                                NOT FOR PUBLICATION WITHOUT THE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-0939-18T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JORDAN MARTIN,

     Defendant-Respondent.
_____________________________

                    Argued January 15, 2019 – Decided February 6, 2019

                    Before Judges Fisher and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 16-01-
                    0087.

                    Eric M. Snyder, Assistant Prosecutor, argued the cause
                    for appellant (Andrew C. Carey, Middlesex County
                    Prosecutor, attorney; Eric M. Snyder, of counsel and on
                    the brief).

                    Joseph M. Mazraani argued the cause for respondent
                    (Mazraani & Liguori, LLP, attorneys; Jeffrey S.
                    Farmer, on the brief).

PER CURIAM
      This is an interlocutory appeal filed by the State of New Jersey.             A

Middlesex County grand jury indicted defendant on four counts of first-degree

robbery under N.J.S.A. 2C:15-1, one count of second-degree unlawful

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

possession of a weapon for an unlawful purpose under N.J.S.A. 2C:39-4(a), and

two counts of third-degree aggravated assault under N.J.S.A. 2C:12-1(b).

Defendant was arraigned and pled not guilty as to all counts.

      Defendant moved 1 to suppress out-of-court identifications made by the

victims. There was a three-day testimonial hearing. The trial judge heard

testimony from three of the four victims, a detective, and two investigators.

Defendant waived his right to be present at the hearing, and only appeared on

the final day of hearing, at the request of the trial judge.

      The trial judge granted defendant's motion to suppress and concluded that

the pretrial identification was unreliable because it was highly suggestive. The

State filed a timely motion for reconsideration based primarily on defendant's

absence from the courtroom during the testimony.               The trial judge heard




1
 A Notice of Motion for a Rule 104 hearing was made by defense counsel on
August 18, 2017.


                                                                             A-0939-18T2
                                         2
argument and denied the State's reconsideration motion.2 We granted the State's

motion for leave to appeal.

                                         I.

      On September 30, 2015, Louis Locaccio was in his garage with his friends,

Joseph Schreiber, Anders Lopez, and Ryan Bors. Locaccio arranged to sell

marijuana to E.S., a fourteen-year-old female. She arrived around 8:00 p.m. and

entered the garage with an adult male unknown to Locaccio.             The man

approached Locaccio and demanded the marijuana. Locaccio refused, and the

assailant pulled out a large, silver revolver. After Locaccio relented and turned

over the marijuana, the assailant robbed Locaccio, Lopez, and Bors. During the

robbery, the assailant pistol-whipped Lopez and Bors, stole Locaccio's wallet,

and several cell phones. After the assailant and E.S. fled, Schreiber took Lopez

to the hospital for treatment of his injuries while Locaccio and Bors went to the

police station to report the incident.

      All four men were intoxicated from smoking marijuana during the

robbery. They concurred that the assailant was roughly six feet tall, and was



2
  Defendant has moved before the trial judge to bar any in-court identifications
at trial based upon the suppression decision and the judge's indication to grant
that application.


                                                                         A-0939-18T2
                                         3
either a light-skinned African-American or a Latino male;3 that the garage was

well-lit; and that they were able to observe him for a substantial period of time.

        Nonetheless, descriptions of the assailant varied at the hearing. Schreiber

testified that he saw the left and front side of the assailant's face, because he

wore a hood that covered his head.           Schreiber was "unable to recall the

assailant's stature, eyes, shape of his nose, scars, or facial hair." Although he

could not tell what it depicted, Schreiber recalled seeing a "blob" tattoo on

assailant's right calf.

        Locaccio noticed tattoos on the assailant's hands and arms, particularly a

"large number seven" on his right hand thumb. He did not observe any other

tattoos on the assailant. Unlike Schreiber, Locaccio testified that the assailant

was not wearing a hood or trying to hide his face, and described his "short, dark

brown or black hair and a little bit of facial hair."

        Lopez testified that the assailant had tattoos on his arms and legs, but

contradicted himself later by saying that he saw a tattoo on the assailant's leg,

but none on his arms or wrists. Lopez could not describe the leg tattoo, other

than it looked like a circular "blob." Additionally, he testified the assailant wore

"a hooded sweatshirt with the hood up and khaki shorts." Lopez contradicted


3
    Bors did not testify.
                                                                            A-0939-18T2
                                         4
himself again, first stating he got a good look at the assailant's face, and later

testifying that he did not see his face well.

      Schreiber enlisted his friend, Jevon Armstrong, to cull through E.S.'s 4

social media accounts and see if he could find photographs of anyone matching

the assailant's description. Two days after the robbery, Armstrong showed

Schreiber approximately ten photographs obtained from E.S.'s Instagram

account that he believed matched the description.           After reviewing the

photographs, Schreiber identified one he thought depicted defendant.

Armstrong emailed the photograph to Schreiber.

      Thereafter, Schreiber created a photo array on his cell phone and showed

it to Lopez, who identified defendant in the same photograph as Schreiber did.

He then showed his photo array to Locaccio, who also selected defendant's

photograph. Schreiber testified that Armstrong did not try to persuade him to

select the purported photograph of defendant and that he did not try to influence

Lopez or Locaccio. Further, Schreiber contended that he did not discuss the

photographs with Lopez or Locaccio before they chose the photograph




4
  E.S. was charged as a juvenile and pled guilty to her participation in this
matter.
                                                                          A-0939-18T2
                                         5
ostensibly depicting defendant.       Schreiber did not preserve the other

photographs that Armstrong showed to him.

      Schreiber provided a copy of the photograph purportedly depicting

defendant to Detective Kenneth Parada of the South Plainfield Police

Department. Further investigation by the police led to the conclusion that the

individual in the photograph was defendant. On October 6, 2015, Parada visited

defendant at the Middlesex County Corrections Center, where he was being held

on fourth-degree weapons charges. Parada testified that defendant was tall and

had shoulder length, bushy hair.

      During the March 14 hearing, the trial judge requested defendant appear

in court so that the judge could physically see him and make findings vis-à-vis

the witness's testimony. The judge noted that defendant was approximately six-

foot six-inches tall, had no tattoos on his legs, no number seven tattoo on his

right hand, and had a number of tattoos on his neck. The prosecutor pointed out

that a tattoo on defendant's left hand could have been mistaken for the number

seven by the victims. After considering the testimony of the victims, the defense

witnesses, Prada, and two investigators, and after analyzing the relevant case

law and his physical observation of defendant, the trial judge determined that

the process was highly suggestive and that there was a likelihood of


                                                                         A-0939-18T2
                                       6
misidentification,   thereby   requiring     suppression   of   the   out-of-court

identifications.

                                       II.

      The State argues the following points on appeal:

             POINT I

             THE STATE WILL SUFFER IRREPARABLE
             INJURY    FROM    THE   TRIAL    COURT'S
             SUPPRESSION OF THE VICTIMS' OUT-OF-COURT
             IDENTIFICATIONS OF DEFENDANT.

             POINT II

             THE COURT ERRED BY INCORRECTLY FINDING
             THAT A TESTIMONIAL HEARING WAS
             WARRANTED AND THEN COMPOUNDED THIS
             ERROR BY INCORRECTLY EVALUATING THE
             SYSTEM   AND    ESTIMATOR    VARIABLES
             SURROUNDING THE IDENTIFICATIONS.

      In reviewing a motion to suppress, we must not disturb the trial court's

factual findings provided that they are based on sufficient, credible evidence.

State v. Robinson, 200 N.J. 1, 15 (2009).         When the trial court has the

"opportunity to hear and see the witnesses and to have the 'feel' of the case,"

deference to its factual findings are particularly appropriate. State v. Elders,

192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

The reviewing court should only disturb findings so clearly mistaken that justice


                                                                          A-0939-18T2
                                       7
demands intervention and correction. Ibid. Findings of law are reviewed de

novo. State v. Smith, 212 N.J. 365, 387 (2012). If the trial judge committed

error, it must be "sufficient to raise a reasonable doubt as to whether the error

led the jury to a result it otherwise might not have reached." State v. Macon, 57

N.J. 325, 336 (1971).

       The State argues that defendant failed to produce any evidence of highly

suggestive conduct in the identification process, and there was no police

involvement to warrant a pretrial hearing. There is no forensic evidence linking

defendant to these crimes as a firearm found in his possession several days after

the robbery was suppressed, and the victims' property was never recovered.

Thus, the trial judge's decision to suppress the witnesses' identification s may be

fatal to its case. The trial judge did not address E.S.'s confession naming

defendant as the assailant.    Further, the State contends that the trial judge

improperly applied the Henderson5/Chen6 analysis. Defendant contends that the

identification procedure was highly suggestive under Chen, and that the trial

judge properly excluded the identifications under Rule 403. We disagree.




5
    State v. Henderson, 208 N.J. 208 (2011).
6
    State v. Chen, 208 N.J. 307 (2011).
                                                                           A-0939-18T2
                                          8
      In State v. Chen, our Supreme Court outlined the approach that judges

must use to determine the admissibility of identification evidence when there is

suggestive behavior but no police action:

            (1) to obtain a pretrial hearing, a defendant must present
            evidence that the identification was made under highly
            suggestive circumstances that could lead to a mistaken
            identification, (2) the State must then offer proof to
            show that the proffered eyewitness identification is
            reliable, accounting for system and estimator variables,
            and (3) defendant has the burden of showing a very
            substantial likelihood of irreparable misidentification.

            [Chen, 208 N.J. at 327.]

      The initial threshold of suggestiveness must be "highly suggestive

circumstances as opposed to simply suggestive conduct." Ibid. The Court

reasoned that "if [a defendant] cannot show highly suggestive private action,

[then] it is unlikely [the defendant] will prevail at the hearing." Ibid. Raising

this threshold avoids unnecessary pretrial hearings. Ibid.

      The Henderson Court ruled that determining the admissibly of out-of-

court identification required a two-step analysis. Henderson, 208 N.J. at 218-

19. The first step requires exploration of "system and estimator variables" at a

pretrial hearing if defendant "can show some evidence of suggestiveness." Ibid.

If the trial court finds merit in defendant's "allegation of suggestiveness," it



                                                                         A-0939-18T2
                                        9
should weigh the system and estimator variables to determine admissibility.

Ibid.

        System variables are elements of the identification process that the

criminal justice system controls. Id. at 261. Trial judges should not expect the

public's identification procedure to conform to police standards. Chen, 208 N.J.

at 326. Therefore, the showing of suggestiveness must be even more persuasive

when private actors are involved and not law enforcement. Id. at 316. However,

trial judges must still apply system evaluators during a Rule 104 hearing. See

id. at 329. Estimator variables are factors that are "related to the incident, the

witness, or the perpetrator." Henderson, 208 N.J. at 261. The criminal justice

system does not control these factors. Ibid.

        The Henderson Court enumerated system and estimator values for the trial

judge to consider. Henderson, 208 U.S. at 289-92. The nine system evaluators

include: (1) whether the procedure was performed blind or double-blind, (2)

whether there were neutral pre-identification instructions, (3) whether the array

contained only one suspect among innocent parties and if the suspect stood out,

(4) whether the witness received information or feedback "about the suspect or

the crime, before, during, or after the identification procedure," (5) whether the

administrator recorded the witness's confidence immediately after the


                                                                          A-0939-18T2
                                       10
identification, (6) whether "the witness view[ed] the suspect more than once as

part of multiple identification procedures," (7) whether the administrator

"perform[ed] a show [] up more than two hours after an event," (8) whether "the

eyewitness . . . had spoken with anyone about the identification" and what they

discussed, and (9) whether the witness "initially [made] no choice or [chose] a

different suspect or filler." Id. at 289-290.

      The estimator values are: (1) whether the event involved a high level of

stress, (2) whether the weapon was visible and used during a crime lasting a

short time, (3) how much time the witness observed the event, (4) the distance

between the witness and perpetrator and the lighting, (5) the witness's age and

whether the witness was under the influence of drugs or alcohol, (6) whether the

perpetrator was wearing a disguise or changed some facial feature, (7) the

amount of time between the identification and the crime, (8) whether there was

a "cross-racial identification," (9) "opportunity to view the criminal at the time

of the crime," (10) "degree of attention," (11) "accuracy of prior description of

the criminal," (12) "level of certainty demonstrated at the confrontation," and

(13) "the time between the crime and the confrontation." Id. at 291-92.

      Thus, to assess whether an identification is admissible when police action

is not implicated, the court must take the following approach:


                                                                          A-0939-18T2
                                       11
            (1) to obtain a pretrial hearing, a defendant must present
            evidence that the identification was made under highly
            suggestive circumstances that could lead to a mistaken
            identification, (2) the State must then offer proof to
            show that the proffered eyewitness identification is
            reliable, accounting for system and estimator variables,
            and (3) defendant has the burden of showing a very
            substantial likelihood of irreparable misidentification.

            [Henderson, 208 N.J. at 327.]

      The facts in Chen fundamentally differ from this case. In Chen, a female

attacker assailed a woman in her home. Chen, 208 N.J. at 312. The victim

fought off the attacker, who fled. Ibid. After reporting the incident to the police,

the victim drew a picture of the attacker and showed it to her husband. Id. at

312-13. He recognized the attacker and said that it might be the defendant, his

ex-girlfriend, who called him three days earlier. Id. at 311, 313. The husband

opened defendant's personal website page and showed his wife "five to ten

pictures of defendant." Ibid. Notably, defendant was the only person depicted

in the pictures. Id. at 329. The wife reviewed the pictures at least five times

more before trial. Ibid. The Court found that this procedure was not neutral and

"strongly suggested" that defendant was the attacker, and remanded the case for

a Rule 104 hearing. Ibid.

      The Chen Court also provided an example that would trigger a Rule 104

hearing: a police officer asking, "'Are you sure the attacker wasn't wearing

                                                                            A-0939-18T2
                                        12
glasses?'" during a photo array would require a hearing, but those same words

uttered by the witness's friend would not if they had "no apparent knowledge or

authority."   Id. at 328.   Conversely, "if an eyewitness provided a detailed

identification to a fellow eyewitness, those highly suggestive comments would

require exploration at a hearing." Ibid. In contrast, here a photo array was

prepared, similar to a police photo array. Only one photograph in the array

depicted defendant, and not all of them, as in the Chen case.

      Trial courts must also consider the system variables enumerated in

Henderson to define suggestiveness. Henderson, 208 N.J. at 289. The Court

noted that neither the system nor estimator variables are an exhaustive list of

factors for consideration. Id. at 289, 291. The variables enable the court to

assess the reliability of the identification and admissibility. Id. at 291.

      Applying these standards, there was no need for a Rule 104 hearing in this

matter. This was an abuse of discretion by the trial judge resulting in plain error

because defendant did not meet the highly suggestive circumstances threshold

required under Chen and Henderson. The photograph presentation here was

objective, impartial, and not highly suggestive.        In applying our de novo

standard of review, we conclude that the identification procedure utilized here

was not highly suggestive, and a Rule 104 hearing was unwarranted. The trial


                                                                              A-0939-18T2
                                        13
judge usurped the role of the jury because the discrepancies in the witnesses'

testimony go to the issues of credibility and weight of the identification and not

admissibility. For example, Schreiber testified that he recognized defendant

within "a couple seconds" of viewing his photograph and he was "100 percent

certain" of his identification. Schreiber also testified that he showed several

photographs to Lopez, who made an independent selection. Lopez testified that

he was simply asked by Schreiber to "look at some photos, see if [he] recognized

anybody." He was eighty to ninety percent certain of his identification at the

hearing, highlighting the fact that he recognized defendant's tattoos, and that

"his face seemed familiar." When first reviewing the subject photograph, Lopez

testified that he "was confident it was him." Locaccio testified he immediately

recognized defendant in the subject photograph and he was "positive" it was the

assailant.

      The trial judge acknowledged that he was conducting a Rule 104 hearing

simply because the "circumstances as to how this identification was made is, at

best, unclear. . . ." That is not what the Henderson/Chen analysis contemplates.

As mandated by Chen, a defendant challenging an out-of-court identification is

not entitled to a Rule 104 hearing unless "evidence that the identification was

made under highly suggestive circumstances that could lead to a mistaken


                                                                          A-0939-18T2
                                       14
identity" has been shown. Based upon our careful review of the record, no

highly suggestive circumstances exist in this case.

      The trial judge did not enumerate the system variables he relied upon, and

concluded that the circumstances surrounding Schreiber showing the subject

photo to the victims was largely "undeveloped," and the descriptions of

defendant in the booking report were inconsistent with his appearance.

Schreiber's methodology was not "double-blind" according to the trial judge

because Schreiber included defendant's photograph in the array, and he

mentioned that a photo of the gunman was in there. This process lacked "neutral

pre-identification instructions warning that the suspect may not be in the lineup"

or that Locaccio and Lopez should not feel compelled to identify one of the

photos according to the trial judge.

      We find error in the trial judge concluding that "by the time these three

victims signed their names next to the suspect's photo on October 6, 2015, they

had been discussing the photograph for four days amongst each other." The

record fails to support that conclusion. Emphasis was unduly placed by the trial

judge on whether the other individuals in the photo array resembled defendant,

the descriptions of his hair and tattoos. The trial judge stated that the victims

"noticed tattoos that do not exist yet they don't notice a tattoo that would have


                                                                          A-0939-18T2
                                       15
been clearly visible." The incident took less than five minutes and the victims

were obviously under duress. These estimators or variables were improvidently

decided by the trial judge because Henderson did not intend for the court to

engage in such a fact-finding exercise. These determinations are for a jury to

decide. Chen, 208 N.J. at 327. The identification evidence must be presented

to the jury which will be tasked with deciding the reliability of the evidence and

the credibility of the eyewitness's testimony. This comports with the ruling in

Chen.

        We need not discuss the State's remaining arguments because we are

reversing on the grounds that were discussed. The July 2, 2018 order granting

defendant's motion to suppress the identifications made by Schreiber, Locaccio,

and Lopez is vacated and reversed. Whether any witness is able to reliably or

persuasively identify defendant as the culprit shall be determined by a jury. The

matter is remanded for further proceedings consistent with this opinion.

        Reversed and remanded. We do not retain jurisdiction.




                                                                           A-0939-18T2
                                       16
