                        NOT FOR PUBLICATION WITHOUT THE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-3693-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MELVIN Q. ROUSE,

     Defendant-Appellant.
______________________________

              Submitted September 14, 2017 – Decided October 3, 2017

              Before Judges Alvarez and Nugent.

              On appeal from the Superior Court of New
              Jersey, Law Division, Hudson County, Docket
              No. 14-08-1402.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Kerry J. Salkin,
              Assistant Prosecutor, on the brief).

 PER CURIAM

          Defendant Melvin Q. Rouse entered a guilty plea to an

 amended charge of second-degree robbery, N.J.S.A. 2C:15-1, after

 his      motion    to   suppress    an   out-of-court      identification         was
    denied.       On March 11, 2016, the trial court sentenced him to

    five years of drug court probation and imposed appropriate fines,

    penalties, and assessments.            Defendant now appeals, alleging

    that    the    victim's    show-up    identification      was   impermissibly

    suggestive and unreliable.           We affirm.

           While in Jersey City, Peter Vincent was robbed on May 8,

    2014.     One of the assailants, wielding a tire iron, struck him

    on the head, causing injury.              Earlier that night, Susan Wecht

    had been robbed in a similar fashion in the same area.                        The

    perpetrators were seen traveling in a black truck, with an

    attached rear bicycle rack.

           Detective Mark D'Ambrosio testified at the Wade1 hearing

    that an ambulance transported Vincent to a location where six

    occupants of a truck similar to that described by the victims

    had been detained within minutes of the second robbery.                  A third

    person, not Wecht or Vincent, identified the vehicle, but not

    the    occupants.     D'Ambrosio       stated     that   the    show-ups     were

    illuminated by a street light and a police vehicle overhead

    light.

           Vincent remained in the ambulance while shown the six

    suspects,      including    defendant,       from   a    distance   of     about


1
  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).

                                          2                                  A-3693-15T2
seventeen feet.         Vincent is Caucasian, while the occupants of

the vehicle are African-American.

      Before the show up, D'Ambrosio told Vincent that the persons

he   would    be     seeing   "may   or       may    not"     be    the    perpetrators.

D'Ambrosio      completed      a     "Show-Up            Identification        Procedures

Worksheet"      only    for   the    three          persons       Vincent     identified,

including defendant, and not for the three persons Vincent did

not recognize.         D'Ambrosio did not recall asking Vincent while

at   the     scene    about   his    level          of    confidence,         although    he

remembered that Vincent's positive identifications were made

within seconds of seeing the suspects.

      D'Ambrosio        witnessed      Wecht's             similar        identification

process.        She    was    seated      in    the        rear    of     a   police     car

approximately ninety to one hundred feet from the ambulance, and

only identified a female perpetrator.                       The two victims had no

contact with each other.              Given the angle of the ambulance,

D'Ambrosio did not believe it was possible for Vincent to have

seen Wecht identify anyone.

      After the show-up, Vincent received medical attention at a

hospital emergency room, including stitches to close his head

wound. Approximately two hours later, he was taken to the police

station where D'Ambrosio videotaped his statement and showed him



                                          3                                        A-3693-15T2
two tire irons.     During the interview, Vincent said he was one-

hundred percent confident in his identifications.

      One of defendant's investigators testified that he also

interviewed Vincent.      His notes indicated that Vincent stated

he could not recognize the suspect's facial features because of

the poor lighting conditions, and that only three persons were

shown to him, not all six occupants of the vehicle.              Vincent

said police brought "them all out[,]" which the investigator

interpreted as meaning that the suspects were shown to Vincent

as a group, not individually.

      The judge found D'Ambrosio credible.       Accounting for system

and estimator variables as defined in State v. Henderson, 208

N.J. 208, 248-72 (2011), he also found the identification to be

reliable.     The     judge   further   opined     that   D'Ambrosio's

documentation sufficiently complied with the Attorney General

Guidelines as well as Rule 3:11.        See Office of the Attorney

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

for   Preparing     and   Conducting    Photo      and    Live    Lineup

Identification Procedures 1 (2001).       Therefore, he held that

defendant failed to meet his burden to demonstrate that there

was a very substantial likelihood of irreparable injury and

denied the motion.

      On appeal, defendant raises the following points:

                                 4                               A-3693-15T2
         POINT I

         THE STATE FAILED TO PROVIDE THE COURT WITH
         EVIDENCE NECESSARY TO DETERMINE RELIABILITY
         BECAUSE THE OFFICER WHO CONDUCTED THE SHOW-UP
         IDENTIFICATION FAILED TO RECORD ANY OF THE
         SALIENT DETAILS OF THE IDENTIFICATION IN
         VIOLATION OF DELGADO, RULE 3:11 AND THE
         ATTORNEY GENERAL'S GUIDELINES. AS A RESULT,
         THE IDENTIFICATION SHOULD BE SUPPRESSED. [ ]

         POINT II

         ALTERNATIVELY, THE COURT ERRED BY DENYING THE
         MOTION TO SUPPRESS THE IDENTIFICATION BECAUSE
         THE OUT-OF-COURT IDENTIFICATION PRESENTED A
         VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
         MISIDENTIFICATION. [ ]

              A. The Court's Decision Not To Suppress
              The Identification Was Based On Factual
              Findings Unsupported By The Record.

              B.   P.V.'s Out-of-Court Identification
              Was Tainted by a Number of Estimator
              Variables Casting Substantial Doubt Upon
              the Reliability of His Identification of
              Mr. Rouse.

     We defer to the trial court's findings of fact, so long as

they are supported by sufficient credible evidence in the record.

State v. Johnson, 42 N.J. 146, 162 (1964).       We also defer to the

trial court's credibility findings.     State v. Cerefice, 335 N.J.

Super. 374, 383 (App. Div. 2000).

     In Delgado, the Court required law enforcement officers to

create   "a   written   record       detailing    the   out-of-court

identification procedure," as well as a written record of "the


                                 5                            A-3693-15T2
dialogue between the witness and the interlocutor, and the

results."        State v. Delgado, 188 N.J. 48, 63 (2006).                After

Delgado, Rule 3:11 was adopted, which made admissibility of an

out-of-court identification contingent upon the existence of a

written record of the identification procedure.                     R. 3:11(a).

The rule specifies the details to be documented, including the

"dialogue between the witness and the officer," and the "witness'

statement of confidence."        R. 3:11(c); Accord Guidelines, supra,

N.J. Dep't of Law and Pub. Safety at 6.

     Only after a Wade hearing can a court determine from the

totality    of    the    circumstances     if    a   legitimately    challenged

identification          is   nonetheless        reliable   and      admissible.

Henderson, supra, 208 N.J. at 238-39.                Contrary to defendant's

contention on appeal, however, the State did provide adequate

evidence establishing the reliability of the identification.

     Here, a sufficient written record was created of the salient

details of the show-up as required by Delgado, Rule 3:11, and

the Attorney General Guidelines.                D'Ambrosio's recall of the

circumstances was imperfect, but the judge found him to be a

credible witness.

     Vincent identified the suspects approximately ten to forty

minutes after the incident, well within Henderson's two-hour

timeline, which has the acknowledged "benefit of fresh memory."

                                     6                                  A-3693-15T2
Supra, 208 N.J. at 259. D'Ambrosio told Vincent that the persons

he was going to be shown "may or may not" be the culprits.                    This

too   contributes    to    the    identification's        reliability.         See

Henderson, supra, 208 N.J. at 261.                Although Wecht and Vincent

were shown the suspects while ninety-five to one-hundred feet

from each other, they had no contact, could not hear each other,

and Vincent had no sight line to Wecht's identification.                         We

therefore agree with the trial court that the combination of

D'Ambrosio's      testimony      and   his   written     reports       adequately

established reliability.          The out-of-court identification was

properly ruled admissible.

      Defendant     also   contends        that    the   judge   made    factual

findings unsupported by the record.               We do not agree.

      D'Ambrosio testified that Vincent was shown the suspects

one-by-one, and could not have seen Wecht's identification from

his   location.      The   investigator's          testimony     did    not   even

contradict this, as Vincent's words were ambiguous. The investi-

gator said that Vincent reported that the suspects were all

brought out, but that does not necessarily mean he meant they

were brought out as a group as the investigator concluded.                       It

is equally plausible that Vincent meant only that he saw all six

of the truck's occupants.         Although the lighting conditions were



                                       7                                  A-3693-15T2
less than ideal, they included street lights and a police

overhead light.

     It is undisputed that while at the station, Vincent was

shown two tire irons before he was asked the degree of his

confidence in the identification.               This was inconsequential.

When initially shown the suspects, Vincent identified only three

of the six, and did so within seconds.

     Nor do we agree with defendant that the estimator variables,

particularly racial bias, stress, and weapon focus, reduce the

reliability of the identification in this case.              See Henderson,

supra, 208 N.J. at 218, 261, 267.              The record does not support

the argument.      Just enumerating the factors that can have an

impact   on   an   identification       does    not   make   it   unreliable.

Accordingly, we consider the judge's denial of the motion to

have been proper.

     Affirmed.




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