                        NOT FOR PUBLICATION WITHOUT THE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-4922-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DONNELL S. PERRY,

     Defendant-Appellant.
______________________________

              Submitted July 3, 2018 – Decided August 13, 2018

              Before Judges O'Connor and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              16-02-0138.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Cody T. Mason, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Olivia M. Mills,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Donnell S. Perry appeals his conviction for second-

degree robbery as an accomplice, N.J.S.A. 2C:15-1(a)(1) and 2C:2-

6(a) (count one, amended from a first-degree robbery), contending:

          POINT I

          THE MOTION TO SUPPRESS IDENTIFICATIONS SHOULD
          HAVE BEEN GRANTED BECAUSE THE INCLUSION OF
          DEFENDANT'S PICTURE IN TWO ARRAYS WHERE HE WAS
          THE ONLY PERSON WITH A FACE MARK OR TATTOO,
          COUPLED WITH OTHER FACTORS, CREATED AN
          IRREPARABLE RISK OF MISTAKEN IDENTIFICATION.

               A.   THE IDENTIFICATION PROCEDURE WAS
          IMPERMISSIBLY SUGGESTIVE BECAUSE THE WITNESS
          WAS SHOWN TWO ARRAYS IN WHICH DEFENDANT WAS
          THE ONLY PERSON WITH VISIBLE FACE MARKINGS OR
          TATTOOS.

               B.   THE     SUGGESTIVENESS     OF    THE
          IDENTIFICATION COULD NOT BE CURED BY THE
          WITNESS'S LIMITED AND VAGUE PRIOR INTERACTIONS
          WITH THE SUSPECT, PARTICULARLY GIVEN THE
          CROSS-RACIAL NATURE OF THE IDENTIFICATION AND
          THE WITNESS'S DRUG USE.

          POINT II

          THE MATTER SHOULD BE REMANDED FOR RESENTENCING
          BECAUSE THE COURT DID NOT ADEQUATELY EXPLAIN
          ITS FINDINGS OF AGGRAVATING FACTORS THREE AND
          NINE, AND DID NOT HOLD A HEARING REGARDING THE
          IMPOSITION OF RESTITUTION.

               A.   A   REMAND   FOR   RESENTENCING   IS
          REQUIRED BECAUSE THE COURT DID NOT EXPLAIN ITS
          FINDINGS OF AGGRAVATING FACTORS THREE AND
          NINE.

               B.   A REMAND IS REQUIRED BECAUSE THE
          COURT IMPOSED $300 IN RESTITUTION WITHOUT
          HOLDING A HEARING TO DETERMINE THE EXTENT OF


                                2                          A-4922-16T3
            DAMAGES   OR       DEFENDANT'S       ABILITY     TO   PAY
            RESTITUTION.

We agree defendant's motion to suppress the identification of his

photograph – the only one showing facial tattoos – should have

been granted, and reverse.

       Following a Wade1 hearing the trial court judge admitted Eric

Hewitt's identification of defendant from a photo array – conceded

by the State to have been suggestive because defendant's was the

only photograph in which facial tattoos were depicted — finding

it "reliable."     The judge credited the testimony of both Hewitt

and the detective who compiled the array, and determined Hewitt's

prior encounters with defendant on five to eight occasions over a

three to four week period – during which defendant drove in

Hewitt's    car   and   once    played       cards   with   Hewitt   –   provided

"sufficient knowledge of both the physical characteristics of the

defendant to [enable Hewitt] to identify him in a photo array even

if that photo array [was] somewhat suggestive."

       "Our standard of review on a motion to bar an out-of-court-

identification . . . is no different from our review of a trial

court's findings in any non-jury case."              State v. Wright, 444 N.J.

Super. 347, 356 (App. Div. 2016) (citing State v. Johnson, 42 N.J.



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


                                         3                                A-4922-16T3
146, 161 (1964)).     "We are bound to uphold a trial court's factual

findings in a motion to suppress provided those 'findings are

supported by sufficient credible evidence in the record.'"              State

v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192

N.J. 224, 243-44 (2007)).         "Those factual findings are entitled

to deference because the motion judge, unlike an appellate court,

has the 'opportunity to hear and see the witnesses and to have the

"feel" of the case, which a reviewing court cannot enjoy.'"             State

v. Gonzalez, 227 N.J. 77, 101 (2016) (quoting Johnson, 42 N.J. at

161). A "trial court's findings at the hearing on the [reliability

and] admissibility of identification evidence are 'entitled to

very considerable weight.'"         State v. Adams, 194 N.J. 186, 203

(2008)    (quoting   State   v.   Farrow,   61   N.J.   434,   451   (1972)).

However, we do not defer to a trial court's interpretation of the

law, which is reviewed de novo.       State v. Shaw, 213 N.J. 398, 411

(2012).

     The judge rejected defendant's contentions that, besides the

suggestive construction of the photo arrays – a system variable2


2
 System variables are factors "within the control of the criminal
justice system." State v. Henderson, 208 N.J. 208, 218 (2011).
They are: (1) whether a detective uninvolved in the investigation
— a "blind" administrator — was used; (2) whether pre-
identification instructions were given to the witness; (3) whether
the array was constructed of a sufficient number of fillers that
look like the suspect; (4) whether the witness was given feedback


                                     4                                A-4922-16T3
— the estimator variables3 of lighting, physical features and

cross-racial     identification   rendered    the    identification

unreliable.    Countering defendant's argument about lighting, the

judge found that although some encounters may have taken place

after dark, Hewitt also viewed defendant during daylight hours.

Considering defendant's contention he was identified because his

was the only photograph in which tattoos were depicted, the judge

compared the arrays viewed by Hewitt.   The judge noted defendant's

picture in the first array – which Hewitt did not select – "looks

like there is some marking but I can't tell by my view of the

picture whether that's something beyond a tattoo."     He found the

photo in the second array was "more definitive insofar as the


either during or after the procedure; (5) whether the witness was
exposed to multiple viewings of the suspect; (6) whether the lineup
was presented sequentially versus simultaneously; (7) whether a
composite sketch was used; (8) whether the procedure was a show-
up where "a single suspect is presented to a witness to make an
identification." Id. at 248-61.
3
  "[E]stimator variables are factors beyond the control of the
criminal justice system," id. at 261, and include: (1) the
witness's stress level; (2) whether a visible weapon was used
during the crime; (3) the amount of time the witness viewed the
suspect; (4) the lighting and the witness's distance from the
perpetrator; (5) the witness's age and level of intoxication; (6)
whether the perpetrator wore a disguise or changed physical
features; (7) the amount of time that passed between the crime and
the identification; (8) whether the witness and perpetrator were
of different races; (9) whether the witness was exposed to co-
witness feedback; and (10) the speed with which the witness made
the identification, id. at 261-72.


                                  5                         A-4922-16T3
tattoos that are visible on . . . defendant's face."              The judge

concluded, "the characteristics are somewhat unique in the sense

that this individual does have facial tattoos which was clearly

in the mind of Mr. Hewitt at the time not only during the time

that he had, quote, befriended him but also at the time that he

was viewing the arrays."        In addressing defendant's point that

defendant and Hewitt were of different races, the judge concluded

it was a non-issue because Hewitt "befriended the defendant for a

given period of time for perhaps his own personal reasons but it

does   not   appear   that   race    plays   any   factor   insofar   as   the

identification procedure is concerned."

       The   evidence   does    not    support     a   finding    that     the

identification of defendant's photograph was based on anything but

the tattoos, which only the defendant's picture included.                  See

State v. Henderson, 208 N.J. 208, 251 (2011) (adopting the findings

of the Henderson Special Master, the Court recognized "mistaken

identifications are more likely to occur when the suspect stands

out from other members of a . . . photo lineup").

        As the judge found, defendant's tattoos were more visible

in the second-array photograph selected by Hewitt.               Hewitt said

he did not select defendant's photograph from the first array

because "[defendant] had hair and [the photograph was taken] before

he had tattoos on him."             Indeed, Hewitt said his memory of

                                       6                              A-4922-16T3
defendant, formed from his contact with defendant during the weeks

prior to the identification, was that "at the time he was bald and

he had tattoos, he had teardrops and tattoos on his eyelids." 4

Hewitt said that when he was shown the updated photograph of

defendant – which he identified – "he had tattoos, that's when I

noticed."       When asked, "When you [identified] the photographs

during the second array, was it important to you that you could

see   tattoos    on   his   eyelids,"       Hewitt   answered    affirmatively.

Because the second-array photograph depicted defendant with hair,

the only features previously described by Hewitt that matched the

photograph were defendant's tattoos.                 Notwithstanding Hewitt's

response to the prosecutor's leading question denying that he

selected defendant's photograph "because the guy had tattoos on

his face," Hewitt's only pertinent memory of the perpetrator was

of the tattoos.       Tellingly, he based his in-court identification

of defendant during the Wade hearing on his ability to "see the

teardrops right here and his eyelids"; when asked if he was sure,

he asked, "Can he close his eyes?"

      We also determine the trial judge improperly applied the race

bias variable which was not dependent on Hewitt's subjective racial

views,   but     on   the    research       showing    that     "[c]ross-racial


4
 In his previous description of the perpetrator, Hewitt said that
he forgot if he was bald or had "a little bit of hair."

                                        7                               A-4922-16T3
recognition     continues     to    be    a    factor    that      can    affect    the

reliability of an identification."                 Id. at 267.

       We do not set aside the judge's findings and conclusions

lightly.    The record, however, does not sufficiently support the

reliability     of    the   identification.            Had   the    array   included

photographs     similar     to     that       of    defendant,     Hewitt's        prior

encounters with defendant may have buttressed the reliability of

his selection.       We are constrained, however, to reverse the motion

to   suppress    the    identification         as    defendant      has    proved     "a

substantial likelihood of irreparable misidentification."                      Id. at

289.

       In light of our decision, we need not address defendant's

sentencing argument.

       Reversed and remanded for proceedings consistent with this

opinion.   We do not retain jurisdiction.




                                          8                                   A-4922-16T3
