                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5482-11T3

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
                                           October 17, 2013
    v.
                                          APPELLATE DIVISION
LARRY R. HENDERSON,

         Defendant-Appellant.

______________________________________________________

         Argued September 17, 2013 – Decided October 17, 2013

         Before Judges Fisher, Espinosa and Koblitz.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Camden County,
         Indictment No. 03-09-3383.

         Joshua D.      Sanders, Assistant Deputy Public
         Defender,      argued the cause for appellant
         (Joseph       E.   Krakora,   Public   Defender,
         attorney;     Mr. Sanders, of counsel and on the
         brief).

         Deborah Bartolomey, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General, attorney;
         Ms. Bartolomey, of counsel and on the
         brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    In the wake of the Supreme Court's landmark decision in the

earlier appeal in this matter, State v. Henderson, 208 N.J. 208
(2011), we consider defendant's appeal of the trial court's more

recent refusal to exclude eyewitness identification evidence.

In examining the issues, we (1) briefly outline the relevant

factual circumstances and earlier proceedings, then (2) describe

those matters not before us,1 and finally (3) review the trial

court's decision at the most recent Wade hearing,2 which was

based on the test devised by the Supreme Court in the earlier

appeal that replaced the test utilized in this State since at

least State v. Madison, 109 N.J. 223 (1988).


                                     I

       Rodney Harper was shot in Camden in the early morning hours

of January 1, 2003.      Harper and James Womble were drinking and

smoking crack that evening at a friend's apartment.             Harper left

prior to midnight and returned sometime between 2:00 and 2:30

a.m.     Soon   after,   two   men   forcibly   entered   the    apartment.

Womble knew one of them, codefendant George Clark, who arrived

to collect money from Harper.            Womble did not know the other

intruder.




1
 Judges Espinosa and Koblitz do not join in Section II of this
opinion.
2
 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).



                                     2                             A-5482-11T3
    Harper and Clark went into another room, while the unknown

intruder kept Womble away at gunpoint in a hallway.                 Womble

heard an argument in the other room and then a gunshot.                  As

Clark and his confederate departed, Clark warned Womble not to

"rat [him] out, I know where you live."          Henderson, supra, 208

N.J. at 221.     Harper died on January 10 from a gunshot wound to

the chest.

    Womble was questioned by Camden County Detective Luis Ruiz

and Investigator Randall MacNair on January 11.           As the Supreme

Court recounted, Womble told them "he was in the apartment when

he heard two gunshots outside, that he left to look for Harper,

and that he found Harper slumped over in his car in a nearby

parking lot, where Harper said he had been shot by two men he

did not know."    Ibid.

    In an interview the following day, the officers confronted

Womble   with   inconsistencies   in   his   prior   statement.    Womble

responded that he was in fear of retaliation but decided to

"come clean."    He told the officers of the intrusion and how one

culprit held him at gunpoint while the other argued with and

eventually shot Harper.

    On January 14, the officers had Womble view a photographic

array.    The nature of that identification has been thoroughly

described in the Supreme Court's opinion, id. at 222-25, as well




                                   3                              A-5482-11T3
as our own, State v. Henderson, 397 N.J. Super. 398, 406-07

(App. Div. 2008).         Essentially, in initial compliance with the

Attorney General's Guidelines for photographic identifications,3

the array was presented to Womble by Detective Thomas Weber, who

was not investigating the case.4            Weber properly presented Womble

with eight photographs, one of which depicted defendant, and the

others were of African-American males of the same approximate

age   and    appearance     as   defendant.       208   N.J.   at    222.            The

photographs were also properly shown to Womble one by one.                              As

the   Court    observed,     "Womble    quickly   eliminated        five       .    .   .

reviewed the remaining three, discounted one more," and then

said "he 'wasn't 100 percent sure of the final two pictures.'"

Id. at 223.

      Weber informed the other officers that Womble had narrowed

it    down    to   two    photographs    but    could   not    make        a       final

identification.          MacNair and Ruiz then entered the interview

room and spoke to Womble; Weber was not present during this

discussion.        In our earlier opinion, we summarized what the

3
 Office of the Attorney General, Attorney General Guidelines for
Preparing and conducting Photo and Live Lineup Identification
Procedures (2001).
4
 The   Attorney   General  Guidelines   direct   that primary
investigators should not administer photo or live lineup
identification procedures "to ensure that inadvertent verbal
cues or body language do not impact on a witness." Id. at 222
(citations omitted).



                                        4                                  A-5482-11T3
testimony     at    the   earlier    Wade       hearing     revealed    about    what

happened when the investigating officers spoke to Womble:

             M[a]cNair testified . . . that he felt
             Womble was "holding back from us," and so he
             and Ruiz "wanted to go in and to clarify and
             be clear on what he was saying to us."    He
             also testified that Womble was concerned
             about the safety of his elderly father
             because the second gunman was still at
             large.   M[a]cNair testified that, in order
             to put Womble's mind at ease, he "told him
             to focus, to calm down, to relax and that
             any type of protection that [he] would need,
             any threats against [him] would be put to
             rest by the Police Department." Womble then
             responded    that    he   could   make    an
             identification.    With that, M[a]cNair and
             Ruiz left the room.

             Officer Weber re-entered the room and again
             showed Womble the array.         This time,
             according to Weber, Womble "slammed his hand
             down on the table and said, '[t]hat's the
             mother   fucker  there,'"   thus   positively
             identifying defendant as one of the men
             involved in the shooting of Harper.

             [397 N.J. Super. at 406.]

    The      original     trial    judge       conducted    a   Wade   hearing   but

concluded the procedure was not suggestive and permitted the

State   to    use    at    trial    evidence       of      Womble's    out-of-court

identification of defendant as the man who held him at gunpoint

in the hallway while Clark shot Harper in another room.




                                           5                               A-5482-11T3
    At trial, as the Supreme Court observed, "[t]he primary

evidence against defendant . . . was Womble's identification[5]

and Detective MacNair's testimony about defendant's post-arrest

statement."   Id. at 226 (in a footnote at the conclusion of this

sentence, the Court observed that Clark's recorded statement,

which "placed Henderson at the apartment but largely exculpated

him," was also played for the jury).

    Defendant    was   acquitted       of   murder   and   aggravated

manslaughter but convicted of reckless manslaughter, N.J.S.A.

2C:11-4(b)(1), and other offenses, and later sentenced to an

aggregate eleven-year prison term subject to a nearly six-year

period of parole ineligibility, pursuant to the No Early Release

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

    Defendant thereafter appealed, and we determined that the

trial judge misapplied the Manson/Madison test6 for determining


5
 Womble also made an in-court identification of defendant.    As
the Court noted, "Womble had no difficulty identifying defendant
at trial eighteen months later." Id. at 225. Indeed, there is
hardly a more suggestive identification procedure than that
which occurs at trial, where the only likely person to be
identified is the one seated next to defense counsel.        See
Madison, supra, 109 N.J. at 243; see also Perry v. New
Hampshire, __ U.S. __, __, 132 S. Ct. 716, 727, 181 L. Ed. 2d
694, 710 (2011).
6
 Both then and now the federal constitutional rights triggered by
such circumstances are governed by the procedure outlined in
Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d
140 (1977). Until Henderson's prior appeal, this same procedure
                                                      (continued)


                                   6                         A-5482-11T3
the reliability of an out-of-court eyewitness identification –

because       the     trial       judge      failed     to    conclude       that     the

identification procedure was impermissibly suggestive and, thus,

failed      to   analyze        the    Manson/Madison    reliability        factors    in

light of the corrupting effect of the suggestive process – and

we remanded for a new Wade hearing before a different judge.

Henderson, supra, 397 N.J. Super. at 416-17.                       We also held that

if    the    new     hearing      required     exclusion      of   the   out-of-court

identification, then the trial judge was to determine whether

the   witness        could      make    an   in-court    identification       from     an

independent source.              Id. at 417.       And, we lastly concluded that

"if   the     Wade    or     taint      hearings    require    the    suppression     of

evidence then defendant is entitled to a new trial, but not

otherwise."         Ibid.

       The       Supreme        Court     granted     certification,         State     v.

Henderson, 195 N.J. 521 (2008), and, later, summarily remanded

to the trial court for a plenary hearing "to consider and decide

whether the assumptions and other factors reflected in the two-

part Manson/Madison test, as well as the five factors outlined

in    those      cases     to    determine     reliability,        remain   valid     and



(continued)
was adopted for purposes of defining the limits of our state
constitution in this regard.  See Madison, supra, 109 N.J. at
233, and cases cited therein.



                                              7                                A-5482-11T3
appropriate in light of recent scientific and other evidence."

Henderson, supra, 208 N.J. at 306.              The Court appointed Judge

Geoffrey Gaulkin, P.J.A.D. (retired and temporarily assigned on

recall) to preside at the remand hearing.             Id. at 228.

      On the basis of        evidence adduced at the           remand hearing

conducted    by   Judge   Gaulkin,    the    Court    rendered    its    landmark

decision, significantly altering the methodology for considering

the   role   of   suggestive    police      identification     procedures      and

ascertaining the reliability of eyewitness identifications.                    Id.

at 288-93.    At the same time, the Court considered the reach of

its decision and concluded that the new rule would apply only to

future cases "except for defendant Henderson" and the defendant

in a companion case.         Id. at 302.      As for Henderson, the Court

held he was entitled to "an expanded hearing consistent with the

principles outlined" in its decision.                Id. at 300.        The Court

further   mandated    that    "[i]f   the    trial    court    finds    that   the

identification should not have been admitted, then the parties

should present argument as to whether a new trial is needed,"

and that "[i]f [the out-of-court] identification was properly

admitted,    then    defendant's      conviction      should     be    affirmed."

Ibid.




                                       8                                 A-5482-11T3
       In accordance with the Court's mandate, Judge Samuel D.

Natal conducted a plenary hearing,7 at which the State called

MacNair, Ruiz and Weber to testify; defendant called Assistant

Prosecutor Christine Shah and Womble as witnesses.             Based on his

view    of   this     evidence,    Judge    Natal    concluded       that    the

application    of    the   new   test   announced   in   Henderson    did    not

require exclusion of the out-of-court identification.

       Defendant again appeals, arguing the judge failed to follow

Henderson's edicts in the following ways:

             A. The Trial Court Failed to Find Compliance
             With Various System Variables By Clear And
             Convincing Evidence.

             B. The Trial Court Failed to Properly Find
             And Weigh The Effect Of Various Estimator
             Variables.

                    1. The Trial Court Erred In Its
                    Analysis Of the Duration Estimator
                    Variable.

                    2.   The  Trial   Court Erred By
                    Failing To Find The Weapon Focus
                    Estimator Variable.

                    3. The Trial Court Erred In Its
                    Analysis Of The Stress Estimator
                    Variable.




7
 In our earlier decision, we mandated the conducting of a new
Wade hearing by a different judge. 397 N.J. Super. at 416-17.
Because the original trial judge had retired in the interim, the
Supreme Court recognized that particular issue had been rendered
moot. 208 N.J. at 300 n.12.



                                        9                              A-5482-11T3
               4. The Trial Court Erred In Its
               Analysis   Of  The   Distance And
               Lighting Estimator Variables.

               5. The Trial Court Erred In Its
               Analysis   Of    The Intoxication
               Estimator Variable.

               6. The Trial Court Erred In Its
               Analysis   Of  The  Memory Decay
               Estimator Variable.

          C. Even If the Trial Court Found Compliance
          With Various System Variables By Clear And
          Convincing   Evidence,   And   Even  If   The
          Findings   As   To   The   Various  Estimator
          Variables Pass Muster, The Trial Court
          Failed [To] Properly Weigh The Totality Of
          The   Effect   Of   The   Various   Estimator
          Variables In Conjunction With The System
          Variables.

We reject these arguments and affirm.


                                 II

    Before turning to the issues raised by defendant in this

appeal, this section of this opinion, which as noted in footnote

1 Judges Espinosa and Koblitz do not join in, makes note, for

the sake of completeness, of two issues:     one that is not before

us and another not open for question.

                                 A

    In Henderson, the Court observed it had only altered "the

State's   framework   for   evaluating   eyewitness   identification

evidence," id. at 287 (emphasis added), recognizing it had "no

authority, of course, to modify Manson," id. at 287 n.10.        This



                                 10                         A-5482-11T3
ostensibly left open to defendant the opportunity to continue to

seek    exclusion       of    the    eyewitness     identification        evidence

pursuant to the unaltered federal Manson test.8                    Naturally, if

Henderson provides greater state constitutional rights to the

accused   than     offered    by    federal   constitution       principles,    the

difference between the two tests is inconsequential.                      But the

assumption that Henderson grants greater individual rights than

does    Manson     is   not   as    obvious    as   it    has    been   in   other

circumstances where our Supreme Court recognized more expansive

state constitutional rights.            See, e.g., Lewis v. Harris, 188

N.J. 415, 456-57 (2006); State v. McAllister, 184 N.J. 17, 32-33

(2005); State v. Hempele, 120 N.J. 182, 202-03 (1990); State v.

Hunt, 91 N.J. 338, 346-47 (1982).

       Defendant    argues     that    the    Manson     test,    as    previously

described by our Supreme Court, placed the burden of persuasion

for pretrial screening of suggestive eyewitness identifications


8
 The Supreme Court's mandate does not foreclose the pursuit of
this federal argument.      The Court's judgment in Henderson
"modif[ied] and affirm[ed] the judgment of the Appellate
Division."   Id. at 304.    Our judgment had reversed the trial
judge's denial of exclusion of the identification evidence
without distinction between defendant's federal and state
constitutional rights because there was then no distinction
between the legal framework applicable to those rights.     The
Supreme Court in Henderson did not reverse our judgment, which
reversed the trial court, so it may be assumed the federal
avenue remained open to defendant following the Supreme Court's
mandate regarding the new state constitutional framework.



                                        11                                A-5482-11T3
on the prosecution.         See Madison, supra, 109 N.J. at 245 (citing

Wade, supra, 388 U.S. at 240, 87 S. Ct. at 1939, 18 L. Ed. 2d at

1164-65, in describing the prosecution's "formidable" burden of

"proving     by     clear       and    convincing       evidence"       that    any

identifications of the defendant, whether in or out of court,

"had a source independent of the police-conducted identification

procedures"), and the Attorney General has not argued to the

contrary.9

      Certainly a shift in the burden of persuasion from the

prosecution to the defense in the pretrial screening process

could   form      the   basis    for    a     legitimate     argument   that    the

Henderson state constitutional framework makes less likely an

exclusion of out-of-court identification evidence than does the

existing federal framework.              If that were the case, then it

would have behooved defendant to seek suppression pursuant to

the federal test as well.             But the premise for such an argument

is not apparent.        Henderson held that, under the new framework,

the   ultimate     burden   of   persuasion       in   the   pretrial   screening

process "remains" on the defendant, Henderson, supra, 208 N.J.


9
 The matter is not entirely free from doubt. The Supreme Court
of the United States – from Wade to Perry – has consistently
omitted a description of the nature of the burden of persuasion
regarding whether suggestiveness has corrupted the reliability
of an out-of-court identification or upon whom that burden
rests.



                                         12                               A-5482-11T3
at 289, a word which strongly suggests the Court did not believe

its new framework altered the existing Manson allocation of the

burden of persuasion.

     In any event, at oral argument in this appeal, defendant

conceded he is not arguing the trial judge erred in denying

exclusion pursuant to federal constitutional principles10 and, in

fact, he has not briefed it.11         Accordingly, that question is not

before us.

                                           B

     Second,      as   we   have   already     observed,     the    Supreme     Court

concluded that defendant was entitled to the benefit of the new

rule, id. at 302, which not only altered the method for pretrial

screening    of    eyewitness      identifications,        but      also     mandated

modified jury instructions to include the various new factors

relevant     in        assessing     the       reliability         of      eyewitness

10
 The trial judge, in fact, did not analyze the evidence pursuant
to the Manson standard and it appears defendant did not urge
that he do so. An argument not presented in the trial court is
not cognizable on appeal.   Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973).
11
 At oral argument, defendant suggested Perry v. New Hampshire
somehow foreclosed his federal argument.        Perry, however,
determined only that federal constitutional precepts do not
require pretrial screening for reliability where the suggestive
circumstances were not arranged by law enforcement officers. __
U.S. at __, 132 S. Ct. at 730, 181 L. Ed. 2d at 713.        This
exception is not implicated here, and there is nothing in the
Court's opinion in Perry that would suggest the federal Manson
test has been altered or modified in any way.



                                       13                                    A-5482-11T3
identification         evidence,     id.    at   288.     The    Court's    ultimate

judgment as applied to defendant, however, provided him only

with the benefit of the new pretrial screening approach.                           That

is, the Court held defendant would only be permitted to seek a

new trial if he succeeded in having the identification evidence

excluded at the plenary hearing; in the event the trial judge

held    the    identification        evidence    was    properly      admitted,    the

Court     commanded        that    "defendant's         conviction       should     be

affirmed."       Id. at 300.       Defendant was not given the benefit of

the new rule regarding the manner in which juries should be

instructed       on    reliability    because     his   conviction      –   with   the

denial    of     his    application        for   exclusion      of    identification

evidence at the new expanded pretrial hearing – must be affirmed

pursuant to the Court's clear and unambiguous mandate.                             See

Flanigan v. McFeely, 20 N.J. 414, 420 (1956) (courts have "a

peremptory duty to obey" a higher court's mandate "precisely as

it is written").

       Although defendant suggests the incongruity of being given

the benefit of a rule – crafted by the Court in the very appeal

he     pursued    –     that   inevitably        passes    the       reliability    of

identification evidence to the jury but denies him a new trial

absent a favorable ruling at the plenary hearing, the Court's

holding is unmistakable in that regard, and defendant recognizes




                                           14                                A-5482-11T3
as much.       Accordingly, if the trial judge properly refused to

exclude     the     eyewitness         identification        evidence,      defendant's

conviction must be affirmed even though he was convicted on the

basis of jury instructions that did not reflect the Court's new

approach toward eyewitness identification evidence.


                                           III

       In arguing the trial judge erroneously refused to exclude

the eyewitness identification evidence in question, defendant

presents three chief arguments.                  Defendant initially claims the

new rule imposes on the State the burden of ultimately showing

the evidence is reliable by "clear and convincing evidence."                             He

then   argues       that   the   burden    placed       on   defendant      in   the   new

framework      is    not   adequately      defined.          And   defendant      lastly

argues the trial judge did not "properly find and weigh" the

effect    of    the    various        estimator    variables       discussed     in    the

Supreme Court's opinion.


                                            A

       Defendant urges the imposition of a burden on the State to

demonstrate the reliability of an eyewitness identification in

the    pretrial       screening        process     by    "clear       and    convincing

evidence,"      but    that      is    simply     not   what    the    Supreme      Court




                                            15                                   A-5482-11T3
mandated.     Instead, the Court described the new framework in the

following way:

            First, to obtain a pretrial hearing, a
            defendant has the initial burden of showing
            some evidence of suggestiveness that could
            lead to a mistaken identification.       That
            evidence, in general, must be tied to a
            system – and not an estimator – variable.

            Second, the State must then offer proof to
            show    that   the    proffered  eyewitness
            identification is reliable – accounting for
            system and estimator variables – subject to
            the following:     the court can end the
            hearing at any time if it finds from the
            testimony    that    defendant's  threshold
            allegation of suggestiveness is groundless.
            . . .

            Third, the ultimate burden remains on the
            defendant   to   prove   a   very   substantial
            likelihood of irreparable misidentification.
            To do so, a defendant can cross-examine
            eyewitnesses    and   police    officials   and
            present    witnesses   and    other    relevant
            evidence linked to system and estimator
            variables.

            Fourth, if after weighing the evidence
            presented a court finds from the totality of
            the   circumstances   that   defendant   has
            demonstrated a very substantial likelihood
            of irreparable misidentification, the court
            should suppress the identification evidence.
            If the evidence is admitted, the court
            should provide appropriate, tailored jury
            instructions. . . .

            [Id. at 288-89    (emphasis   added;   citations
            omitted).]

In   short,    defendant   must   first   show   "some   evidence"    of

suggestiveness to obtain a plenary hearing, following which the



                                   16                          A-5482-11T3
State    must     "offer       proof"   of    reliability         while    the   "ultimate

burden    remains"        on    defendant      to     "prove      a    very     substantial

likelihood of irreparable misidentification."                          Ibid.     It is not

possible    to     rationally        conclude       that    the       Court   intended    to

saddle    the     State    with      the   burden     of    proving       reliability     by

"clear     and    convincing         evidence,"       a    phrase       which    once    was

recognized to be part of the former pretrial screening test, see

Madison, supra, 109 N.J. at 245,12 but nowhere appears in the

Court's cogent and unambiguous description of the new framework.

       The only burden placed on the State would appear to be that

referred to in the second part of the new framework:                             the State

must     "offer    proof        to   show     that     the     proffered         eyewitness

identification is reliable."                 Henderson, supra, 208 N.J. at 289.

We would equate this burden to "offer proof" with the "burden of

producing evidence" described in N.J.R.E. 101(b)(2), which is

sometimes referred to as the "burden of going forward."                                  The

burden of producing evidence has been described by the Court "as

so light as to be little more than a formality."                                  State v.

Segars,    172     N.J.    481,      494     (2002)       (internal       quotations     and


12
 Defendant also urges, as analogous, the "clear and convincing"
burden imposed on the State with regard to the pretrial
screening of statements by tender-years declarants, State v.
Michaels, 136 N.J. 299, 309 (1994), and the pretrial screening
of evidence offered pursuant to the theory of inevitable
discovery, State v. Sugar, 100 N.J. 214, 238-40 (1985).



                                              17                                   A-5482-11T3
citations omitted).        Such a burden is met "whether or not the

evidence produced is found to be persuasive."                 Ibid.     All that

is necessary to sustain this burden is that the party so saddled

provide evidence on the issue that is germane to the inquiry

with sufficient clarity so that the opposing party has a full

and   fair   opportunity    to   respond.        Cf.,    Biunno,   Weissbard      &

Zegas,    Current   N.J.   Rules   of       Evidence,    comment   on   N.J.R.E.

101(b)(2) (2013).      The party upon whom this burden is placed

cannot remain silent and still prevail.             Segars, supra, 172 N.J.

at 495.      We assume this is the burden the Court imposed on the

State in the second part of the new framework.                        Of course,

nothing has altered the State's burden of proving at trial the

identity of the accused as the person who committed the charged

offense beyond a reasonable doubt.

      We reject defendant's forceful contention that the burden

of persuasion rests on the State; the Court very clearly held

that burden "remains" with defendant.                   Henderson, supra, 208

N.J. at 289.


                                        B

      Defendant also expresses uncertainty about the degree to

which defendant is required to persuade a trial court at a Wade

hearing.




                                        18                               A-5482-11T3
    For     purposes     of    an    application   to    exclude     eyewitness

identification evidence based on state constitutional grounds,

it is what the Court said it is:             a defendant must prove "a very

substantial likelihood of irreparable misidentification."                      208

N.J. at 289.    This phrase was not newly crafted.               It was uttered

in this context by the Supreme Court of the United States more

than forty years ago when defining the application of the due

process    clause   to   eyewitness     identification       evidence.        See,

e.g., Simmons v. United States, 390 U.S. 377, 384-85, 88 S. Ct.

967, 971, 19 L. Ed. 2d 1247, 1253-54 (1968).

    It is conceivable our Supreme Court viewed the process as

similar to that routinely undertaken by trial judges in applying

N.J.R.E. 403 in determining whether relevant evidence should be

excluded    because      "its       probative    value      is    substantially

outweighed" by the risks delineated in that evidence rule.                       In

similar    language,     Manson     described    the    federal    process     for

excluding    eyewitness       identification     evidence    as    requiring      a

determination of whether a witness's ability to make an accurate

identification is "outweighed by the corrupting effect" of law

enforcement suggestion.         432 U.S. at 114-16, 97 S. Ct. at 2254,

53 L. Ed. 2d at 155; see also Perry, supra, __ U.S. at __, 132

S. Ct. at 725, 181 L. Ed. 2d at 707-08.




                                        19                               A-5482-11T3
       In any event, it is not our place to describe this burden

in other terms, such as by "a preponderance of the evidence" or

by   "clear   and     convincing     evidence,"      since    the     Supreme    Court

chose not to describe the burden beyond the language contained

in its opinion.


                                         C

       Our Supreme Court's decision to alter both the framework

for pretrial screening eyewitness identification evidence and

the manner in which juries are to be instructed to consider such

evidence was based on its recognition that research has revealed

that human memory is "complex," Henderson, supra, 208 N.J. at

245,   "malleable,"      id.    at    247,    and   subject    to     "an    array   of

variables     [which]    can    affect    and    dilute      memory    and    lead   to

misidentifications," ibid.             Scientific studies, upon which the

Henderson     Court     relied,      "divide[]      those    variables       into    two

categories: system and estimator variables."                   Ibid.        The former

are those within the control of the criminal justice system,

such as police identification procedures.                   Ibid.     The latter are

"related to the witness, the perpetrator, or the event itself –

like distance, lighting, or stress – over which the legal system

has no control."        Ibid.

       Defendant argues that the trial judge did not properly find

and weigh various estimator variables, including those relating



                                         20                                   A-5482-11T3
to the duration of the encounter, the involvement of a weapon,

stress, distance and lighting, intoxication, and memory decay.

We   reject      this    argument    because          Judge    Natal's       comprehensive

written       decision     reveals       that    he    thoroughly         considered         and

weighed these factors.               The judge found that: Womble had an

opportunity to observe defendant for "several minutes," later

found    to    be   five     minutes,     despite       the    fact    that       a    gun   was

pointed at him; the event "was most likely highly stressful";

and Womble was within two feet of defendant during the encounter

in an area sufficiently lit by a lamp                          in the hallway.                In

addition, the judge found an absence of evidence "to show what

effect [the use of] crack cocaine and alcohol would have had" on

Womble "to prevent him from accurately observing" defendant.                                  In

fact, the judge determined that, at the time of the shooting,

Womble was "regularly using drugs and that when he used drugs"

he was able to "do anything, including driving and going to

work."    The judge also found that, on the night of the shooting,

Womble    was       playing     chess     with        Harper    when        the       intrusion

occurred,       thus     suggesting        his     faculties          were     not      unduly

impaired.        In addition, the judge found that, two weeks after

the shooting, Womble was also able to show police the location

of   a   shell      casing    he   had    tossed      away     on   the      night      of   the

shooting,      further       demonstrating       his     ability       to    retrieve        his




                                            21                                         A-5482-11T3
memories of the evening two weeks earlier.13                     And, in further

considering    memory     decay,      the     judge      determined   that       Womble

selected defendant's photograph from an array two weeks after

the shooting – what the judge described as "a relatively short

span between the incident and the identification."

     These    findings    are   adequately         supported    by    the   evidence

adduced at the hearing and, therefore, command our deference,

State v. Robinson, 200 N.J. 1, 15 (2009), as does the judge's

ultimate     conclusion    –    based       upon   his     sifting    through      and

weighing     the   multitude     of     facts      and    circumstances      –     that

defendant failed to demonstrate a very substantial likelihood of

misidentification.        An appellate court must refrain from second

guessing a judge's factual conclusion when all that is before

the court is what is contained in a static record.                      We find no

reason to disturb the experienced trial judge's findings and

conclusions.

     We,   thus,    affirm     the    order     denying     suppression      and    the

judgment of conviction.

     Affirmed.




13
 As noted in our earlier opinion, Womble had told police that on
the night of the shooting he had "retrieved from the [apartment]
floor a shell casing, which he later threw into the street."
397 N.J. Super. at 405.



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