                                NOT FOR PUBLICATION WITHOUT THE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-5873-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDGARDO J. GIL-LI, a/k/a
EDGARDO GILLI,

     Defendant-Appellant.
_______________________________

                   Submitted May 18, 2020 – Decided July 7, 2020

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 17-08-0996.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Richard Sparaco, Designated Counsel, on the
                   brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Craig Allen Becker, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      In this appeal, defendant Edgardo J. Gill-Li requests that we reverse the

jury's verdict finding him guilty of shoplifting because he was denied a fair trial

when two police officers, who did not observe him at the scene of the offense,

identified him as one of the persons depicted in the store's surveillance video

and still pictures taken from the video. We disagree and affirm.

                                        I.

      A. The Theft and Defendant's Arrest

      Surveillance cameras recorded two men enter a Paramus store together,

and after one of them put coats in a shopping cart, they left the store undeterred

by any store employee without paying for the merchandise. After being assigned

to investigate the theft, Paramus Police Department Detective Salvatore

Cosentino obtained images of the men and their vehicle from the store's

surveillance cameras and posted them on an all-points-bulletin (trax message),

which was circulated to surrounding law enforcement agencies to locate and

arrest them. With the assistance of Glen Rock Police Department Sergeant

Michael Trover, defendant was identified as one of the shoplifters. He was

subsequently arrested and indicted on one count of shoplifting merchandise with

a value of more than $500, N.J.S.A. 2C:20-11(b)(1).




                                                                           A-5873-17T3
                                        2
       B. Pretrial Evidentiary Hearing

       Prior to defendant's trial, the judge conducted an N.J.R.E. 104(a) hearing

in lieu of a Wade1 hearing regarding the admissibility of Trover's identification

of defendant in the trax message. Trover testified he recognized defendant in

the trax message from "a larger scale case" he was working on with several area

law enforcement agencies regarding several shoplifting incidents at area liquor

stores. Trover indicated he received an investigative lead from a Livingston

Township police detective advising him that store employees at a liquor store

had recognized a crew of shoplifters enter the store, and were able to obtain the

license plate number, year, make, and model of a vehicle the fleeing offenders

drove away in.

       Trover obtained the vehicle's registration information and used "the

automatic traffic system through the courts" to "determine [the] operator who

had received numerous summonses . . . driving that vehicle." Defendant was

cited as the vehicle's operator. Trover then viewed defendant's pictures on his

Facebook page, which included him next to a 2006 Nissan Pathfinder, and




1
    United States v. Wade, 388 U.S. 218 (1967).


                                                                         A-5873-17T3
                                         3
compared them with his driver's license photo.2 Trover's further investigation

led him to a location where he spotted defendant in the Nissan Pathfinder.

      The judge determined Trover's identification testimony of defendant was

admissible, stating:

            I found [Sergeant Trover's testimony] to be extremely
            well-prepared, obviously, not deceptive in his answers.
            His answers were completely consistent with the . . .
            other evidence, in [the] case including . . . his own
            report, and I find him to be completely and totally
            credible based on his testimony that he . . . recognized
            the defendant . . . .

                  ....

            [H]e simply saw the trax message pop up after Paramus
            police posted it following the . . . shoplifting incident
            in this case. He immediately recognized [defendant]
            . . . based solely on his prior investigation. He then
            contacted the Paramus Police Department and alerted
            them to the fact that he believed he knew who the
            person was in their trax message. That was his only
            involvement in the case. He hasn’t reviewed the video
            in this case, he hasn’t anything to do with the Paramus
            investigation. He simply identified [defendant] . . . in
            the Paramus trax message based on his prior
            investigation.

            As a result[,] I find that he will be able to testify . . . to
            the fact that he identified [defendant].



2
   Defendant's Facebook profile photos were suppressed by the trial judge
because they were untimely submitted to defense counsel.
                                                                             A-5873-17T3
                                          4
      C. Trial

      The State presented testimony from the store's Loss Prevention Specialist

Edwin Romero, Cosentino, and Trover, and introduced the surveillance video of

the shoplifting incident, still photos taken from the video, the trax message, and

defendant's driver’s license photograph.3 Defendant did not testify, nor did he

present any witnesses on his behalf.

      Romero testified regarding his review of the store's surveillance video

taken on January 27, 2017. The video was played for the jury with Romero

pointing out two men, one wearing a gray sweater and another in a black sweater

wearing a black hat, entering the store through its main entrance. 4 Romero

testified the video depicted the one man wearing the black sweater putting

eleven coats – costing over $800 – in a shopping cart with the other man standing

nearby. After they exited the store without paying for the coats – the man in the

black sweater pushing the shopping cart behind the man wearing the gray

sweater – the store's "sensomatic" alarm was set off due to the unremoved alarm



3
  The record before us does not provide the video, and the still photographs
provided are of poor quality, making comparison with the driver's license photo
impossible.
4
  The judge sustained defendant's objection to the State's attempt to have
Romero give a "play-by-play" of the individuals' actions inside the store.
                                                                          A-5873-17T3
                                        5
sensors on the coats. The video also depicted the individuals arriving at and

leaving the store in a "silver" vehicle.    Romero stated after reviewing the

surveillance footage, he transferred it onto a CD and notified the Paramus Police

Department.

      On cross-examination, Romero clarified that although the incident took

place on January 27, he was not at work that day and viewed the surveillance

video on January 29, but did not notify police until January 30.         He also

disclosed he did not interview any store employees regarding the incident.

Romero testified he could not identify any person, vehicle, or license plate from

the surveillance video.

      Cosentino testified regarding his investigation that led to defendant's

arrest for shoplifting the coats. By reviewing the surveillance video, Cosentino

was able to identify the theft suspects' vehicle as a gray Nissan Pathfinder. He

obtained two still shots of the shoplifters from the video and a still shot of the

vehicle from the video.

      Cosentino used the photos to generate a trax message, which included a

"short narrative regarding the incident[,]" and circulated it to surrounding law

enforcement agencies. The same day he sent the trax message, Cosentino

received an email from Trover enabling him to "develop a suspect" in the case


                                                                          A-5873-17T3
                                        6
based upon Trover's belief defendant and his gray Nissan Pathfinder were

depicted in the trax message.        Cosentino detailed how he performed a

background check on defendant and obtained his New Jersey driver's license

photo.

      The following colloquy then took place:

            [Prosecutor:] And what did you do or what was the
            significance, if any, of the driver’s license photo?

            [Cosentino:] There were very similar physical facial
            characteristics from the New Jersey driver's license
            photo and the photos and video.

            [Prosecutor:] Okay. When you say they were very
            similar, could you explain to us what you mean?

            [Cosentino:] Yes, ma'am. One very distinguishing
            characteristic is very high elongated forehead. I was
            able to put the photo side-by-side. And when I put them
            side-by-side I could see that it's very, very similar, very
            distinctive hairline, very straight hairline. Was able to
            match that up with the driver’s license photo and the
            photos and the video, the surveillance video. I also
            observed the wider longer nose. The New Jersey
            driver’s license photo and the surveillance video photos
            and the video also showed a very clean, clear
            complexion, no blemishes, no scars or anything of that
            nature.

      Cosentino was asked to compare defendant's driver's license photograph

to the photographs in the trax message, to which he replied:



                                                                          A-5873-17T3
                                        7
            I was able to, again, observe an elongated forehead in
            both photos, in the driver’s license photo and in the . . .
            still shots and in the video itself, a very straight hair
            line. Also, again the clear complexion, both of the DL
            photo and . . . the still photos matched up in those . . .
            instances, and then also he has . . . a rounded chin area
            which was similar in both photos.

      Based on his comparison of defendant's driver's license photo with the

photos taken from the surveillance video, Cosentino determined defendant was

the person in the video and he generated a criminal complaint against him for

shoplifting. There were no objections to Cosentino's testimony regarding his

identification of defendant as one of the two shoplifting suspects.

      Trover was the State's last witness. He testified to recognizing both men

and the vehicle depicted in Cosentino's trax message, pointing out defendant

was the man in the gray sweatshirt.5        He knew defendant "through [his]

interaction with the community[,]" stating in September 2016 he was driving his

undercover police vehicle in Paterson and while stopped at a stop sign he saw

defendant driving his Pathfinder. 6 Trover stated it was a sunny day and he was


5
  To avoid the prejudicial effect of Trover's testimony at the Rule 104 hearing
detailing his prior encounter with defendant through the liquor store shoplifting
investigation, it was stipulated his trial testimony would describe his prior
interaction as seeing him at the stop sign.
6
  Trover clarified the Pathfinder was not owned by defendant but was registered
to a "female party[,]" although it was a vehicle defendant was "known to drive."
                                                                          A-5873-17T3
                                        8
"very close" to defendant who was traveling around five miles per hour. Trover

then made an in-court identification of defendant, stating he was "[v]ery

confident" defendant was the person depicted in the trax message.

      Relevant to defendant's challenge to Trover's identification in this appeal,

the judge charged the jury:

            There was evidence that Sergeant Trover of the Glen
            Rock Police Department identified [defendant]. You’re
            not to consider that fact as prejudicing the defendant in
            any way. . . . [T]hat fact is not evidence the defendant
            has ever been convicted or even arrested for any crime
            and is not to be considered for you as such.

            The fact that Sergeant Trover was able to identify the
            defendant doesn’t mean that he has a criminal record.
            Information relating to a person’s identity comes into
            the hands of law enforcement agencies from many
            legitimate sources, including for example familiarity
            based on encounters with an individual that are not in
            any way related to police work or criminal activity.

                  ....

            The State has presented the testimony of Sergeant
            Michael Trover. You’ll recall that this witness . . .
            identified the defendant in court as the person pictured
            in the trax message circulated by the Paramus police
            ....

            The State also presented testimony that on . . . a prior
            occasion before this trial this witness identified the
            defendant as the person pictured in the trax message
            circulated . . . by the Paramus police . . . .


                                                                          A-5873-17T3
                                        9
               According to the witness his identification of the
               defendant was based upon his prior encounter with the
               defendant. It’s your function to determine whether the
               witness’ identification of the defendant is reliable and
               believable or whether it’s based on a mistake or for any
               other reason is not . . . worthy of belief.

               You must decide whether it’s sufficiently reliable
               evidence that this defendant is the person who
               committed the offense charged. Witness identification
               testimony must be scrutinized carefully.

      During deliberations, the jury submitted a question to the judge inquiring

if Trover had had any interactions with defendant prior to seeing him driving in

Paterson. With the parties' consent, the judge responded, "[y]ou must rely upon

your recollection of the evidence presented during the trial and must not

speculate regarding any other interactions between Sergeant Trover and

defendant." After deliberations, the jury found defendant guilty. He was later

sentenced to three years' probation, community service, and ordered to pay

restitution.

                                         II.

      Before us, defendant raises the following single-point argument:

               THE COURT ERRED BY PERMITTING LAY
               OPINION TESTIMONY AS TO THE IDENTITY OF
               THE INDIVIDUAL DEPICTED ON THE VIDEO
               SURVEILLANCE – THE ISSUE OF IDENTITY WAS
               SOLELY WITHIN THE PROVINCE OF THE JURY,
               THE FINDERS OF THE FACTS.

                                                                          A-5873-17T3
                                         10
      The crux of defendant's appeal is that because he did not concede his

presence at the store when the shoplifting occurred, the officers' testimony was

inadmissible lay opinion testimony which denied him a fair trial. Over his

objection at the pretrial hearing, the trial judge allowed admissibility of Trover's

identification of defendant in the trax message based upon Trover's knowledge

of defendant from a prior investigation. Although defendant did not object to

the officers' testimony identifying him as the person depicted in the trax message

and comparing his driver's license to the surveillance video, which was

compounded when the State stressed their testimony during summation, he

contends he is entitled to a new trial because their testimony was capable of

producing an unjust result.      He argues the State's evidence was entirely

circumstantial; demonstrating defendant was only near the man wearing the

black sweater who put the coats in the shopping cart and pushed it out the store.

He further argues the State presented no witness corroborating the video by

testifying defendant was seen in the store during the time in question, and

through his counsel he denied being in the store. Relying upon State v. Lazo,

209 N.J. 9, 24 (2012), State v. Coclough, 459 N.J. Super. 45 (App. Div. 2019),

State v. McLean, 205 N.J. 438, 461 (2011), and State v. Carbone, 180 N.J. Super.

95, 97-100 (Law Div. 1981), defendant argues the officers' lay opinion


                                                                            A-5873-17T3
                                        11
testimony identifying defendant in the surveillance video and still photos

usurped the jury's prerogative. 7

      With law enforcement's increasing use of the technology of surveillance

camera video and the production of still photos from the video to identify

criminal offenders, our courts have been called upon to determine the limitations

of those identifications by lay witnesses during trials of the accused. Our

analysis begins with the recognition that lay opinion testimony is permitted

when it is "rationally based on the perception of the witness" and "will assist in

understanding the witness' testimony or in determining a fact in issue." N.J.R.E.

701. Lay opinion testimony "is not a vehicle for offering the view of the witness

about a series of facts that the jury can evaluate for itself or an opportunity to

express a view on guilt or innocence." McLean, 205 N.J. at 462. "[T]estimony

in the form of an opinion, whether offered by a lay or an expert witness, is only

permitted if it will assist the jury in performing its function." Ibid. "The [r]ule

does not permit a witness to offer a lay opinion on a matter . . . as to which the

jury is as competent as he to form a conclusion[.]" Id. at 459 (second alteration

in original) (internal quotation marks and citation omitted). Furthermore, a



7
  We do not mention an unpublished opinion cited by defendant because it does
not constitute precedent and is not binding. R. 1:36-3.
                                                                           A-5873-17T3
                                       12
police witness is not permitted to offer an opinion regarding a defendant's guilt .

State v. Frisby, 174 N.J. 583, 593-94 (2002) (disapproving police testimony

opining the innocence of one person and inferentially the guilt of the defendant);

State v. Landeros, 20 N.J. 69, 74-75 (1955) (holding a police captain's testimony

that defendant was "as guilty as Mrs. Murphy's pet pig" caused "enormous"

prejudice warranting reversal).

      These principles apply to lay witness opinions regarding an offender's

identity. "In an identification case, it is for the jury to decide whether an

eyewitness credibly identified the defendant." Lazo, 209 N.J. at 24.

      In Lazo, the issue was whether it was proper for a detective with no

personal knowledge of the crime to testify at trial that he included the

defendant's photo in a photo array because the defendant's photo resembled the

composite sketch of the assailant. Id. at 12. The issue in Lazo had been fully

raised and argued at trial and, thus, was not raised as plain error as it is here.

Our Supreme Court noted that "[t]he victim's identification was the only

evidence linking defendant to the crime.        No physical evidence or other

corroboration of the identification was presented." Id. at 15. The jury in Lazo

convicted the defendant of second-degree robbery and second-degree conspiracy

to commit robbery. Id. at 16.


                                                                           A-5873-17T3
                                       13
      The Court held the detective's testimony violated N.J.R.E. 701 because

his opinion was not based on personal knowledge, and the testimony only served

to bolster the victim's identification, which was the sole basis of the defendant's

conviction. Id. at 24. The detective did not witness the crime, did not know the

defendant, and relied solely on the victim's description. Ibid. "Nor was there a

change in appearance that the officer could help clarify for the jurors; they could

have compared the photo and the sketch on their own.            Finally, the sole

eyewitness told the jury what he observed firsthand." Ibid.

      The Court reversed our decision affirming the conviction, holding that a

police officer may not "improperly bolster or vouch for an eyewitness'

credibility and thus invade the jury's province." Ibid. Because the identification

was the only evidence against the defendant, the Court could not "conclude that

the error was harmless." Id. at 27.

      The Court cited favorably to the Law Division's 1981 decision in Carbone,

where the defendant was charged with five armed bank robberies, and the State

secured statements from individuals who knew the defendant and who identified

him from photographs taken by the banks' surveillance cameras. 180 N.J. Super.

at 96-97. Citing cases from other jurisdictions, the Law Division considered a

number of factors in reaching its determination that the proposed identifications


                                                                           A-5873-17T3
                                       14
were admissible, including: (1) the fact that the defendant's appearance had

changed since the time of the offense charged; (2) the lack of eyewitnesses to

the offenses charged; (3) the extent of the potential witnesses' familiarity with

the defendant, particularly at the time of the offenses charged; and (4) the basis

of the witnesses' knowledge of the defendant. Id. at 97-100.

      With these principles in mind, we first address the judge's pretrial ruling

allowing Trover to testify that he identified defendant in the still photos included

in the trax message. The judge's ruling was based upon his determination Trover

was credible in testifying that upon seeing the trax message he immediately

recognized defendant based solely on his prior liquor store shoplifting

investigation and contacted Cosentino. However, that information was not

necessary for his in-court identification given the shoplifters in the surveillance

video did not wear disguises or attempt to alter their looks when the crime was

committed, and Trover did not represent that he had any personal contact with

defendant prior to his liquor store shoplifting investigation. The jury could have

made the comparison between the surveillance video and still photos based upon

defendant's presence at trial without Trover's lay opinion testimony.

      We reach a similar conclusion with respect to Cosentino's testimony. His

comparison testimony of defendant's driver's license photo to the surveillance


                                                                            A-5873-17T3
                                        15
video regarding defendant's forehead, skin complexion, and nose, was not based

upon any independent knowledge regarding defendant's appearance. The State

argues his identification testimony was not for the purpose of identifying

defendant but was independently relevant to explain how his investigation led

to the defendant's arrest. While there may be some truth to that, it is clear to us

that his testimony was essentially his lay opinion that defendant was one of the

shoplifters caught on the store's surveillance cameras. Had Cosentino merely

stated he believed defendant was one of the shoplifters based upon his

investigation without professing his deduction was derived from identifying

defendant in the video, there could be no claim Cosentino gave lay opinion

testimony.

      These conclusions, however, do not end our analysis. As to Trover's

identification testimony, the judge gave a limiting instruction telling the jurors

it was their function to determine whether defendant was one of the men in the

video and still photos and whether Trover's identification was reliable and

believable.    We must therefore determine whether Trover's testimony was

harmless error not capable of producing an unjust result as the State also

contends.     R. 2:10-2 ("Any error or omission shall be disregarded by the

appellate court unless it is of such a nature as to have been clearly capable of


                                                                           A-5873-17T3
                                       16
producing an unjust result[.]"). Along that same line, since defendant did not

object to Cosentino's identification testimony we view his challenge on appeal

under the lens of plain error. Plain error is "error possessing a clear capacity to

bring about an unjust result and which substantially prejudiced the defendant's

fundamental right to have the jury fairly evaluate the merits of his [or her]

defense." State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State

v. Irving, 114 N.J. 427, 444 (1989)). "[A]ny finding of plain error depends on

an evaluation of the overall strength of the State's case." State v. Chapland, 187

N.J. 275, 289 (2006).

      Here, the jury was empowered by the judge's instructions to reject the

State's identification testimony if it viewed the surveillance video and photos

differently. The jury was directed it had to find beyond a reasonable doubt

defendant was depicted in the video and photos without blindly accepting the

State's claim that he was. There is no indication the jury did not follow the

judge's instructions. State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div.

2012).

      Defendant's argument attacking the inadmissibility of the identification

testimony is undercut, as the State argues, by his opening remarks that the State

would contend defendant was in the video and photos, to alleviate any prejudice


                                                                           A-5873-17T3
                                       17
coming from the officer's identification of him, by arguing he was merely

present while the shoplifting occurred but not involved in it, and therefore

innocent. See e.g., Coclough, 459 N.J. Super. at 51 (finding admission of

officers' testimony identifying defendant through surveillance video was

harmless error "because the defense conceded at the outset of the case that the

defendant entered the apartment building, along with the" two co-defendants).

Based upon our review of the record, we cannot conclude it is likely defendant

would have been found not guilty without Trover and Cosentino's in-court

identification testimony; no reversible error was committed.

      Affirmed.




                                                                       A-5873-17T3
                                     18
