                                 NOT FOR PUBLICATION WITHOUT THE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-4803-18T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

GUILLERMO BORGES,

     Defendant-Respondent.
_____________________________

                   Argued telephonically May 6, 2020 –
                   Decided June 23, 2020

                   Before Judges Fuentes, Haas and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-11-3128.

                   Lucille M. Rosano, Special Deputy Attorney
                   General/Acting Assistant County Prosecutor, argued
                   the cause for appellant (Theodore N. Stephens II,
                   Acting Essex County Prosecutor, attorney; Lucille M.
                   Rosano, of counsel and on the briefs).

                   Susan Lee Romeo, Assistant Deputy Public Defender,
                   argued the cause for respondent (Joseph E. Krakora,
                   Public Defender, attorney; Susan Lee Romeo, of
                   counsel and on the brief).
PER CURIAM

      The State appeals from: (1) a June 18, 2019 order suppressing an out-of-

court identification of defendant Guillermo Borges based on an audio-recorded

photo array; and (2) a July 1, 2019 order dismissing the indictment against

defendant. We vacate and reverse both orders and remand the matter for trial.

      Following a shooting that occurred in Newark on June 21, 2016, defendant

was indicted for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.

2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1);

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

second-degree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a).

      The facts are taken from an audio recorded statement by the victim of the

shooting and testimony during a pretrial evidentiary hearing. On the day of the

incident, the victim argued and got into a fist fight with a man he knew by the

street name Cuba. As the victim walked away, Cuba pulled out a gun and shot

the victim in the stomach.

      Immediately after the shooting, the victim was taken to the University of

Medicine and Dentistry of New Jersey Hospital in Newark where he underwent

surgery for a gunshot wound to the abdomen. Post-surgery, the victim received

pain medication and had intravenous lines in his hands.
                                                                       A-4803-18T1
                                      2
      Based on information obtained from the victim, the victim's brother, and

a local police officer familiar with the man called Cuba, Detective Anthony

Maldonado of the Newark Police Department assembled a photo array of six

individuals who matched the shooter's description. Defendant's photograph was

included in the array.

      On the evening of June 22, 2016, while the victim recovered from surgery,

Detectives Maldonado and Pablo Gonzalez spoke to the victim at the hospital.

Pursuant to Rule 3:11, the meeting was audio recorded.          The victim told

Detective Maldonado that he was shot in the stomach by a man named Cuba.

On the recording, the victim was able to spell his own name. He also provided

his date of birth, address, and social security number. The victim graduated

from high school, but he explained he suffered from dyslexia, causing difficulty

reading. He also stated he was not pressured into giving a statement to the

detectives.

      After obtaining preliminary information from the victim, Detective

Maldonado left the room. Detective Gonzalez, a blind administrator 1 who had

no role in assembling the photo array, showed six photographs to the victim.



1
  A "blind administrator" is a term of art used in criminology studies to identify
the variables that influence the reliability of eyewitness identifications. The
variable "Blind Administration" in lineup identification procedures is discu ssed
in State v. Henderson, 208 N.J. 208, 248-250 (2011).
                                                                         A-4803-18T1
                                        3
Detective Gonzalez read the Photo Display Instructions because there were "all

kind[s] of things" in the victim's hands. The detective explained there were a

series of photographs and the victim should take "as much time to look at each

of them." He further instructed that "[t]he person who committed the crime may

or may not be in this group. And the mere display of the photographs do[es] not

mean or suggest that the police believe that the person who committed this crime

is in these photographs." In addition, the detective instructed that if the victim

selected a photo, "do not ask me if I agree . . . ." After reading the instructions,

Detective Gonzalez asked the victim to sign the form as best he could.

       The victim identified photograph number three, defendant's photograph,

as his assailant. Detective Gonzalez then read the Photograph Identification

Form to the victim. The victim could only write the words "black male" on the

form due to the intravenous lines in his writing hand. After confirming the

victim selected photograph number three as the person who shot him, Detective

Gonzalez completed the remaining information on the form as conveyed to him

by the victim, asked the victim to initial the form, and witnessed the victim's

initials. The victim also placed his initials on the reverse side of photograph

number three and marked an "X" on the other photographs, indicating those

photographs did not depict the person who shot him.



                                                                           A-4803-18T1
                                         4
       After completing the Photograph Identification Form, Detective Gonzalez

left the hospital room and Detective Maldonado reentered.          Maldonado

confirmed the victim's selection of photograph number three as the shooter.

Only after the victim identified the shooter's photograph did Detective

Maldonado state defendant's name and SBI number for the audio recording.

Aware that the victim was in pain and receiving medication, Detective

Maldonado reviewed the Photograph Identification Form with the victim. The

victim confirmed no one threatened, urged, or prompted him to make a selection

from the photo array and the information contained in the form was truthful to

the best of his knowledge.

       Prior to trial, defendant moved to suppress the victim's out-of-court

identification and the trial judge conducted an evidentiary hearing. Detective

Maldonado was the only person who testified at the Wade2 hearing.3 In an April

29, 2019 order, the judge denied the motion to suppress the out-of-court




2
    U.S. v. Wade, 388 U.S. 218 (1967).
3
  The judge denied defense counsel's request to have the victim testify at the
hearing, concluding the victim's testimony was unnecessary to decide the
application.


                                                                      A-4803-18T1
                                         5
identification, determining there was no suggestiveness in the photo array and

the identification procedure was reliable. 4

        Defendant sought reconsideration of the suppression motion and denial of

his request to have the victim testify at the Wade hearing. In an April 29, 2019

order, the judge denied reconsideration, explaining the identification was audio

recorded, the victim and defendant were not strangers, and the victim selected

defendant's photograph from the array as the man who shot him.

        While jury selection was ongoing, the victim appeared in court and told

defense counsel he was not shot by defendant. The State then moved to admit

the victim's prior statement pursuant to N.J.R.E. 803(a)(1)(A). On June 4, 2019,

the judge conducted a Gross5 hearing to determine the reliability of the victim's

recorded statement.

        During the Gross hearing, the victim recalled being hospitalized because

he had been shot in the chest. Contrary to his audio recorded statement, the

victim testified he was at a bar in Irvington, and not in Newark, the day he was

shot. The victim also said he did not see the shooter.




4
   The judge indicated she would issue a statement of reasons. However, no
statement of reasons was included in the record on appeal.
5
    State v. Gross, 121 N.J. 1, 17 (1990).
                                                                        A-4803-18T1
                                         6
      During the hearing, the victim initially testified he did not recall speaking

to the police at the hospital. However, after listening to the audio recording, the

victim recalled speaking with Detective Maldonado and acknowledged his own

voice on the recording. He did not recall the questions asked by the detectives

or his responses, did not remember selecting defendant's photograph, and

believed he may have selected more than one photograph because he "was out

of it" at the time.

      The victim testified he "was hurting, bad" when the detectives came to the

hospital and he "didn't know what [he] was talking about at all." He sought to

retract his statement because he did not "want an innocent man in jail . . . who

didn't hurt me." He denied being threatened, forced, or tricked into recanting.

During the hearing, the victim testified he did not remember much about being

shot or giving a statement to the police.

      Based on the victim's testimony during the Gross hearing, defense counsel

asked the judge to reconsider the motion to suppress the out-of-court

identification. The judge granted the motion, reopened the Wade hearing, and

listened to additional testimony from the victim. In deciding to reopen the Wade

hearing, the judge explained that the victim's testimony about selecting more

than one photograph from the array raised "a question of suggestibility."



                                                                          A-4803-18T1
                                        7
      The victim's testimony during the reopened Wade hearing was

substantially similar to his testimony during the Gross hearing. The victim was

unable to remember the shooting or being questioned by the detectives at the

hospital.   He did not recall looking at photographs.      However, the victim

acknowledged his initials were on the reverse side of defendant's photograph

and on the bottom of the Photograph Identification Form. During the reopened

Wade hearing, the victim testified he could not "remember any of this stuff,"

including whether he selected more than one photograph from the array.

      Detective Maldonado testified during the reopened Wade hearing.

According to the detective, the victim appeared "relaxed but in pain. Calm, I

mean, he was just hurting." Detective Maldonado testified the victim did not

have trouble understanding the questions, did not appear reluctant to answer

questions during the hospital interview, and did not refuse to proceed at any time

during the questioning. The detective said nothing was promised to the victim

in exchange for his statement and the victim was not pressured or coerced into

providing the statement.

      Based on the Gross hearing testimony, the judge ruled the victim's prior

statements to the police were reliable and could be used at trial for impeachment

purposes as a prior inconsistent statement under N.J.R.E. 803(a)(1) and as

substantive evidence as a recorded recollection under N.J.R.E. 803(c)(5).
                                                                         A-4803-18T1
                                        8
Applying the Gross factors, the judge found the victim's statements were

reliable, holding:

                    The circumstances under which the statement
             was taken . . . are factors that can be considered by the
             trial jury in assessing the weight to be given to the
             statement, not its admissibility. The statement could be
             proffered as substantive evidence under the recorded
             recollection exception to the hearsay rule, the statement
             could be considered, for impeachment purposes, as a
             prior inconsistent statement.

      Despite finding the victim's statement reliable under Gross, the judge

reversed her earlier Wade ruling and granted defendant's motion to suppress the

victim's out-of-court identification. The judge based her ruling, in part, on the

detectives' failure to comply with Rule 3:11(c)(7) by recording the victim's level

of confidence, in his own words, regarding the identification of defendant. In

addition, the judge suppressed the out-of-court identification based on the

victim's physical and mental condition at the time of his statement.

      As a result of the judge's suppression of the victim's out-of-court

identification, defense counsel moved to dismiss the indictment. The judge

granted the motion, concluding the victim's recanting of the identification

negated defendant's guilt. She stated, "you cannot patently ignore that which

would be considered exculpatory if it was a basis for a motion for a new trial

after the fact."

                                                                         A-4803-18T1
                                        9
      "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). We will

uphold the trial court's factual findings in a motion to suppress provided the

findings are "supported by sufficient credible evidence in the record." State v.

Elders, 192 N.J. 224, 243-44 (2007).

      Rule 3:11 governs admission of an eyewitness out-of-court identification.

In accordance with this Rule, identifications by law enforcement officers are

required to be recorded and preserved. The contents of the recordation should

"include details of what occurred at the out-of-court identification," including

identification of the place where the recording was made; the dialogue between

the witness and the officer administering the procedure; the results of the

identification procedure; the photographic array used; the identity of the person

who witnesses the photo lineup; and a statement of confidence in the witness's

own words after making an identification. See R. 3:11(c).

      In a motion to suppress an out-of-court identification, a defendant is

required to make a threshold showing of "some evidence of suggestiveness that

could lead to a mistaken identification."     Henderson, 208 N.J. at 288.       A

defendant bears the burden of proving a very substantial likelihood of

irreparable misidentification. State v. Henderson, 433 N.J. Super. 94, 107 (App.
                                                                        A-4803-18T1
                                       10
Div. 2013). A trial court may hold a hearing to determine whether the out-of-

court identification was made pursuant to unduly suggestive circumstances or

whether the pretrial identification was reliably conducted and therefore

admissible. Henderson, 208 N.J. at 238-39, 293-96.

      In Henderson, our Supreme Court divided out-of-court identification

characteristics into two groups: system variables and estimator variables. Id. at

248-61, 261-72. System variables are factors over which the State has control,

such as how the array was constructed, the pre-identification instructions given,

and the recording of a victim's confidence level in the identification before any

confirmatory feedback. Id. at 248-61. Estimator variables are factors over

which the legal system has no control, such as stress, duration of the witness's

observation of the suspect, distance and lighting, and similar factors that could

impact the accuracy of the identification. Id. at 261-72. If a defendant fails to

show some evidence of suggestiveness tied to a system variable, there is no need

to consider estimator variables because evidence of reliability is a fact issue for

the jury. Id. at 291.

      Here, defense counsel argued a substantial likelihood of misidentification

based solely on Detective Gonzalez's failure to elicit a statement of confidence

from the victim in accordance with Rule 3:11(c)(7). Nothing in Henderson or

Rule 3:11(c)(7) requires a statement of confidence to be expressed in percentage
                                                                          A-4803-18T1
                                        11
form. Moreover, the absence of an expression of confidence in the witness's

own words is one component of the identification process under Rule 3:11. The

lack of an expression of confidence, either in percentage form or by the witness's

own words, by itself does not constitute evidence of suggestiveness. Henderson,

208 N.J. at 289-90. See also State v. Green, 239 N.J. 88, 109 (2019) (holding

no per se rule excluding evidence any time a full record of identification is not

preserved); State v. Anthony, 237 N.J. 213, 239 (2019) (rejecting the argument

that identification should be barred for all purposes if the police fail to abide by

Rule 3:11 because it "would amount to a per se rule that any error in recording

an identification, even a technical or insignificant one that presents a low risk

of misidentification, requires suppression").

       Here, the audio recording substantially comported with the requirements

of Rule 3:11. The judge originally denied the motion to suppress because she

found no suggestiveness in the photo array presented to the victim and the

identification procedure employed by the detectives was reliable. In denying

reconsideration of her original suppression motion ruling, the judge further

explained the identification was audio recorded, the victim and defendant knew

each other, and the victim selected defendant's photograph as the man who shot

him.



                                                                           A-4803-18T1
                                        12
      Nothing regarding the procedure by which the victim identified defendant

changed between the time of the judge's original ruling and her subsequent

reversal of that ruling. The audio recording supported the judge's initial denial

of defendant's motion to suppress the out-of-court identification. The recording

indicated no confirmatory feedback was given to the victim prior to his

identification of defendant.   The audio captured the dialogue between the

detectives and the victim and there was nothing suggestive in those

conversations. Based on the audio recording, the victim selected photograph

number three, defendant's photo, without prompting by the detectives. When

asked to confirm if the photograph selected depicted the individual who shot

him, the victim did not hesitate in responding "[y]es."

      Nor was the victim's mental and physical condition at the time of the

statement evidence of suggestiveness to warrant suppression of the

identification. The audio recording memorialized the detectives' observations

of the victim's mental and physical state during the photo identification process.

The detectives noted the victim's pain level as reflected in his occasional

moaning or grunting during the statement and his limited ability to use his hands

for writing and holding papers. The audio recording also revealed the victim

was lucid, responsive, and cooperative while giving his statement. His answers

to the detectives' questions were clear and unequivocal. The victim never
                                                                         A-4803-18T1
                                       13
wavered or hesitated in his identification of the shooter. Nothing in the audio

recording reflected suggestiveness based on the victim's physical or mental

condition leading to his selection of defendant's photograph from the array.

      Further, the judge never explained why suppression of the out-of-court

identification was warranted based on the failure to indicate the victim's

confidence level, in his own words, regarding the identification of defendant as

the shooter. If the judge believed the record as prepared by the detectives was

"lacking in important details as to what occurred at the out-of-court

identification," Rule 3:11(d) allowed her to "fashion an appropriate jury charge

to be used in evaluating the reliability of the identification" rather than suppress

the identification.

      Based on our review of the record, the judge's initial decision to deny the

motion to suppress the out-of-court identification was supported by substantial

credible evidence. The judge originally determined the audio recorded out-of-

court identification was not suggestive and therefore admissible. She found the

police followed the requirements set forth in Rule 3:11 and case law governing

out-of-court identifications. There was nothing in the audio recorded statement

suggesting the victim was forced to choose defendant's photograph, place his

initials on the reverse side of the selected photograph, or initial the forms

regarding the identification procedure. To the contrary, on the audio recording,
                                                                           A-4803-18T1
                                        14
the victim spoke clearly in responding to questions regarding his identification

of the person who shot him. The victim also stated he spoke to the detectives of

his own free will.

      Having reviewed the totality of the circumstances regarding the

identification procedure in this case, defendant failed to present some evidence

of suggestiveness in the photo array that could lead to a mistaken identification

to warrant suppression of the out-of-court statement. Without some evidence of

suggestiveness, the judge abused her discretion in reopening the Wade hearing

and granting defendant's motion to suppress. The judge mistakenly appropriated

the role of the jury in reviewing the victim's testimony. Any discrepancies

between the victim's testimony during the combined Gross/Wade hearing and

his earlier statements to the detectives involve issues of credibility and the

weight to be accorded to the out-of-court identification, not its admissibility.

      The State next argues that the judge abused her discretion in dismissing

the indictment based on her conclusion that the victim's recanting of the

identification was exculpatory evidence negating defendant's guilt. In reviewing

a motion to dismiss an indictment, we first "determine whether the trial court

applied the correct standard." State v. Paige, 256 N.J. Super. 362, 369 (App.

Div. 1992) (citing State v. Abbati, 99 N.J. 418, 436 (1985)). If the correct

standard was applied in dismissing the indictment, "[t]he decision should be
                                                                          A-4803-18T1
                                        15
reversed on appeal only when it clearly appears that the exercise of discreti on

was mistaken." Abbati, 99 N.J. at 436.

      An "indictment should be disturbed only on the 'clearest and plainest

ground,' . . . and only when the indictment is manifestly deficient or palpably

defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (quoting State v. Perry,

124 N.J. 128, 168 (1991)). "The absence of any evidence to support the charges

would render the indictment 'palpably defective' and subject to dismissal." State

v. Morrison, 188 N.J. 2, 12 (2006) (citing Hogan, 144 N.J. at 228-29). "[T]he

decision whether to dismiss an indictment lies within the discretion of the trial

court, and that exercise of discretionary authority ordinarily will not be

disturbed on appeal unless it has been clearly abused." Hogan, 144 N.J. at 229

(citing State v. McCrary, 97 N.J. 132, 144 (1984)).

      The State argues the judge incorrectly applied the test in State v. Carter,

69 N.J. 420 (1976) in dismissing the indictment. However, the judge applied

Carter to assess the recantation evidence, not to decide whether the indictment

should be dismissed.

      The judge incorrectly applied the test set forth in Hogan, 144 N.J. at 237-

38, in deciding the motion to dismiss the indictment. A prosecutor's duty to

present known exculpatory evidence to the grand jury "arises only if the

evidence satisfies two requirements: it must directly negate guilt and must also
                                                                         A-4803-18T1
                                       16
be clearly exculpatory." Id. at 237. "[T]he prosecutor need not construct a case

for the accused or search for evidence that would exculpate the accused. Only

when the prosecuting attorney has actual knowledge of clearly exculpatory

evidence that directly negates guilt must such evidence be presented to the grand

jury." Id. at 238 (emphasis added).

        Defendant claimed the subsequent exculpatory evidence of the victim's

eve of trial recanting of the out-of-court identification warranted dismissal of

the indictment. However, dismissal of an indictment must be based on actual

knowledge of exculpatory evidence known to a prosecutor at the time of the

grand jury proceedings. Here, the grand jury indicted defendant on November

10, 2016, and the victim recanted his identification of defendant on or about

May 15, 2019. The recanted testimony could not be "clearly exculpatory" to

warrant dismissal of the indictment because the victim's testimony was not

available at the time the matter was presented to the grand jury. See Hogan, 144

N.J. at 238.    Therefore, the judge abused her discretion in dismissing the

indictment because the prosecutor had no "actual knowledge of clearly

exculpatory evidence" at the time the indictment was presented to the grand jury.

Ibid.

        Based on the testimony adduced during the Gross hearing, the judge found

the victim's prior inconsistent statement to Detective Maldonado was reliable
                                                                         A-4803-18T1
                                       17
and admissible both for impeachment purposes and as substantive evidence .

Consistent with that ruling, the judge should allow the jury to hear the victim's

audio recorded statement. If the victim testifies and recants his audio recorded

statement, the jury should assess the victim's credibility regarding the out-of-

court identification as weighed against any recanting of that identification at the

time of trial.

      For these reasons, we vacate and reverse the June 18, 2019 order granting

defendant's motion to suppress the victim's out-of-court identification and the

July 1, 2019 order dismissing the indictment. We remand the matter to the trial

judge and instruct the out-of-court identification and the victim's possible

recantation of that identification at the time of trial be presented to a jury with

appropriately tailored jury instructions.

      Reversed and remanded. We do not retain jurisdiction.




                                                                          A-4803-18T1
                                        18
