                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0173-12T3

STATE OF NEW JERSEY,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                  July 29, 2014
v.
                                             APPELLATE DIVISION
ALFRED J. SMITH, a/k/a
AL J. LEWIS, JEROME SMITH,

     Defendant-Appellant.
_______________________________

         Submitted April 8, 2014 - Decided July 29, 2014

         Before Judges         Sapp-Peterson,      Lihotz       and
         Hoffman.

         On appeal from the Superior Court of New
         Jersey,   Law    Division, Union  County,
         Indictment No. 09-12-1062.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Jason A. Coe, Assistant
         Deputy Public Defender, on the briefs).

         John J. Hoffman, Acting Attorney General,
         attorney   for   respondent   (Jeffrey  P.
         Mongiello, Deputy Attorney General, on the
         brief).

     The opinion of the court was delivered by

LIHOTZ, J.A.D.

     Defendant   Alfred   J.    Smith   appeals     from    a    judgment   of

conviction for second-degree robbery, N.J.S.A. 2C:15-1 (count

one) and third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(4) (count two), entered following a jury trial.                              Prior to

trial, defendant challenged the admissibility of the victim's

out-of-court identification.             His motion to suppress was denied.

Following    conviction,      defendant         was     sentenced      to    a    ten-year

term,   subject   to    the    eighty-five            percent     period     of     parole

ineligibility     imposed     by    the        No    Early     Release      Act    (NERA),

N.J.S.A. 2C:43-7.2, on the second-degree robbery conviction, and

a   concurrent    five-year        term    on        the   third-degree          hindering

apprehension conviction.

     On appeal, defendant argues:

            POINT I

            THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE
            SHOW[-]UP IDENTIFICATION TO BE USED AT TRIAL
            BECAUSE IT DID NOT SATISFY CONSTITUTIONAL
            STANDARDS OF RELIABILITY.

            POINT II

            THE PROSECUTOR'S APPEAL TO THE JURY TO
            CONVICT SMITH IN ORDER TO PROTECT THEMSELVES
            AND THE COMMUNITY WAS IMPROPER AND HIGHLY
            PREJUDICIAL. (not raised below)

            POINT III

            OFFICER MARTINA IMPROPERLY PROVIDED LAY
            OPINION TESTIMONY ON AN ISSUE WHICH WAS NOT
            BEYOND THE KEN OF THE AVERAGE JUROR.   (not
            raised below)

     Following our review, we conclude the motion judge erred in

denying     defendant's     motion        to        suppress     the   identification

testimony.       Accordingly,       we    reverse          the   suppression        order,



                                           2                                      A-0173-12T3
vacate     his   conviction       and     remand         for   further        proceedings,

including a new trial.

      These facts are taken from the pre-trial Wade1 hearing.                             The

State    presented     the      testimony         of    Plainfield     Police       Officers

Edward Jackson and Charles Martina.                        The defense called the

victim, Josephine DiMeglio.

      Officer Jackson testified he responded to a call received

at approximately 10:30 p.m., on July 10, 2009, from DiMeglio who

was     assaulted    and     robbed      as       she    walked      toward    her     home.

Specifically, DiMeglio was suddenly attacked from behind by a

man trying to snatch her purse.                   A struggle ensued, during which

the assailant slapped DiMeglio, injuring her and causing her to

fall to the ground.             The scuffle continued briefly as DiMeglio

resisted, but ultimately she relaxed her grip and the assailant

fled with her purse.

      DiMeglio      called      9-1-1.        Then,      approximately        ten    minutes

after the robbery, DiMeglio described her attacker to Officer

Jackson as "a tall black male" wearing "jeans and a dark shirt."

She also stated the attacker wore a brown windbreaker.                               Officer

Jackson     confirmed      on     cross-examination            the     description        was

"[j]ust a tall black male and a clothing description."

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




                                              3                                     A-0173-12T3
     Officer       Jackson    radioed    the    description         and    within      ten

minutes,     Officer     Martina,       who     was     canvassing         the      area,

encountered defendant four blocks away sitting in a park with

others.     Officer Martina believed defendant matched the radioed

description and he informed Officer Jackson, who in turn told

DiMeglio     "we     might    have     someone       fitting     the       description

. . . ."     Officer Jackson "asked her if she can take a ride [to]

see if she can make a positive ID on the person."                                Officer

Jackson brought DiMeglio to the park.                 He recalled defendant was

standing next to Officer Martina.                Without hesitation, DiMeglio

identified defendant as her assailant.

     After     DiMeglio       viewed    defendant       at     the     show-up,        she

provided her written statement to police.                    In that statement,

DiMeglio described her attacker as: "Afro-American, 6feet [sic]

tall, 5-8, brown shirt, cap and black pants."

     Officer        Martina    also     testified.             He     recalled         the

description of DiMeglio's assailant radioed from Officer Jackson

was "[a] black male, black shirt, brown windbreaker, over six

feet tall."        As he drove toward the park he aimed his spotlight

on   "a    group    of   people,      [and     an]    individual       matching        the

description[]        immediately        looked        startled       and      scared."

Defendant was among those in the group.                 He wore a black hoodie

and brown pants; he did not have a windbreaker.                      Officer Martina




                                         4                                       A-0173-12T3
acknowledged      the   description     he    received     was     not    the     most

detailed and did not include the alleged assailant's age, the

presence or absence of facial hair, or whether he was bald.

       When asked by Officer Martina, defendant gave his name as

"Thomas    J.   Smith."      Once   Officer    Martina      was    told    DiMeglio

identified      defendant    as   her   attacker,     he    was     arrested       and

charged with second-degree robbery and third-degree hindering

apprehension.

       When   arrested,     defendant   possessed     a    $5     bill,    $1.75    in

change, a silver chain, four keys, two shoestrings, a driver's

license, three cell phone batteries, a cell phone, and a brown

cap.      DiMeglio's    later-provided       police   statement          listed    the

following as stolen:        "a gold canvas bag" containing her wallet,

two money orders, $100 cash, and her identification cards.                        None

of these effects were found on defendant's person or recovered.

       Defendant    called     DiMeglio      during   the        hearing.          She

described the incident, confirming an assailant approached her

from behind and grabbed her purse, but she would not let go.

She was "shocked" and "started to scream," because she did not

want the assailant to take her property.                  The attacker slapped

DiMeglio on her right cheek, bruising her lip and causing her to

fall.     She was still holding the leash of her bag when the

assailant dragged her in an effort to get her to release her




                                        5                                   A-0173-12T3
grip.      She   ultimately       let    go    and    he    fled    with   her    purse.

DiMeglio admitted the events unfolded "very quickly."

      DiMeglio     noted    the   attack       took    place    at    nighttime,       but

there was one streetlight across the street.                         Defense counsel

asked her to describe the most prominent details she recalled

about her attacker.           For the first time, DiMeglio stated her

assailant "was smoking a cigar," saying he had a "Black and Mild

in   his   mouth."      She   explained        he    had    hair,    although     noting

defendant as he sat in the courtroom was bald.                         The remaining

details    of    the   attacker's       description        included    that      he   "was

tall," had a scar on his mouth, "a cap on his head," and wore

"something black and something brown[.]"

      DiMeglio was also questioned about the show-up.                         When she

was taken to the park, she was told "they had apprehended him

and he was across the street in the park, . . . [and they wanted

her] to take a look at him and to see if he was the man that

mugged [her]."         DiMeglio recalled a man standing between two

police officers.         She immediately recognized his face.                         When

asked "[w]hat was the greatest feature that confirmed to you

this was the same man[,]" she stated: "[h]e had the same clothes

on when he robbed me and it was him.                       He had the black jacket

[and] brown pants.         I recognized his face when he mugged me.                     It

was his features."         Pressed to reveal the identifying features




                                           6                                     A-0173-12T3
of her attacker, DiMeglio stated: "It was his eyes. . . .                       They

were mean."      When questioned by the State, DiMeglio stated she

was one "[h]undred percent sure" defendant was her attacker.

      Considering defendant's motion to suppress DiMeglio's out-

of-court    identification,       the   motion     judge    found    the     police

officers'     testimony     credible        in   establishing       the    events.

Further, the motion judge found DiMeglio "extremely credible"

and "extremely accurate."           Despite the suggestiveness of the

procedure, the motion judge determined DiMeglio's identification

was   reliable    because   she    "had      a   close   physical     one-on-one

contact with . . . defendant and had ample opportunity to view

him"; her account was detailed suggesting she "paid attention to

the details of her assailant"; "the show[-]up occurred almost

immediately after the incident and defendant was wearing similar

clothes and was similar in appearance to [DiMeglio's] original

description . . . made about ten minutes earlier"; DiMeglio was

able to identify defendant, with certainty, a finding supported

by    the   officers'     testimony     about      the     immediacy       of    her

recognition of defendant and her own testimony that she was "one

hundred percent" certain defendant was her assailant; and she

provided the identification proximate to the attack, "shortly

after the incident, approximately ten minutes[,]" and only three




                                        7                                  A-0173-12T3
or four blocks from the scene of the crime.                       Defendant's motion

to suppress the identification was denied.

    The case was tried over two days by another Law Division

judge.     Defendant attacked the State's identification evidence.

We note DiMeglio's trial testimony varied in many significant

respects    from      her    testimony      at   the     Wade    hearing.       DiMeglio

stated     her    attacker        approached       her    not     from   behind,       but

"sideways,"       from      her   left    side.        She      stated   she    saw    the

assailant's face, first as she walked along the street then the

entire   time      he    tugged      at   her    purse     until    he   successfully

dislodged her grip and ran off.                     She identified two working

streetlights in the area and recalled her description of the

attacker as an "Afro-American male, tall . . . wearing [a] black

hoodie and brown pants."

    At     trial      the    9-1-1   tape    was    played.        During      her    call,

DiMeglio told the operator it was dark, but she described the

man as wearing a black shirt, a brownish windbreaker and black

pants.     When asked about the variations of her descriptions of

the assailant's clothing from her initial 9-1-1 call to trial,

DiMeglio testified she was initially "shaken up" and "didn't

really   get     to     match     everything,      put    everything     together[.]"

DiMeglio    did       not   describe      any    specific       facial   or     physical

features of her attacker.                 In her trial testimony, DiMeglio




                                            8                                    A-0173-12T3
never mentioned the attacker was wearing a cap; insisted he had

no facial hair; and stated defendant could not have had a scar

on his mouth.

       In recounting the show-up, DiMeglio testified she was told

police had someone matching the description of her attacker.

They drove her to the park.              She viewed the man standing between

two police officers and she identified him as her attacker.

DiMeglio stated she was "a thousand percent sure" because she

remembered his face.

       On cross-examination, DiMeglio admitted the events occurred

"quick[ly]," taking "ten minutes."                     She stated she was extremely

scared after her assailant struck her and it was dark.                          She also

acknowledged that when she described her attacker to police she

stated only that he was tall, black and wore a black shirt and

blue   jeans.         Next,    in   giving        her    statement     to   police,    she

described the assailant as 5'8" or 6' and wearing a brown cap,

black pants and brown shirt.

       The   jury     returned       a   guilty         verdict   on    both    charges.

Defendant appealed.

       The   Due      Process       Clause        of     the   Fourteenth      Amendment

prohibits       the     admission        of        an     unreliable        out-of-court

identification,        which    resulted          from    impermissibly        suggestive

procedures.        Manson v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct.




                                              9                                  A-0173-12T3
2243, 2249, 53 L. Ed. 2d 140, 149 (1976); see also United States

v. Wade, 388 U.S. 218, 227-32, 87 S. Ct. 1926, 1932-35, 18 L.

Ed. 2d 1149, 1157-60 (1967) (holding pretrial identification is

a critical juncture in the course of a criminal prosecution).

On   one    hand,     eyewitness         evidence       is     "inherently      suspect";

however, on the other, it is "equally well recognized that in

criminal actions an eyewitness's identification may be the most

crucial evidence."           State v. Madison, 109 N.J. 223, 232 (1998)

(citation omitted), abrogated in part by State v. Henderson, 208

N.J. 208 (2011).

     A sea change has recently occurred in the methodology for

examining     suggestive         police      identification           procedures          and

ascertaining        the      reliability          of         resulting      out-of-court

identifications.           See    Henderson,       supra,      208   N.J.     at   288-99;

State v. Chen, 208 N.J. 307, 327 (2011).                        Historically, courts

followed    the     United      States    Supreme       Court's      two-part      test    to

determine    the     admissibility         of    an     eyewitness's        out-of-court

photographic identification, set forth in Manson v. Brathwaite,

432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), which was

adopted by the New Jersey Supreme Court in State v. Madison, 109

N.J. 223 (1988).

     In     Manson,       the    Highest        Court    expounded       on     the    test

initially identified in Simmons v. United States, 390 U.S. 377,




                                           10                                      A-0173-12T3
88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which requires a court

to      determine         whether      the         out-of-court            photographic

identification      procedures       used    were    impermissibly          suggestive.

Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d

at    154.    If    so,    the    court     then     must    examine       whether   the

objectionable       procedure       resulted        in      "a    very     substantial

likelihood of irreparable misidentification."                     Id. at 116, 97 S.

Ct. at 2254, 53 L. Ed. 2d at 155.              When examining a challenge to

the   admissibility       of     identification       testimony,       a    court    must

assess whether the impermissibly suggestive procedures used by

law enforcement prejudicially affected the identification, by

weighing five factors to "'determine whether . . . sufficient

indicia of reliability'" would "'outweigh the "corrupting effect

of the suggestive identification itself."'"                      Madison, supra, 109

N.J. at 239 (quoting State v. Ford, 79 N.J. 136, 137 (1979)

(quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53

L. Ed. 2d at 154)).            These factors "include the opportunity of

the witness to view the 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."       Manson, supra, 432 U.S. at 114, 97 S. Ct. at

2253, 53 L. Ed. 2d at 154.




                                          11                                   A-0173-12T3
       Underscoring      "that        reliability          is     the     linchpin       in

determining     the    admissibility         of    identification         testimony[,]"

Chen, supra, 208 N.J. at 318 (quoting Manson, 432 U.S. at 114,

97 S. Ct. at 2253, 53 L. Ed. 2d at 154), we note any reliability

determination must be made after assessing "the totality of the

circumstances adduced in the particular case."                          Madison, supra,

109 N.J. at 233 (citing Neils v. Biggers, 409 U.S. 188, 199, 93

S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).

       After    Madison,       the    Court       again     considered       eyewitness

identification        challenges      in    State     v.    Delgado,      188    N.J.    48

(2006).     Noting "[m]isidentification is widely recognized as the

single      greatest     cause        of    wrongful        convictions         in     this

country[,]"      id.    at     60,    the     Court       chose    to    exercise       its

supervisory powers, granted by Article VI, Section 2, Paragraph

3 of the New Jersey Constitution, "to require, as a condition to

the   admissibility       of    out-of-court         identifications,           that    the

police record, to the extent feasible, the dialogue between the

witnesses and police during an identification procedure."                               Id.

at    51.      The    Court    held    the       admissibility      of     out-of-court

identifications was conditioned upon the preparation of

             a written record detailing the out-of-court
             identification   procedure,   including   the
             place where the procedure was conducted, the
             dialogue   between   the  witness   and   the
             interlocutor, and the results.     Preserving
             the words exchanged between the witness and



                                            12                                   A-0173-12T3
             the officer conducting the identification
             procedure may be as important as preserving
             either a picture of a live lineup or a
             photographic   array.     When  feasible,   a
             verbatim account of any exchange between the
             law enforcement officer and witness should
             be reduced to writing. When not feasible, a
             detailed   summary   of  the   identification
             should be prepared.

             [Id. at 63.]

      By that time, "[t]he State's Attorney General ha[d] . . .

recognized that eyewitness identification 'evidence is not fool-

proof,' and made New Jersey the first state to adopt the United

States    Department    of   Justice's         procedural   recommendations            to

increase     reliability     in   photo    and    live    lineups."           State    v.

Romero, 191 N.J. 59, 74 (2007) (citing Letter from Attorney

General John J. Farmer, Jr., to All County Prosecutors et al.,

at 1 (Apr. 18, 2001) (accompanying Attorney General Guidelines

for      Preparing     and      Conducting        Photo     and        Live     Lineup

Identification Procedures)).

      The Supreme Court revisited and comprehensively considered

this thorny issue in State v. Henderson, 208 N.J. 208 (2011),

which    established    a    more   detailed       framework      to    examine       the

admissibility of out-of-court identification testimony, provide

new guidelines to reduce the possibility of misidentification,

offer    a   more    adequate     measure       for   reliability,       and      deter

potential police misconduct.          Id. at 288-99.         However, this case




                                          13                                   A-0173-12T3
was decided before Henderson's new rule of law took effect and

remains subject to the prior rubric of Manson/Madison.2

     Following         our   review,     we    conclude          the   motion       judge

erroneously found factual support satisfying the Manson/Madison

factors   and    determined     DiMeglio's       out-of-court          identification

was reliable and admissible at defendant's trial.                         We determine

the evidence of record insufficient to overcome the fact that

suggestive       identification        procedures         result       in    a      "very

substantial       likelihood      of     irreparable             misidentification."

Manson, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155.

Accordingly      the    out-of-court     identification           should    have     been

suppressed.

     Show-up      procedures     used     to     illicit         identification        are

suggestive.       See State v. Herrera, 187 N.J. 493, 504 (2006)

(recognizing       that      "one-on-one       show[-]ups           are     inherently

suggestive[,]"     because     "the     victim      can   only     choose    from      one

person,   and,    generally,     that    person      is     in    police    custody").

However, indicia of reliability results because the on or near-

the-scene identification is made close in time to the event.

State v. Wilkerson, 60 N.J. 452, 461 (1972).                           The procedure

also facilitates efficient police work; consequently, the tool


2
     See id. at 220           (applying       new    test    prospectively,          from
September 4, 2012).



                                         14                                      A-0173-12T3
has been found permissible.              Ibid.     Standing alone, a show-up is

not considered impermissibly suggestive.                       Herrera, supra, 187

N.J. at 504.       See also State v. Wilson, 362 N.J. Super. 319, 327

(App.     Div.)     ("[T]here       is     no      question        that      there    was

suggestiveness       present     because        the    defendant      was    identified

while    seated     and   handcuffed       in    the    back    of    a     police   car.

However,    such     suggestive       circumstances          did     not    render    the

identification            procedure          per         se          improper         and

unconstitutional."), certif. denied, 178 N.J. 250 (2003).

     Nevertheless,        show-up     procedures        must    be    scrutinized      to

assure     police     conduct,      direct       and     inadvertent,         does    not

impermissibly suggest a result to the witness.                       In this matter,

defendant challenged the procedure used, asserting police failed

to      satisfactorily       comply        with        the     Delgado        recording

requirements.       The motion judge rejected this argument and found

the identification procedures were properly executed, such that

they "did not result in a substantial likelihood of irreparable

misidentification."        We cannot agree with such an assessment.

     The only written record memorializing the show-up procedure

is a brief mention in the July 9, 2010 police incident report:

            At that time [Officer] Martina detained the
            possible suspect until I was able to drive
            the victim to the suspect to see if she
            could make a positive [identification] on
            this possible suspect.   Once I got to the
            location of the possible suspect, . . .



                                           15                                   A-0173-12T3
              DiMeglio related right away that he was the
              one who robbed her.

The   limited     comments        recorded         by       police      include     DiMeglio's

identification, but omit what she was told, her response, or a

statement of the specific procedures employed to effectuate the

show-up.

      Officer Jackson testified at the Wade hearing that after

Officer Martina encountered defendant, he "told the victim that

[the officers] might have someone fitting the description and

. . . asked her if she can take a ride with [him] so — see if

she   can     make     a    positive         [identification]            on   the    person."

However,      DiMeglio      stated      she    was      told       by    police     "they     had

apprehended [her assailant] and he was across the street in the

park, and for me to take a look at him and to see if he was the

man   that    mugged       me."       There     is      a    difference       in    these     two

accounts,      which       displays      exactly        why    a     near-contemporaneous

record   of    the     procedure        is   required.          Further,       there     is    no

evidence police instructed DiMeglio that the person located may

not be her attacker; to the contrary the suggestion was the

opposite, as she was told a suspect was apprehended.

      Also critical to assessing suggestibility is a description

of the manner in which defendant was detained.                                Here, it was

learned at the Wade hearing uniformed police officers flanked

defendant.       Although         not    handcuffed,          defendant       was   separated



                                              16                                       A-0173-12T3
from   the    others     to    focus   DiMeglio's        observation     toward        him

alone.

       We    conclude    the    meagerness       of    detail    recorded   in       this

incident report does not fulfill Delgado's clear requirements.

Delgado, supra, 188 N.J. at 63 (conditioning admissibility of

out-of-court     identifications        on      creation    of    a   written    record

detailing      "the    out-of-court     identification           procedure").          See

also Chen, supra, 208 N.J. at 320 (holding Delgado mandates a

reasonable,           contemporaneous           and     detailed       account          of

identification procedure); State v. Adams, 194 N.J. 186, 202-03

(2008)      (same).      In    mandating     the      specific    procedures      to    be

followed, the Court stressed, "[t]he importance of recording the

details of what occurred at an out-of-court identification flows

from our understanding of the frailty of human memory and the

inherent danger of misidentification."                  Delgado, supra, 188 N.J.

at 60.       The record requirement protects a defendant's rights

allowing examination of whether the procedure was impermissibly

suggestive.

       We next examine whether the identification was reliable.

We conclude it was not sufficiently reliable and determine the

motion      judge's      findings,     articulated         in     support       of     the

Manson/Madison factors, was flawed.




                                           17                                   A-0173-12T3
       The judge found DiMeglio's identification reliable because:

(1) DiMeglio "had a close physical one-on-one contact with . . .

defendant and had ample opportunity to view him"; (2) DiMeglio's

description of the incident was detailed and she "paid attention

to the details of her assailant"; (3) "the show[-]up occurred

almost immediately after the incident[,] defendant was wearing

similar clothes[,] and was similar in appearance to [DiMeglio's]

original       description    that   she       had    made    about    ten    minutes

earlier"; (4) DiMeglio identified defendant with "one hundred

percent" certainty; and (5) the identification was made "shortly

after the incident, approximately ten minutes[,]" and only three

or four blocks from the scene of the crime.

       Despite       DiMeglio's   insistence         she   viewed     her    assailant

before and throughout the attack, making her one-hundred and,

later, one thousand percent certain defendant mugged her, the

only consistent descriptive features given of the man who stole

her purse was he was "tall" and "black."                     As to the attacker's

height, DiMeglio stated her assailant was "tall" or "5'8" to

6'."     It was Officer Martina, not DiMeglio, who suggested he

remembered the radio call mentioning the suspect was "over six

feet."     We note defendant stands 6'4" tall, making him at least

four     and    as    much   as   eight    inches      taller    than       DiMeglio's

described attacker.           Other details provided by DiMeglio were




                                          18                                  A-0173-12T3
also vague and varied.              When the 9-1-1 operator asked her to

describe her attacker, DiMeglio first stated it was dark and

mentioned he wore a black shirt, black pants, and a brownish

windbreaker.          That   clothing        description      changed         ten    minutes

later when she first spoke to police and gave a description that

included     "blue     jeans"     and    a    "dark    shirt."           After      DiMeglio

observed     defendant       in   the    park      standing       between      the    police

officers,     she     adjusted     her     description        to    a    "brown      shirt,"

"black     pants,"    and    a    "cap."          During    the    Wade       hearing,     the

clothing description was muddled, as DiMeglio stated the mugger

wore "something black and something brown," and she added he

wore   a   cap   on    his   head.       When      pressed     by   defense         counsel,

DiMeglio, for the first time, stated the attacker "was smoking a

cigar" – he had a "Black and Mild in his mouth"; had hair,

although noting defendant as he sat in the courtroom was bald;

had a scar on his mouth; and had "mean" eyes.                            By the time of

trial,     DiMeglio's       description       again    changed          and   she    related

exactly what defendant wore when arrested, a black hoodie and

brown pants.

       The motion judge's finding that DiMeglio "paid attention to

the    details       of   her     assailant"          and    offered          an    accurate

description of her attacker is unfounded.                           Not only was the




                                             19                                      A-0173-12T3
clothing description wrong, defendant also had no scar on his

face or mouth and was bald.

      Further,         there    are    several    facts     not    discussed     by    the

motion       judge       that     impact       the      accuracy        of    DiMeglio's

identification and undermine any finding of reliability.                            These

include the darkness of the area, the suddenness of the attack,

and the resulting stress of the assault.                        See Henderson, supra,

208   N.J.    at     247     (citing    Gary     L.    Wells,    Applied     Eyewitness-

Testimony      Research:        System     and    Estimator        Variables,     36     J.

Personality        &     Soc.     Pyschol.       1546,      1546      (1978))    (noting

"distance,      lighting,        or     stress"       are   variables        capable     of

"affect[ing]           and      dilut[ing]        memory        and     lead[ing]       to

misidentifications").

      First, the area of the attack was dark.                         DiMeglio admitted

it was after nightfall and there was only one streetlight in the

area, located across the street.                      When she spoke to the 9-1-1

operator she stated she could describe the attacker's clothing,

but offered no distinguishing features other than height and

race.    Interestingly, the only distinguishing features DiMeglio

eventually revealed about her attacker were he had hair and a

scar; neither of which corresponded with defendant's appearance.

      Second, the attack was sudden, from behind, and was of

brief    duration.           DiMeglio    herself       admitted,      the    assault   was




                                            20                                   A-0173-12T3
"[n]ot too long," "it happened actually very quickly," and she

was "shocked" and "[s]cared."

     Another significant issue not addressed by the motion judge

is   the    Court's    prior     discussions         addressing      "cross-racial

impairment,"    that    is,     difficulty      in     "identifying      members    of

another     race[,]"    which     is     "strongest       when   white      witnesses

attempt to recognize black subjects."                     State v. Cromedy, 158

N.J. 112, 120-21 (1999) (internal quotation marks and citation

omitted).     See also Romero, supra, 191 N.J. at 69 (discussing

"the convincing social science data demonstrating the potential

unreliability     of     cross-racial          identifications         of    African-

American    defendants     specifically").             "Research     suggests    that

people     generally    are     better     able      to   identify     persons     who

resemble      themselves        or       who      share      familiar        physical

characteristics."       Id.    at 72-73 (citation omitted).

     The    vagueness    and     inaccuracy       of      DiMeglio's     description

illustrates this difficulty and casts doubt on her ability to

perceive and describe her attacker.                   Rather than evaluate the

inconsistencies evinced by the facts, the motion judge simply

honed in on DiMeglio's statement she saw her attacker's face and

was certain it was defendant.                  DiMeglio's confidence in her

identification and the temporal proximity of the show-up cannot

sufficiently mitigate against the other factors that weigh in




                                          21                                 A-0173-12T3
favor of a finding of unreliability.                 See Adams, supra, 198 N.J.

at 204.

    The       judge     also      erred     in   finding       DiMeglio    accurately

described defendant's clothing.                  In fact, the various clothing

descriptions offered by DiMeglio were inconsistent and did not

coincide      with     defendant's        appearance      on   the   night       of     the

robbery.      Defendant's pants were brown not black or blue jeans.

Further,      he     wore    a    black     hooded   sweatshirt      not     a        brown

windbreaker.         It cannot be overlooked that DiMeglio modified her

description of defendant's clothing over time.                       After she saw

him at the park, she changed the color of his pants.                       During the

Wade hearing, the black pants and brown windbreaker morphed to

"something black and something brown."                     This changed again at

trial   and    she     described      her    attacker      wearing    exactly          what

defendant wore when he was stopped.

    We     reject           the   State's        notion    these     are     "[s]mall

differences" that are "immaterial."                    The clothing description

was the only specific detail DiMeglio offered to describe the

assailant.         Yet,      DiMeglio's     shifting      descriptions       show       she

either did not initially perceive or could not recall what her

attacker wore.         She continued to add details as time passed and

those details, inexplicably, corresponded with other evidence

the State presented on this issue.




                                            22                                A-0173-12T3
     While we agree DiMeglio described the events of the attack,

we find no support for the motion judge's finding she was able

to give a "detailed description" of her attacker.                        Because of

the importance of the identification testimony and the dearth of

corroborating        evidence      to    support           reliability       of    her

identification, the trial judge had an obligation to scrutinize

the facts.     See Romero, supra, 191 N.J. at 75 ("We believe that

particular    care    need    be   taken     in    respect       of   this   powerful

evidence--the     eyewitness.").           Instead,        the   judge's     critical

findings    are   generally     unsupported.          We     find     unfounded    the

judge's     determination       that    defendant      "was       wearing     similar

clothes and was similar in appearance [to] [DiMeglio's] original

description . . . ."          The only description DiMeglio gave of the

features of her attacker that matched defendant was his race and

an   approximate,      yet    inaccurate,         height     range.      DiMeglio's

suggestion she had ample time to view her assailant is belied by

the fact that the only distinguishing feature she accurately

offered was the color of his skin.

     Based on our review of the totality of the circumstances

presented    in   this       record,    we   conclude        DiMeglio's       show-up

identification was unreliable.           We find no basis to conclude she

had an independent recollection of his appearance.                      In light of

DiMeglio's inability to identify the features of her attacker




                                        23                                   A-0173-12T3
except   that    he     was    "a    tall   black    male,"      together   with   the

suggestive show-up procedures, we conclude when DiMeglio viewed

defendant, a tall black man, she concluded he assaulted her.

Accordingly,     the     out-of-court       identification         is   inadmissible.

See Cherry, supra, 289 N.J. Super. at 517-18.

      The denial of defendant's suppression motion is reversed.

Defendant's conviction is vacated.                  Retrial is subject to any

determination      on    the        sufficiency     of    the    State's    remaining

evidence.

      We briefly address the two remaining challenges raised on

appeal, in an effort to avoid possible repetition of error in

the event of a retrial.               First, we reject defendant's claim of

prosecutorial misconduct and do not agree the State's summation

equated to an impermissible call to arms.                   See State v. Buscham,

360   N.J.      Super.        346,    364-65      (App.    Div.     2003)    (finding

prosecutor's express plea to jury "to protect this child" was

improper).      Nor can it be said to amount to a plea to the jury

to protect members of a specified group.                        See State v. Acker,

265 N.J. Super. 351, 356 (App. Div. 1993) (deeming inappropriate

"the prosecutor's argument that it was the function of the jury

to protect young victims of alleged sexual offenses as a group"

and the implication jurors would violate their oaths by failing

to convict the defendant), certif. denied, 134 N.J. 485 (1993).




                                            24                               A-0173-12T3
There   was    no    trial    objection.          When     considering     the     "fair

import" of the summation in its entirety, State v. Jackson, 211

N.J. 394, 409, the cited statement was not "so egregious that it

deprived . . . defendant of a fair trial," State v. Frost, 158

N.J. 76, 83 (1999).

      Finally, defendant argues Officer Martina's testimony that

suspects "normally get rid of [the proceeds of a crime] so they

can't   be    tied    to    the   crime"    was        inadmissible      lay    opinion.

Again, no objection followed this testimony.                       Despite the lack

of objection, we conclude it was error to admit that statement

and   the    error    was    "clearly      capable       of    producing   an     unjust

result."      R. 2:10-2.

      "Lay opinion testimony . . . can only be admitted if it

falls within the narrow bounds of testimony that is based on the

perception     of    the    witness   and       that    will   assist    the    jury    in

performing its function."             State v. McLean, 205 N.J. 438, 456

(2011).      "[A] lay witness must have actual knowledge, acquired

through his or her senses, of the matter to which he or she

testifies."         State    v.   LaBrutto,       114     N.J.    187,    197    (1989).

Further, lay opinion "is limited to testimony that will assist

the trier of fact either by helping to explain the witness's

testimony     or     by    shedding   light       on    the    determination       of    a

disputed factual issue."          McLean, supra, 205 N.J. at 458.




                                           25                                   A-0173-12T3
    Although New Jersey courts have permitted police officers

to testify as lay witnesses, LaBrutto, supra, 114 N.J. at 198,

"[t]he Rule does not permit a witness to offer a lay opinion on

a matter 'not within [the witness's] direct ken . . . and as to

which   the   jury   is   as   competent      as    he    [or    she]    to    form    a

conclusion[.]'"      McLean, supra, 205 N.J. at 459 (alterations in

original)     (quoting    Brindley    v.    Firemen's       Ins.    Co.,      35   N.J.

Super. 1, 8 (App. Div. 1953)).

    Here, Officer Martina was not relating what he observed or

perceived.     See N.J.R.E. 701.       Rather, he offered what amounted

to an expert opinion interpreting facts for the jury bearing

directly on defendant's guilt.             The statement from a lay witness

impermissibly     intruded     on    the    jury's       function       and   is    not

admissible     without    an   appropriate         expert       foundation.         See

McLean, supra, 205 N.J. at 463.

    Reversed and remanded.




                                       26                                     A-0173-12T3
