouldn't tell on

them."2

     Saunders reviewed Baker's cellphone records, and discovered

that between 8:00 p.m. and 9:00 p.m. on the date of the robbery,

there were approximately thirteen calls between Baker's cellphone

and codefendant Carter's cellphone.      All of the calls were placed

in the general area of the bakery and Baker's home.         Saunders also

viewed the video security footage of the bakery from the night of

the robbery.   He saw Baker leaving the bakery for the first time,

and walking towards a rear alley adjacent to the bakery.               The

video record also shows the three assailants emerging from the

same alley a few minutes prior to the robbery.


2
  Defense counsel objected to this line of questions that required
Saunders to relate what Baker told him as impermissible hearsay.

                                   8                              A-1143-15T1
      Saunders also spoke to Eddie Bell, the biological father of

Baker's child.      Saunders testified that Bell viewed the video

recording from the security camera and identified the red Ed Hardy

jacket codefendant Carter wore during the robbery as identical to

a jacket he owns.        Defense counsel objected to this line of

questioning, characterizing Bell's identification of the jacket

as "opinion" testimony and "pure speculation."            The trial judge

overruled the objection.      At this juncture, the trial judge gave

sua   sponte   instructions   to   the   jury   characterizing   Detective

Saunders as an expert witness.       Defense counsel did not object.

      Saunders    also   interviewed     Vernon     Carter,3   codefendant

Carter's brother.     Vernon told Saunders that his brother admitted

to him his involvement in the robbery.          He told him that they were

"supposed to . . . get the money and that's it" but the "robbery

went bad."     The CCPO secured an arrest warrant for Rashawn Carter

and the U.S. Marshals Regional Fugitive Task Force executed the

warrant and arrested codefendant Carter at his sister's house.

The U.S. Marshals found Rashawn Carter and defendant hiding in a

pantry closet and arrested both men.




3
  Because Vernon Carter has the same last name as his codefendant
brother, we will refer to Vernon Carter by his first name. We do
not intend any disrespect.

                                     9                             A-1143-15T1
                    The Out-of-Court Identification

      Detective Saunders informed Ramos-Morales that the CCPO had

arrested two of the three men involved in the robbery of the bakery

and murder of her husband, and were still working to find the

third individual.       Ramos-Morales testified at a Wade4 evidentiary

hearing conducted by the court on October 1, 2014.           In response

to the prosecutor's questions, she gave the following testimony,

as interpreted by a court-certified interpreter:

           Q. At some point during the investigation,
           shortly after your husband was murdered, did
           Sergeant Saunders tell you some people had
           been arrested?

           A. Yes.

           Q. What did he tell you about the people who
           had been arrested?

           A. He said that they had just arrested two
           people, that one was missing. And they were
           working to find the other person.

           Q. As to the two people that had been arrested,
           did he tell you specifically what either of
           them had done during the murder?

           A. No.

      Defendant   and    codefendant    Carter   were   scheduled    to    be

arraigned in October 2009.       It is undisputed that members of the

CCPO arranged to have Ramos-Morales transported from the bakery



4
    United States v. Wade, 388 U.S. 218 (1967).

                                   10                               A-1143-15T1
and brought to the courthouse to observe the arraignment.     We do

not know what, if anything, was said to her about the arraignment

process during this trip.    The prosecutor continued her direct

examination of Ramos-Morales with the following questions about

the arraignment:

          Q. Did [Saunders] tell you anything about what
          those two people arrested had been wearing
          during the time of the murder?

          A. I don't remember exactly as far as the two
          that were arrested.    Well, then I came to
          [c]ourt and I saw two people in the [c]ourt,
          I recognized one of the persons.

          Q. Okay.   Now, I want to talk a little bit
          about that.    Before coming to [c]ourt did
          Sergeant Saunders tell you these two arrested
          people have a [c]ourt date?

          A. He said that I had to come to [c]ourt - -
          I had to come to [c]ourt to give my witness
          - - my testimony.

          Q. Okay. But before you had to come testify,
          [sic] was there a time when you came and
          recognized someone and you didn't testify?

          A. Yes.

          Q. Did - - what, if anything, did anyone tell
          you was going to happen that day in [c]ourt?

          A. The day that I came and recognized the
          person I wasn't seated here, I was seated in
          the auditorium, or the audience. One of the
          two people . . . sitting over there, there was
          one taller than the other, one was a little
          fatter. One of the faces was more human than
          the other.


                               11                           A-1143-15T1
          Q. Okay. Let me stop for a moment. I know
          you recognized someone.    And I'm not asking
          how did you recognized that person; okay?
          What I . . . want to know is, what did anyone
          tell you was going to happen in [c]ourt before
          you came to [c]ourt? Did you know you were
          going to see the arrested people?

          A. No. No, he said if I wanted to come to
          [c]ourt fine, the people may be there or they
          may not be there.

          Q. Okay. Did Sergeant Saunders, or anyone
          else, say anything to you about trying to
          recognize anyone?

          A. No.

     At this point in the Wade hearing, defense counsel asked

Ramos-Morales a series of questions intended to asses her ability

to understand English, unassisted by the interpreter.      Defense

counsel noted that in the last "couple of questions," Ramos-Morales

had been "shaking [her] head" seeming to understand the question

before the interpreter completed the interpretation.       Defense

counsel asked Ramos-Morales:

          Q. Do you understand . . . what I am saying?

          A. Yes.

          Q. Okay. Do you understand what I'm saying
          when I talk [sic] in English?

          A. Some of the things I do, yes.

          Q. Okay . . . [H]ow long have you been living
          in the United States now?

          A. 14 years.

                               12                           A-1143-15T1
            Q. Okay. So, . . . when this incident happened
            you had been living in the United States for
            about nine years?

            A. More or less, yes.

     At    this   point,   the   prosecutor   objected   stating:   "I   can

represent to the [c]ourt that she's been taking English classes,

but she's more comfortable with an interpreter and she does not

understand enough to be able to testify without one."               Defense

counsel argued that he did not question the need for an interpreter

when the witness was testifying. Counsel stated: "[M]y questioning

is going to go towards what she understood in the [c]ourtroom

prior to making the identification."           The court overruled the

prosecutor's objection and held that this was a "legitimate line

of questioning about her ability to understand whatever was being

communicated to her before that [c]ourt event."

     The record shows that Ramos-Morales came to this country from

Mexico in 2006.      By that time, the bakery had been opened "for

three years."      The day Ramos-Morales came to court to see the

arraignment, she was "picked up by members of the prosecutor's

office."     Although she had interacted with Saunders and other

members of the CCPO before that day, she did not remember whether

Saunders was in the car with her that day.                 She knew that

Investigator Saunders was the person who was investigating her


                                     13                             A-1143-15T1
husband's murder.      In response to defense counsel's question,

Ramos-Morales stated that a person from the CCPO named "Margarita"

accompanied her in the courtroom on the day of the arraignment.

"Margarita" was also in the courtroom earlier in the Wade hearing.

       The record shows that when Ramos-Morales arrived for the

arraignment, she sat in the courtroom audience.           Defendant entered

the courtroom in an orange jail jumpsuit, and was handcuffed and

shackled.    The probable cause statement that was read aloud for

the record stated: "information had been received from a witness

who . . . knew [defendant], [and] that he was the one that was in

the video that had the gun and that shot the victim[.]"                 At the

Wade hearing, Saunders testified that when defendant entered the

courtroom,    Ramos-Morales    "immediately       spoke   out,    and   .   .   .

communicated in Spanish [to her interpreter], and she immediately

told   me   she   recognizes   the   guy   that    shot   her    husband.       I

immediately said stop . . . We'll go back to the office[.]"

       By contrast, at the Wade hearing, Ramos-Morales equivocated

about what she told the CCPO about the out-of-court identification:

            Q. When you recognized the person you
            described to us as having shot your husband,
            did you say anything in [c]ourt right then?

            A. No.

            Q. Are you sure?



                                     14                                 A-1143-15T1
            A. I don't exactly -- I don't remember what I
            said exactly.

                    . . . .

            Q. [D]o you remember telling any of the people
            around you that you recognized someone?

            A. I believe so. And -- and I have always
            told them, the person that killed my husband
            was that person. I've always said.

     According      to   Ramos-Morales,     she   was    able   to   identify

defendant, despite the fact that the assailant who murdered her

husband wore articles of clothing specifically arranged to conceal

his face.       Ramos-Morales nevertheless insisted that codefendant

Carter "had a more human face[.]"            However, when she looked at

defendant: "You could see that . . . he was evil, he was bad.              The

way he walked." She further explained, "his walk, the way he

walked, the way they walked in I saw them . . . His features."

     At   the    conclusion   of   the    arraignment,   Ramos-Morales     and

Saunders left the courtroom and went directly to the Prosecutor's

office to take an identification statement.         There, Saunders asked

Ramos-Morales to repeat what she had said in the courtroom.

Specifically, Saunders asked her if she had recognized defendant

as one of the two men who had robbed the bakery.                Ramos-Morales

clarified that she recognized defendant as the person who had shot

her husband.



                                     15                               A-1143-15T1
     At   trial,     Ramos-Morales    described   her    out-of-court

identification of defendant.    She explained that she was able to

identify defendant as the man who murdered her husband because at

the arraignment: "[he] had the face of a mean person . . . I

thought he was the one that had shot at my husband because I

observed the eyes of both of them and their head[s].       And when I

was observing that person[,] I became scared." (Emphasis added).

She reiterated that she was able to identify defendant because of

"the features of his head and his eyes."      She also claimed that

she was not certain whether she had identified defendant during

the arraignment or after.

                  The Testimony of Michael Streater

     After his arrest, defendant was detained at the Camden County

Jail pending trial.      He shared a cell with Michael Streater.

Streater was charged with leaving the scene of a fatal accident

and robbery.     Streater entered into a negotiated agreement with

the State, as represented by the CCPO, in which he agreed to plead

guilty to leaving the scene of a fatal accident.      In exchange, the

State agreed to downgrade the robbery charge to third degree theft,

and recommend the court sentence Streater to a term of imprisonment

not to exceed six years, without any minimum period of parole

ineligibility.     The State also agreed to allow Streater to be

released on bail on December 31, 2009, pending sentencing.

                                 16                            A-1143-15T1
     On January 11, 2010, Streater contacted the CCPO and spoke

to Saunders about what defendant had allegedly told him while they

shared a jail-cell at the Camden County Jail.              While out on bail,

Streater     was    arrested    for   driving     while     intoxicated    and

endangering the welfare of child by "putting children at risk of

death or serious bodily injury."           Streater negotiated a new plea

agreement.    In exchange for agreeing to testify as a cooperating

witness in the State's case in chief against defendant, Streater

would plead guilty to second degree endangering the welfare of

child, N.J.S.A. 2C:24-4, and the CCPO would agree to recommend a

maximum sentence of five years, without any minimum period of

parole ineligibility,        concurrent to the previous six-year term.

Thus,   by    agreeing     to   testify      against   defendant,    Streater

negotiated    a    plea   agreement   that    guaranteed    no   direct   penal

consequences for committing a serious crime involving the welfare

of children, that he committed while on bail awaiting sentence for

a crime that caused the death of the victim.

     At trial, Streater testified that he remembered newspaper

clippings from Philadelphia being sent to defendant while he was

in the Camden County Jail.        He read these newspaper clippings a

couple of times.      He testified that after he read these newspaper

clippings, defendant began to open up to him and told him what

actually occurred during the robbery of the bakery.              According to

                                      17                              A-1143-15T1
Streater, defendant initially told him he was not involved in this

robbery.    Streater testified that defendant eventually told him

he was "locked up for [a] capital murder" that happened at a

bakery.    Streater claimed defendant never mentioned he wore a mask

or made any effort to conceal his face, "but I guessed he disguised

himself."     Streater also claimed defendant told him that "the

person's wife couldn't identify him because he had the mask on."

                           Jury Deliberations

     The jury began deliberating on November 12, 2014.       Two days

later, the jury sent out a note that stated:

            1) [scratched out illegible]

            2) Question from [J]uror #5:

            Deliberation process is too stressful, and she
            is asking to be substituted with one of the
            alternate jurors.

            3) Can we re-review the video of masked man
            running into bakery?

                 . . . .

            4) We believe we are missing some evidence[.]
            Is there anything we don't have[?]

                 . . . .

            5) Last night Juror #11 looked up info on
            internet about the facts on everything in
            manilla [sic] folder.

            Is this OK?

            Can info be shared to all jurors?

                                  18                          A-1143-15T1
     After conferring with counsel, the judge brought out Juror

Number 11.    She confirmed that she had conducted internet research

that morning, printed what she found, and brought those documents

to court with her in a manila folder.         The research included

"Police Records" by the Reporters Committee for Freedom of the

Press, Winter 2008, "How Reliable is Eyewitness Testimony" by the

American Psychological Association, April 2006, and "Exonerations

in the United States, 1989 to 2012," by the National Registry of

Exonerations, June 2012.       At the prosecutor's suggestion, the

judge asked Juror Number 11 whether she had shared this information

with other jurors and if there had been any response to this

material from any other juror.    Eventually, the following colloquy

ensued:

             JUROR No. 11: What I said was that I couldn't
             sleep last night and that I needed some - - I
             needed to have a better understanding of
             certain things and that I went on the internet
             and I looked up two articles and a paper. And
             – that I read them. And that I printed them
             out – I didn't feel like I was violating my
             oath as a juror because I wasn't looking up
             the case but I read – you know, I felt like I
             had a better understanding of what my
             questions were. But I felt like I needed to
             share that because – but I didn't share what
             I read or what I took it from.

             The court: First off, did you show any of the
             other jurors any of the written materials?



                                  19                          A-1143-15T1
JUROR No. 11: No. I told them what – I said
what the names of the articles were.

THE COURT: Okay.

JUROR No. 11: That's what I said. I just said
like this article from this paper.

THE COURT: So did you – I mean did you tell
them it was about articles about eyewitness
identification?

JUROR No. 11: Yes.

THE COURT: And exonerations.

JUROR No. 11: I said I had a question on
eyewitness – eyewitness identification and I
also had questions on when things got
overturned   due   to   erroneous   eyewitness
identification. And I had questions on what
could or could not be shared during an
investigation by the press in the State of New
Jersey and Pennsylvania.

THE COURT:   All right . . . was everybody
within earshot when you were talking about
this?

JUROR No. 11: Yes. I came in this morning and
said I couldn't sleep last night.        I had
questions, you know, and this is what I -- I
looked up and I said the names of the articles.
I said, you know, I feel like I need to tell
you that I did this. I said I think I need
to let you guys know that I did this. And I
did – I said I'm not going to say what I read
--

THE COURT: So did you disclose to any of the
other jurors the content of what you read?

JUROR No. 11: No, not what I read – I told
them the article's name but not that according
to this article this is this or that is that,

                     20                           A-1143-15T1
          no. And I said, you know, I think this needs
          to get shared and if, you know, if it's okay
          to be shared then I think it's up to everybody
          else if they want to look at it or not.

                 . . . .

          THE COURT: Did anybody say anything in
          response to the particular subjects that you
          were mentioning?

          JUROR No. 11: No.

          [(Emphasis added).]

The court then discharged Juror Number 11, and called each juror

individually to ask what Juror Number 11 said to them about her

research, and to determine if they could remain impartial in their

deliberations.

     Pursuant to Rule 1:8-2(d)(1), which authorizes a judge to

discharge any juror "because of illness or other inability to

continue," the judge also discharged Juror Number 5, who was

approximately seven months pregnant.    Juror Number 5 explained

that the stress from the deliberation process was too much for her

to handle; she stated: "[M]y head was splitting and I was very

anxious, I couldn't stop thinking about it.     I woke up in the

middle of the night, I was thinking, I couldn't go back to sleep.

I'm a usually calm person and I couldn't even sleep."      The judge

selected two alternate jurors to replace Jurors Number 5 and 11.




                                21                           A-1143-15T1
The judge instructed the jury to begin deliberations as a new

jury.

      After deliberating for two days, the newly constituted jury

sent a note that stated: "We are currently a hung jury and have

not   been   able    to   reach   a   unanimous   decision   after   days    of

deliberation.       Where do we go from here?"       Before the judge had

an opportunity to respond, the jury sent another note, that stated:

"We're trying a new strategy to reconsider our decision."            Shortly

thereafter, the jury sent another note that stated: "Juror 14

feels that juror 7 has preconceived notions on the case.             She said

she knew the area and specific details on it.            Also, she recalls

reading the paper."

      After conferring with counsel, the judge sent for Juror Number

14 and asked: "[H]ow is it that you are saying here that she said

she knew the area and specific details on it?"               Juror Number 14

explained:

             [W]e were looking at a piece of evidence and
             [Juror Number 7] made reference and said
             there's a gas station here, there's Mount
             Ephraim here, speaking of a street, counting
             how many houses it was to a certain person.
             Just there's a lot of things that to me didn't
             make sense.   Like, obviously she said she's
             from Camden so she knew the area, but to me
             she knew specific streets and like things
             right next to the bakery. That to me was like
             if you know this you probably know the bakery
             is here. And also a couple of days ago she
             was speaking about how she most likely read

                                       22                             A-1143-15T1
          the article about the incident . . . so she
          had prior knowledge to the incident.

    The court then called Juror Number 7, who explained that her

knowledge of the area was based on

          what was given to us, the big board, and my
          knowledge, which when we came up and asked the
          questions, I'm from the city, I'm familiar.
          So from looking on the board with the streets,
          something would indicate that it was a light.
          And I indicated what street the light was on.
          That was it, from my knowledge of the city and
          on the board from the street.

With respect to the article, Juror Number 7 explained that she

might have read a newspaper article when the murder happened

because she is from the same city, but it happened so long ago

that she does not remember.

    The   judge   again   spoke   with   each   juror   individually    to

determine if Juror Number 14's note would affect their ability to

be a fair and impartial juror.           The following colloquy then

occurred between the judge and Juror Number 7:

          THE COURT: Do you have          any   preconceived
          notions about the case?

          JUROR No. 7: I do not.

          THE COURT: Okay.       Does the fact that
          apparently at least as of this morning
          somebody else on the jury thought you did,
          would that impact your ability to continue to
          be fair and impartial as a juror?

          JUROR No. 7: No.


                                  23                             A-1143-15T1
            THE COURT: Would it impact your ability to
            interact with that juror or any of the other
            jurors as part of your deliberations?

            JUROR No. 7: Not at all.

       After questioning each juror, the judge brought Juror Number

14 back into the courtroom and asked him whether he could continue

to interact and deliberate with Juror Number 7 and the other jurors

effectively    as   part   of   his   deliberations.   Juror   Number    14

responded: "I'm just – I don't know.           It's tough."    The judge

decided to bring each juror back to the courtroom and addressed

the jury as a whole with a Czachor5 charge:

            I've concluded that there's nothing, no
            information    to   indicate   that    outside
            information has been improperly interjected
            into this case . . . each of you must decide
            the case for yourself but do so only after an
            impartial consideration of evidence with your
            fellow jurors . . . do not hesitate to
            reexamine your own views and change your
            opinion if convinced it is erroneous but do
            not surrender your honest conviction as to the
            weight or the effect of evidence solely
            because of the opinion of your fellow jurors
            or for the mere purpose of returning a
            verdict.

       After a lunch break, the court again called Juror Number 14

into the courtroom and asked him whether, based on the instructions

the court gave before lunch, he could continue to deliberate with

the other jurors.      Juror Number 14 responded: "I think my head


5
    State v. Czachor, 82 N.J. 392 (1980).

                                      24                          A-1143-15T1
would be clear, I'll be alright to deliberate."               The jury returned

a unanimous verdict later that same day, finding defendant guilty

on   all   charges   described   in    the       verdict    sheet,    except      for

conspiracy   to   commit   murder.         The   court     polled    the   jury    as

requested by counsel; each juror affirmed their position in open

court.

      A day later, Juror Number 7 emailed the Camden Jury mailbox

requesting to send a note to the trial judge.               Several days later,

the trial judge received the following letter from Juror Number

7:

            This note is to inform you that I feel I was
            pressured to vote guilty. I left the court
            Tuesday night not knowing what happened.      I
            was hit with [the] accusation because I was
            from the city in which the crime took place
            and may have heard about the crime [five
            years] ago that I was unfit to serve, although
            I wasn't the only one with doubt . . . [A] lot
            went on during deliberation, but Tuesday was
            heated. At one point I had to walk out [of]
            the room, and another moment I had to address
            [J]uror 9['s] use of profanity. I asked that
            we have a moment of silen[ce] several times,
            to cool things down. I went to the bathroom
            and   came   out   to   find   they   continued
            deliberating and came up with guilty for
            Murder bartering not guilty for murder to get
            guilty for another.    I was in shock in the
            courtroom hearing all the guilty.      I didn't
            remember agreeing to all that, when I was on
            the fence the whole time giving in at the last
            hour under unbelievable accusations and
            pressure . . . I felt like I was on trial, I
            was the only one asked if I knew the defendants
            although I wasn't the only one having a hard

                                      25                                   A-1143-15T1
    time placing them there. (Now I know how it
    feels to be innocent in a room of people [who]
    feel you are guilty)[.] . . . . I felt myself
    defending myself although I was innocent
    . . . It wasn't right.     I was on a [trial]
    sometime ago, and it was nothing like this. I
    was confident with my decision walking in on
    11/18/14, and it changed an hour before it was
    all over. I would like to ask if any erased
    not guilty was on the paper, although I
    recalled some blanks that we [were] suppose[d]
    to go over. We started the paper work [the]
    day prior, and never went back over [it].

                          II

Defendant now appeals raising the following arguments.

    POINT I

    THE COURT ERRED IN ADMITTING VICTIM-WITNESS
    OUT-OF-COURT IDENTIFICATION THAT OCCURRED AT
    THE DEFENDANT'S ARRAIGNMENT, AN IMPERMISSIBLY
    SUGGESTIVE SETTING, WITHOUT PROPERLY WEIGHING
    THE RELEVANT SYSTEM AND ESTIMATOR VARIABLES
    TO SUPPORT ITS RELIABILITY FINDING.

    POINT II

    THE VERDICT WAS AGAINST THE WEIGHT OF THE
    EVIDENCE.

    POINT III

    THE TRIAL COURT ABUSED ITS DISCRETION IN
    FAILING TO FOLLOW THE RULE OF LAW TO DISCHARGE
    TWO DELIBERATING JURORS. R. 1:8-2(d)(1). (Not
    Raised Below)

    POINT IV

    THE COURT ERRED IN DENYING THE DEFENDANT'S NEW
    TRIAL MOTION WHERE THE VERDICT WAS REACHED BY
    COERCION AND INTIMIDATION.


                         26                          A-1143-15T1
           POINT V

           THE AGGREGATE SENTENCES OF 124 YEARS WITH 101
           YEARS 1 MONTH AND 24 DAYS OF PAROLE
           INELIGIBILITY IS MANIFESTLY EXCESSIVE.

     We begin our analysis with defendant's argument attacking the

admissibility   of   Ramos-Morales's   out-of-court   identification.

This is the central, dispositive issue in this case. The "standard

of review on a motion to bar an out-of-court-identification . . .

is no different from . . . [an appellate court's] review of a

trial court's findings in any non-jury case." State v. Wright, 444

N.J. Super. 347, 356 (App. Div. 2016) (citing State v. Johnson,

42 N.J. 146, 161 (1964)).    "The aim of the review at the outset

is . . . to determine whether the findings made could reasonably

have been reached on sufficient credible evidence present in the

record."   Ibid. (citing Johnson, 42 N.J. at 162).

     "Appellate review of a motion judge's factual findings in a

suppression hearing is highly deferential.     [Courts] are obliged

to uphold the motion judge's factual findings so long as sufficient

credible evidence in the record supports those findings."       State

v. Gonzales, 227 N.J. 77, 101 (2016) (citations omitted).          The

factual findings of the trial court are accorded deference because

an appellate court's "reading of a cold record is a pale substitute

for a trial judge's assessment of the credibility of a witness he

                                 27                           A-1143-15T1
has observed firsthand."      State v. Nash, 212 N.J. 518, 540 (2013).

A "trial court's findings at the hearing on the [reliability and]

admissibility of identification evidence are 'entitled to very

considerable weight.'"       State v. Adams, 194 N.J. 186, 203 (2008)

(quoting State v. Farrow, 61 N.J. 434, 451 (1972)).

     However,    appellate     courts     "are   not   required   to    accept

findings that are 'clearly mistaken' based on [an] independent

review of the record."       State v. Watts, 223 N.J. 503, 516 (2015).

Further, a reviewing court "need not defer 'to a trial . . .

court's interpretation of the law' because '[l]egal issues are

reviewed de novo.'"     Ibid. (alteration in original) (quoting State

v.   Vargas,    213   N.J.   301,   327    (2013)).      In   deciding      the

admissibility of Ramos-Morales's out-of-court identification of

defendant, the trial court determined that the Supreme Court's

seminal decision in State v. Henderson, 208 N.J. 208 (2011)

applied, rather than the Manson/Madison6 test New Jersey courts

had previously relied on.

     On August 24, 2011, the Court in Henderson adopted a "revised

framework" to be used in evaluating the admissibility of eyewitness

identification evidence.        Henderson, 208 N.J. at 288.            Writing

for the Court, Chief Justice Rabner made clear that the ruling


6
  Manson v. Brathwaite, 232 U.S. 98 (1977); State v. Madison, 109
N.J. 223 (1988).

                                    28                                 A-1143-15T1
would only apply to "future cases," and would take effect thirty

days after the Court approved new model jury charges on eyewitness

identification.     Id. at 302.         In State v. Micelli, the Court

examined   an   out-of-court   identification     that   occurred    before

August 2011, and held that "the [Manson/Madison] standard applies

. . . because the out-of-court identifications were completed

prior to our August 24, 2011 decision in State v. Henderson

. . . ."   State v. Micelli, 215 N.J. 284, 287 (2013).

      The out-of-court identification at issue in the present case

occurred   in   October    2009.   Accordingly,    because   defendant's

identification predated Henderson, this court must apply the two

factors articulated by the United States Supreme Court in Manson,

432 U.S. at 114, and adopted by the New Jersey Supreme Court in

Madison, 109 N.J. at 232-33.

      The two-step Manson/Madison test is applied when determining

the   admissibility   of    eyewitness    identification   and   examines

suggestiveness and reliability:

           a court must first decide whether the
           procedure   in    question   was    in   fact
           impermissibly suggestive. If the court does
           find the procedure impermissibly suggestive,
           it must then decide whether the objectionable
           procedure resulted in a "very substantial
           likelihood of irreparable misidentification."
           In carrying out the second part of the
           analysis, the court will focus on the
           reliability of the identification. If the
           court finds that the identification is

                                   29                               A-1143-15T1
           reliable despite the impermissibly suggestive
           nature of the procedure, the identification
           may be admitted into evidence.

           [Madison,     109     N.J.      at        232 (citations
           omitted).]

     As for the first step:

           Impermissive    suggestibility    is   to    be
           determined    by    the   totality    of    the
           circumstances of the identification.      It is
           to be stressed that the determination can only
           be reached so as to require the exclusion of
           the evidence where all the circumstances lead
           forcefully   to   the   conclusion   that   the
           identification was not actually that of the
           eyewitness, but was imposed upon him so that
           a substantial likelihood of irreparable
           misidentification can be said to exist.

           [Madison, 109 N.J. at 234 (citation omitted).]

     In considering the second step, the court must consider

whether the procedure created a "very substantial likelihood of

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

Simmons v. United States, 390 U.S. 377, 384 (1968)).                  "If the

court   finds   that   the   identification      is    reliable   despite   the

impermissibly     suggestive      nature        of     the   procedure,     the

identification may be admitted into evidence." Ibid. "Reliability

is the linchpin in determining the admissibility of identification

testimony[.]"    Micelli, 215 N.J. at 292 (quoting Manson, 432 U.S.

at 114).    "To assess the reliability of an identification," a

court must consider "'[t]he opportunity of the witness to view the


                                    30                                A-1143-15T1
criminal    at   the       time   of   the    crime,       the   witness'      degree      of

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.'"                        Ibid. (citations

omitted).

      "Procedurally, a defendant must first 'proffer . . . some

evidence    of   impermissible          suggestiveness'          to    be    entitled      to

a Wade hearing."           Henderson, 208 N.J. at 238 (quoting State v.

Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993)).                               If, at

the Wade hearing, the "court decides the procedure 'was in fact

impermissibly         suggestive,'      it    then      considers      the   reliability

factors."     Ibid.        (citing Madison, 109 N.J. at 232).                  The State

then "has the burden of proving by clear and convincing evidence

that the identification[ ] . . . had a source independent of the

police-conducted           identification         procedures."         Id.     at    238-39

(alteration      in    original)       (citing      Madison,     109    N.J.    at    245).

"Overall, the reliability determination is to be made from the

totality of the circumstances."                   Id. at 239 (citing Madison, 109

N.J. at 233).

     The     State         argues      that        Ramos-Morales's           out-of-court

identification        of    defendant    was       an   unplanned      and   spontaneous

identification,        and    that     she    was    not   brought      to   defendant's

arraignment for the purpose of identifying defendant. In contrast,

                                             31                                     A-1143-15T1
defendant argues that Ramos-Morales was purposefully brought to

the arraignment and instructed to observe the two defendants to

see if she recognized them.

     After conducting a Wade hearing, the trial court allowed

Ramos-Morales to testify as to her out-of-court identification of

defendant.     In doing so, the trial court, though analyzing its

decision under Henderson, relied on State v. Mance, 300 N.J. Super.

37, 58-59 (App. Div. 1997) and U.S. v. Jackson, 448 F.2d 963, 967-

68 (9th Cir. 1971).        In Mance, seven prison inmates were indicted

as a result of offenses committed during a prison riot.               Mance,

300 N.J. Super. at 43.          During the riot, a victim-witness was

attacked and stabbed repeatedly by three defendants, including

defendant Mance.      Id. at 46.    The victim was initially unable to

identify     the   defendants    from     a   photo-array,   but   told   the

investigators that he believed he could identify his attackers if

he saw them in person.        Id. at 57.      During the trial, the victim

was sitting outside the courtroom waiting to testify when the

seven defendants, on their way to their lunch break, walked by him

in shackles.       Ibid.   At that point, the victim identified Mance

as one of the defendants who attacked him.             Ibid.   At the Wade

hearing, the investigator explained

           that he had arranged for [the victim] to be
           outside the courtroom that morning because he
           expected him to begin testifying before the

                                     32                              A-1143-15T1
           lunch break.     He had no idea that the
           defendants would be coming through the hallway
           when they did. Nor did he conceive that [the
           victim] would see them in the hallway.

           [Id. at 58.]

     The trial court determined the identification was admissible,

because "the exposure of the defendants to [the victim] was

inadvertent."   Ibid.     The court also determined "that no one had

done or said anything to influence [the victim's] identifications"

and that the identification was reliable.     Mance, 300 N.J. Super.

at 58.    On appeal, we affirmed the trial judge's determination

that the defendant failed to sustain his burden of proving that

this procedure was so suggestive as to result in a substantial

likelihood of misidentification, stating:

           [T]he encounter in the courtroom corridor was
           inadvertent . . . [and] such accidental
           courthouse   encounters    [are  not]   unduly
           suggestive per se.     Here[,] seven shackled
           defendants passed by the witness. Although he
           obviously knew they were the defendants in
           this case, there was nothing to indicate which
           of them were the men who attacked him.
           Therefore, there was no suggestibility with
           regard to his specific identifications of two
           of the seven as his attackers.

           [Id. at 58-59 (citations omitted).]

     In   Jackson,   several   victim   witnesses   were   attending    a

suppression hearing.    Jackson, 448 F.2d. at 965.    At the scheduled

start time of the hearing, while the attorney for defendants was


                                  33                            A-1143-15T1
in a conference with the judge, the three defendants were brought

into the courtroom.           Ibid.     The victim witnesses observed the

defendants at that time.           Ibid.      When the victim witnesses were

called to testify, each identified some, but not all of the

defendants, however, each defendant was identified by at least one

witness.     Ibid.     One witness requested all the defendants stand

up while she made her identification.               Ibid.    At the suppression

hearing, each testified that their identifications were "based

upon their observations at the time of the robbery, and they were

not assisted by the [court-room observations]."                 Id. at 965-66.

Defense      counsel        then   moved      to    suppress     the        in-court

identifications,       arguing        that    the   in-court   observation          of

defendants "tainted the witnesses' ability to make reliable in-

court identification[s]."          Jackson, 448 F.2d. at 966.          The motion

was denied, and the witnesses were later permitted to make in-

court identifications of the defendants at trial.                   Ibid.

       On appeal, the Ninth Circuit held that the circumstances of

the in-court observation of the defendants and the later in-court

identifications were not so "impermissibly suggestive as to give

rise    to    a      very     substantial       likelihood     of     irreparable

misidentification," because:

             considering the totality of the circumstances,
             defendants were not deprived of due process
             under   the Fifth   Amendment .    .   .   The

                                         34                                  A-1143-15T1
           circumstances which persuade us are: (1) the
           [in-court observation] was not planned by
           prosecuting or enforcement officials, but was
           inadvertent; (2) no officials indicated to the
           witnesses that the men led into the courtroom
           were the defendants in the bank robbery case,
           or even connected with the case in any way;
           (3) the assumption made by some of the
           witnesses that these were in fact the
           defendants appears to have stemmed as much
           from the witnesses' spontaneous recognition of
           the men based upon their observations at the
           time of the robbery, as from the fact that the
           men were seated at the counsel table; (4) all
           of the eyewitnesses who participated in the
           confrontation and later testified at the
           suppression hearing and the trial, testified
           that the confrontation did not assist them in
           making their in-court identifications; (5)
           there was substantial evidence, other than
           from these eyewitnesses, connecting the three
           defendants with the robbery; and (6) the
           inadvertent   confrontation   prior   to   the
           suppression hearing was less suggestive than
           the "stand up" procedure followed, in the
           presence of counsel and without objection, at
           the suppression hearing and the subsequent
           trial.

           [Id. at 966-67.]

      The court, in reaching that conclusion, explained that it

"did not intend to intimate that we will, in other and more

aggravated circumstances, condone the use by prosecuting attorneys

of   pre[-]testimony   courtroom   confrontations   to   'firm   up'   the

uncertain memories of potential witnesses." Id. at 967.

      Defendant cites State v. Burden, 155 N.J. Super. 462 (App.

Div. 1977) to support his argument that an identification at an


                                   35                             A-1143-15T1
arraignment is per se illegal.               In Burden, the defendant was

convicted of robbing a loan office.               Id. at 463.       One of the

witnesses was "requested by the police to attend an arraignment

of defendant . . . [and] after viewing a few other individuals

being arraigned, he indicated to the police that defendant looked

like the robber."      Id. at 464.          On appeal, this court explained

that:

              The entire atmosphere of an arraignment is
              suggestive of possible guilt of the suspect
              and in this case could well have influenced
              [the witness] in making his identification of
              defendant on that occasion. Ordinarily such
              illegality in the circumstances of an out-of-
              court identification would require a remand
              to    determine    whether    the    in-court
              identification by the witness was based on
              observations of the suspect independent of
              those at the illegal identification at the
              arraignment.

              [Id. at 465 (citing Wade, 388 U.S. at 240).]

However, this court determined that admitting the out-of-court

identification, based on the totality of the evidence against

defendant in the record, was harmless error.             Id. at 466.

     The Third Circuit, which encompasses New Jersey, has decided

a case similar to the facts raised in this appeal.                   In United

States   v.    Emanuele,   51   F.3d   1123,    1126   (3d   Cir.   1995),   the

defendant was convicted of robbing two banks.                Five weeks after

the robbery, the teller at the first bank selected defendant's


                                       36                              A-1143-15T1
photo out of a photo array, but "wasn't one hundred percent sure

of her choice."   Ibid.     A few weeks later, she was shown a second

photo array, and selected someone other than the defendant.            Ibid.

The teller from the second bank was similarly unable to identify

the defendant from a photo array, and the fingerprints taken from

both robberies did not match defendant's fingerprints.               Id. at

1126-27.

     Both tellers were called to testify at the defendant's trial,

and after they met with representatives from the United States

Attorney's   Office,    they    were    instructed   to   sit   outside   the

courtroom.   Id. at 1127.      While they were waiting to testify, they

saw the defendant being led from the courtroom by U.S. Marshals

in handcuffs.   Ibid.   At that time, "outside the courtroom the two

tellers talked to each other about defendant, telling each other

'it has to be him.'" Emanuele, 51 F.3d at 1127.                 Both tellers

later made in-court identifications of defendant as the robber.

Ibid.

     On appeal to the Third Circuit, the court first determined

that the witnesses' observation of the defendant was unnecessarily

suggestive, concluding that "the confrontation was caused by the

government, albeit inadvertently, and that to walk a defendant --

in shackles and with a U.S. Marshal at each side -- before the key

identification witnesses is impermissibly suggestive."               Id. at

                                       37                            A-1143-15T1
1130.   In determining whether the identifications were reliable,

the court found    the teller who had initially identified the

defendant in the photo array's identification reliable, but the

teller who did not identify defendant prior to observing him at

the courthouse identification as unreliable.    Id. at 1131.    The

court explained:

          [W]e face a situation in which the one eye-
          witness who would be able to identify the
          . . . robber and place defendant at the scene
          of    the   crime,    could    not,    despite
          her opportunity to observe, recognize him in
          a photo array. That failure, coupled with the
          highly suggestive viewing of the defendant in
          conditions reeking of criminality, bolstered
          by the comments of another witness, render the
          in-court identification unreliable.        The
          reaction "it has to be him" greatly diminishes
          the reliability of [her] identification and
          renders manifest the impact of her viewing
          defendant.       In   effect,    the   viewing
          communicated to the witness that the defendant
          was the robber, and there was no reliable
          evidence that she would have so concluded or
          testified absent that viewing.

          Under such suspect circumstances, there
          clearly   was    a substantial risk  of
          misidentification.

          [Id. at 1131.]

     Here, applying the Manson/Madison test, Ramos-Morales's out-

of-court identification of defendant was impermissibly suggestive

and resulted in a very substantial likelihood of irreparable

misidentification.   Ramos-Morales was brought to the arraignment


                               38                          A-1143-15T1
by members of the CCPO.         She had been told by Saunders that two

men had been arrested in connection with the robbery of the bakery

and murder of her husband, and that the police were still looking

for the third suspect.

       Saunders   testified     that       the    CCPO    did    not    ever   use    an

arraignment as an attempted identification procedure, because it

was not the CCPO's practice to do so.                    Saunders also testified

that prior to the proceeding, he did not say anything to Ramos-

Morales about her possibly identifying the defendants at the

arraignment.       However,         at   the      Wade    hearing,      Ramos-Morales

testified that she was told that to recognize defendants, it was

necessary for her to attend the arraignment.                     She explained that

she did not know if she would see the people who had been arrested

at the arraignment, and Saunders had told her that "the people may

be there or they may not be there."

        Ramos-Morales,    as    a    victim       and    witness   of    the   robbery

herself, had a right to attend the arraignment.                     N.J.S.A. 52:4B-

36(p). However, her right to attend the arraignment has no bearing

on    the   admissibility      of    her    out-of-court         identification       of

defendant that she made at that hearing.                   Ramos-Morales made her

out-of-court identification of defendant at his arraignment, where

the    probable   cause     statement           and   criminal     charges     against

defendant, naming him a suspect in the robbery and murder of her

                                           39                                  A-1143-15T1
husband, were presented and read in open court.          Specifically, the

probable cause statement stated, "information had been received

from a witness who . . . knew [defendant], [and] that he was the

one that was in the video that had the gun and shot the victim[.]"

      Here, defendant attended his arraignment dressed in an orange

jail jumpsuit, in handcuffs and in shackles.         Also present at the

arraignment was defendant's co-defendant, the individual who did

not wear a mask when committing the robbery.        At this time, though

Ramos-Morales may not have understood exactly what was being said

at   the   arraignment   because     the   proceedings   were    not     being

translated, she was aware that the individual who was sitting in

front of her, being presented before the judge in a criminal

proceeding,    was   accused   of   participating   in   the    robbery     and

shooting of her husband.       Saunders explained that "[i]t was not a

secret that he was a defendant that shot her husband because of

the statements that we had received so – but I didn't tell her,

you know, he shot your husband."

      The trial court erred in analogizing Ramos-Morales's out-of-

court identification to the out-of-court identifications in Mance

and Jackson.     In Mance, the identification was deemed admissible

by the trial court because it was inadvertent, and because no one

had done or said anything that would influence the victim's

identification of the defendant.           Mance, 300 N.J. Super. at 58-

                                     40                                A-1143-15T1
59.   Similarly, in Jackson, the court deemed the out-of-court

identifications        admissible   because      the    identification         was

inadvertent and not planned by any officials, no one indicated to

the witnesses that the inmates in the courtroom were the defendants

in the case, the witnesses testified that their observations of

the defendants did not assist them in making their in-court

identifications, and there was other substantial evidence in the

record that connected the defendants to the robbery.              Jackson, 448

F.2d at 966-67.

      Here, while Ramos-Morales's identification of defendant may

have been inadvertent, it still occurred in a setting which was

impermissibly suggestive of defendant's probable guilt.                   Unlike

the identifications in Mance and Jackson, the arraignment alone

was   enough     to    influence    Ramos-Morales's        identification       of

defendant.     The present case is more in line with Burden, where

the defendant was actually identified at an arraignment.                Burden,

155 N.J. Super. at 464.        There, this court noted that the entire

atmosphere of an arraignment suggests the possible guilt of the

defendant,     which   can   influence     the   witness    if   they   make    an

identification of the defendant at the arraignment.               Id. at 465.

      At defendant's arraignment, he was charged criminally with

participating in the robbery and with the murder of Ramos-Morales's

husband.       Additionally,   like   in    Emanuele,      the   defendant     was

                                      41                                 A-1143-15T1
identified by the key identification witness (Ramos-Morales) while

he was wearing an orange jail jumpsuit and shackles.            Though it

is unclear how much of the charges Ramos-Morales understood, she

was likely aware that defendant was being accused by the State of

participating in the robbery of her bakery and murder of her

husband.   Moreover, the very nature of a criminal arraignment

proceeding, where criminal charges are read in open court, and the

fact that defendant was restrained in shackles and wearing clothes

identifying    him   as   a   criminal   defendant,   is   impermissibly

suggestive of defendant's possible guilt.

      Further,   Saunders     had   informed   Ramos-Morales    that    two

individuals had been arrested, and that the people who committed

the robbery and murder may or may not be at the arraignment.

Unlike Mance and Jackson, Saunders clearly communicated to Ramos-

Morales that the defendants accused of the robbery and murder

would be at the arraignment, and it was clear that the inmates in

the courtroom were likely the defendants in the case.          There would

be no other reason for Ramos-Morales to attend the criminal

arraignment of defendant but for some communication from the CCPO

that the defendants at the arraignment were the defendants who

were accused of the robbery and murder in which she was a victim

and witness.



                                    42                             A-1143-15T1
      Finally, it is unclear whether or not the out-of-court

identification was actually planned by law enforcement.            Ramos-

Morales contradicted Saunders's testimony at the Wade hearing that

he never asked her to possibly identify any defendant at the

arraignment, because she testified that she was told it was

necessary for her to attend the arraignment so that she could

possibly recognize the defendants.          Accordingly, Ramos-Morales's

out-of-court     identification     of     defendant   occurred   in     an

impermissibly suggestive setting.

     Having      determined    that       Ramos-Morales's    out-of-court

identification of defendant was in an impermissibly suggestive

setting, the next step is to determine if the procedure used in

identifying defendant resulted in a "very substantial likelihood

of irreparable misidentification."         In doing so, this court must

evaluate   the   reliability   of   the    identification.    Courts   may

consider the opportunity of the witness to view the criminal at

the time of the crime, a witness' degree of attention, the accuracy

of the witness's prior description of the criminal, the level of

certainty demonstrated, and the time between the crime and the

confrontation.    Micelli, 215 N.J. at 292.

     In regards to Ramos-Morales's opportunity to view defendant

at the time of the crime and her degree of attention, she testified

that the assailant who murdered her husband was wearing all black,

                                    43                            A-1143-15T1
in   a   sweatshirt   with   the   hood   on,   and   wearing   a   mask   that

completely covered his entire face so that she could only see his

eyes.      While the robbery occurred, Ramos-Morales stood in the

corner of the bakery, behind the cabinets, pressing the panic

button.    She testified that after defendant shot her husband, and

while he was bringing the bakery patrons into the kitchen, she

observed his movements.        She focused only on his head, and his

eyes, and that he was a "little bit heavier than the other two

guys." She was able to see his "manner of walking."             She testified

that defendant noticed her only after someone shouted that the

police were on their way, and it was then that he pointed the gun

at her and motioned that she should follow him into the kitchen.

         Regarding the accuracy of Ramos-Morales's description of

the person who shot her husband, she initially told detectives

that the person who shot her husband was tall, but that she could

not see the shooter's face.         The time between the commission of

the crime and the identification of defendant at his arraignment

was about two weeks.     Additionally, Ramos-Morales displayed a high

level of certainty in her identification of defendant, explaining

at the Wade hearing she was able to identify defendant because "he

was a little fat.      The eyes were square . . . You could see that

he was – he was evil, he was bad.           The way he walked . . . his

features."     At trial, she testified that "he had the face of a

                                     44                               A-1143-15T1
mean person . . . I thought he was the one that had shot at my

husband because I observed the eyes of both of them and their

head.   And when I was observing that person I became scared."          She

reiterated that she was able to identify defendant because of "the

features of his head and his eyes."

     Based on the totality of the circumstances of the out-of-

court   identification,    Ramos-Morales's      identification    is    not

reliable, and lead to very substantial likelihood of irreparable

misidentification.      First, the identification took place in a

setting that impermissibly suggested that defendant was guilty.

Also present at the identification was the unmasked individual who

robbed the bakery.      It is likely that Ramos-Morales recognized

this individual as one of the men who robbed the bakery, and only

identified defendant by association.          Second, after the robbery

and shooting, Ramos-Morales described no personal characteristics

of the shooter, and instead described only a tall person whose

face was covered with a mask and a hood, and who wore all black.

However, at the Wade hearing, Ramos-Morales testified that she was

able to recognize defendant because he had the "face of a mean

person."    This   is   unlikely,   because    during   the   robbery   and

shooting, the gunman's face was completely covered except for his

eyes, and Ramos-Morales was never able to see his face.



                                    45                             A-1143-15T1
      Ramos-Morales further testified that she was able to identify

him based on the "features of his head," his eyes, and his "manner

of walking."    However, it is unlikely that Ramos-Morales was able

to identify any features of the shooter's head as his face was

completely covered with a mask and his head was covered with the

hood of his sweatshirt.        Witnesses were unable to see defendant's

nose, mouth, or hair.      Further, it is unlikely that Ramos-Morales

was able to recognize defendant based on his eyes, because, during

the course of the crime, which took about four minutes, Ramos-

Morales was only able to briefly observe the masked gunman when

he was escorting the bakery patrons to the kitchen, when he

attempted to open the cash register, and when he escorted her to

the kitchen.    During this time, the masked shooter was constantly

moving and at times not facing Ramos-Morales, so it not likely

that she had the opportunity to view the individual's eyes without

any obstructions.       Additionally, regarding defendant's "manner of

walking," she observed defendant walk into the arraignment while

he   was   handcuffed    and   shackled.       It   is   unlikely   that   her

observation that day of his encumbered walking would be the same

or similar to the manner of walking of the individual who shot her

husband.

      No other victims or witnesses identified defendant as the

gunman.     Ramos-Morales      based    her   out-of-court   identification

                                       46                             A-1143-15T1
solely on the gunman's eyes, features of his head, and manner of

walking.    As demonstrated above, it is unlikely that Ramos-Morales

would be able to identify defendant based on these characteristics

alone.    Instead, it is very likely that her identification was not

based on her observations of the gunman during the commission of

the crime, but instead based on the fact that defendant was

appearing in an arraignment to be criminally charged with the

robbery and the murder of her husband.                     Here, the procedure where

the     out-of-court         identification         was    made    was    impermissibly

suggestive,      and        resulted    in     very   substantial        likelihood       of

irreparable misidentification.                 As a result, the trial court erred

in    admitting    Ramos-Morales's             out-of-court        identification         of

defendant.

      The State argues that, if this court finds that the trial

court    erred    in    admitting       the       identification,        the    error   was

harmless,    based      on     the    "overwhelming        evidence      of    defendant's

guilt."     We are not persuaded by this argument.                       It is far from

certain     whether,         without     Ramos-Morales's           identification         of

defendant, there is any "overwhelming evidence of defendant's

guilt."    Her testimony was the only direct evidence of defendant's

guilt.

      Ramos-Morales’s           identification            of    defendant      played     an

integral    role       in    the     State’s      case.    In    the   absence     of   the

                                             47                                    A-1143-15T1
identification, the State’s remaining evidence was Streater’s

putatively unreliable testimony and defendant’s “consciousness of

guilt” in hiding from the police on the date of his arrest.          Under

these   circumstances,   we   are   compelled   to   reverse   defendant's

conviction and remand this matter for a new trial.         Based on this

conclusion, we do not reach defendant's remaining arguments.

     Reversed and remanded.




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