                                NOT FOR PUBLICATION WITHOUT THE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-1570-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASHEED D. SHARPE, a/k/a
RASEED FAULKNER, RASHEED
HAWKINS, and RASHEED
FAULKNER,

     Defendant-Appellant.
____________________________

                    Argued October 31, 2018 - Decided November 28, 2018

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 15-01-0172.

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

                    Dylan P. Thompson, Assistant Prosecutor, argued the
                    cause for respondent (Damon G. Tyner, Atlantic
             County Prosecutor, attorney; Dylan P. Thompson, on
             the brief).

             Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Rasheed D. Sharpe appeals from his September 22, 2016

conviction of first-degree robbery, N.J.S.A. 2C:15-1, focusing on a March 29,

2016 order denying his motion to suppress three out-of-court identifications.

We affirm.

      We review the facts relevant to defendant's appeal. Two home invasions

occurred on the same evening in Atlantic City, approximately one hour apart.

Four witnesses gave accounts of the home invasions. Each witness described

the two black males who entered their home. One male was described as five

foot ten inches tall, with a birthmark or tattoo under his right eye, and wearing

a black hooded sweatshirt. The other man was depicted as five foot five or six

inches tall and wearing a gray sweatsuit. The men did not wear masks and were

passing a gun back and forth during the robberies. The victims gave nearly

identical descriptions of the intruders and the gun.

      Defendant became a suspect in the robberies. The police obtained a

photograph of defendant from an arrest in Connecticut.          The photograph

depicted a scar under defendant's right eye.

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      A photo array lineup was conducted by the police two weeks after the

robberies. The female victims identified defendant as the intruder who broke

into their home and robbed them. The same day, a male victim of the second

home invasion was shown the same photo array lineup, and identified defendant

as the individual who broke into his home.

      The photo array shown to the victims contained six photographs, one of

defendant and five filler photographs. The photographs depicted black men with

similar hair and skin tone. However, defendant's photograph was the only one

with a mark under the right eye. The photo array identifications, while not

recorded, were memorialized in written reports completed after the

identifications.

      The photo array shown to the two female victims was not double-blind

because one of the detectives knew defendant was the suspect. Both women

identified the photograph of defendant as one of the intruders. A different

officer administrated a double-blind photo array to the two male victims. One

male identified defendant's photograph as one of the intruders. The other male

was unable to identify the intruder from the array.

      Defendant moved to suppress the out-of-court identifications. Defendant

argued several deficiencies in the photo array tainted the identifications,


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                                       3
rendering the identifications inadmissible.      Defendant's primary objection

focused on the claim that his photograph was the only picture showing a man

with a mark under his right eye. In addition, defendant contended the photo

array shown to the female victims was not conducted in a double-blind fashion,

and the police failed to make an audio recording while administering the photo

arrays.

       The Wade1 hearing was conducted over the course of three separate dates.

In a thorough and well-reasoned written opinion, Judge Patricia Wild denied

defendant's motion to suppress the out-of-court identifications, finding the photo

array, while "not perfect," was not impermissibly suggestive or fatally flawed.

       Judge Wild found the fact that defendant was the only individual with a

mark under his right eye "troubling" and "highly suggestive." The judge noted

the photo array shown to the female victims were not performed in accordance

with the double-blind requirement. Further, the judge found it was not clear if

officer conducting the photo array gave proper pre-identification instructions.

The judge acknowledged one of the female victims was under immense stress

as she was assaulted and held at gunpoint during the home invasion. Similarly,

the judge recognized the two-week delay between the date of the home invasion


1
    United State v. Wade, 388 U.S. 218 (1967).
                                                                          A-1570-16T1
                                        4
and the date the photo array was shown to the victims. The judge also noted the

absence of an audio recording of the identification procedure.

      On the other hand, Judge Wild found the detective who presented the

photo array to the female victims did not provide any feedback during the

identification process. Additionally, the judge commented that the duration of

the home invasion was lengthy, leaving ample time for the female victims to

observe the intruders' faces in the well-lit house.

      In reviewing the identification made by the male victim, Judge Wild noted

the officer administered the proper pre-identification instructions, the array was

properly displayed using the double-blind method, and the officer did not

provide feedback during the photo identification process. While the photo

identification was not recorded on audio, the judge found the officer prepared a

written report of the identification in accordance with Rule 3:11.

      After denial of his motion to suppress the out-of-court identifications,

defendant pleaded guilty to an amended charge of first-degree robbery. As part

of his guilty plea, defendant reserved the right to appeal the denial of his motion

to suppress the out-of-court identifications. Defendant was sentenced to seven

years in prison with an eight-five percent parole disqualifier, under the No Early

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


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                                         5
      In his counseled brief, defendant raises the following point:

            POINT I

            THE TRIAL COURT ERRED BY FAILING TO
            SUPPRESS THE IMPERMISSIBLY SUGGESTIVE
            OUT-OF-COURT         PHOTO        ARRAY
            IDENTIFICATIONS OF THE DEFENDANT, WHICH
            WERE TAINTED BY FLAWS IN CONSTRUCTION,
            ADMINISTRATION,     RECORDATION,    AND
            RELIABILITY.

            A.   The construction of the photo array was
            impermissible suggestive.

            B.   Both officers failed          to   properly    record
            administration of the arrays.

            C.    The witnesses were under enormous stress and
            subject to weapon focus during the encounter.

            D.     The arrays administered by [the officer handling
            the first home invasion] were given without any pre-
            identification instruction, and were not blindly
            administered because he had prior knowledge of the
            suspect.

      In his pro se supplemental brief, defendant repeats the same arguments

raised by his assigned appellate counsel. Defendant's pro se brief consists of

eight separate paragraphs without point headings.

      In reviewing a motion to suppress evidence, we generally defer to the

factual and credibility findings of the trial court, "'so long as those findings are

supported by sufficient credible evidence in the record.'" State v. Handy, 206

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                                         6
N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We

accord deference to the trial court "because the 'findings of the trial judge . . .

are substantially influenced by his opportunity to hear and see the witnesses and

to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v.

Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471

(1999)).

      We affirm substantially for the reasons expressed in Judge Wild's

comprehensive and well-stated written opinion. We add only the following

comments.

      Defendant argues the construction of the photo array was highly

suggestive because defendant's picture used for the array was the only photo

showing a person with any facial mark. Because his photograph was the only

one with a facial mark, defendant claims his picture stood out among the six

photos in the array, and created a greater risk he would be identified as the

intruder on the basis of that feature alone. Defendant contends the detective

should have searched for filler photos using facial markings in addition to hair

and skin color.

      In State v. Henderson, the New Jersey Supreme Court expressed that

"'mistaken identifications are more likely to occur when the suspect stands out


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                                        7
from other members of a live or photo lineup.'" 208 N.J. 208, 251 (2011)

(quoting Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2

The Handbook of Eyewitness Psychology: Memory for People, at 155, 156

(R.C.L. Lindsay et al. eds., 2007)). The Henderson Court held identification

procedures should use similar-looking people because "an array of look-alikes

forces witnesses to examine their memory. In addition, a biased lineup may

inflate a witness' confidence in the identification because the selection process

seems easy." Ibid.

        The Attorney General has promulgated guidelines regarding photo arrays

and lineup identifications. See 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). The

Guidelines require "fillers who generally fit the witness' description" of the

suspect.    Ibid.   Section I.D. of the Guidelines provides: "In composing a

photo . . . 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. However, complete uniformity of features is not required."

Ibid.




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                                       8
      Even a poorly constructed lineup does not result in a per se "substantial

likelihood of irreparable misidentification[.]" Henderson, 208 N.J. at 289. In

the event of an imperfect lineup, the Henderson Court concluded imperfections

could be addressed through an appropriate instruction to the jury. Id. at 252

("[J]urors should be told that poorly constructed or biased lineups can affect the

reliability of an identification and enhance a witness' confidence.").

      In this case, the detective who testified during the Wade hearing explained

he created the photo array with five filler photographs obtained through the

Sheriff's Office County Identification System. The detective stated he searched

for photographs of individuals with hair and skin color similar to defendant's

features. When asked if he could find any photographs with a facial marking

similar to defendant, the detective responded:

            There [were] people there with facial markings. But to
            find somebody with [a mark] under the right eye . . . I
            mean, you'll find people in there with tattoos all over
            their necks, scars on their faces, tattoos down the whole
            side of their face, all different things. But to find
            somebody that just has - like the victims described - the
            marking under the right eye and only the marking under
            the right eye, no, I couldn't.

      In commenting on the absence of facial markings in the filler photos,

Judge Wild wrote:



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                                        9
             [The detective] indicated that he first attempted to find
             appropriate fillers based on more general
             characteristics such as hair and facial structure. The
             [d]etective stated that once these specifications were
             put into the system, he could not find any individuals
             other than [d]efendant who had a similar marking under
             their right eye. Additionally, [one female victim]
             testified that her identification was made based on her
             recollection of the perpetrator from November 9, 2013,
             not the marking on [d]efendant's face.

      Complete uniformity of features in a photo array is not required,

particularly in this case because the detective was unable to find another

photograph matching defendant's description, including skin, hair tone, and

mark under the right eye. The photo array was otherwise fair because the array

contained photographs of individuals with similar skin and hair tones.

Moreover, if defendant had gone to trial, and the matter was submitted to a jury,

the judge could have issued appropriate jury instructions regarding the

construction of the photo lineup and its limitations.

      Having reviewed the record, and based on the totality of the

circumstances, we are satisfied defendant failed to demonstrate a substantial

likelihood of irreparable misidentification related to the three out-of-court

identifications.   The judge's findings were supported by sufficient credible

evidence in the record of the Wade hearing.

      Affirmed.

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