                                NOT FOR PUBLICATION WITHOUT THE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-4395-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

DAMIAN SANCHEZ,

          Defendant-Respondent.


                   Argued December 19, 2019 – Decided January 27, 2020

                   Before Judges Alvarez and DeAlmeida.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Camden County,
                   Indictment No. 19-01-0144.

                   Linda Anne Shashoua, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for appellant (Jill S. Mayer, Acting Camden County
                   Prosecutor, attorney; Linda Anne Shashoua, of counsel
                   and on the brief).

                   Robert C. Wolf argued the cause for respondent.

PER CURIAM
      On leave granted, the State appeals a May 3, 2019 Law Division order

suppressing the testimony of defendant Damian Sanchez's parole officer

identifying him in a photograph connecting him to alleged criminal activity. We

reverse.

      In the afternoon of September 8, 2017, J.F. returned from visiting her twin

sons in the neonatal intensive care unit to the apartment she shared with J.M.,

her children's father. Eleven-year-old B. and his younger brother went outside

to play.   J.M. remained in the front room while J.F. walked towards the

bathroom, holding their eighteen-month-old child. She heard the front door

open, turned, and saw an African-American male dressed in black and wearing

a black mask over his face. The man pulled out a gun and asked J.M. "where

the money was." Before he could answer, the man shot J.M. in the head.

      The shooter was accompanied by a stocky Hispanic-looking male

approximately five-foot nine inches tall. The men asked J.F. about the location

of the safe, to which she directed them. J.F. claimed it held $10,000 in cash.

      The men took the money and fled in a red or burgundy vehicle, eventually

traced to Danny Smith, defendant's co-defendant.       The pending indictment

charges defendant with two counts of first-degree armed robbery, N.J.S.A.

2C:15-1(a)(1); two counts of first-degree conspiracy to commit armed robbery,


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                                       2
N.J.S.A. 2C:5-2 and 2C:15-1(a)(1); first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3); fourth-degree aggravated assault by pointing, N.J.S.A. 2C:12-1(b)(4);

two counts of third-degree child endangering, N.J.S.A. 2C:24-4(a)(2); second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree

possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and

second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).

      An Attempt to Locate flyer was circulated by the Camden County

Prosecutor's Office Intelligence Unit to all area law enforcement officers. It

describes the vehicle as having been "possibly used" in a homicide, and lists the

date, time, and place of the incident. It stated that the person depicted in the

front passenger seat was "described as a Hispanic male, stocky build

approximately [five-foot nine inches]. . . ."

      Upon seeing the flyer, defendant's parole officer notified the Pennsauken

Police, the investigating department, that the photo depicted defendant, whom

she had supervised for over a year after his release from prison on an aggravated

manslaughter conviction. She reported that he may be involved with the MS13

street gang. Additionally, approximately a week after the date of the murder,

defendant had told his parole officer he was changing phone numbers—she gave

police both.


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                                        3
      J.F.'s eleven-year-old son was interviewed a few days after the incident.

B. told police that he held the door open for Smith, as Smith and defendant

entered the building. As the men passed by, he noticed that Smith's phone read

"are you ready." B. identified Smith from a photo array; nothing in the record

we have been provided on appeal indicates that he was able to identify the

second man in the hallway, nor that J.F. was able to identify him. Smith was

located through the surveillance videos from the area, which captured the images

of the getaway vehicle, his girlfriend's car. Subsequent investigation established

that defendant and Smith had phone contacts that day, and cell phone records

placed defendant in the vicinity of the crime.

      The Law Division judge applied Evidence Rule 701 to the issue in dispute,

reasoning that where a witness is not testifying as an expert, but is nonetheless

offering an opinion, the testimony must be rationally based on the witness's

perception, and must assist the fact finder in determining a fact at issue. The

judge concluded that the parole officer's testimony did neither. Since she did

not witness the crime, he did not consider her identification to be "based upon

[her] perception . . . ." He continued, "even if it was based on the perception of

the witness, it would not assist the jury in understanding or determining a fact

in issue. It will not assist the jury . . . because it invades the jury province."


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                                        4
Relying on State v. Lazo, 209 N.J. 9 (2012), the judge further found that where

there is no change in a defendant's appearance, jurors can decide for themselves,

without identification testimony from law enforcement, whether the person in a

photograph admitted in evidence is the defendant sitting before them. Thus, he

ruled the parole officer's testimony inadmissible. Put another way, because the

parole officer had not witnessed the crime, and the State did not claim that

defendant had altered his appearance, he granted defendant's motion to suppress

the parole officer's testimony.

      The judge also analyzed the motion pursuant to Evidence Rule 403,

weighing the prejudicial effect against probative value.          He opined that

admission "would be significantly prejudicial, and outweigh to a great degree

the limited probative value."      The judge further opined that no curative

instruction would suffice to remedy the prejudicial effect of the jury learning

that defendant was on parole for aggravated manslaughter. Nor did he believe

he could limit defendant's scope of cross-examination of the parole officer,

which would naturally focus on the bias or predisposition of the officer in

making the identification because of the similarity in crimes, as to do so would

deprive defendant of a fair trial. Lastly, the judge said that "the State's concerns

can be satisfied by . . . having the . . . State's witness testify that based upon


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                                         5
information received, they narrowed their suspect down to [defendant] and

having [defendant] stipulate that the phone number that the State has is his phone

number."

      The law in this area is scant.          In Lazo, an investigator located the

defendant's arrest photograph, which he believed looked like a composite sketch

of a crime suspect. Id. at 14. He showed Lazo's photograph to the victim in a

properly constituted photo array.       Id. at 14-15.    During the investigator's

testimony at trial, the State introduced the composite sketch, and the old arrest

photo. The investigator explained how he narrowed the suspects down to Lazo,

selected his photo, and prepared the array. Id. at 15. The investigator told the

jury that he included defendant's picture in the photo array because of "his

similarities to the victim's description." Id. at 19. The defendant objected both

to the introduction of the arrest photo and the testimony. Ibid. The victim

identified the defendant at trial. Id. at 15.

      The Court discussed State v. Branch, 182 N.J. 338, 342 (2005), and the

principle clearly expressed in that case that a jury need not know the reason a

defendant's photograph is placed in an array for identification by a witness.

Lazo, 209 N.J. at 21. Analogizing the facts in Lazo to those in Branch, the Court

concluded the detective should not have explained to the jury why defendant's


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                                          6
photo was shown to the victim as "[t]he evidence was not relevant . . . ." Ibid.

"In essence, the detective told the jury that he believed defendant closely

resembled the culprit—even though the detective had no personal knowledge of

that critical, disputed factual question. By doing so, the officer enhanced the

victim's credibility and intruded on the jury's role." Id. at 22. In other words,

the investigator's testimony constituted a detailed explanation of reasons the jury

could rely upon the victim's identification.

      In Lazo, however, the Court distinguished situations in which a police

officer merely, as stand-alone testimony, says that a surveillance photo looks

like a defendant. Id. at 22-23. The Court favorably cited cases where such lay

opinion identification by law enforcement is allowed in the federal system when

no other identification testimony is available. Ibid.

      In Lazo, the officer's testimony regarding his opinion that the composite

sketch was similar to the photograph was not relevant to the issue of

identification. Id. at 24; see also id. at 21. It was truly duplicative of conclusions

that a jury could independently reach. Id. at 13, 24. The officer did not need to

justify his selection of the picture he included in an array shown to the victim

because the victim identified Lazo as the perpetrator once shown the array . Id.

at 24. The Court contrasted that testimony with testimony by probation officers


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                                          7
or parole officers who opine merely that a defendant "matched a surveillance

photo in light of multiple prior contacts between the two individuals." Id. at 22-

23. The permissible testimony only connects a defendant to a surveillance

photo—but the jury must still decide whether all the proofs, including those

related to identification, establish that the State has proven defendant's guilt

beyond a reasonable doubt. See id. at 24.

      In United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005), for

example, the court approved of testimony by a federal probation officer

identifying the defendant pictured in a surveillance photograph taken during a

bank robbery. Pursuant to the trial judge's directive at Beck's trial, the probation

officer only stated that he had a professional relationship with the defendant

requiring regular bi-monthly meetings, and that as a result he believed the

defendant was the person depicted in the bank surveillance photograph. Id. at

1013. The testimony was admitted in accord with Federal Rules of Evidence

403 and 701, analogous to our own Rules of Evidence. "The Federal Rules of

Evidence have been the source of many, although not all, of our Rules of

Evidence[,]" including Evidence Rules 403 and 701. State v. Rinker, 446 N.J.

Super. 347, 362 (App. Div. 2016).            "We therefore frequently consider[]

instructive federal precedent construing analogous Federal Rules of Evidence."


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                                         8
Ibid. The court reiterated that a lay witness's testimony is "rationally based

within the meaning of Rule 701 where it is 'based upon personal observation and

recollection of concrete facts.'" Beck, 418 F.3d at 1015 (quoting U.S. v. Allen,

787 F.2d 933, 935 (4th Cir. 1986)). In this case, Beck and the cases following

are highly instructive on how the pertinent evidence rules should be read.

      The trial judge suggested the outcome of defendant's motion might have

been different if defendant's appearance changed between the commission of the

offense and trial. But that is not the only circumstance in which such testimony

may be admitted. The real question is whether "the witness knew the defendant

over time and in a variety of circumstances, such that the witness's lay

identification testimony offered to the jury 'a perspective it could not acquire in

its limited exposure' to the defendant . . . ." Ibid. (quoting Allen, 787 F.2d at

936). No single factor is dispositive. Ibid.

      The Beck court concluded:

            . . . [the parole officer] had met with Beck four times in
            a two-month period, for a total of more than seventy
            minutes. [The parole officer] had sufficient contacts
            with Beck so that [his] perception of the person in the
            bank surveillance photo was helpful to a clear
            understanding of the determination of a fact in issue,
            that is, the identity of the person in the bank
            surveillance photo. We hold that the [D]istrict [C]ourt
            did not err in determining that [the parole officer's] lay
            opinion identification testimony was rationally based

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                                        9
            and helpful to the trier of fact, and the [D]istrict [C]ourt
            did not abuse its discretion in admitting [the parole
            officer's] testimony.

            [Ibid.]

      Insofar as the Rule 403 analysis, the State has no eyewitness testimony

available. The only testimony which connects defendant to the photo taken from

the video of the alleged getaway car is that of the parole officer. Once the police

had a name, further investigation resulted in the discovery of the cell phone

information, which corroborated defendant's presence in the area. Thus, the

probative value of the testimony is substantial.

      Defendant contends that the testimony cannot be admitted, in part because

a neutral presentation would prejudicially limit cross-examination. In Beck and

similar federal cases, the proposed testimony omitted any mention of the law

enforcement role played by the witness. It was presented as a professional

relationship, requiring regular meetings.      Defense counsel here argues this

neutral presentation bars him from exploring any potential bias on the part of

the parole officer who made the identification. That is a strategic decision that

a defendant is entitled to make—whether he would prefer to have the witness's

status disclosed to the jury to show the identification witness was predisposed

to see the somewhat unclear photo of defendant as a person involved in a crime,


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                                       10
or to present a neutral relationship and forego cross-examination with regard to

bias. In weighing admissibility pursuant to Rule 403, the probative value of this

testimony is so substantial, however, that it outweighs any potential prejudice

that defendant may suffer by losing the opportunity to cross-examine on the area

of how bias may have predisposed the witness to see a similarity where none

existed.

      The jury will, regardless of the parole officer's testimony, decide for itself

whether the similarity between defendant and the passenger in the still photo is

so great that when joined with the other available proofs, it would prove

defendant's guilt beyond a reasonable doubt.

      Thus, applying Lazo and the federal cases it cites, we conclude that the

testimony was admissible, and reverse and remand.              Obviously, should

defendant elect to present to the jury the testimony that the witness was

defendant's parole officer, it is not necessary to reveal the nature of the prior

offense.

      Reversed and remanded.




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